GOLDENEROSS PHARMA P. LTD, V. ASST CIT,

MA 549/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0980 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-08-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2007-2008
• Appeal Filed On: 24-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P SINGH
• Assessee Lawyers: D R JAI N
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI G BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI VIJAY PAL RAO, JM & SHRI D. KARUNAKAR R AO, AM MISCELLANEOUS APPLICATION NO. 549/MUM/2012 (ARISING FROM CO NO. 114/MUM/2011, ASST YEAR-2007-0 8) M/S GOLDEN CROSS PHARMA PVT. LTD. 12, GUNBOW STREET, FORT, MUMBAI-400 001 VS ACIT, CIR.-6(3) R. NO. 522, 5 TH FLOOR AAYAKAR BHAVAN, M. K. ROAD, MUMBAI-400020 (APPLICANT) (RESPONDENT) PAN NO. AABCG0541J ASSESSEE BY SHRI D. R. JAIN REVENUE BY SHRI O. P. SINGH DATE OF HEARING 30 TH AUGUST 2013 DATE OF PRONOUNCEMENT 30 TH AUGUST 2013 ORDER PER VIJAY PAL RAO, JM BY WAY OF THIS MISCELLANEOUS APPLICATION THE ASSESS EE IS SEEKING RECALLING OF THE ORDER DATED 13.11.2011 OF THIS TRI BUNAL WHEREBY THE CROSS OBJECTIONS OF THE ASSESSEE WERE DECIDED EX-PARTE. 2 WE HAVE HEARD THE LD. AR AS WELL AS LD. DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE LD. AR OF THE ASSE SSEE HAS SUBMITTED THAT SINCE THE AUTHORISED REPRESENTATIVE OF THE ASS ESSEE WAS OUT OF STATION DURING THE PERIOD WHEN THIS CROSS OBJECTIONS OF THE ASSESSEE WERE LISTED FOR HEARING BEFORE THIS TRIBUNAL. HE HAS FILED AN A FFIDAVIT EXPLAINING THE REASONS FOR NON APPEARANCE BEFORE THE TRIBUNAL ON 3 .11.2011 WHEN THE CROSS OBJECTIONS OF THE ASSESSEE WERE HEARD EX-PART E. THE LD. AR HAS FURTHER POINTED OUT THE ISSUE OF DEPRECIATION RAISE D IN THE CROSS OBJECTIONS MA 548/M/2012 GOLDEN CROSS PHARMA PVT. LTD. 2 EMANATES FROM 263 ORDERS PASSED FOR THE ASSESSMENT YEAR 2001-02 WHEREBY THE COMMISSIONER HAS THRUST UPON THE DEPREC IATION ON THE ASSESSEE AND CONSEQUENTLY THE AO HAS REDUCED THE DE PRECIATION CLAIM FOR THE YEAR UNDER CONSIDERATION BY NOTIONALLY REPRODUC ING THE RETURN DOWN VALUE OF ASSET. THE LD. AR HAS FURTHER POINTED OUT THAT THE TRIBUNAL HAS ALREADY SET ASIDE THE REVISION ORDER PASSED BY THE COMMISSIONER U/S 263 AND THE REVENUE HAS PREFERRED AN APPEAL BEFORE THE HIGH COURT AGAINST THE ORDER OF THIS TRIBUNAL WHICH IS PENDING. THUS, THE LD. AR HAS PLEADED THAT THIS FACT HAS NOT BEEN CONSIDERED BY THE TRIBU NAL WHILE DECIDING THE CROSS OBJECTIONS OF THE ASSESSEE. 3. ON THE OTHER HAND, THE LD. DR HAS VEHEMENTLY OBJ ECTED THE MISCELLANEOUS APPLICATION OF THE ASSESSEE AND SUBMI TTED THAT WHEN THE TRIBUNAL HAS DECIDED THIS ISSUE ON MERIT THEN IT DO ES NOT FALL UNDER THE CATEGORY OF MISTAKE APPARENT ON RECORD WHICH CAN BE RECTIFIED UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT. 4. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND CARE FUL PERUSAL OF THE RECORD WE FIND THAT THE TRIBUNAL WHILE DECIDING THE CROSS OBJECTIONS OF THE ASSESSEE EX-PARTE HAS CONSIDERED THE ORDER PASSED B Y THE COMMISSIONER U/S 263 FOR THE ASSESSMENT YEAR 2001-02 BUT THE FAC TUM OF SETTING ASIDE OF THE SAID ORDER BY THIS TRIBUNAL WAS NOT BROUGHT TO THE NOTICE OF THE BENCH WHILE DECIDING THE CO OF THE ASSESSEE. WE FUR THER NOTE THAT THE ASSESSEE HAS EXPLAINED THE REASONS IN THE AFFIDAVIT FILED BY THE LD. AR FOR NON-APPEARANCE BEFORE THIS TRIBUNAL. WE ARE SATISFI ED WITH THE EXPLANATION OF THE ASSESSEE THAT THERE WAS A REASON ABLE CAUSE FOR NON- MA 548/M/2012 GOLDEN CROSS PHARMA PVT. LTD. 3 APPEARANCE BEFORE THIS TRIBUNAL. HENCE, IN THE FACT S AND CIRCUMSTANCES OF THE CASE AS WELL AS IN THE INTEREST OF JUSTICE WE R ECALL THE ORDER DATED 13.11.2011 OF THIS TRIBUNAL. THE REGISTRY IS DIRECT ED TO LIST THE CROSS OBJECTION NO. 114/M/2011 FOR REGULAR HEARING IN NOR MAL COURSE. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. ORDER PR ORDER PR ORDER PR ORDER PRONOUNCEMENT IN THE OPEN COURT ONOUNCEMENT IN THE OPEN COURT ONOUNCEMENT IN THE OPEN COURT ONOUNCEMENT IN THE OPEN COURT AT THE TIME OF HEARIN G I.E. ON AT THE TIME OF HEARING I.E. ON AT THE TIME OF HEARING I.E. ON AT THE TIME OF HEARING I.E. ON 30 3030 30 TH THTH TH AUGUST AUGUST AUGUST AUGUST 2013 2013 2013 2013. .. . SD/- SD/- (D. KARUNAKAR RAO) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI: DATED: 30 TH AUGUST 2013 SUBODH. COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI