ACIT, Cuttack V. M/s Orissa Stevedores Ltd, Cuttack

MA 39/CTK/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8618 (ITAT-CUTTACK)
• Duration Of Justice: 5 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-06-2012
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 18-05-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 28-12-2011
• Court: TRIBUNAL
• Keywords: Period of limitation

Judgement Text

MISC.APPLICATIONS NOS.39,40 AND 41/CTK/2011 1 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE : SHRI K.K.GUPTA, AM, AND SHRI K.S.S.PRASAD RAO, JM MISC.APPLICATIONS NOS.39,40 AND 41/CTK/2011 IN ITA NO.409,410,411/CTK/2011 AND C.O.NOS.30,31 AND 32/CTK/2011 (DISPOSED OF VIDE CONSOLIDATED ORDER DT.22.12.2011) (AYS 2002 - 03, 2003 - 04 & 2004 - 05) (C.OS. FILED BY THE ASSESSEE) ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 2(2), CUTTACK. VERSUS M/S.ORISSA STEVEDORES LTD., O.S.L. TOWER, LINK ROAD, CUTTACK. PAN: AAACO 2100 L (APPELL ANT) (RESPONDENT) FOR THE APPELLANT: SMT. A.NAYAK, CIT - DR FOR THE RESPONDENT SHRI P.R.MOHANTY/SASWAT ACHARYA/D.K.SWAIN,ARS DATE OF HEARING : 18.05.2012 DATE OF PRONOUNCEMENT : 25.06.2012 ORDER SHRI K.S.S.PRASAD RAO, JM : THESE MISC .APPLICATIONS HAVE BEEN FILED BY THE REVENUE FOR THE ALLEGED APPARENT MISTAKE IN THE CONSOLIDATED ORDER DT.22.12.2011 PASSED BY THE TRIBUNAL IN ITA NO.409,410,411/CTK/2011 AND C.O.NOS.30,31 AND 32/CTK/2011 FOR THE AYS AYS 2002 - 03, 2003 - 04 & 2004 - 05. 2. IN THE MISC.APPLICATIONS THE DEPARTMENT HAS INTERALIA CONTENDED THAT IN THE DEPARTMENTAL APPEALS THE ISSUE RELATED TO THE STATUTO RY IMPLICATION OF SECTION 153( 1) OF THE I.T.ACT,1961 REGARDING PASSING OF ASSESSMENT ORDER AND SERVICE OF ASSESSMENT ORDER O N THE TAXPAYER I.E., THAT THE ASSESSMENT ORDERS WERE PASSED ON 29.12.2009 WHICH WERE SERVED ON THE ASSESSEE ON 26.03.2010. THE FIRST APPELLATE AUTHORITY HAS CONSIDERED THIS ISSUE ON APPEALS FILED BY THE ASSESSEE AND ULTIMATELY HELD THAT THE ASSESSMENT ORDE RS PASSED BY THE ASSESSING OFFICER ARE BARRED BY LIMITATION ON THE GROUND THAT THE ORDERS WERE SERVED ON THE ASSESSEE BEYOND THE PERIOD OF LIMITATION. AGAINST THIS ORDER, THE DEPARTMENT FILED APPEALS BEFORE THE TRIBUNAL. ALL THESE APPEALS BEARING ITA NOS.4 09,410/411 /CTK/ 2011 WERE HEARD MISC.APPLICATIONS NOS.39,40 AND 41/CTK/2011 2 TOGETHER AND DISPOSED OF BY C OMMON ORDER DT.22.12.2011 TOTALLY IGNORING THE ORDER OF THIS TRIBUNAL ITSELF IN THE CASE OF TORSTEEL LIMITED V. ACIT PASSED IN AN EARLIER POINT OF TIME. IN VIEW OF THIS INCONSISTENCY VIEW BETWEE N THE TWO ORDERS OF THE TRIBUNAL, THERE IS A MISTAKE APPARENT ON THE FACE OF RECORD, WHICH REQUIRES TO BE RECTIFIED. HENCE, THE DEPARTMENT SOUGHT FOR RECALL OF THE ORDER DT.22.12.2011 PASSED BY THE TRIBUNAL. 