The Income Tax Officer-I, Shahjahanpur V. M/s Mishra Aloo Bhandar Grah (P) Ltd., Shahjahanpur

MA 4/LKW/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2168 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 3 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-07-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 27-06-2014
• Assessment Year: 2000-2001
• Appeal Filed On: 28-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 147

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B , LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER M.A. NO.04 /LKW/20 13 (ARISING OUT OF I.T.A.NO.827/LKW/2008) ASSESSMENT YEAR:2000 - 2001 M/S MISHRA ALOO BHANDAR (P) LTD., SHAHJAHANPUR. PAN:AADCM6969L VS. INCOME TAX OFFICER - 1, SSHAHJAHANPUR. (A PPLICANT ) (RESPONDENT) APPLICANT BY SHRI ABHINAV MEHROTRA, ADVOCATE RESPONDENT BY SHRI MANOJ KUMAR GUPTA, CIT, D.R. DATE OF HEARING 27/06/2014 DATE OF PRONOUNCEMENT 1 7 /07/2014 O R D E R PER A. K. GARODIA, A.M. THIS MISC. APPLICATION IS FILED BY THE ASSESSEE POINTING OUT CERTAIN MISTAKES IN THE IMPUGNED TRIBUNAL ORDER DATED 31/03/2009. IT WAS SUBMITTED BY THE ASSESSEE THAT AS PER THE JUDGMENT OF HON'BLE APEX COURT IN THE CASE OF ASSISTANT COMMISSIONER OF INCOME - TAX VS DHARIYA CONSTRUCTION CO. AS REPORTED IN [2010] 328 ITR 515 (SC) , IT WAS HELD THAT THE OPINION GIVEN BY THE DISTRICT VALUATION OFFICER IS NOT PER SE INFORMATION FOR THE PURPOSE OF REOPENING AN ASSESSMENT UNDER SECTION 147 OF THE INCOME - TAX ACT, 1961. [ 2 ] 2. IT IS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE BEFORE US THAT ALTHOUGH THIS JUDGMENT IS DATED 16/02/2010 I.E. AFTER THE DATE OF THE TRIBUNAL DECISION, IT WAS HELD BY THE HON'BLE APEX COURT IN THE CASE OF ASSISTANT COMMISSIONER OF INCOME - TAX VS SAURAS HTRA KUTCH STOCK EXCHANGE LTD. AS REPORTED IN [2008] 305 ITR 227 THAT NON CONSIDERATION OF THE ORDER OF JURISDICTIONAL HIGH COURT OR THE COORDINATE BENCH OF THE TRIBUNAL OR HON'BLE APEX COURT IS APPARENT MISTAKE WHICH IS RECTIFIABLE U/S 254(2) OF THE ACT. HE ALSO SUBMITTED THAT AS PER THE JUDGMENT OF HON'BLE GUJARAT HIGH COURT RENDERED IN THE CASE OF SUHRID GEIGY LTD. VS. COMMISSIONER OF SURTAX , 237 ITR 83 4, IT WAS HELD THAT EVEN A SUBSEQUENT DECISION OF JURISDICTIONAL HIGH COURT OR APEX COURT CONSTITUTES APPARENT MISTAKE IN THE TRIBUNAL ORDER IF THE TRIBUNAL ORDER IS NOT IN LINE WITH THE SAID DECISION. IT WAS SUBMITTED THAT IN VIEW OF THIS, THIS TRIBUNAL ORDER SHOULD BE RECTIFIED. 3. AS AGAINST THIS, IT WAS SUBMITTED BY LEARNED D.R. OF THE REVENUE THAT THERE IS NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THE IMPUGNED TRIBUNAL DECISION IS CERTAINLY NOT IN LINE WITH A SUBSEQUENT DECISION OF HON'BLE APEX COURT IN DHARIYA CONSTRUCTION CO. (SUPRA). NOW THE QUESTION IS AS TO WHETHER ON THE BASIS OF SUCH SUBSEQUENT DECISION, CAN IT BE SAID THAT THERE IS APPARENT MISTAKE IN THE TRIBUNAL ORDER. IN THIS REGARD, WE FIND THAT IT WAS HELD IN THE DECISION OF HON'BLE GUJARAT HIGH COURT THAT A DECIS ION OF JURISDICTIONAL HIGH COURT DO NOT ENACT LAW AND IT MERELY DECLARE THE LAW AS IT ALWAYS WAS AND THEREFORE, THERE IS VALIDITY IN THE CONTENTION WHICH WAS SOUGHT TO BE RAISED ON BEHALF OF THE ASSESSEE . THERE IS NO DISPUTE THAT THE IMPUGNED TRIBUNAL DEC ISION IS NOT IN LINE WITH THE SUBSEQUENT DECISION OF HON'BLE SUPREME COURT. HENCE, BY RESPECTFULLY FOLLOWING THIS JUDGMENT OF HON'BLE [ 3 ] GUJARAT HIGH COURT, WE HOLD THAT THERE IS APPARENT MISTAKE IN THE TRIBUNAL ORDER AND HENCE, WE RECALL THIS TRIBUNAL ORDER AND DIRECT THE REGISTRY TO FIX THIS APPEAL FOR FRESH HEARING IN REGULAR COURSE . 5. IN THE RESULT, THE MISC. APPLICATION OF THE ASSESSEE STANDS ALLOWED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 1 7 /07/2014. *C.L.SINGH COPY OF THE O RDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A ) 5. DR, ITAT, LUCKNOW ASSTT. REGISTRAR