ITO, Wd.-1(4) Nashik., Nashik V. M/s Mangalmurti Construction, Nashik

MA 54/PUN/2012

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1506 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 8 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 28-09-2012
• Assessment Year: misc
• Appeal Filed On: 03-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MODI
• Assessee Lawyers: SUNIL PATHAK
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER MA NO. 54/PN/2012 ARISING OUT OF ITA NOS.799 & 800/PN/2010) (ASST.YEARS: 2004-05 & 2005-06) ITO, WARD-1(4), NASHIK .. APPLICANT VS. M/S.MANGALMURTI CONSTRUCTION, 13, SHRIRAM SANKUL, OPP : HOTEL PANCHAVATI, VAKILWADI, NASHIK PAN NO.AAGFM7492Q .. RESPONDENT ASSESSEE BY : SHRI SUNIL PATHAK REVENUE BY : SHRI A.K. MODI DATE OF HEARING : 29-11-2013 DATE OF PRONOUNCEMENT : 08-01-2014 ORDER PER R.K.PANDA, AM : THE REVENUE THROUGH THIS MISCELLANEOUS APPLICATION REQUESTS THE TRIBUNAL TO RECTIFY CERTAIN MISTAKES W HICH HAVE CREPT IN THE ORDER OF THE TRIBUNAL PASSED ON 05-10-2011 FOR THE ASSESSMENT YEARS 2004-05 AND 2005-06. 2. AFTER HEARING BOTH THE SIDES, WE FIND THE TRIBUN AL HAS DISMISSED BOTH THE APPEALS FILED BY THE REVENUE BY OBSERVING AS UNDER : 3. AT THE VERY OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE FILED A COPY OF THIS TRIBUNAL IN THE ASSESSEE'S OWN CASE FOR THE SAME ASSESSMENT YEAR 2004-05 AND 2005-06 VIDE ITA NO. 845 AN D 946/PN/2009 DATED 29/06/2011 AND MENTIONED THAT THI S IS ORDER OF THE TRIBUNAL WAS PASSED IN THE CONTEXT OF THE PROVI SIONS OF SECTION 263 OF THE ACT FOR THE ASSESSMENT YEARS 2004-05 A ND 2005- 06 AGAINST THE REVIEW OF THE CIT. THE TRIBUNAL QUASHE D THE SAID PROCEEDINGS FOR BOTH THE YEARS ON THE ISSUE OF THE JURI SDICTION OF THE CIT. IN THIS REGARD, THE LEARNED COUNSEL FOR THE ASSESSEE REFERRED 2 LAST PARA NINE AND TEN. FURTHER, REFERRING TO THE PR ESENT APPEALS, THE LEARNED COUNSEL FOR THE ASSESSEE MENTIONED THAT THE THESE ARE APPEALS RELATED TO THE 'FRESH ASSESSMENT ORDERS' PASSED U/S. 263 R.W.S. 143 OF THE ACT GIVING EFFECT TO THE SAID QUASHE D ORDERS OF THE CIT PASSED U/S. 263 OF THE ACT VIDE ORDER DATED 29/06/ 2011. FURTHER, THE LEARNED COUNSEL FOR THE ASSESSEE MENTIONED THAT THESE ASSESSMENTS ALSO HAVE TO FOLLOW SAME FATE AS THE REVIEW ORD ERS, WHICH ARE THE SOURCES OF THE CAUSE OF ACTION, ARE QUASH ED BY THE TRIBUNAL PROCEEDINGS. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE SA ID ORDERS DATED 29/06/2011 AND ALSO PRESENT IMPUGNED ORDERS. ON FINDING THAT THE APPEALS HAVE THE GENESIS IN THE REVIEW ORDERS, WHICH ARE ALREADY QUASHED, WE ARE OF THE OPINION, THAT BOTH AP PEALS OF THE REVENUE HAVE TO BE DISALLOWED ON PRELIMINARY ARGUME NTS ITSELF. ACCORDINGLY, GROUNDS OF BOTH THE APPEALS OF THE REVEN UE ARE DISMISSED. 2.1 WE FIND THE REVENUE THROUGH THIS MISCELLANEOUS APPLICATION HAS REQUESTED THE TRIBUNAL TO RECALL THE ORDER OF T HE TRIBUNAL SINCE CERTAIN MISTAKES HAVE CREPT IN THE SAID ORDER. THE CONTENTS OF THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE READ AS UNDER : THE HON'BLE PUNE BENCH 'B' PUNE IN ITS ORDER DATED 05/10/2011 IN ITA NO. 799 & 800/PN/2010 FOR A.Y. 2004-05 & 200 5-06 IN THE CASE OF M/S. MANGALMURTI CONSTRUCTIONS, NASHIK HAS DISMISSED THE REVENUE APPEALS. VIDE ORDER, THE ITAT HAS CONFIRMED THE DELETION OF ADDITION MADE BY THE AO IN ORDER U/S. 143(3) R.W.S. 2 63 DATED 29.12.2009. 01. IT IS HUMBLY REQUESTED THAT THERE IS A MISTAKE APPA RENT FROM THE RECORDS AND THE PRESENT APPLICATION U/S. 254(2) IS FILED WITH A VIEW TO RECTIFY THE SAME, THE DETAILS OF WHICH ARE B ROUGHT TO THE NOTICE OF THE HON'BLE BENCH ARE AS UNDER:- 1. IN APPELLATE PROCEEDINGS BEFORE THE ITAT THE LD C OUNSEL FOR THE ASSESSEE HAS FILED A COPY OF THE ITAT PUNE 'B' BENCH , PUNE'S ORDER IN ITA NO. 845 & 946/PN/2009 DATED 29/06/2011 . THIS ORDER WAS PASSED ON ASSESSEE'S APPEAL AGAINST THE ORDER OF THE CIT U/S. 263 FOR THE A.Y.2004-05 & 2005-06. VIDE THIS ORD ER THE TRIBUNAL HAD QUASHED THE SAID PROCEEDINGS U/S. 263 FOR BOTH THE YEARS ON THE ISSUE OF THE JURISDICTION OF CIT. IN THE S AID ORDER THE HON'BLE TRIBUNAL HAS GIVEN FINDINGS REGARDING THE JUR ISDICTION OF THE CIT U/S. 263, WHICH ARE CHALLENGED BY THIS OFFICE BY FILING A MISC. APPLICATION U/S. 254(2) DATED 10.02.2012 FILED WITH THE ITAT PUNE, COPY ENCLOSED. VIDE THIS MISC. APPLICATION, IT HAS BEEN SUBMITTED THAT, THE CIT HAD VERY MUCH JURISDICTION TO INVOKE T HE PROVISIONS U/S. 263 FOR A.Y.2004-05 & 2005-06, AS APPEAL WAS FILE D BY THE DEPARTMENT IN THE ASSESSEE'S CASE FOR A.Y.2003-04 AGAINST THE CIT(A)'S ORDER DATED 21.04.2006 UNDER THE AUTHORISATI ON OF HON'BLE CIT U/S. 253(2) DATED 06.07.2006. SINCE THE COUNSEL F OR THE ASSESSEE HAD PUT UP INCORRECT FACTS REGARDING NOT FILING OF APPEAL BY THE REVENUE AGAINST THE CIT(A)'S ORDER DATED 21.04.20 06 FOR 3 A.Y.2003-04 BEFORE THE HON'BLE BENCH IN APPELLATE P ROCEEDINGS IN ITA NO.845 & 946/PN/2009 DATED 29/06/2011, THE ASSESS EE'S APPEALS WERE ALLOWED. THE MISC. APPLICATION U/S.254(2) AGAINST THE SAID ORDER OF THE TRIBUNAL DATED 29.06.2011 IS FILED BY THE DEPARTMENT VIDE LETTER DATED 10.02.2012. BY RELYING UPON ON ITS OWN ORDER IN ITA NO.845 & 946/PN/2009 DATED 29.06.2 011 IN THE ASSESSEE'S CASE, THE ITAT PUNE VIDE PARA 4 OF ITS ORDER I N ITA NO.799 & 800/PN/2010 DATED 