CANDY HOLDINGS LTD, V. ITO WD 6(2)(1),

MA 554/MUM/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6198 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2001-2002
• Appeal Filed On: 16-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SU RENDRA KUMAR
• Keywords: Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI D.K.AGARWAL, JM M.A.NOS.554 & 555/MUM/2010 (ARISING OUT OF ITA NOS.9650/MUM/2004 & 2537/MUM/20 05 ASST. YEAR 2001-2002) M/S.CANDY HOLDINGS LIMITED 105 CHURCHGATE CHAMBERS SIR VITHALDAS THACKERSAY MARG NEW MARINE LINES, MUMBAI 400 020 PAN : AAACC2733M. VS. THE INCOME TAX OFFICER WARD 6(2)(1) MUMBAI. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI PRAMOD KUMAR PARIDA RESPONDENT BY : SHRI SURENDRA KUMAR O R D E R PER R.S.SYAL, AM : THESE TWO MISCELLANEOUS APPLICATIONS FILED BY THE A SSESSEE ARISE OUT OF TWO SEPARATE EX PARTE ORDERS PASSED BY THE TRIBUNAL ONE AGAINST THE ASSES SEES APPEAL IN ITA NO.9650/MUM/2004 AND THE OTHER AGAINST THE REVE NUES APPEAL IN ITA NO.2537/MUM/2005 IN RELATION TO ASSESSMENT YEAR 200 1-2002. THE ASSESSEES APPEAL WAS DISMISSED BY THE TRIBUNAL BY APPLYING TH E DECISION OF ITAT DELHI BENCH IN MULTIPLAN INDIA LTD. 38 ITD 320 VIDE ITS ORDER DATED 01.08.2007 FOR WANT OF PRESENCE OF THE ASSESSEE. THE REVENUES APPEAL W AS ALSO DISPOSED OFF EX PARTE QUA THE ASSESSEE BY THE TRIBUNAL VIDE ITS ORDER DATED 11.10.2007. IN THIS ORDER THE TRIBUNAL RESTORED THE MATTER TO THE FILE OF LEARNED CIT(A) WITH THE DIRECTION TO GIVE OPPORTUNITY OF THE ASSESSING OFFICER AS THERE WAS ADMISSION OF SOME ADDITIONAL EVIDENCE IN VIOLATION OF RULE 46A. 2. WE HAVE HEARD BOTH SIDES AND PERUSED THE RELEVAN T MATERIAL ON RECORD. A COMMON SUBMISSION HAS BEEN MADE BY BOTH THE PARTIES THAT THE ISSUES RAISED IN CROSS APPEALS IS OVERLAPPING. ON A SPECIFIC QUERY F ROM THE BENCH ON AN EARLIER OCCASION, THE LEARNED A.R. MADE A STATEMENT AT THE BAR THAT THE LEARNED CIT(A) HAS MA NOS.554 & 555/MUM/2010 M/S.CANDY HOLDINGS LIMITED. 2 NOT YET TAKEN UP THE APPEAL OF THE REVENUE, WHICH W AS RESTORED TO HIM BY THE TRIBUNAL. THE LEARNED DEPARTMENTAL REPRESENTATIVE A LSO DID NOT CONTROVERT THIS FACTUAL POSITION STATED ON BEHALF OF THE ASSESSEE. IN VIEW OF THE FACT THAT THE ORDER PASSED IN THE APPEAL OF THE ASSESSEE WAS EX PARTE QUA THE ASSESSEE AND THERE IS CERTAIN OVERLAPPING ISSUE ON THE SAME POINT IN THE APPEAL OF THE REVENUE ALSO, IN OUR CONSIDERED OPINION, IT WOULD BE JUST AND FAIR I F BOTH THE ORDERS ARE RECALLED. WE ORDER ACCORDINGLY. THE REGISTRY IS DIRECTED TO POST THESE APPEALS FOR HEARING ON 27.04.2011. AS THIS ANNOUNCEMENT TO THIS EFFECT WAS MADE IN THE OPEN COURT ON THE CONCLUSION OF THE HEARING, THE LEARNED A.R. WAIVED HIS RIGHT TO THE SERVICE OF SEPARATE NOTICE IN THIS REGARD. 4. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIO NS ARE ALLOWED. ORDER PRONOUNCED ON THIS 04 TH DAY OF MARCH, 2011. SD/- SD/- (D.K.AGARWAL) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 04 TH MARCH, 2011. DEVDAS* COPY TO : 1. THE APPLICANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) -XXX, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.