Mrs. Aruna J. Kapse, Nashik V. Deputy Commissioner of Income-tax,

MA 45/PUN/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4607 (ITAT-PUNE)
• Duration Of Justice: 6 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-06-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 06-05-2016
• Assessment Year: misc
• Appeal Filed On: 30-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAWE
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E , , !'#$ BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM % / MA NO. 45/PN/2015 (ARISING OUT OF ITA NO. 163/PN/2009 BLOCK PERIOD: 1997-98 TO 2003-04 MRS. ARUNA J. KAPSE, CLASSIC ARCADE, SAIGRAM, CIDCO, AMBAD LINK ROAD, AMBAD, NASHIK-422010 . / APPELLANT PAN : A NGPK 2783 B &% V/S. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1, NASHIK . / RESPONDENT % / MA NO. 46/PN/2015 (ARISING OUT OF ITA NO. 164/PN/2009 BLOCK PERIOD: 1997-98 TO 2003-04 SHRI JANARDAN R. KAPSE, CLASSIC ARCADE, SAIGRAM, CIDCO, AMBAD LINK ROAD, AMBAD, NASHIK-422010 . / APPELLANT PAN : A BPPK 7293 K &% V/S. DY. COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 1, NASHIK . / RESPONDENT / APPELLANT BY : SMT. DEEPA KHARE / DEPARTMENT BY : SHRI HITENDRA NINAWE ' DATE OF HEARING :06-05-2016 / DATE OF PRONOUNCEMENT :29-06-2016 2 MA NOS. 45 & 46/PN/2015 (' ORDER PER VIKAS AWASTHY, JM : THE MISCELLANEOUS APPLICATIONS HAVE BEEN FILED BY THE ASSESS EES IN THEIR RESPECTIVE APPEALS WHICH WERE ADJUDICATED BY THE T RIBUNAL VIDE COMMON ORDER DATED 10-07-2015. 2. THE ASSESSEES IN THEIR RESPECTIVE APPEALS HAD IMPUGNED THE ORD ER OF COMMISSIONER OF INCOME TAX (APPEALS)-I, NAGPUR DATED 29-0 8-2008 FOR THE BLOCK PERIOD 1997-98 TO 2003-04 U/S. 158BD R.W.S. 1 43(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). THE A PPEALS OF THE ASSESSEES WERE DISMISSED BY THE TRIBUNAL VIDE ORDER DATED 10-07-2015. THE ASSESSEES FILED MISCELLANEOUS APPLICATIONS FO R RECTIFICATION OF THE MISTAKE THAT HAS ALLEGEDLY CREPT IN THE ORDER OF TRIBUNAL WHILE DECIDING THE ISSUES RAISED IN THE APPEAL. THE TRIBUNAL IN PARA 11 OF THE ORDER HAS REFERRED TO TH E LETTER DATED 18-10-2004 WRITTEN BY SHRI PRAKASH P. LADDHA. THE CONT ENTION OF THE LD. COUNSEL FOR THE ASSESSEE IS THAT THE SAID LETTER WAS NEV ER PUT TO THE ASSESSEES EITHER DURING THE ASSESSMENT PROCEEDINGS OR DURING THE FIRST APPELLATE PROCEEDINGS. IT IS FOR THE FIRST TIME BEFORE THE T RIBUNAL THAT THE DEPARTMENT HAS MADE REFERENCE OF THE LETTER. IT HAS BE EN FURTHER ASSERTED BY THE LD. COUNSEL THAT THE ASSESSMENT ORDER PASSED U /S. 158BD R.W.S. 143(3) OF THE ACT AND THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) DATED 28-12-2006 IN THE CASE OF SHRI PRAKASH P. LADDHA WAS NEVER CONSIDERED EITHER DURING THE ASSESSMENT PROCEEDINGS OR THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY. THE TRIBUNAL HAS PLA CED RELIANCE ON THE ASSESSMENT ORDER AND THE ORDER OF COMMISSIONER OF I NCOME TAX 3 MA NOS. 45 & 46/PN/2015 (APPEALS) IN THE CASE OF SHRI PRAKASH P. LADDHA FOR CONFIRMING THE ADDITION IN THE HANDS OF THE ASSESSEE. BY REFERRING AND RELYING ON MATERIAL WHICH WAS NOT AVAILABLE BEFORE THE AUTHORITIES BELOW AMOUNTS TO IMPROVING THE CASE OF THE ASSESSING OFFICER. THE LD. COUNSE L FOR THE ASSESSEE SUBMITTED THAT INITIALLY THE APPEALS FILED BY SHRI P RAKASH P. LADDHA AND THE ASSESSEES WERE TAGGED TOGETHER ON TH E REQUEST OF LD. DR. HOWEVER, ON THE DATE OF HEARING THE REQUEST WAS WITHDRA WN BY THE LD. DR AND THE APPEALS OF THE ASSESSEES WERE INDEPENDENTLY HE ARD. THE TRIBUNAL WHILE DECIDING THE APPEALS OF THE ASSESSEES HAVE CONSIDERE D THE PAPER BOOK FILED BY THE DEPARTMENT IN THE CASE OF SHRI PRAKASH P. LADDHA. THEREFORE, THIS MISTAKE HAS CREPT IN THE ORDER OF TRIBUNAL. 3. ON THE OTHER HAND SHRI HITENDRA NINAWE REPRESENTING THE DEPARTMENT SUBMITTED THAT THE ORDER OF TRIBUNAL IS WELL RE ASONED AND JUSTIFIED. HOWEVER, THE LD. DR EXPRESSED HIS IGNORANCE ABOU T THE FACTS NARRATED IN THE APPLICATION REGARDING CONSOLIDATION AND THE REAFTER SEGREGATION OF THE APPEALS IN THE CASE OF ASSESSEES AND SHRI PRAKASH P. LADDHA. THE LD. DR SUBMITTED THAT WHEN THESE APPEALS WE RE HEARD THE DEPARTMENT WAS REPRESENTED BY SHRI B.C. MALAKAR WHO HAS SINCE BEEN SUPERANNUATED. 4. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF RIVAL SIDES. AS PER THE CONTENTION OF THE LD. COUNSEL FOR THE A SSESSEE THERE IS A MISTAKE IN THE ORDER OF TRIBUNAL, AS THE TRIBUNAL WHILE DEC IDING THE APPEALS OF THE ASSESSEES HAVE TAKEN INTO CONSIDERATION T HE ASSESSMENT ORDER AND THE ORDER OF COMMISSIONER OF INCOME TAX (APPEA LS) IN THE CASE OF SHRI PRAKASH P. LADDHA. IT HAS BEEN CONTENDED THAT INITIALLY THE APPEALS OF THE ASSESSEES AND SHRI PRAKASH P. LADDHA WERE CONSOLIDA TED AT 4 MA NOS. 45 & 46/PN/2015 THE REQUEST OF LD. DR. SUBSEQUENTLY, THE LD. DR HAS WITHD RAWN HIS REQUEST AND THE APPEALS OF THE ASSESSEES WERE HEARD IN DEPENDENTLY. THE LD. COUNSEL FOR THE ASSESSEES HAVE FURTHER ASSERTED THAT IN PARA 11 THERE IS A REFERENCE TO LETTER DATED 18-10-2004 WRITTEN BY SH RI PRAKASH P. LADDHA WHICH WAS NEVER CONFRONTED TO THE ASSESSEE EITH ER DURING ASSESSMENT PROCEEDINGS OR THE FIRST APPELLATE STAGE. IT IS FOR THE FIRST TIME THAT THE ASSESSEES ARE BEING CONFRONTED WITH THE A SSESSMENT ORDERS AND THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IN TH E CASE OF SHRI PRAKASH P. LADDHA. 5. A PERUSAL OF THE CASE FILE SHOWS THAT THERE IS NO ORDE R OF EITHER CONSOLIDATION OF THE APPEALS IN THE CASE OF SHRI PRAKASH P . LADDHA OR THE ASSESSEES, NEITHER THERE IS ANY REQUEST ON BEHALF OF THE LD. DR FOR SUCH CONSOLIDATION. THE ASSESSEES IN THE MISCELLANEOUS APPLICATIO N HAVE STATED THAT THE TRIBUNAL HAS SUO MOTO CONSIDERED THE N EW MATERIAL I.E. ASSESSMENT ORDER AND THE ORDER OF COMMISSIONER OF INCOM E TAX (APPEALS) PASSED IN THE CASE OF SHRI PRAKASH P. LADDHA. THE AFOR ESAID ASSERTIONS BY THE ASSESSEES ARE UNWARRANTED AND SUPERFLUOUS. THE AFORESAID DOCUMENTS WERE FILED BY THE DEPARTMENT AND THERE IS NOT HING ON RECORD WHICH SHOWS THAT THE LD. COUNSEL FOR THE ASSESSEE HAS EV ER OBJECTED FOR THE CONSIDERATION OF SAME. 6. BE THAT AS IT MAY, A PERUSAL OF RECORD SHOWS THAT TH E LETTER DATED 18-10-2004 WRITTEN BY SHRI PRAKASH P. LADDHA REFERRED T O IN PARA 11 OF THE TRIBUNAL ORDER WAS NEVER CONFRONTED TO THE ASSESS EES. OSTENSIBLY, THE ASSESSMENT ORDER AND THE ORDER OF COMMISSIONER OF INCOM E TAX (APPEALS) IN THE CASE OF SHRI PRAKASH P. LADDHA WERE NEVER PUT AC ROSS TO THE ASSESSEES AT ANY STAGE. SINCE, SEVERAL DOCUMENTS WERE FILE D BY BOTH THE 5 MA NOS. 45 & 46/PN/2015 SIDES DURING THE COURSE OF HEARING, THESE DOCUMENTS WERE CONSIDERED BY THE TRIBUNAL WHILE DECIDING THE APPEALS OF THE ASSESSEES AN D THE ALLEGED ERROR HAS CREPT IN THE ORDER OF TRIBUNAL, WHICH NEEDS RECTIFICATION. 7. THEREFORE, THE ORDER OF TRIBUNAL IN ITA NOS. 163 & 164/ PN/2009 DATED 10-07-2015 FOR THE BLOCK PERIOD 1997-98 TO 2003- 04 IS RECALLED AND THE REGISTRY IS DIRECTED TO LIST THE AFORESAID APPEALS OF TH E ASSESSEES FOR FRESH HEARING IN DUE COURSE AFTER ISSUING NOTICE TO BOTH THE SIDES. 8. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEES ARE ALLOWED. ORDER PRONOUNCED ON WEDNESDAY, THE 29 TH DAY OF JUNE, 2016. SD/- SD/- ( ! / R.K. PANDA) ( ' # / VIKAS AWASTHY) ACCOUNTANT MEMBER JUDICIAL MEMBER $ PUNE; %& /DATED : 29 TH JUNE, 2016 RK/PS ()*#+, - .+ $ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ' ( ) / THE CIT(A)-I, NAGPUR 4. ' /THE CIT(CENTRAL), NAGPUR 5. '*+ ,,-. / -. / 0 1 23 / $ 45/ 6787/ 091 9:;<=/ >?;: 6. +!@ A $ GUARD FILE. // ' , // TRUE COPY// (% / BY ORDER, #%/ 0' PRIVATE SECRETARY, ' /ITAT, PUNE