J.V. of P.E.C. and S.C.C., Ahmedabad V. The Dy.CIT, Circle-9, Ahmedabad

MA 40/AHD/2018

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1127 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 01-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SMT. MADHUMITA ROY, JUDICIAL MEMBER MISCELLANEOUS APPLICATION NO. 40/AHD/2018-AY 2011-1 2 (IN I.T.A. NO. 569/AHD/2015-AY 2011-12 ) M/S. J. V. OF P.E.C. AND S.C.C., 9, 10, 1ST FLOOR, JAY COMPLEX, PARULNAGAR, BHUYANGDEV, GHATLODIA, AHMEDABAD 380063 / VS. THE DCIT, CIRCLE-9, A/209, 2ND FLOOR, PRATYAKSH KAR BHAVAN, AMBAWADI, AHMEDABAD / / PAN/GIR NO. : AAGFJ0136Q ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI PRAKASH D SHAH, A.R. / RESPONDENT BY : SHRI ANAND KUMAR, JT.CIT. / DATE OF HEARING 07/09/2018 !'# / DATE OF PRONOUNCEMENT 17/09/2018 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED MISCELLANEOUS APPLICATION HAS BEEN FI LED AT THE INSTANCE OF ASSESSEE SEEKING CANCELLATION AND RECAL L OF THE ORDER PASSED IN ITA NO.569/AHD/2015, DATED 31.10.2017 CON CERNING AY 2011-12 ON THE GROUND OF APPARENT ERROR. M.A. NO. 40/AHD/18 [ JV OF P.E.C. AND S.C.C. VS. DCIT VS. ITO] A.Y. 2011-12 - 2 - 2. WHEN THE MATTER WAS CALLED FOR HEARING, THE LEAR NED AR FOR THE ASSESSEE SUBMITTED THAT THE ADDITION OF RS.29,71,05 9/- WAS MADE BY THE AO TO THE RETURNED INCOME TOWARDS UNRECONCILED AMOUNT OF DIFFERENCE BETWEEN THE AMOUNT OF CONTRACT PAYMENTS AS PER ANNUAL TAX STATEMENT (26AS) VIS--VIS BOOKS OF ACCOUNT. THE LEARNED AR POINTED OUT THAT HE HAD FILED A WRITTEN SUBMISSION TO EXPLAIN THE FACTS OF ITS NON ACCRUAL IN THE RELEVANT FINANCIAL YEAR. IT WAS ALSO POINTED OUT THAT THE INCOME HAS ALREADY BEEN INCLUDED IN SU BSEQUENT ASSESSMENT YEAR WHEN IT WAS ACCRUED. THE LEARNED A R NEXT POINTED OUT THAT THE ASSESSEE HAD SUPPORTED ITS CASE ON MER ITS BY SEVERAL DECISIONS AS REFERRED TO IN THE WRITTEN SUBMISSIONS . IT WAS POINTED OUT THAT THE ITAT HAS CONCLUDED THE ISSUE AGAINST THE A SSESSEE WITHOUT CONSIDERING THESE VITAL FACTS AND CASE LAWS RELIED UPON BY THE ASSESSEE. CONSEQUENTLY, THE ORDER OF THE ITAT IS VITIATED BY APPARENT ERROR. FOR THIS PROPOSITION, THE LEARNED AR RELIED UPON THE DE CISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF DA TTANI & CO. VS. ITO TAX APPEAL NO. 847 OF 2013 JUDGMENT DATED 21.10 .2013. 3. PER CONTRA, THE LEARNED DR FOR THE REVENUE DID N OT OFFER ANY COMMENTS AND LEAVE THE MATTER TO THE WISDOM OF THE TRIBUNAL. 4. WE HAVE CAREFULLY EXAMINED THE ISSUE. WE FIND T HAT SUFFICIENT CAUSE EXISTS FOR ADMITTING THE PLEA OF THE ASSESSEE FOR SETTING ASIDE THE EARLIER ORDER AND RECALL THEREOF FOR A FRESH HEARIN G AS SUBSTANTIVE PLEA OF THE ASSESSEE FOR TAXABILITY IN THE YEAR OF ACCRU AL REQUIRES TO BE TAKEN INTO ACCOUNT. THE ASSESSEE HAS ALSO SUPPORTE D ITS PLEA BEFORE US THAT INCOME HAS ALREADY BEEN INCLUDED TO THE SUBSEQ UENT AY 2012-13. AFTER CONSIDERING THE CIRCUMSTANCES EXISTING IN THE CASE AND THE SUBMISSIONS OF THE ASSESSEE, WE AGREE WITH THE CONT ENTION OF THE ASSESSEE THAT THERE EXISTS SUFFICIENT CAUSE FOR SET TING ASIDE THE ORDER OF THE ITAT IN ITA NO.569/AHD/2015 DATED 31.10.2017 AN D RECALL THEREOF M.A. NO. 40/AHD/18 [ JV OF P.E.C. AND S.C.C. VS. DCIT VS. ITO] A.Y. 2011-12 - 3 - FOR FRESH HEARING ON MERITS. THE REGISTRY IS ACCOR DINGLY DIRECTED TO FIX THE APPEAL FOR A FRESH HEARING ON 12.11.2018. B OTH THE PARTIES WERE SUITABLY INFORMED IN COURT AND ACCORDINGLY FORMAL N OTICE OF HEARING IS DISPENSED WITH THE CONSENT OF BOTH THE PARTIES. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS ALLOWED. SD/- SD/- (MADHUMITA ROY) (PRADIP KUMA R KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 17/09/2018 TRUE COPY S. K. SINHA ! / COPY OF ORDER FORWARDED TO:- & / REVENUE 2 / ASSESSEE ( ) *+ , / CONCERNED CIT 4 ,- / CIT (A) / 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7 289 : / GUARD FILE. BY ORDER / 4 / 5 *+#4 56) THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON 17/ 09/2018