3. BOTH THE PARTIES WERE HEARD REGARDING THE MIS C.APPLICAATIONS AND THEIR LEGAL IMPLICATIONS . 4. ON CAREFUL CONSIDERATION OF THE ORDER OF THIS TRIBUNAL IN THE CASE OF TORSTEEL LIMITED V. ACIT IN ITA NO.059/CTK/2011 DT.17.06.2011 AND ORDER PASSED IN THE ASSESSEE HEREIN DT.22.12.2011, IT IS FOUND THAT THE DECISION S RENDERED BY HONBLE KERALA HIGH COURT IN THE CASE OF K.JOSEPH JACOB V. AGRICULTURAL INCOME TAX OFFICER & ANOTHER (1991) 190 ITR 464 (KER), AND COMMISSIONER OF AGRICULTURAL INCOME TAX V.KAPPUMALAI ESTATE (234 ITR 187), THE DECISION RENDERED BY HO NBLE SUPREME COURT IN THE CASE OF B.J.SHELAT V. STATE OF GUJARAT, REPORTED IN AIR 1978 SC 1109, AND THE DECISION OF THE ITAT, JODHPUR BENCH IN THE CASE OF SHANTI LAL GODAWAT AND OTHERS VRS. ACIT REPORTED IN 126 TTJ (JD) 135 WERE NOT AT ALL BROUGHT TO NOTI CE OF THIS BENCH OF THE TRIBUNAL AT THE TIME OF DISPOSAL OF THE CASE OF TORSTEEL LIMITED V. ACIT IN ITA NO.059/CTK/2011 DT.17.06.2011 . THEREFORE, THE ISSUE OF BARRED BY LIMITATION WAS CONSIDERED WITHOUT TAKING INTO CONSIDERATION THE LEGAL ASPECT OF PASSING OF ASSESSMENT ORDER ONE DATE AND SERVING OF THE SAME ON ANOTHER DATE WHICH IS BEYOND LIMITATION AS PRESCRIBED IN THE ACT. THEREFORE, IT CANNOT BE SAID THAT THIS TRIBUNAL DECISION DT.22.12.2011 IN THE PRESENT CASE IS HAVING AN APPARENT MISTAKE ON RECORD IN NOT FOLLOWING THE EARLIER ORDER OF THE TRIBUNAL IN THE CASE OF TORSTEEL LIMITED V. ACIT (SUPRA) WHERE THE ISSUE WAS NOT CONSIDERED IN ITS PROPER MISC.APPLICATIONS NOS.39,40 AND 41/CTK/2011 3 PERSPECTIVE. HENCE, WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO APPARENT MISTAKE AS CONTENDED BY THE DEPART MENT IN THE ORDER DT.22.12.2011 PA SSED BY THE TRIBUNAL. HENCE, WE DISMISS THE MISC. APPLICATIONS FINDING NO MERIT THEREIN. 5. IN THE RESULT, ALL THE MISC.APPLICATIONS FILED BY THE DEPARTMENT ARE DISMISSED. SD/ - SD/ - (K.K.GUPTA) ACCOUNTANT MEMBER. (K.S.S.PRASAD RAO) JUDICIAL MEMBER DATE: 25.06.2012 H.K.PADHEE, SENIOR PRIVATE SECRETARY. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT: ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 2(2), CUTTACK 2. THE RESPONDENT: M/S.ORISSA STEVEDORES LTD., O.S.L. TOWER, LINK ROAD, CUTTACK. 3. THE CIT, 4. THE CIT(A), 5. THE DR, CUTTACK 6. GUARD FILE (IN DUPLICATE) TRUE COPY, BY ORDER, SENIOR PRI VATE SECRETARY. APPENDIX XVII SEAL TO BE AFFIXED ON THE ORDER SHEET BY THE SR. P.S./P.S. AFTER DICTATION IS GIVEN 1. DATE OF DICTATION 29.05.2012 . 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE D ICTATING MEMBER 29 .05.2012 OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTAN T REGISTRAR FOR SIGNATURE ON THE ORDER ................ 9. DATE OF DESPATCH OF THE ORDER ..