HARSHADRAI K. DOSHI, MUMBAI V. ITO 12(1)(2) NOW With ITO 17(1)(5), MUMBAI

MA 378/MUM/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5539 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 03-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHIRAMA KARTIKEYAN
• Assessee Lawyers: M SUBRAMANIYAN
• Keywords: Value adopted by valuation officer; Rectification of order; Set aside
• Section: 143(3); 254(2); 154

Judgement Text

1 MA 378/MUM/2019 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC, MUMBAI BEFORE SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) M.A. NO.378/MUM/2019 (ARISING OUT OF ITA NO.2823/MUM/2018) (ASSESSMENT YEAR : 2007-08) HARSHADRAI K DOSHI 24, TARDEO APT. 245, TARDEO ROAD MUMBAI-400 007 PAN : AACPD1617N VS ITO - 12 ( 1 )( 2 ) NOW WITH ITO-17(1)(5) MUMBAI APPLICANT RESPONDENT APPLICANT BY M. SUBRAMANIYAN RESPONDENT BY ABHIRAMA KARTIKEYAN DATE OF HEARING 0 6.09 .2019 DATE OF PRONOUNCEMENT 01 . 10 .2019 O R D ER PER G MANJUNATHA: AM THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSE E IS DIRECTED AGAINST ORDER OF THE TRIBUNAL IN ITA.NO.2823/MUM/20 18 DATED 27/02/2019 AND IT PERTAINS TO AY 2007-08. 2 MA 378/MUM/2019 2. THE ASSESSEE HAS NARRATED FACTS AND MISTAKES STA TED TO BE APPARENT FROM THE ORDER OF THE TRIBUNAL DATED 27/02 /2019. THE RELEVANT CONTENTS OF MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ARE REPRODUCED AS UNDER:- 1. THE APPLICANT RESPECTFULLY SUBMITS THAT THE CAPT IONED APPEAL WAS DISPOSED OFF BY THE HON'BLE TRIBUNAL VIDE ITS ORDER DATED 27-02- 2019. A COPY OF THE HON'BLE TRIBUNAL'S ORDER DATED 27-02-19 IS ENCLOSED HEREWITH MARKED EXH:'A' 2. BEFORE PERUSING THE HON'BLE TRIBUNAL'S ORDER THE FOLLOWING FACTUAL ASPECTS MAY HAVE TO BE CONSIDERED. THE APPEAL WAS AGAINST A RECTIFICATORY ORDER PASSED U/S 154 OF THE ACT AND ON 18-12-18 WHEN THE APPEAL WAS POSTED FOR HEARING BEF ORE THE HON'BLE TRIBUNAL, AN ADJOURNMENT APPLICATION DATED 18-12-18 WAS SUBMI TTED TO THE HON'BLE MEMBERS WHEREIN, IT WAS CLEARLY MENTIONED THAT THE APPEAL TO BE HEARD IS AN APPEAL FILED AGAINST THE RECTIFICATORY ORDER PASSED U/S. 154 OF THE ACT RECTIFYING THE ORDER PASSED U/S 143(3) FOR THE VERY SAME ASSES SMENT YEAR. IT WAS ALSO SUBMITTED THAT THE APPEAL AGAINST THE REGULAR ASSES SMENT ORDER PASSED U/S 143(3) HAS ALREADY BEEN HEARD ON 23 RD AUGUST, 2018 AND THE ORDER IS AWAITED. AT THAT STAGE, THE HON'BLE MEMBERS AFTER GOING THRO UGH THE ADJOURNMENT APPLICATION OBSERVED THAT SINCE THE APPEAL AGAINST THE REGULAR ASSESSMENT ORDER PASSED U/S 143(3) WAS HEARD AS EARLY AS 23-08 -2018, IN ALL PROBABILITIES, THE ORDER MUST HAVE BEEN PASSED AND THE HON'BLE TRI BUNAL WOULD CONSULT THE OTHER FILE AND CONSIDER THE ORDER, IF ANY, PASSED A ND IF NOT, THE APPEAL WOULD BE HEARD AGAIN BEFORE PASSING ANY ORDER IN THE CAPT IONED APPEAL. WITH THESE OBSERVATIONS, THE HON'BLE TRIBUNAL RETURNED BACK TH E ADJOURNMENT APPLICATION AND HEARD THE MATTER. A COPY