05.10.2011, HAS DISMISSED TH E REVENUE APPEALS ON PRELIMINARY ARGUMENTS ITSELF WITHOU T ADJUDICATING THE APPEALS. SINCE VIDE THE SAID DECISION DATED 29/06/2011, THE TRIBUNAL HAS DISMISSED THE REVENUE APPE ALS RELATED TO THE ORDER PASSED U/S.263 WHICH WAS NOT ACCEP TED AND DEPT. HAS FILED THE MISC APPLICATION VIDE LETTER DAT ED 10.02.2012 AGAINST THE SAID DECISION, THE MISTAKE PRECEDENT TO THE FACTS OF THE CASE VIDE PRESENT ORDER OF TRIBUNAL DATED 05.10.2011 ARE APPLICABLE AND NEEDS CORRECTIVE ACTION. 02. WITH CONTEXT TO ABOVE IT IS REPEATED THE CORRECT FACTS THAT, THE DEPARTMENT HAS NOT ACCEPTED THE DECISION OF CIT(A ) AGAINST HIS ORDER DATED 21.04.2006 FOR AY 2003-04 AND THE ACIT, CIRCLE-I, NASHIK HAS FILED THE APPEAL WITH ITAT PUNE OF CIT-I, NASHIK'S AUTHORISATION U/S.253(2) OF THE IT. ACT DATED 06.07.2 006. THE HON'BLE TRIBUNAL HAS PASSED ORDER IN ITA N0.796/PN/200 6 VIDE ITS ORDER DATED 10.08.2011. 03. ALL THESE SHOWS THAT THERE ARE MISTAKE APPARENT FRO M ITAT PUNE'S ORDER DATED 05.10.2011. A MISCELLANEOUS APPLICA TION U/S.254(2) IS THEREFORE FILED IN VIEW OF AUTHORISATION U/S.254(2) DATED 26/04/2012 ISSUED BY CIT-I, NASHIK. THE MISTAKE M AY KINDLY BE RECTIFIED AND REVENUE APPEALS FOR A.Y.2004-05 & 2 005-06 WHICH WERE DISMISSED BY THE TRIBUNAL VIDE ITS ORDER DATED 05. 10.2011 BE RECALLED & ADJUDICATED UPON. 3. BOTH THE SIDES FAIRLY CONCEDED THAT IN VIEW OF T HE ORDER PASSED BY THE TRIBUNAL IN ITA NOS. 845 AND 846/PN/2 009 ORDER DATED 23-09-2013 FOR A.YRS. 2004-05 AND 2005-06 WHE REIN THE TRIBUNAL HAS QUASHED THE 263 PROCEEDINGS, THE MISCE LLANEOUS APPLICATION FILED BY THE REVENUE HAS TO BE DISMISSE D. 3.1 WE FIND THE TRIBUNAL VIDE ORDER DATED 29-06-201 1 HAD ALLOWED THE APPEALS FILED BY THE ASSESSEE WHEREIN T HE ASSESSEE HAS CHALLENGED THE ORDER PASSED U/S.263. SUBSEQUENTLY THE REVENUE FILED MISCELLANEOUS APPLICATION AND THE ORDER OF TH E TRIBUNAL WAS RECALLED. THEREAFTER THE TRIBUNAL VIDE ITA NO.845/ PN/2009 & 846/PN/2009 ORDER DATED 23-09-2013 FOR A.Y. 2004-05 AND 2005- 4 06 QUASHED THE 263 PROCEEDINGS FOR BOTH THE YEARS. THUS, THE GRIEVANCE OF THE REVENUE HAS ALREADY BEEN TAKEN CAR E OF. THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE THER EFORE BECOMES INFRUCTUOUS. ACCORDINGLY, THE SAME IS DISMISSED. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 08-01-2014. SD/- SD/ - (R.S. PADVEKAR) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMB ER SATISH PUNE DATED : 8 TH JANUARY 2014. COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A)-I, NASHIK 4. CIT-I, NASHIK 5. THE D.R, B PUNE BENCH 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY ITAT, PUNE BENCHES, PUNE