NAOZER BEJON BALDAWALA, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX 19(2), MUMBAI

MA 440/MUM/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 1592 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: K
• Assessment Year: 2011-2012
• Appeal Filed On: 21-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: DARSHIT NAIK A RS
• Keywords: Bogus purchase; Period of limitation; Right to appeal; Reassessment proceedings
• Section: 264; 254(2); 72

Judgement Text

P A G E | 1 MA NOS. 440 & 441/MUM/2018 AYS. 2010 - 11 & 2011 - 12 NAOZER BEJON BALDAVALA VS. ASST. COMMISSIONER OF INCOME TAX - 19(2) IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI M. BALAGANESH, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER M.A. NOS. 440 & 441/MUM/2018 (ARISING OUT OF ITA NOS. 72 & 73/MUM/2017 (ASSESSMENT YEARS: 2010 - 11 & 2011 - 12 ) NAOZER BEJON BALDAWALA BUILDTECH INDIA, 27 KAILASH DARSHAN, KENNEDY BRIDGE, NANA CHOWK, MUMBAI - 19, 4000 0 7 VS. ASST. COMMISSIONER OF INCOME TAX - 19(2) MATRU MANDIR BUILDING, NANA CHOWK, OPP. BHATIA HOSPITAL, TARDEO ROAD, MUMBAI - 400007 PAN AACPB7254K (APPLIC ANT) (RESPONDENT) APPLIC ANT BY: S HRI M.M. GOLVALA & SHRI DARSHIT NAIK , A.RS RESPONDENT BY: MS. NEHA THAKUR, D.R DATE OF HEARING: 01 .02.2019 DATE OF PRONOUNCEMENT: 0 1 .02 .2019 O R D E R PER RAVISH SOOD, JM THE PRESENT MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE FOR A.YS. 2010 - 11 AND 2011 - 12 ARISES FROM THE CONSOLIDATED ORDER PASSED BY THE TRIBUNAL IN THE CASE OF N A OZER BEJON BALDAWALA VS. ACIT - 19(2), MUMBAI, VIZ. ITA NO. 72/MUM/2017 & ITA NO. 73/MUM/2017, D ATED 25.10.2017 , RESPECTIVELY . AS COMMON ISSUE S ARE INVOLVED IN THE AFOREMENTIONED APPLICATIONS , THEREFORE , THE SAME ARE P A G E | 2 MA NOS. 440 & 441/MUM/2018 AYS. 2010 - 11 & 2011 - 12 NAOZER BEJON BALDAVALA VS. ASST. COMMISSIONER OF INCOME TAX - 19(2) BEING DISPOSED OFF BY WAY OF A CONSOLIDATED ORDER. WE SHALL FIRST ADVERT TO THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE FOR A.Y . 2010 - 11 . 2. DURING THE COURSE OF THE HEARING OF THE APPLICATION IT WAS SUBMITTED BY THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) THAT AS THE APPLICATIONS FILED BY THE ASSESSEE UNDER SEC. 254(2) WERE BEYOND THE STIPULATED TIME PERIOD ENVISAGED IN THE STATUTORY PROVISION, HENCE THE SAME WERE NOT MAINTAINABLE AND WERE LIABLE TO BE DISMISSED ON THE SAID GROUND ITSELF. IN ORDER TO FORTIFY HI S AFORESAID CONTENTION THE LD. D .R SUBMITTED THAT AS THE ORDER OF THE TRIBUNAL WAS PASSED ON 25.10.2017, HENCE T HE APPLICATION UNDER SUB - SECTION ( 2 ) OF SEC.254 COULD HAVE BEEN FILED BY THE ASSESSEE LATEST BY 30.04.2018. IT WAS AVERRED BY THE LD. D.R THAT AS THE ASSESSEE HAD FILED THE PRESENT APPLICATION ON 21.06.2018 I.E. MUCH BEYOND THE PRESCRIBED TIME LIMIT , THERE FORE, THE SAME COULD NOT BE ADMITTED. 3. PER CONTRA, THE LD. AUTHORIZED REPRESENTATIVE (FOR SHORT A.R) SUBMITTED THAT THE ORDER PASSED BY THE TRIBUNAL UNDER SEC. 254(1) OF THE I.T. ACT, DATED 25.10.2017 WAS RECEIVED BY THE ASSESSEE ONLY ON 22.12.2017. I T WAS THE CONTENTION OF THE LD. A.R THAT AS THE PERIOD OF SIX MONTHS FOR FILING OF THE APPLICATION AS ENVISAGED UNDER SUB SECTION ( 2 ) TO SEC. 254 WAS TO BE CONSIDERED FROM THE DATE ON WHICH THE ORDER OF THE TRIBUNAL WAS RECEIVED BY THE ASSESSEE APPLICANT , THEREFORE, THE PRESENT APPLICATION FILED WAS WELL WITHIN THE STIPULATED TIME PERIOD. IN ORDER TO DRIVE HOME HIS AFORESAID CONTENTION THE LD. A.R PLACE D HEAVY RELIANCE ON THE JUDGMENT OF THE HONBLE HIGH COURT OF GUJARAT IN THE CASE OF PETER P LAST SYNTHETIC S P. LTD. VS. ACIT & ANR. (2014) 364 ITR 16 (GUJ.). APART THEREFROM, THE LD. A.R ALSO TOOK SUPPORT OF THE ORDER OF THE ITAT, SMC, MUMBAI IN THE CASE OF M/S KAB I R INFO S OLUTION INDIA PVT. LTD. VS. ITO - 15(2)(1), MUMBAI [M.A. NO.287/MUM/2018 (ARISING P A G E | 3 MA NOS. 440 & 441/MUM/2018 AYS. 2010 - 11 & 2011 - 12 NAOZER BEJON BALDAVALA VS. ASST. COMMISSIONER OF INCOME TAX - 19(2) OUT OF I TA NO. 2121/MUM/2017 , DATED 28.12.2018)] AND THE ORDER OF A COORDINATE BENCH OF THE TRIBUNAL I.E ITAT, CHANDIGARH IN THE CASE OF SHRI JAGMOHAN GURBAKSHI SH SINGH VS. DCIT [ ( M.A. NO. 42/CHD/2018 ) ( ARISING OUT OF ITA NO. 101/CHD/2017; DATED 27.04.2018)]. 4. W E SHALL FIRST ADVERT TO THE ISSUE PERTAINING TO THE RESPECTIVE CONTENTION S ADVANCED BY THE AUTHORIZED REPRESENTATIVES FOR BOTH THE PARTIES AS REGARDS THE MAINTAINABILITY OF THE PRESENT APPLICATION BEFORE US. ADMITTEDLY, AS ENVISAGED IN SUB - SECTION ( 2 ) TO S EC. 254 (AS AMENDED BY THE FINANCE ACT, 2016 W.E.F 01.06.2016) THE A PPELLATE TRIBUNAL MA Y , AT ANY TIME WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED , WITH A VIEW TO RECTIFY ING ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDE R PASSED BY IT UNDER SUB - SECTION (1) AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER. AT THE FIRST BLUSH IT APPEARS THAT THE ENTIRE PROCESS OF RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD HAS AN OUTER LIMIT OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED BY THE APPELLATE TRIBUNAL UNDER SUB - SECTION ( 1 ) TO SEC. 254 OF THE I.T. ACT. WE FIND THAT THE SCOPE AND GAMU T OF SUB - SECTION ( 2 ) TO SEC. 254 HAD BEEN DELIBERATED UPON AT LENGTH BY THE HONBLE HIGH COURT OF GUJARAT IN THE CASE OF PETER P LAST SYNTHETIC S P. LTD. VS. ACIT & ANR. (2014) 364 ITR 16 (GUJ). ON THE BASIS OF EXHAUSTIVE DELIBERATIONS IT WAS OBSERVED BY THE HIGH COURT THAT THE PERIOD OF LIMITATION WAS TO BE CONSTRUED FROM THE DATE OF RECEIPT OF THE ORDER WHICH WAS SOUGHT TO BE RECTIFIED. IN SUM AND SUBSTANCE , I T WAS IMPLIEDLY HELD BY THE HONBLE HIGH COURT THAT WHERE AN ORDER PASSED BY THE TRIBUNAL IS SOUGHT TO BE RECTIFIED AT THE INSTANCE OF THE ASSESSEE/REVENUE, THE PERIOD OF