PRATAP ARJANDAS VALECHA, V. ACIT CEN CIR 3,

MA 368/MUM/2009

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3611 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-04-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: misc
• Appeal Filed On: 20-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MAHAPATRA
• Assessee Lawyers: PANKAJ K JAIN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I : MUMBAI BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI RAJENDRA S INGH, (AM) MA NO.368/MUM/2009 ARISING OUT OF IT(SS)A NO.61/MUM/2005 ASSESSMENT YEAR : BLOCK PERIOD: 1.4.1990 TO 20.10.2000 SHRI PRATAB ARJANDAS VALECHA PROP. M/S. H. PRATAB JEWELLERS 601, ZAVERI BAZAR ULHASNAGAR-2. ..( APPLICANT ) P.A. NO. (AAJPV 8460 G) VS. ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE-3 PAWAR INDUSTRIAL ESTATE CHARAI THANE. ..( RESPONDENT ) APPLICANT BY : SHRI PANKAJ K. JAIN RESPONDENT BY : SHRI S. K. MAHAPATRA O R D E R PER D.K. AGARWAL (JM). BY THIS MISCELLANEOUS PETITION DATED 23.1.2009 THE ASSESSE E SUBMITS THAT THE TRIBUNAL WHILE PASSING ORDER DATED 1.1 1.2006 HAS NOT ADJUDICATED GROUND NO.9 TAKEN BY THE ASSESSEE, THEREFORE , THERE IS A MISTAKE IN THE ORDER OF THE TRIBUNAL . 2. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE A SSESSEE WHILE REITERATING THE SAME SUBMISSIONS FURTHER SUBMITS THAT SINCE THE MA NO.368/M/09 A.Y:BP 2 TRIBUNAL HAS NOT ADJUDICATED GROUND NO.9 TAKEN BY THE ASSESSEE AGAINST THE LEVY OF SURCHARGE, THEREFORE, THE ORDER P ASSED BY THE TRIBUNAL TO THIS EXTENT BE RECALLED WHICH WAS NOT OBJECT ED TO BY THE LD. DR. 3. HAVING CAREFULLY HEARD THE SUBMISSIONS OF THE RIVAL P ARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECORD WE FIND THA T THERE IS NO DISPUTE THAT THE ASSESSEE HAS TAKEN GROUND NO.9 WHEREIN THE ASSESSEE HAS CHALLENGED THE LEVY OF SURCHARGE. HOWEVER, THE TRIB UNAL WHILE DECIDING THE APPEAL HAS OBSERVED IN PARA-10 OF ITS ORDE R DATED 1.11.2006 THAT GROUNDS NO. 3 TO 10 OF THE ASSESSEE ARE ARGUMENTATIVE BUT THE MAIN THRUST OF THE LD. COUNSEL APPEARING FOR THE ASSESSEE REGARDING THESE GROUNDS IS THAT THERE IS NO JUST IFICATION FOR THE REVENUE TO ESTIMATE THE TURNOVER OF THE FULL YEA R BY TAKING AVERAGE DAILY SALES FROM THE AVAILABLE DATA.... IT HAS BEEN HELD BY THE TRIBUNAL THAT THE CIT(A) HAS PASSED A SPEAKING ORDER, THERE BEING NO MISTAKE IN THE ORDER OF THE CIT(A) AND HENCE THE TRIB UNAL WHILE UPHOLDING THE ORDER OF THE LD. CIT(A) DISMISSED THE GR OUNDS RAISED BY THE ASSESSEE. SINCE GROUND NO.9 TAKEN BY THE ASSESSEE IS A SPECIFIC GROUND AGAINST THE LEVY OF SURCHARGE WHICH HAS NOT BEE N ADJUDICATED BY THE TRIBUNAL, THEREFORE, WE ARE OF THE VIEW THAT IN TERMS OF SECTION 254(2) OF THE ACT, THERE IS AN APPARENT MISTAKE IN TH E ORDER OF THE TRIBUNAL IN NOT DECIDING THE GROUND NO.9 TAKEN BY TH E ASSESSEE AND, MA NO.368/M/09 A.Y:BP 3 HENCE, THE ORDER PASSED BY THE TRIBUNAL DATED 1.11.200 6 TO THIS EXTENT IS RECALLED. THE MISCELLANEOUS APPLICATION FILED BY THE A SSESSEE IS, THEREFORE, ALLOWED. 4. REGISTRY IS DIRECTED TO FIX THE DATE OF HEARING IN THIS REGARD IN DUE COURSE OF TIME. 5. IN THE RESULT, THE ASSESSEES MISCELLANEOUS PETITION STAN DS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30.4.2010. SD/- SD/- (RAJENDRA SINGH) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 30.4.2010. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 16.4.10 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 19.4.10 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 30.4.10 SR.PS/PS 7. FILE SENT TO THE BENCH CLERK 30.4.10 SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER MA NO.368/M/09 A.Y:BP 4