Lodha & Co., Kolkata V. CIT, -XIX, KOLKATA, Kolkata

MA 5/KOL/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4536 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 18-01-2016
• Court: TRIBUNAL
• Department Lawyers: MD G HYAS UDDIN
• Assessee Lawyers: MIRAJ D. SHAH
• Section: 263; 63; 2

Judgement Text

1 M.A.05/KOL/2016 A/O ITA NO.1444/KOL/2012-LODHA & CO .A.Y.2004-05 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B KOL KATA [BEFORE HONBLE SHRI P.M.JAGTAP, AM & SHRI N.V.VA SUDEVAN, JM] M.A.NO.05/KOL/2016 A/O ITA NO.1444/KOL/2012 ASSESSMENT YEAR : 2004-05 LODHA & CO. -VERSUS- C.I.T.- XIX, KOLKATA KOLKATA [PAN : AABFL 1894 Q] (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI MIRAJ D.SHAH, A.R. FOR THE RESPONDENT: MD.GHYAS UDDIN, JCIT, SR.DR DATE OF HEARING : 08.07.2016. DATE OF PRONOUNCEMENT : 08.07.2016. ORDER PER N.V.VASUDEVAN, JM: THIS IS A MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE U/S 254(2) OF THE INCOME TAX ACT, 1961 (ACT) PRAYING THAT THE EXPARTE ORDER DATED 10.08.2015 PASSED BY THE TRIBUNAL IN THE AFORESAID APPEAL SHOULD BE R ECALLED AS IT SUFFERS FROM MISTAKE APPARENT ON THE FACE OF THE RECORD. 2. THE ABOVE APPEAL OF THE ASSESSEE WAS AGAINST AN ORDER PASSED BY THE CIT IN EXERCISE OF HIS POWERS U/S.263 OF THE ACT. IT HAS BEEN SUBMITTED IN THE MISCELLANEOUS APPLICATION THAT IN THE IMPUGNED ORDER OF THE CIT U /S 263 OF THE ACT, THE ISSUE WAS WITH REGARD TO MAKING OF DISALLOWANCE U/S 40(B) OF THE ACT ON ACCOUNT OF SALARY OF PARTNERS IN THE ASSESSMENT OF A PARTNERSHIP FIRM. I T HAS FURTHER BEEN BROUGHT TO OUR NOTICE THAT THE BENCH WHILE DECIDING THE APPEAL HAS PROCEEDED ON THE BASIS THAT THE ISSUE DEALT WITH BY CIT IN THE IMPUGNED ORDER U/S 2 63 OF THE ACT RELATES TO THE RECEIPT OF SHARE CAPITAL BY THE ASSESSEE AND APPLICABILITY OF SEC.68 OF THE ACT ON SUCH RECEIPT. THE TRIBUNAL HAS UPHELD THE ORDER OF CIT ON SUCH ER RONEOUS ASSUMPTION AND PROCEEDED TO APPLY THE RATIO LAID DOWN IN SIMILAR C ASE OF RECEIPT OF SHARE APPLICATION 2 M.A.05/KOL/2016 A/O ITA NO.1444/KOL/2012-LODHA & CO .A.Y.2004-05 MONEY BY ANOTHER ASSESSEE. IT WAS FURTHER POINTED OUT BY THE ASSESSEE THAT SINCE THE ISSUE RAISED IN THE APPEAL HAS NOT BEEN ADJUDICATED BY THE TRIBUNAL THE ORDER SUFFERS FROM A MISTAKE APPARENT FROM THE FACE OF THE RECORD . THE ASSESSEE HAS ACCORDINGLY PRAYED FOR RECALLING OF THE ORDER. 3. WE HAVE HEARD THE SUBMISSIONS OF THE LD. CO UNSEL FOR THE ASSESSEE AND THE LD. DR. THE SUBMISSIONS MADE IN THE APPLICATION ARE COR RECT AND THE ISSUE THAT AROSE FOR CONSIDERATION IN THE APPEAL BY THE ASSESSEE IS WITH REGARD TO THE DISALLOWANCE U/S 40(B) OF THE ACT AND NOT RECEIPT OF SHARE CAPITAL BY THE ASSESSE. IT IS THEREFORE A MISTAKE APPARENT ON THE FACE OF THE RECORD OF THE TRIBUNAL. IN THE INTEREST OF JUSTICE THE ORDER DATED 10.08.2015 IS RECALLED. THE APPEAL IS DIRECTE D TO BE FIXED FOR HEARING ON 04.08.2016. THE DATE OF HEARING WAS ANNOUNCED IN TH E OPEN COURT. HENCE NO NOTICE OF HEARING SHALL BE SENT TO THE ASSESSEE. 4. IN THE RESULT THE MISCELLANEOUS APPLICATIO N OF THE ASSESSEE IS ALLOWED. O RDER PRONOUNCED IN THE OPEN COURT ON 08.07.2016. SD/- SD/- [P.M.JAGTAP ] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 08.07.2016. [RG PS] COPY OF THE ORDER FORWARDED TO: 1.LODHA & CO. , 14, GOVERNMENT PLACE (EAST), KOLKAT A 700069. 2.C.I.T., XIX, KOLKATA. 3. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, ASST. REGISTRAR, ITAT, KOLKATA BENCHES