RADHAKRISHNA HOSPITALITY SER. LTD, V. ACIT CEN CIR 33,

MA 418/MUM/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4965 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-09-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 30-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R M TIWARI
• Assessee Lawyers: J D MISTRI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H, MUMBAI BEFORE SHRI D.K. AGARWAL, J.M. AND SHRI A.L. GEHLOT , A.M. M.A. NO. 418/M/2010 (IN ITA NOS. 4299/MUM/08 AND ITA NO. 4345/MUM/08 ASSESSMENT YEAR: 1998-99) RADHAKRISHNA HOSPITALITY SERVICES PVT. LTD. APP LICANT 1 ST FLOOR, GEMSTAR COMMERCIAL COMPLEX, RAMCHANDRA LANE EXTENSION, KANCHPADA, MALAD (WEST) MUMBAI 400 064 (PAN AAACR 2547Q) VS. DY. COMMISSIONER OF INCOME TAX, RESPONDE NT CENTRAL CIRCLE 33, ROOM NO. 32(3), AAYAKAR BHAVAN, M. KARVE MARG, MUMBAI 400 020. APPLICANT BY : MR. J.D. MISTRI RESPONDENT BY : MR. R.M. TIWARI ORDER PER A.L. GEHLOT, A.M.: THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSE E ARISES OUT OF THE ORDER OF ITAT D BENCH, MUMBAI BENCHES, MUMBAI, IN APPEALS ITA NO. 4299/MUM/2008 AND ITA NO. 4345/MUM/ 08 FOR AY 2005-06, DATED 3 RD NOVEMBER, 2009. 2. IT HAS BEEN SUBMITTED IN THE M.A. THAT ITAT WHIL E DECIDING REVENUES APPEAL ITA NO. 4345/MUM/08 VIDE ITS ORDER DATED 3 RD NOVEMBER, 2009 HAS PARTLY ALLOWED FOR STATISTICAL P URPOSES DIRECTING THE AO TO VERIFY THE FACTS AND ALLOW THE AMOUNT OF RS. 18,39,263/- PAID BY THE ASSESSEE ON ACCOUNT OF EMPL OYEES CONTRIBUTION TO PF, ESIC AND MLWF WITHIN THE GRACE PERIOD AFTER VERIFICATION. IT IS FURTHER STATED THAT THE TOTAL A MOUNT OF EMPLOYEES CONTRIBUTION WAS RS. 32.24 LAKHS. THE CIT(A) FOLLOW ING THE DECISION M.A. NO. 418/M/10 RADHAKRISHNA HOSPITALITY SERVICES PVT. LTD. 2 OF ITAT, MUMBAI IN THE CASE OF RADHAKRISHNA FOOD LA ND PVT. LTD. IN ITA NO. 4211/MUM/06 AND IN THE CASE OF VENUS WIR E INDUSTRIES LTD. IN ITA NO. 6748/MUM/06 ALLOWED THE CLAIM OF TH E ASSESSEE AS THE PAYMENTS WERE MADE UP TO THE DUE ATE OF FILING OF RETURN. THE LEARNED AR POINTED OUT THAT THE ITAT HAS DIRECTED T O VERIFY ONLY THE AMOUNT OF RS. 18,39,263/- BUT THERE IS NO DIRECTION IN RESPECT OF THE BALANCE AMOUNT, AS THE TOTAL AMOUNT INVOLVED WA S RS. 34.24 LAKHS. HE FURTHER SUBMITTED THAT IN THE LIGHT OF LA TEST JUDGMENT OF THE APEX COURT IN THE CASE OF ALOM EXTRUSION LTD. [ 2009] 319 ITR 306, THE CLAIM OF THE ASSESSEE IS ALLOWABLE AND ORD ER OF CIT(A) IS REQUIRED TO BE CONFIRMED. IT IS ALSO THE SUBMISSIO N OF THE LEARNED AR THAT SUBSEQUENT OF JUDGMENT OF HONBLE APEX COUR T GIVES RISE TO MISTAKE APPARENT FROM RECORD RECTIFIABLE U/S 254(2) OF THE ACT. THE LEARNED AR IN SUPPORT OF HIS CONTENTION RELIED UPON THE DECISION OF ITAT, MUMBAI IN M.A. NO. 784/M/09 ORDER DATED 30 TH APRIL, 2010 AND M.A. NO. 860/MUM/09 ORDER DATED 15 TH FEBRUARY, 2010. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, SUBMITTED THAT AS REGARDS FIRST ASPECT OF THE MATTE R, THE ITAT MAY DECIDE THE ISSUE IN ACCORDANCE WITH LAW. AS REGARDS SECOND ASPECT OF THE MATTER, WHEN THE ITAT DECIDED THE ISSUE THER E WAS NO JUDGMENT OF THE APEX COURT THEREFORE THERE IS NO MI STAKE IN ITAT ORDER. 4. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES AND PERUSED THE RECORD. WE FIND THAT IN THE ORDER OF IT AT, THERE IS NO CLEAR FINDING REGARDING BALANCE AMOUNT AS THE AMOUN T INVOLVED WAS RS. 32.24 LAKHS WHEREAS THE ITAT GAVE DIRECTIONS ON LY FOR RS. 18,39,263/-. WE ALSO FIND FORCE IN THE SUBMISSION O F THE LEARNED AR THAT NON-CONSIDERATION OF A DECISION OF APEX COURT AMOUNTS TO BE A MISTAKE APPARENT FROM RECORD, AS HELD BY THE ITAT I N THE DECISIONS CITED BY THE LEARNED AR. IN THE LIGHT OF ABOVE DIS CUSSION, WE FIND THAT THERE IS AN APPARENT MISTAKE IN THE ORDER OF I TAT AND, THEREFORE, WE RECALL THE ORDER OF ITAT ONLY IN RESP ECT OF REVENUES APPEAL VIDE ITA NO. 4345/M/2008 FOR DECIDING THE GR OUND RAISED M.A. NO. 418/M/10 RADHAKRISHNA HOSPITALITY SERVICES PVT. LTD. 3 THEREIN AFRESH. THE REGISTRY IS DIRECTED TO RE-FIX THE REVENUES APPEAL NO. 4345/MUM/08, FOR HEARING THE SAME IN DUE COURSE. 5. IN THE RESULT, THE M.A. FILED BY THE ASSESSEE IS ALLOWED AS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT ON THIS 17 TH DAY OF SEPTEMBER, 2010. SD/- SD/- (D.K. AGARWAL) (A.L. GEHLOT ) JUDICIAL MEMBER ACCOUNTANT M EMBER DATED: 17 TH SEPTEMBER, 2010. COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, H BENCH, I.T .A.T., MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI. KV