Paravur Town Merchants Association, Aluva V. CIT, Cochin

MA 43/COCH/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 5332 (ITAT-COCHIN)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-03-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 28-01-2011
• Assessment Year: misc
• Appeal Filed On: 01-07-2010
• Court: TRIBUNAL
• Department Lawyers: T J VINCENTJR
• Assessee Lawyers: V SREEKUMAR
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.VIJAYAKUMARAN & SHRI SANJAY ARORA M.P.NOS.43 /COCH/2010 (ARISING OUT OF I.T.A.NOS.972/COCH/2008) M/S. PARUR TOWN MERCHANTS ASSOCIATION, N.PARUR. PA NO.AABTP 0731G VS. THE COM MISSIONER OF INCOME-TAX, KOCHI. ( PETITIONER ) ( RESPONDENT ) PETITIONER BY SHRI V. SREEKUMAR RESPONDENT BY SHRI T.J.VINCENT,JR.DR O R D E R PER N.VIJAYAKUMARAN,J.M: THIS MISCELLANEOUS PETITION IS FILED BY THE ASSESS EE, VIZ. M/S. PARUR TOWN MERCHANTS ASSOCIATION, N.PARUR, WHE REIN IT IS URGED THAT THE LD. COMMISSIONER OF INCOME-TAX HAS A LREADY ADJUDICATED THE MATTER ON MERITS AND THE ABOVE APPE AL WAS FILED CHARGING THE GROUNDS ON WHICH THE REGISTRATIO N WAS DENIED AS PER ORDER DATED 25-08-2008. HOWEVER, THE TRIBUNAL HAS REMANDED THE MATTER TO THE COMMISSIONE R OF INCOME-TAX FOR PROPER ADJUDICATION ON MERITS OBSERV ING AS UNDER: AFTER CONSIDERING THE RIVAL SUBMISSIONS, WE FIND T HAT THE LD. COMMISSIONER HAS NOT DECIDED THE ISSUE ON M ERITS AND THEREFORE THE ORDER OF THE LD. COMMISSIONER IS SET ASIDE AND THE ISSUE IS REMITTED BACK TO THE FILE OF THE LD. MP NO. 43/COCH/2010 2 COMMISSIONER FOR PROPER ADJUDICATION ON MERITS AFTE R AFFORDING SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. COMMISSIONER IS FURTHER DIRECTED TO DECIDE THE ISSUE IN ACCORDANCE WITH LAW. 2. THE PETITIONER HAS OBJECTED THAT THE NON ADJUDIC ATION OF THE ABOVE GROUNDS BY THE INCOME-TAX APPELLATE TRIBU NAL IN THE IMPUGNED ORDER DATED 3-11-2009 IS A MISTAKE APP ARENT FROM RECORD. HENCE, IT IS PRAYED BY THE PETITIONE R THAT THE TRIBUNAL MAY BE PLEASED TO RE-CALL ITS ORDER DATED 3-11-2009 IN ITA NOS.972/COCH/2008 AND ADJUDICATE THE GROUND NOS. 6 TO 15 OF THE APPEAL. 3. ON THE OTHER HAND, THE LD. D.R. WOULD SUBMIT THA T THE TRIBUNAL HAS ALREADY DECIDED THE ISSUE, THERE IS NO MISTAKE APPARENT ON RECORD. FURTHER THE LD. DR WOULD SUBM IT THAT IF THE TRIBUNAL INTENDS TO RE-CALL THE MATTER, THE APP EAL MAY BE RE-CALLED AND THE WHOLE ISSUE INCLUDING THE DELAY M AY BE CONSIDERED AFRESH. 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE TRIBUNAL VIDE I TS ORDER DATED 3-11-2009 FOUND THAT THE COMMISSIONER HAS NOT DECIDED THE ISSUE ON MERITS. THIS IS A MISTAKE AP PARENT FROM RECORD. THEREFORE, WHILE THE LD. COMMISSIONER HAS PASSED AN MP NO. 43/COCH/2010 3 ORDER ON MERITS, IT IS NECESSARY THAT THE APPEAL HA S TO BE DECIDED ON MERITS. ONCE IT IS DECIDED TO HEAR THE APPEAL ON MERITS, THEN THE WHOLE ISSUE HAS TO BE ADJUDICATED AFRESH AS RIGHTLY CONTENDED BY THE LD. D.R. HENCE, THE ORDE R OF THE TRIBUNAL IN ITA NO.972/COCH/2008 DATED 3-11-2009 IS RECALLED AND THE REGISTRY IS DIRECTED TO POST THE A PPEAL IN ITS REGULAR COURSE. 5. IN THE RESULT, THE MISCELLANEOUS PETITION IS ALL OWED. SD/- SD/- (SANJAY ARORA) (N.VIJAYKUMARAN) ACCOUNTANT MEMBER JUDICIAL M EMBER ERNAKULAM, DATED THE 10 TH MARCH,2011. PM. COPY FORWARDED TO: 1. M/S. PARUR TOWN MERCHANTS ASSOCIATION, VYAPARA BHA VAN, N.PARUR. 2. THE COMMISSIONER OF INCOME-TAX, KOCHI. 3. D.R.