DCIT 1(2), MUMBAI V. KILLICK NIXON LTD, MUMBAI

MA 335/MUM/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 9195 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-12-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2008-2009
• Appeal Filed On: 31-05-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS JYOTHILAXMI NAYAK
• Assessee Lawyers: PRAMOD D RASAM
• Section: 142(1); 143(2); 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H MUMBAI BEFORE SHRI VIKAS AWASTHY (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) M.A. NO. 335/MUM/2019 ( ITA NO. 1786/MUM/2013 ) ASSESSMENT YEAR: 2008 - 09 THE DY. CIT CIRCLE - 10(1)(2), ROOM NO. 623, 6 TH FLOOR, AAYAKAR BHAVAN, MUMBAI. VS. M/S KILLICK NIXON LTD. , A - 206, PRANIK CHAMBERS, SAKI VIHAR, ROAD, SAKI NAKA, ANDHERI EAST, MUMBAI - 400072. PAN NO. AAACK8526A APPELLANT RESPONDENT REVENUE BY : MRS. JYOTHILAXMI NAYAK , DR ASSESSEE BY : MR. PRAMOD D. RASAM , AR DATE OF HEARING : 11 / 10 /2019 DATE OF PRONOUNCEMENT : 31/12/2019 ORDER PER N.K. PRADHAN, A.M. BY MEANS OF THIS MISCELLANEOUS APPLICATION (MA), THE APPLICANT SEEKS RECA LL OF THE ORDER DATED 19.11.2018 PASSED BY THE ITAT H BENCH MUMBAI (ITA NO. 1786/MUM /2013 ) FOR THE ASSESSMENT YEAR (AY) 2008 - 09. AT THE OUTSET, WE STATE THAT THE ASSESSMENT YEAR IS 2008 - 09 AND NOT 2008 - 10. THE SAID MISTAKE IS RECTIFIED. 2. BEFORE US, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) SUBMITS THAT THE TRIBUNAL VIDE ORDER DATED 19.11.2018 (ITA NO. 1786/MUM/2013) HAS QUASHED THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER (AO) ON M/S KILLICK NIXON LTD M.A. NO. 335/MUM/2019 2 23.12.2010 ON THE GROUND THAT NOTICE U/S 143(2) OF THE ACT WAS ISSUED ON 28.07.2010, WHEREAS THE ASSESSEE HAS FILED ITS RETURN OF INCOM E ON 26.10.2010. IT IS SUBMITTED BY THE LD. DR THAT IN THIS CASE NOTICE U/S 142 WAS ISSUED ON 07.07.2009 AND IN RESPONSE TO THE SAID NOTICE, THE ASSESSEE FILED MANUAL RETURN OF INCOME ON 26.07.2010 ALONG WITH LETTER DATED 13.07.2010, WHEREIN THE REASONS AR E MENTIONED FOR NOT FILING THE RETURN OF INCOME IN TIME. THEREAFTER, NOTICE U/S 143(2) WAS ISSUED ON 28.07.2010. THE LD. DR SUBMITS THAT IN PARA 1 OF THE ASSESSMENT ORDER, IT HAS BEEN MENTIONED INADVERTENTLY THE DATE OF FILING OF RETURN AS 26.10.2010, WHIC H IS A PURELY TYPOGRAPHICAL ERROR. IN THIS REGARD, THE LD. DR FURNISHED A COPY OF NOTICE U/S 142(1) ; RETURN OF INCOME FILED BY THE ASSESSEE AND NOTICE U/S 143(2) OF THE ACT. STATING THAT THE DATE OF FILING THE RETURN OF INCOME AS 26.10.2010 IS A MISTAKE A PPARENT FROM RECORD, IT IS SUBMITTED BY HER THAT THE IMPUGNED ORDER BE RECALLED AND THE CASE BE FIXED FOR HEARING BEFORE A REGULAR BENCH. 3 . ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE REVENUE SHOULD HAVE SUBMITTED THE SAME BEFORE THE TRIBUNAL DURING THE COURSE OF HEARING ON 05.09.2018 ; THE SAME IS NOT PERMISSIBLE UNDER THE RECTIFICATION PROCEEDINGS BECAUSE THE DEPARTMENT WANTS TO RE - APPRISE THE FACT S AS APPEARING FROM THE RECORDS. FURTHER IT IS STATED BY HIM THAT THE ASSESSEE HAS BEEN REFERRED TO BIFR AS A SICK UNIT AND THE OFFICE OF THE ASSESSEE HAS BEEN AUCTIONED BY SPECIAL COURT, IN THE PROCESS MANY DOCUMENTS WERE MISPLACED OR NOT READ ILY AVAILABLE. THUS IT IS SUBMITTED BY HIM THAT THE TRIBUNAL CANNOT, IN LAWS AND FACTS, RECALL ITS FINAL ORDER AS A WHOLE WITH A VIEW TO RECTIFY THE SAME U/S 254(2) OF THE ACT. FURTHER, IT IS ARGUED BY HIM THAT THE M/S KILLICK NIXON LTD M.A. NO. 335/MUM/2019 3 DEPARTMENT MAY FILE REFERENCE PROCEEDINGS U/S 256, BUT THE REVIEW OF THE ORDER IS NOT PERMISSIBLE UNDER RECTIFICATION PROCEEDINGS. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. THE REASONS FOR OUR DECISIONS ARE GIVEN BELOW. IN THE ADDITIONAL GROUND FILED, THE ASSESSEE HAD RAISED BEFORE THE TRIBUNAL THAT NOTICE U/S 143(2) WAS ISSUED ON 28.07.2010 I. E. BEFORE FILING OF RETURN OF INCOME AND THEREFORE, THE ASSESSMENT FRAMED WITHOUT ISSUE OF NOTICE U/S 143(2), AFTER FILING OF RETURN IS AB - INITIO VOID . IN THE ASSESSMENT ORDER DATED 23.12.2010, IT IS MENTIONED IN PARA 1 THAT THE RETURN OF INCOME WAS FILED ON 26.10.2010, WHEREAS, THE CORRECT DATE OF FILING THE RETURN OF INCOME IS 26.07.2010. NOTICE U/S 143(2) WAS ISSUED ON 28.07.2010. THE DISPUTE HERE IS WHETHER THE RETURN OF INCOME WAS FILED ON 26.10.2010 OR 26.07.2010. THERE IS NO DOUBT THAT IT WAS FILED ON 26.07.2010 AS EVIDENT FROM THE ACKNOWLEDGEMENT STAMPED ON THE BODY OF ITR - 6 FOR THE ASSESSMENT YEAR 2008 - 09. THE SIMPLE QUESTION IS WHETHER THE RE TURN OF INCOME WAS FILED ON 26.07.2010 OR 26.10.2010. IF IN THE ASSESSMENT ORDER, AN INCORRECT DATE HAS BEEN MENTIONED AND A CONCLUSION HAS BEEN DRAWN ON THE BASIS OF THE ABOVE DATE, THE SAME CAN DEFINITELY BE RECTIFIED WITH A CORRECT DATE. IT IS AS SIMPLE AS THAT. THUS IT IS A PURE CASE OF MISTAKE APPARENT FROM RECORD AND NEED TO BE RECTIFIED. IT IS RELEVANT TO MENTION HERE THAT THE TRIBUNAL PASSED THE ORDER M/S KILLICK NIXON LTD M.A. NO. 335/MUM/2019 4 DATED 19.11.2018 ON THE BASIS OF THE ADDITIONAL GROUND RAISED BY THE ASSESSEE REGARDING DATE OF FI LING OF RETURN OF INCOME AND ISSUANCE OF NOTICE U/S 143(2). THEREFORE, WE RECALL THE IMPUGNED ORDER AND DIRECT THE REGISTRY TO FIX THE CASE FOR HEARING BEFORE THE REGULAR BENCH. 5. IN THE RESULT, THE MA IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31/12/2019. SD/ - SD/ - ( VIKAS AWASTHY ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 31/12/2019 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI