Sri A.P.Vinu, Ernakulam V. DCIT, Ernakulam

MA 35/COCH/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3737 (ITAT-COCHIN)
• Duration Of Justice: 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-07-2010
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 09-06-2010
• Court: TRIBUNAL
• Department Lawyers: DR BABU JOSEPHSR
• Assessee Lawyers: R KRISNA IYERCA
• Section: 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.VIJAYAKUMARAN & SHRI SANJAY ARORA M.P.NO.35/COCH/2010 (ARISING OUT OF I.T.A.NO.383/COCH/2007 ASSESSMENT YEAR:2004-05 SHRI A.P. VINU, ERNAKULAM. PA NO.ABNPV 7398A VS. THE DY. COMMISSIONER OF INCOME-TAX, CENT.CIR.II,ERNAKULAM. (APPELLANT) ( RESPONDENT ) APPELLANT BY SHRI R. KRISNA IYER,CA RESPONDENT BY DR. BABU JOSEPH,SR.DR O R D E R PER N.VIJAYAKUMARAN,J.M: THIS MISCELLANEOUS PETITION IS NECESSITATED BY THE DIRECTION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THEIR REVIEW ORDER DATED 18-02-2010 IN RP NO.23 OF 2010 I N ITA NO.1690 OF 2009 DATED 05-10-2009 ARISING OUT OF ITA NO.383/COCH/2007 DATED 30-03-2009. FOR THE SAKE O F BREVITY, WE REPRODUCE HEREUNDER THE REVIEW ORDER PA SSED BY THE HONBLE HIGH COURT: REVIEW PETITION IS FILED BY THE APPELLANT WHO FILE D THE APPEAL BEFORE US CONTENDING THAT THE FACTS BASED ON WHICH THE TRIBUNAL DECIDED THE CASE ARE INCORRECT INASMUC H AS HE WAS NOT A RESIDENT IN INDIA FOR THE RELEVANT ASS ESSMENT YEAR. WE FIND THAT THIS COURT DID NOT ENTERTAIN T HE APPEAL AS THE FINDINGS RENDERED WERE BASED ON FACTS . IF MP NO. 35/COCH/2010 2 THERE IS MISTAKE IN THE FINDINGS RENDERED BY THE TR IBUNAL BASED ON WHICH THEY HAVE DECIDED THE APPEAL, IT IS OPEN TO THE REVIEW PETITIONER TO BRING THE FACTS BEFORE THE TRIBUNAL AND MOVE FOR RECTIFICATION BEFORE IT. RE VIEW PETITION IS CLOSED LEAVING FREEDOM TO THE PETITIONE R TO MOVE THE TRIBUNAL FOR RECTIFICATION. WE MAKE IT C LEAR THAT THE TRIBUNAL NEED NOT FOLLOW THE OBSERVATIONS IN THE JUDGMENT WHICH ARE BASED ON FACTS AVAILABLE ON RECO RD INCLUDING THOSE CONTAINED IN THE TRIBUNALS ORDER. 2. RELYING ON THIS REVIEW ORDER RENDERED BY THE HON BLE HIGH COURT, THE PETITIONER-ASSESSEE WOULD SUBMIT TH AT THE ASSESSEE IS MOVING THE MISCELLANEOUS PETITION BEFOR E THE TRIBUNAL AS A RECTIFICATION PETITION AS THE FREEDOM IS GIVEN TO THE ASSESSEE TO MOVE THE TRIBUNAL FOR RECTIFICATION . HOWEVER, THE HONBLE HIGH COURT HAS HELD THAT THE T RIBUNAL NEED NOT FOLLOW THE OBSERVATIONS IN THE JUDGMENT WH ICH ARE BASED ON FACTS AVAILABLE ON RECORD INCLUDING THOSE CONTAINED IN THE ORDER OF THE TRIBUNAL. THE JUDGMENT IN ITA NO.1690 OF 2009 IS DATED 05-10-2009. THAT COPY IS AVAILAB LE IN ASSESSEES PAPER BOOK AT PAGE NOS. 78 TO 81. NOW THE HONBLE HIGH COURT GAVE FREEDOM TO THE PETITIONER T O MOVE THE RECTIFICATION AND AFTER CONSIDERING THE RIVAL S UBMISSIONS WE ARE OF THE VIEW THAT THIS RECTIFICATION PETITION IS QUITE JUSTIFIED IN VIEW OF THE CONTENTION OF THE LD. COUN SEL THAT IN THE REVIEW PETITION, COPY OF WHICH IS FILED BEFORE US, THE MP NO. 35/COCH/2010 3 ASSESSEE IS NOW HARPING ON SECTION 68 ON THE GROUND THAT WHEN THE CREDIT IS EXPLAINED THERE IS NO SCOPE TO A DD THE INCOME AT ALL, IS THE BONE OF CONTENTION OF THE LD. COUNSEL. THIS REQUIRES A DETAILED HEARING FOR THE PURPOSE OF ADJUDICATION OF THE ISSUE. HENCE, AS OBSERVED BY THE HONBLE HIGH COURT IN RP NO.23 OF 2010, WE RECALL T HE ORDER OF THE TRIBUNAL PASSED IN ITA NO.383/COCH/2007 WITH CO NO.15/COCH/2007 DATED 30-03-2009 AND FIX THE APPEAL FOR HEARING ON 12-07-2010, AS A PRIORITY HEARING, UNDER THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE . 3. IN THE RESULT, MISCELLANEOUS PETITION IS ALLOWED . SD/- SD/- (SANJAY ARORA) (N.VIJAYKUMA RAN) ACCOUNTANT MEMBER JUDICIAL M EMBER ERNAKULAM, DATED THE 08 TH JULY,2010. PM. COPY FORWARDED TO: 1. SHRI A.P. VINU, ALUKKAS JEWELLERY, MG ROAD,ERNAKULA M. 2. THE DY. COMMISSIONER OF INCOME-TAX, CENT.CIR.II,ERN AKULAM. 3. CIT(A)-II, ERNAKULAM. 4. CIT,CENTRAL,KOCHI. 5. D.R.