DCIT 3(2), V. NUCLEAR POWER CORPORATION OF INDIA LTD,

MA 334/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7011 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-08-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 14-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PBIJAL THAKKAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, MUMBAI. [CORAM: D.MANMOHAN, V.P. AND PRAMOD KUMAR, AM ] M.A.NO.334/MUM/2011 (ARISING OUT OF I.T.A NO.625/MUM/2009) ASSESSMENT YEAR: 2005-06 DY.COMMISSIONER OF INCOME TAX 3(2) .. APPELLANT AAYAKAR BHAVAN, M.K. ROAD, MUMBAI. VS NUCLEAR POWER CORPORATION OF INDIA LTD. ,. RESP ONDEN T CENTRE-1, WORLD TRADE CENTRE, 16 TH FLOOR, CUFFE PARADE, MUMBAI-05. PA NO.AAACN 3154 F APPEARANCES: A.K.NAIR , FOR THE APPELLANT PBIJAL THAKKAR , FOR THE RESPONDENT DATE OF HEARING : 5.8.2011 DATE OF PRONOUNCEMENT : 5 .8. 2011 O R D E R PER PRAMOD KUMAR: 1. BY WAY OF THIS APPLICATION, THE ASSESSING OFFICE R SEEKS RECALL OF TRIBUNALS ORDER PASSED ON 8 TH FEBRUARY, 2011 IN ITA NO.625/M/2009 FOR THE ASSESS MENT YEAR 2005-06. M.A.NO.334/MUM/2011 2 2. IN THE AFORESAID M.A. PETITION, THE REVENUE HAS STATED THAT IN VIEW OF THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE O F ELECTRONIC CORPORATION OF INDIA LTD., CIVIL APPEAL NO.1883/2100 DATED 17.2.20 11, THE RESTRICTION OF COD CLEARANCE IS NO LONGER REQUIRED FOR FILING THE APPE AL. REFERENCE IS ALSO INVITED BY THE JUDGMENT OF HONBLE KERALA HIGH COURT IN ITA NO.126 ,192 & 229 OF 2009 DATED 16.3.2011, WHEREIN, IT HAS BEEN HELD THAT THE MAIN REASON FOR THE SUPREME COURT TO RECALL HIS EARLIER JUDGMENT IS THE FAILURE OF COD I N EXERCISING THEIR POWERS IN AN EVEN MANNER, LEADING TO DENIAL OF APPROVAL TO ELIGIBLE C ASES AND AT THE SAME TIME GRANTING OF THE SAME IN SIMILAR CASES. THEREFORE, IT IS REQ UESTED THAT SINCE THE APPEAL WAS DISMISSED ON ACCOUNT OF COD APPROVAL, AND THE COD A PPROVAL IS NO LONGER REQUIRED IN VIEW OF THE JUDGMENT OF HONBLE SUPREME COURT (S UPRA), THE APPEAL MAY BE RECALLED FOR HEARING ON MERITS. 3. HAVING REGARD TO THE RIVAL CONTENTIONS, AND HAVI NG PERUSED MATERIAL ON RECORD, WE ARE OF THE CONSIDERED VIEW THAT IT IS A FIT CASE FOR RECALL OF IMPUGNED ORDER IN VIEW OF THE JUDGMENT OF HONBLE SUPREME CO URT IN THE CASE OF ELECTRONIC CORPORATION OF INDIA LTD., CIVIL APPEAL NO.1883/210 0 DATED 17.2.2011, WHEREIN, IT HAS BEEN HELD THAT THE RESTRICTION OF COD CLEARANCE IS NO LONGER REQUIRED FOR FILING THE APPEAL. ACCORDINGLY, WE HEREBY RECALL OUR O RDER AND RESTORE THE APPEAL ON THE ROLLS OF THE TRIBUNAL TO BE HEARD ON 18.11.2011. BOTH THE PARTIES ARE INFORMED IN THE OPEN COURT. 4. IN THE RESULT, THE M.A. OF THE REVENUE IS ALLOWE D. PRONOUNCED IN THE OPEN COURT ON 5 TH AUGUST, 2011 SD/- (D.MANMOHAN ) (VICE PRESIDENT) SD/- (PRAMOD KUMAR) (ACCOUNTANT MEMBER) MUMBAI, DATED : 5 TH AUGUST , 2011 M.A.NO.334/MUM/2011 3 PARIDA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX (APPEALS)III, MUMBAI 4. COMMISSIONER OF INCOME TAX, 3 , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, BENCH B, MUMBAI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI