ECEJY INTERNATIONAL P. LTD, V. ACIT CIR 6(2),

MA 518/MUM/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5027 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-08-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 1994-1995
• Appeal Filed On: 27-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G : MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI R.K.PANDA, ACCOUNTANT MEMBER MA. NO. 518/MUM/2009 ARISING OUT OF ITA. NO. 3211/MUM/2001 ASSESSMENT YEAR 1994-1995 ESJAY INTERNATIONAL PVT. LTD. MUMBAI 013. PAN AAACE-1066-B VS. ACIT, CIRCLE 6 (2) MUMBAI. (APPLICANT) (RESPONDENT) FOR APPLICANT : SHRI NITESH JOSHI FOR RESPONDENT : SHRI SUNIL KUMAR SINGH (DR) ORDER PER D. MANMOHAN, V.P. 1. IN A COMMON ORDER DATED 2 ND DECEMBER, 2005 THE ITAT G BENCH, MUMBAI DISPOSED OF THE CROSS-APPEALS PERTAIN ING TO THE ASSESSMENT YEAR 1994-1995. AGGRIEVED BY THE ORDER P ASSED IN THE APPEAL FILED AT THE INSTANCE OF THE ASSESSEE-COMPANY, MISC ELLANEOUS APPLICATION WAS PREFERRED BEFORE US, CONTENDING, INTER ALIA, TH AT IN THE INTEREST OF SUBSTANTIAL JUSTICE THE ORDER OF THE TRIBUNAL REQUI RES TO BE RECALLED TO THE EXTENT IT DOES NOT DISPOSE OF OTHER GROUNDS ON MERI TS. 2. WE HAVE HEARD THE LEARNED COUNSEL, APPEARING ON BEHALF OF THE ASSESSEE, AS WELL AS LEARNED DR IN THIS REGARD AND CAREFULLY PERUSED THE RECORD. 3. IN THE APPEAL FILED BY THE ASSESSEE-COMPANY THE MAIN ISSUE WAS WITH REGARD TO VALIDITY OF THE ASSESSMENT MADE UNDER SECTION 143 (3) OF THE ACT SINCE NOTICE WAS ISSUED AFTER A LAPSE OF 12 MONTHS. AT THE TIME OF HEARING, THE TRIBUNAL DISPOSED OF THE JURISDICTI ONAL ISSUE AND HENCE 2 DID NOT DECIDE THE OTHER GROUNDS ON MERITS. IT WAS POINTED OUT THAT UNDER IDENTICAL CIRCUMSTANCES THE ITAT, I BENCH, MUMBAI IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 1995-96 (MA. NO. 519/M UM/2009 ARISING OUT OF ITA. NO. 4835/MUM/2001 DATED 23 RD JULY, 2010) THE TRIBUNAL RECALLED ITS EARLIER ORDER BY HOLDING AS UNDER : 9. WE SEE SUBSTANCE IN THE PETITION. A PLAIN LOOK AT THE FACTS SET OUT ABOVE DOES SHOW THAT THE EXAMINATION OF ADDITIONS MADE IN RE-ASSESSMENT PROCEEDINGS IS NO LONGER AN ACADEMIC ISSUE, AND THE GROUNDS OF APPEAL ON MERITS CANNOT, THEREFORE, BE TREATED AS INFRUCTUOUS. THE DEVELOPMENTS, THOUGH POST THE IMPUGNED ORDER, HAVE MADE IT NECESSARY THAT APPEAL BE DISPOSED OF ON MERITS. LEARNED DEPARTMENTAL REPRESENTATIVES SUGGESTION THAT IT IS NOT A FIT CA SE FOR EXERCISE OF POWERS U/S. 254 (2) SINCE TRIBUNAL S ORDER DOES NOT SUFFER FROM ANY MISTAKE, IS NOT ACCEPTABLE. THERE MAY NOT INDEED BY ANY MISTAKE VIS--VIS THE LEGAL POSITION PREVAILING AT THE TIME OF PASSING THE IMPUGNED ORDER, BUT GIVEN THE LEGAL POSITION NOW AND THE FACTS BEFORE US, NOT DISPOSING OF THE GROUNDS OF APPEAL ON MERITS DOES CONSTITUTE A MISTAKE APPARENT IN RECORD, THOUGH MUCH MORE THAN THAT, A GROSS MISCARRIAGE OF JUSTICE. WE, THEREFORE , ACCEPT THE PLEA OF THE APPLICANT THOUGH, IN ALL FAIRNESS, WITH A RIDER THAT BOTH THE APPEALS I.E., ASSESSEES APPEAL AS ALSO THE ASSESSING OFFICERS APPEAL, ARE TO BE RECALLED FOR ADJUDICATION ON MERI TS. 3 10. FOR THE REASONS SET OUT ABOVE, WE RECALL THE TRIBUNALS ORDER DATED 27 TH JULY 2005 FOR DEALING WITH GRIEVANCES ON MERITS AND DIRECT THE REGISTRY T O FIX THE APPEAL FOR HEARING IN THE FIRST WEEK OF OCTOBER, 2010. 4. SINCE THE FACTS AND CIRCUMSTANCES ARE IDENTICAL IN THIS CASE, CONSISTENT WITH THE VIEW TAKEN THEREIN WE DEEM IT F IT TO RECALL THE COMMON ORDER (APPEAL FILED BY THE REVENUE AS WELL A S APPEAL FILED BY THE ASSESSEE) WITH A DIRECTION TO REGISTRY TO POST THE APPEALS FOR ADJUDICATION ON MERITS. AS DECLARED IN THE OPEN COURT, THESE APP EALS ARE ALSO FIXED FOR HEARING ON 4-10-2010. SINCE THE DATE IS ANNOUNCED IN THE OPEN COURT, THERE IS NO NEED TO ISSUE SEPARATE NOTICES AS BOTH PARTIES WERE INFORMED. 5. IN THE RESULT, M.A. OF THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED ACCORDINGLY IN THE OPEN COURT. SD/- SD/- (R.K.PANDA) (D.MANMOHAN) ACCOUNTANT MEMBER VICE-PRESIDENT MUMBAI: 06 TH AUGUST, 2010. VBP COPY TO : 1. ESJAY INTERNATIONAL PVT. LTD., 48, LAXMI INDL. ESTA TE, HANUMAN GALI, OFF FURGUSON ROAD, LOWER PAREL, MUMBAI 400 013 . PAN AAACE-1066-B 2. ACIT, CIRCLE 6 (2), MUMBAI. 3. CIT(A)-VI, MUMBAI. 4. CIT, CITY-VI, MUMBAI 5. DR G BENCH 6. GUARD FILE. (TRUE COPY) BY ORDER, ASST.REGISTRAR, ITAT, MUMBAI.