LIMITATION SHALL START FROM THE DATE OF RECEIPT OF THE ORDER BY THE SAID PARTY. THE HIGH COURT WHILE CONCLUDING AS HEREINABOVE HAD RELIED ON A JUDGMENT OF THE HONBLE HIGH COURT OF BOMB AY IN THE CASE OF PET L AD BULAKHIDAS MILLS P A G E | 4 MA NOS. 440 & 441/MUM/2018 AYS. 2010 - 11 & 2011 - 12 NAOZER BEJON BALDAVALA VS. ASST. COMMISSIONER OF INCOME TAX - 19(2) COMPANY LTD. VS. RAJ SINGH (1959) 37 ITR 264 (BOM). THE ISSUE IN THE LATTER JUDICIA L PRONOUNCEMENT WAS AS TO WHETHER THE EXPRESSION ORDER IN SEC. 33A(2) OF THE INCOME TAX, 1922 USED IN THE EXPRESSION FROM THE DA TE OF THE ORDER WAS TO BE CONSIDERED AS THE DATE ON WHICH THE PARTY AFFECTED HAD THE CONSTRUCTIVE KNOWLEDGE OF THAT ORDER. THE HONBLE HIGH COURT OF BOMBAY IN ITS AFOREMENTIONED DECISION OBSERVED THAT AS THE RIGHT OF APPEAL IS GIVEN TO AN ASSESSEE AGAINST THE ORDER, HENCE THE RIGHT OF APPEAL CAN ONLY BE EFFECTIVELY EXERCISED IF THE PARTY AFFECTED H AS KNOWLEDGE OF THAT ORDER. WE FIND THAT A SIMILAR VIEW HAD ALSO BEEN TAKEN BY A COORDINATE BENCH OF THE TRIBUNAL I.E. ITAT, MUMBAI, B ENCH I IN THE CASE OF PAW AN K UMAR JAIN VS. DCIT 24(2), MUMBAI (2013) 155 TTJ 14 (MUM). IN THE AFOREMENTIONED CASE IT WAS OBSERVED BY THE TRIBUNAL THAT FOR THE PURPOSE OF FILING AN APPLICATION UNDER SEC.254(2) THE PERIOD OF LIMITATION WOULD START FROM THE POINT OF TIME WHEN SUCH OR DER IS COMMUNICATED TO THE ASSESSEE AND NOT FROM THE DATE OF PASSING OF THE ORDER. IN TERMS OF OUR AFORESAID OBSERVATIONS , WE ARE PERSUADED TO SUBSCRIBE TO THE CONTENTION ADVANCED BY THE LD. A.R THAT THE PERIOD OF LIMITATION ENVISAGED IN SUB - SECTION ( 2 ) TO SEC. 254 FOR FILING OF AN APPLICATION BY THE ASSESSEE HAS TO BE LOOKED INTO FROM THE DATE ON WHICH THE ORDER PASSED BY THE TRIBUNAL UNDER SEC. 254(1) WAS RECEIVED BY THE ASSESSEE. THE LD. A.R IN ORDER TO BUTTRESS HIS CONTENTION THAT THE ORDER OF THE TR IBUNAL WAS RECEIVED BY THE ASSESSEE ON 22.12.2017 HAD DRAWN OUR ATTENTION TO THE COPY OF THE ENVELOPE IN WHICH THE AFORESAID ORDER OF THE TRIBUNAL WAS DELIVERED TO THE ASSESSEE. A PERUSAL OF THE ENDORSEMENTS ON THE AFORESAID ENVELOPE REVEAL ED THAT THE SAME WAS D E SPATCHED ON 19.12.2017. IN THE BACKDROP OF THE AFORESAID FACTS WE ARE PERSUADED TO ACCEPT THE CONTENTION OF THE LD. A.R THAT AS THE ORDER OF TRIBUNAL WAS RECEIVED BY THE ASSESSEE ON 22.12.2017, HENCE THE APPLICATION FILED BY HIM UNDER SEC. 254(2) ON 21.06.2018 WAS WELL WITHIN THE TIME PERIOD P A G E | 5 MA NOS. 440 & 441/MUM/2018 AYS. 2010 - 11 & 2011 - 12 NAOZER BEJON BALDAVALA VS. ASST. COMMISSIONER OF INCOME TAX - 19(2) ENVISAGED IN THE SAID STATUTORY PROVISION. WE THUS IN TERMS OF OUR AFORESAID OBSERVATIONS BEING OF THE CONSIDERED VIEW THAT AS THE APPLICATION FILED BY THE ASSESSEE UNDER SEC. 254(2) IS WITHIN THE PRESCRIBED TIME PERIOD, HENCE THE SAME IS MAINTAINABLE. 