OF THE SAID ADJOURNMEN T APPLICATION DATED 18- 12-18 RETURNED BACK BY THE HON'BLE TRIBUNAL IS ENCL OSED HEREWITH MARKED EXH 'B. HOWEVER, THE HON'BLE TRIBUNAL, IT APPEARS INADVERTE NTLY OMITTED TO CONSULT THE OTHER APPEAL FILE (PERTAINING TO APPEAL IN RESPECT OF 143(3) ORDER) AND PASSED THE ORDER ON 27-03-19 IN THE CAPTIONED APPEAL. IN S HORT, THE ORDER PASSED ON 27-02-2019 IN THE CAPTIONED APPEAL DOES NOT MENTION OR REFER TO THE APPELLATE ORDER DATED 19-11-18 PASSED IN APPEAL AGAINST THE R EGULAR ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT. A COPY OF THE HON'BLE TRIBUNAL'S ORDER DATED 19-11- 2018 PASSED IN APPEAL AGAINST THE 143(3) ASSESSMENT IS ENCLOSED HEREWITH MARKED EXH 'C' 3. A PERUSAL OF THE SAID ORDER OF THE HON'BLE TRIBU NAL WOULD REVEAL THAT THE ASSESSMENT ORDER DATED 10-02-14 PASSED U/S 143(3) O F THE ACT HAS BEEN QUASHED AS BEING VOID ABINITIO. THEREFORE, CONSEQUE NTLY, THE RECTIFICATORY 3 MA 378/MUM/2019 ORDER PASSED U/S 154 OF THE ACT RECTIFYING THE ASSE SSMENT ORDER PASSED U/S. 143(3) FOR THE A.Y. 2007-08 HAS NO LOCUS STANDI AT ALL AND THEREFORE, REQUIRED TO BE QUASHED, IN THIS CONNECTION, IT IS SUBMITTED THAT , THE HON'BLE TRIBUNAL'S ORDER DATED 22-02-19 PASSED WITHOUT CONSIDERING THE HON'BLE TRIBUNAL'S ORDER DATED 19-11-18 THOUGH RELEVANT IS A MISTAKE APPAREN T FROM RECORD REQUIRING RECTIFICATION. 4. WITHOUT PREJUDICE TO THE ABOVE, THE FOLLOWING MA Y ALSO BE CONSIDERED : THE HON'BLE TRIBUNAL, IN PARA 2 HAS CLEARLY MENTIONED, THAT THE ASSESSEE HAS FILED A PETITION FOR ADMISSION OF ADDITIONAL GROUNDS AND THE SAME HAS NOT BEEN CONSIDERED AND DEALT WITH. IN THIS REGARD, IT IS SU BMITTED THAT NON CONSIDERATION OF ADDITIONAL GROUNDS IS MISTAKE APPARENT FROM RECO RDS AND REQUIRES RECTIFICATION OF THE ORDER. 5. THE HON'BLE TRIBUNAL IN PARA 10 OF ITS ORDER HAS BROUGHT OUT CLEARLY AT VARIOUS PLACES THAT THE ISSUE UNDER CONSIDERATION W AS A DEBATABLE ISSUE AND THE SAME CANNOT BE A SUBJECT MATTER OF RECTIFICATIO N, EVEN THE LAST SENTENCE IN PARA 10 CLEARLY MENTIONS THAT THERE IS NO MERIT IN THE FINDING OF THE LEARNED CIT(A). HOWEVER, THE HON'BLE TRIBUNAL, IN THE CONCL UDING SENTENCE MENTIONS THAT :- 'WE THEREFORE OF THE OPINION THAT, THERE IS NO MERI T IN THE FINDING OF THE LET. CIT(A) AND HENCE, WE SET'ASIDE ORDER OF CIT(A) AND RESTORE THE ISSUE TO THE FILE OF THE LD. AO TO DECIDE THE ISSUE ON THE BASIS OF DVO REPORT AND OBJECTIONS OF THE ASSESSES'. A PERUSAL OF THE ABOVE SENTENCE WOULD CLEARLY REVEA L THAT THE HON'BLE TRIBUNAL CLEARLY MENTIONED THAT THERE IS NO MERIT IN THE FIN DING OF THE LEARNED CIT(A) AND THEREFORE, OUGHT TO HAVE MERELY SET ASIDE/QUASH ED THE ORDER OF THE CIT(A) AND ALSO THE ORDER OF THE A.O. INSTEAD OF RESTORING THE ISSUE TO BE FILE OF THE LEARNED A.O. THIS BEING A CLEAR MISTAKE APPARENT FR OM RECORDS, IT IS HUMBLY SUBMITTED THAT THE SAME MAY KINDLY BE RECTIFIED. 6. IN SHORT, THE FOLLOWING APPARENT MISTAKES HAVE OCCURRED IN THE HON'BLE TRIBUNAL'S ORDER I) THE HON'BLE TRIBUNAL HAS NOT CONSIDERED THE HON' BLE TRIBUNAL'S ORDER DATED 19-11-2018 PASSED AGAINST THE REGULAR 143(3) ASSESS MENT FOR A.Y2007-08 AND THE CAPTIONED APPEAL WAS ONE AGAINST THE ORDER PASSED U/S 154 RECTIFYING THE ORDER PASSED U/S 143(3) OF THE ACT, PARTICULARL Y WHEN THE SAME HAS BEEN QUASHED AS VOID AB INITIO. II) THE ADDITIONAL GROUNDS OF APPEAL HAVE NOT BEEN CONSIDERED AND ADJUDICATED UPON. III) THE MISTAKE POINTED OUT IN PARA 5 ABOVE IT IS THEREFORE HUMBLY SUBMITTED, THAT THE HON'BLE TRIBUNAL MAY KINDLY RECTIFY THE MISTAKES POINTED OUT ABOVE EITHER BY RECALLING THE ORDER AND RE-HEARING THE APPEAL OR ALTERNATIVELY, BY PASSING ANY OTHER O RDER AS IT MAY CONSIDER FIT IN THE CIRCUMSTANCES OF THE CASE. 7. THE APPLICANT IS ENCLOSING HEREWITH A SWORN AF FIDAVIT IN SUPPORT OF THE FACTS NARRATED IN THE ABOVE AND SAME IS MARKED AS E XH; 'D ' 4 MA 378/MUM/2019 8. THE APPLICANT HAS PAID THE FEES OF RS.50/- BEING THE FILING FEES FOR THIS MISCELLANEOUS APPLICATION AND THE ORIGINAL CHALLAN FOR THE SAME IS ENCLOSED AS EXH.E' 9. THE APPLICANT FURTHER STATED THAT WHAT IS STATE D IN PARAGRAPH (1) TO (6) ABOVE IS TRUE AND CORRECT TO THE BEST OF HIS KNOWLE DGE AND BELIEF. 3. WE HAVE HEARD THE LD. COUNSELS FOR EITHER SIDE A ND PERUSED MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ALO NG WITH ORDER OF THE TRIBUNAL, DATED 27/02/2019 AND FIND THAT THERE IS A MISTAKE APPARENT FROM THE ORDER OF THE TRIBUNAL, IN AS MUCH AS, THE TRIBUNAL HAS DECIDED THE APPEAL OF THE ASSESSEE FILED AGAINST ORDER PASS ED BY THE AO U/S 154 OF THE I.T.ACT, 1961,WITHOUT CONSIDERING ORDER OF T HE TRIBUNAL, DATED 19/11/2018 PASSED IN APPEAL FILED BY THE ASSESSEE A GAINST, THE ORDER OF THE LD. AO U/S 143(3) OF THE I.T.ACT, 1961. WE, FUR THER OBSERVED THAT THE TRIBUNAL IN THE SAID ORDER, DATED 19/11/2018 HAD QU ASHED ASSESSMENT ORDER PASSED BY THE LD. AO U/S 143(3) OF THE I.T.AC T, 1961, DATED 10/02/2014 AS BEING VOID AB-INITIO . THEREFORE, CONSEQUENT RECTIFICATION ORDER PASSED U/S 154 OF THE ACT, RECTIFYING THE ASS ESSMENT ORDER PASSED U/S 143(3) OF THE I.T.ACT,1961, FOR THE AY 2007-08 HAS NO LOCUS STANDI AT ALL AND THEREFORE, REQUIRED TO BE QUASHED. THE TRIB UNAL, WHILE DECIDING THE APPEAL IN ITA.NO.2823/MUM/2018 HAD NOT CONSIDER ED ORDER OF THE TRIBUNAL IN APPEAL AGAINST ORDER OF THE AO U/S 143( 3) OF THE I.T.ACT, 1961, WHICH CONSTITUTES MISTAKE APPARENT ON RECORD, WHICH COULD BE RECTIFIED U/S 254(2) OF THE I.T.ACT, 1961. HENCE, W E RECALLED THE ORDER OF 5 MA 378/MUM/2019 THE TRIBUNAL IN ITA.NO.2823/MUM/2018, DATED 27/02/2 019 AND DIRECT THE REGISTRY TO RE-FIX THE CASE FOR HEARING IN DUE COUR SE WITH INTIMATION TO BOTH PARTIES. 4. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 01.10.2019. SD/- SD/- MAHAVIR SINGH G MANJUNATHA JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 01.10.2019 THIRUMALESH, SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//