Smt. Anju Banger, Kanpur V. Income Tax Officer, Kanpur

MA 44/LKW/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5629 (ITAT-LUCKNOW)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 01-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K SINGH
• Assessee Lawyers: PRADEEP SETH
• Keywords: Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI. A. D. JAIN, VICE PRESIDENT AND SHRI. T.S. KAPOOR, ACCOUNTANT MEMBER M.A. NO.44/LKW/2018 [IN ITA NO. 169/LKW/2016] ASSESSMENT YEAR: 2005 - 06 SMT. ANJU BANGER PROPRIETOR OF M /S SHREE BALAJI SINTEX C - 50, UDYOG KUNJ PANKI, KANPUR V. INCOME TAX OFFICER 2(1) KANPUR T AN /PAN : AAQPB0526J (APP ELL ANT) (RESPONDENT) APPELLANT BY: SHRI PRADEEP SETH, FCA RESPONDENT BY: SHRI C. K. SINGH, D.R. DATE OF HEARING: 03 0 5 2019 DATE OF PRO NOUNCEMENT: 16 0 5 2019 O R D E R PER T.S.KAPOOR , A .M : THIS MISCELLANEOUS APPLICATION IS PREFERRED BY THE ASSESSEE WITH A REQUEST TO RECALL THE ORDER OF THE TRIBUNAL, DATED 2/5/2018 IN ITA NO.169/LKW/2016. 2 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESS EE FILED AN APPEAL BEFORE THE TRIBUNAL AGAINST THE ORDER OF THE LD. CIT(A) - I, KANPUR, DATED 18/1/2016. THE TRIBUNAL , VIDE ITS ORDER DATED 23/8/2016 IN ITA NO.169/LKW/2016 , PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. AGAINST THIS ORDER OF THE TRIBUNAL, THE ASSESSEE MOVED A MISCELLANEOUS APPLICATION BEARING M.A. NO.91/LKW/2016 WITH A REQUEST TO RECALL THE ORDER OF THE TRIBUNAL DATED 23/8/2016, AS THE TRIBUNAL OMITTED TO DEAL WITH GROUND NOS.4, 5, 6 AND 7 RAISED BY THE ASSESSEE IN HER APPEAL. M.A. NO.44/LKW/2018 PAGE 2 OF 4 ACCORDINGLY, TH E TRIBUNAL RECALLED ITS ORDER DATED 23/8/2016 , VIDE ITS ORDER DATED 28/7/2017 PASSED IN MA NO.91/LKW/2016 , OBSERV ING AS UNDER: - 2. THE LD. A.R. OF THE ASSESSEE BEFORE ME BY REFERRING TO THE MISCELLANEOUS APPLICATION CONTENDED THAT THE ASSESSEE HAS TAKEN A S MANY AS SIX EFFECTIVE GROUNDS OF APPEAL, BUT THIS TRIBUNAL HAS DISPOSED OF ONLY GROUND NO.1 & 3. GROUNDS NO.4, 5 AND 6, WHICH GO TO THE ROOT OF GROUND NO.3, HAVE NOT BEEN DISPOSED OF BY THIS TRIBUNAL. DISPOSING OF GROUNDS NO.4, 5 AND 6 WILL HAVE A BEAR ING ON GROUND NO.3. NOT DISPOSING OF THESE GROUNDS TAKEN BY THE ASSESSEE WILL TANTAMOUNT TO A MISTAKE APPARENT ON RECORD. IN THIS REGARD RELIANCE WAS PLACED ON THE FOLLOWING DECISIONS: - 1. CIT VS. KESHAV FRUIT MART, 199 ITR 771 2. CIT VS. K.M. SUGAR MILL S LTD., 275 ITR 247. 3. THE LD. D.R. WAS ALSO FAIR ENOUGH TO CONCEDE THE POSITION THAT THESE GROUNDS HAVE NOT BEEN DISPOSED OF BY THIS TRIBUNAL. 4. AFTER HEARING THE RIVAL SUBMISSIONS AND GOING THROUGH THE ORDER OF THE TRIBUNAL, I AM OF THE VIEW THAT A MIS TAKE HAS CREPT IN THE ORDER OF THE TRIBUNAL, AS THIS TRIBUNAL HAS NOT DISPOSED OF GROUNDS NO.4, 5 AND 6. DISPOSAL OF GROUNDS NO.4, 5 AND 6 WILL HAVE A BEARING, IN OUR OPINION, ON THE FINDING GIVEN IN RESPECT OF GROUND NO.3 AND I, THEREFORE, ALLOW THE MISC ELLANEOUS APPLICATION OF THE ASSESSEE AND RECALL THE ORDER OF THIS TRIBUNAL SO FAR IT RELATES TO GROUNDS NO.3, 4, 5 AND 6. 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF ASSESSEE IS ALLOWED. 3 . IN THIS VIEW OF THE MATTER , THE APPEAL WAS AGAIN FIXED FOR HEAR ING ON 19/4/2018 TO DECIDE GROUND NOS.4, 5, 6 & 7 OF APPEAL TAKEN BY THE ASSESSEE IN HER APPEAL. HOWEVER, THE TRIBUNAL WHILE DECIDING THE APPEAL VIDE ORDER DATED 2/5/2018, SET ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORED THE MATTER TO THE FILE OF THE LD . CIT(A), INSTEAD OF DECIDING GROUND NOS.4, 5, 6 & 7 ON MERIT, FOR WHICH PURPOSE THE ORDER OF THE M.A. NO.44/LKW/2018 PAGE 3 OF 4 TRIBUNAL DATED 23/8/2016 WAS RECALLED. SINCE THE TRIBUNAL HAS NOT DEALT WITH GROUND NOS. 4, 5, 6 & 7 OF THE APPEAL, FOR WHICH PURPOSE THE ORDER WAS RECALLED, THERE IS AN APPARENT MISTAKE CREPT IN THE ORDER OF THE TRIBUNAL DATED 2/5/2018. SINCE THE TRIBUNAL HAS COMMITTED AN ERROR IN THE ORDER WHILE DISPOSING OF THE APPEAL, WE RECALL THE ORDER OF THE TRIBUNAL DATED 2/5/2018 AND FIX THIS APPEAL FOR HEARING ON 3/ 7/2019 . SINCE THE DATE OF HEARING HAS BEEN ANNOUNCED IN THE OPEN COURT, NO FRESH NOTICE SHALL BE ISSUED TO THE PARTIES. 4 . IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 / 0 5 / 201 9 . SD/ - SD/ - [ A. D. JAIN ] [ T.S. KAPOOR ] VICE PRESIDENT ACCOUNTANT MEMBER DATED: 16 /0 5 / 201 9 JJ: 0305 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR BY ORDER ASSISTANT REGISTRAR M.A. NO.44/LKW/2018 PAGE 4 OF 4 1. DATE OF DICTATION 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BE FORE THE DICTATING MEMBER 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 OF UPLOADING, IF NOT, REASON FOR NOT UPLOADING 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8. DATE ON WHICH ORDER GOES FOR XEROX AND ENDORSEMENT 9. DATE ON WHICH THE FILE GOES TO THE O.S 10. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER 11.DATE ON WHICH FILES GOES TO DESPATCH SECTION FOR DESPATCH 12. DATE OF DISPATCH OF THE ORDER