5. WE SHALL NOW ADVERT TO THE MERITS OF THE PRESENT APPLICATION FILED BY THE ASSESSEE UNDER SUB - SECTION ( 2 ) TO SEC. 254 OF THE IT ACT. THE LD. A.R TOOK US THROUGH THE FACTS OF THE CASE TO THE EXTENT THE SAME WERE R ELEVANT FOR DISPOSING OF THIS APPLICATION AND SUBMITTED THAT AN ADDITION/DISALLOWANCE OF RS.1,07,13,732/ - WAS MADE BY THE A.O ON THE GROUND THAT THE ASSESSEE HAD BOOKED BOGUS PURCHASES DURING THE YEAR UNDER CONSIDERATION . ON APPEAL, THE CIT(A) CONFINED TH E ADDITION TO THE EXTENT OF 25% OF THE AGGREGATE VALUE OF PURCHASES UNDER CONSIDERATION. IT WAS SUBMITTED BY THE LD. A.R THAT THE ASSESSEE BEING AGGRIEVED WITH THE ORDER OF THE CIT(A) HAD CARRIED THE MATTER IN APPEAL BEFORE THE TRIBUNAL . IT WAS SUBMITTED BY THE LD. A.R THAT IN THE COURSE OF HEARING OF THE APPEAL IT WAS BROUGHT TO THE NOTICE OF THE TRIBUNAL THAT THE ASSESSEE HAD IN THE COURSE OF REASSESSMENT PROCEEDINGS , VIDE HIS LETTER DATED 13.10.2014 REQUEST ED THE A.O TO PROVIDE HIM WITH VARIOUS DOCUMENTS VIZ. (I) COMMUNICATIONS RECEIVED FROM DGIT (INV .) ; (II) STATEMENTS, IF ANY, WHICH HAD BEEN RECORDED OF THE SUPPLY PARTIES; AND (III) AN OPPORTUNITY FOR CROSS - EXAMINATION OF THE CONCERNED PERSON S . THE LD. A.R SUBMITTED THAT DESPITE THE SP ECIFIC REQUEST OF THE ASSESSEE FOR CROSS - EXAMINATION OF THE CONCERNED PERSONS ON THE BASIS OF WHOSE STATEMENTS ADVERSE INFERENCES AS REGARDS THE VERACITY OF THE PURCHASE TRANSACTIONS WAS DRAWN IN THE HANDS OF THE ASSESSEE, THE SAME WAS NEVER ALLOWED TO HIM . IT WAS THE CONTENTION OF THE LD. A.R THAT THE FAILURE ON THE PART OF THE LOWER AUTHORITIES TO ALLOW CROSS - EXAMINATION OF THE CONCERNED PERSONS WAS ASSAILED IN THE COURSE OF THE HEARING OF THE APPEAL BEFORE THE TRIBUNAL AND SUPPORT WAS DRAWN FROM THE JUDG MENT OF THE HONBLE SUPREME COURT IN THE CASE OF P A G E | 6 MA NOS. 440 & 441/MUM/2018 AYS. 2010 - 11 & 2011 - 12 NAOZER BEJON BALDAVALA VS. ASST. COMMISSIONER OF INCOME TAX - 19(2) ANDAMAN TIMBER INDUSTRIES VS. COMMISSIONER OF CENTRAL EXCISE (CIVIL APPEAL NO. 4228 OF 2006). THE LD. A.R SUBMITTED THAT IN THE AFORESAID JUDGMENT THE HONBLE APEX COURT HAD OBSERVED THAT IT WAS OBLIGATORY O N THE PART OF THE REVENUE TO ENSURE THAT CROSS - EXAMINATION IS GIVEN TO AN ASSESSEE AGAINST WHOM AN ADJUDICATION IS MADE . IN THE BACKDROP OF THE AFORESAID CONTENTION , IT WAS SUBMITTED BY THE LD. A.R THAT THOUGH THE AFORESAID JUDGMENT OF THE HONBLE SUPREME COURT WAS SPECIFICALLY RELIED UPON DURING THE COURSE OF HEARING OF THE APPEAL AND A COPY OF THE SAME WAS ALSO PLACED ON RECORD , HOWEVER, INADVERTENTLY THE SAME HAD NOT BEEN CONSIDERED BY THE TRIBUNAL WHILE DISPOSING OFF THE APPEAL. IT WAS THUS AVERRED BY T HE LD. A.R THAT AS THE TRIBUNAL WHILE DISPOSING OFF THE APPEAL HAD FAILED TO CONSIDER THE AFORESAID JUDGMENT OF THE HONBLE SUPREME COURT WHICH WAS DIRECTLY ON THE ISSUE UNDER CONSIDERATION , THUS THE ORDER THEREIN PASSED UNDER SEC. 254(1) SUFFERED FROM A MISTAKE WHICH WAS GLARING FROM RECORD AND RESULTANTLY RENDERED THE ORDER AMENABLE FOR RECTIFICATION UNDER SEC. 254(2) OF THE I.T. ACT . 6. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE (FOR SHORT D.R) SUBMITTED THAT AS THE TRIBUNA L HAD PASSED THE ORDER UNDER SEC. 254(1) AFTER DELIBERATING AT LENGTH ON THE ISSUE UNDER CONSIDERATION , HENCE NO MISTAKE OR INFIRMITY DID EMERGE FROM THE SAME . 7. WE HAVE HEARD THE AUTHORIZED REPRESENTATIVES FOR BOTH THE PARTIES, PERUSED THE ORDER PASSED BY THE TRIBUNAL WHILE DI SPOSING OFF THE APPEAL OF THE ASSESSEE AND THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY, WE FIND FROM A PERUSAL OF THE RECORDS THAT THE LD. A .R DURING THE COURSE OF THE HEARING OF THE APPEAL HAD PLACED ON RECORD A COPY OF THE JUDGMENT OF THE HONBLE SUPREM E COURT IN THE CASE OF ANDAMAN TIMER INDUSTRIES VS. COMMISSIONER OF CENTRAL EXCISE (CIVIL APPEAL NO. 9228 OF 2006) , IN ORDER TO DRIVE HOME HIS CONTENTION THAT P A G E | 7 MA NOS. 440 & 441/MUM/2018 AYS. 2010 - 11 & 2011 - 12 NAOZER BEJON BALDAVALA VS. ASST. COMMISSIONER OF INCOME TAX - 19(2) THE ASSESSMENT FRAMED BY THE A.O WITHOUT AFFORDING AN OPPORTUNITY TO CROSS - EXAMINE THE PARTIES DE SPITE SPECIFIC REQUEST FOR THE SAME BY THE ASSESSEE WAS NOT SUSTAINABLE IN THE EYES OF LAW. APART THEREFROM, WE FIND THAT THE SAID SPECIFIC CONTENTION AS WAS RAISED BY THE LD. A.R IN THE COURSE OF HEARING OF THE APPEAL WAS ALSO TAKEN NOTE OF BY THE TRIBUNA L AT PAGE 11 - PARA 8 OF ITS ORDER. 8. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE ISSUE BEFORE US , AND ARE OF THE CONSIDERED VIEW THAT THOUGH THE CONTENTION ADVANCED BY THE LD. A.R THAT DESPITE SPECIFIC REQUESTS NO OPPORTUNITY TO CROSS - EXAMINE THE SUPPLIER PARTIES WAS ALLOWED BY THE A.O WAS TAKEN NOTE OF BY THE TRIBUNAL , AND ALSO THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF ANDAMAN TIMER INDUSTRIES VS. COMMISSIONER OF CENTRAL EXCISE (CIVIL APPEAL NO. 9228 OF 2006) WAS TAKEN ON RECORD, H OWEVER, THE SAID ISSUE HAD INADVERTENTLY REMAINED OMITTED TO BE ADJUDICATED UPON WHILE DISPOSING OFF THE APPEAL. WE THUS BEING OF THE CONSIDERED VIEW THAT THE NON - CONSIDERATION OF THE AFORESAID CONTENTION OF THE ASSESSEE IN THE BACKDROP OF THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF ANDAMAN TIMER INDUSTRIES VS. COMMISSIONER OF CENTRAL EXCISE (CIVIL APPEAL NO. 9228 OF 2006) THAT WAS RELIED UPON BY HIM IS A MISTAKE THAT IS APPARENT FROM RECORD WHICH THEREIN RENDERS THE ORDER PASSED BY THE TRIBU NAL A MENABLE FOR RECTIFICATION UNDER SEC. 254(2) OF THE IT ACT. OUR AFORESAID VIEW THAT THE NON - CONSIDERATION OF THE JUDGMENT OF THE HONBLE SUPREME COURT RENDERS THE ORDER PASSED BY THE TRIBUNAL AMENABLE FOR RECTIFICATION UNDER SEC. 254(2) STANDS FORTIFIE D BY THE JUDGMENT OF THE HONBLE APEX COURT IN THE CASE OF ACIT VS. SAURASHTRA STOCK EXCHANGE LTD. (2008) 305 ITR 227 (SC). WE THUS IN TERMS OF OUR AFORESAID OBSERVATIONS RECALL THE ORDER PASSED BY THE TRIBUNAL FOR THE LIMITED PURPOSE OF ADJUDICATING UPON THE SAID ISSUE IN THE BACKDROP OF THE AFORESAID JUDGMENT OF THE HONBLE SUPREME COURT P A G E | 8 MA NOS. 440 & 441/MUM/2018 AYS. 2010 - 11 & 2011 - 12 NAOZER BEJON BALDAVALA VS. ASST. COMMISSIONER OF INCOME TAX - 19(2) IN THE CASE OF ANDAMAN TIMBER INDUSTRIES VS. COMMISSIONER OF CENTRAL EXCISE (CIVIL APPEAL NO. 4228 OF 2006). 9. THE APPLICATION FILED BY THE ASSESSEE UNDER SEC. 254(2) O F THE I T ACT IS ALLOWED IN TERMS OF OUR AFORESAID OBSERVATIONS. A.Y. 2011 - 12 M . A NO. 441/MUM/2018 10. WE FIND THAT AS THE FACTS AND THE ISSUE INVOLVED IN THE PRESENT APPLICATION FILED BY THE ASSESSEE UNDER SUB - SECTION (2) TO SEC. 254 OF THE IT ACT FOR A.Y 2011 - 12 REMAIN S THE SAME AS WERE THERE BEFORE US IN THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE FOR THE IMMEDIATELY PRECEDING YEAR I.E. A.Y. 2010 - 11 VIZ. M . A NO. 440/MUM /2018 (ARISING OUT OF ITA NO. 72/MUM/2017) , THUS OUR ORDER PAS SED WHILE DISPOSING OFF THE AFORESAID MISCELLANEOUS APPLICATION FOR A.Y. 2010 - 11 SHALL APPLY MUTATIS MUTANDIS FOR DISPOSING OFF THE PRESENT MISCELLANEOUS APPLICATION I.E M . A 441/MUM/2018 FILED BY THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION I.E. A.Y. 2011 - 12. THE ORDER PASSED BY THE TRIBUNAL WHILE DISPOSING OFF THE APPEAL OF THE ASSESSEE I.E. N A OZER BALDAWALA VS. ACIT - 19(2), MUMBAI (ITA NO. 73/MUM/2017; DATED 28.12.2018 ) IS IN THE SAME TERMS RECA LLED FOR A LIMITED PURPOSE AS HAD BEEN RECORDED BY US WHILE DISPOSING OFF THE M . A NO. 440/MUM/2018 OF THE ASSESSEE FOR A.Y. 2010 - 11. 11. THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE UNDER SEC. 254(2) OF THE INCOME TAX, 1961 IS ALLOWED IN TERMS OF O UR AFORESAID OBSERVATIONS. 12. THAT BOTH THE MISCELLANEOUS APPLICATION S FILED BY THE ASSESSEE UNDER SEC.254(2) OF THE I.T. ACT FOR A.Y. 2010 - 11 (M.A. 440/MUM/2018) AND A.Y. 2011 - 12 (M.A. 441/MUM/2018) ARE ALLOWED IN TERMS OF OUR AFORESAID OBSERVATIONS. T H E REGISTRY IS DIRECTED TO FIX P A G E | 9 MA NOS. 440 & 441/MUM/2018 AYS. 2010 - 11 & 2011 - 12 NAOZER BEJON BALDAVALA VS. ASST. COMMISSIONER OF INCOME TAX - 19(2) THE HEARING OF THE MATTER FOR THE AFORESAID LIMITED PURPOSE ON 05.03.2019. AS THE AFORESAID DATE WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE AUTHORISED REPRESENTATIVES FOR BOTH THE PARTIES, HENCE THE INTIMATION OF THE SAME BY WAY OF A SEPARATE NOTICE IS BEING DISPENSED WITH. ORDER PRO NOUNCED IN THE OPEN COURT ON 0 1 . 02.2019 S D / - S D / - ( M. BALAGANESH ) (RAVISH SOOD) ACC OUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 0 1 . 0 2 . 2 0 1 9 PS. ROHIT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI P A G E | 10 MA NOS. 440 & 441/MUM/2018 AYS. 2010 - 11 & 2011 - 12 NAOZER BEJON BALDAVALA VS. ASST. COMMISSIONER OF INCOME TAX - 19(2)