JOINT COMMISSIONER OF INCOME (OSD) CENTRAL CIRCLE 8 (2), MUMBAI V. DORF KETAL CHEMICALS LLC, MUMBAI

MA 57/MUM/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7075 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 30-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MA NOS.57 TO 61/M/2018 (ARISING OUT OF ITA NOS.4814, 4815, 4816, 4817 & 48 18/M/2013) ASSESSMENT YEARS: 2004-05, 2005-06, 2006-07, 2007-0 8 & 2008-09 JT. COMMISSIONER OF INCOME TAX (OSD), CENTRAL CIRCLE 8(2), ROOM NO.658, 6 TH FLOOR, AAYAKAR BHAVAN, MUMBAI - 400020 VS. M/S. DORF KETAL CHEMICALS LLC-1, DORF KETAL TOWER ORLEM, MALAD WEST, MUMBAI 400 064 PAN: AACCD1719J (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : SHRI NISHANT THAKKAR, A.R. REVENUE BY : SHRI MANOJ KUMAR, D.R. DATE OF HEARING : 17.08.2018 DATE OF PRONOUNCEMENT : 23.08.2018 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: BY THE PRESENT MISCELLANEOUS APPLICATIONS, THE REV ENUE SEEKS THE RECALLING OF THE CONSOLIDATED ORDER DATE D 14.07.2017 PASSED IN ITA NO.4814 TO 4818/M/2013 A.Y. 2004-05 TO A.Y. 2008-09. 2. THE LD. D.R. SUBMITTED BEFORE THE BENCH THAT THE ORDER OF THE TRIBUNAL SHOULD BE RECALLED AS THERE IS AN A PPARENT MISTAKE IN THE SAID ORDER WHICH HAS TAKEN PLACE DUE TO THE WRONG ADMISSION BY THE DEPARTMENTAL REPRESENTATIVE THAT NAME OF THE ASSESSEE IS NOT MENTIONED IN THE SEARCH WARRANT AND ACCORDINGLY THE ITAT ALLOWED THE APPEAL OF THE ASSESSEE ON THIS TECHNICAL ISSUE BY HOLDING THAT IT IS MANDA TORY THAT MA NOS.57 TO 61/M/2018 (ARISING OUT OF ITA NOS.4814/M/2013 & ORS M/S. DORF KETAL CHEMICALS LLC-1 2 THERE SHOULD BE INITIATION OF SEARCH IN TERMS OF SE CTION 132 OF THE ACT OR BOOKS OF ACCOUNTS OF OTHER DOCUMENTS ARE REQUISITIONED UNDER SECTION 132A OF THE ACT AFTER 3 1 ST DAY MAY OF 2003. THE TRIBUNAL ACCORDINGLY HELD THAT SINCE T HERE IS NO SEARCH INITIATED UNDER SECTION 132 OF THE ACT IN TH E CASE OF THE ASSESSEE AND THEREFORE NOTICE UNDER SECTION 153A IS WITHOUT JURISDICTION AND SO IS THE CONSEQUENT ASSESSMENT FRAMED UNDER SECTION 143(3) R.W.S. 153A OF THE ACT. HOWEVE R, NOW IT IS FOUND THAT THE ASSESSEES NAME IS DULY MENTIONED IN THE SEARCH WARRANT AND THUS THE ORDER SHOULD BE RECALLE D AND RE- FIXED FOR HEARING AFRESH TO B E DECIDED DENOVO. 3. THE LD. A.R., ON THE OTHER HAND, SUBMITTED THAT TH ERE IS NO MISTAKE APPARENT FROM THE RECORD WHICH FALLS WIT HIN THE AMBIT OF SECTION 254(2) OF THE ACT AND THEREFORE MA S FILED BY THE DEPARTMENT SHOULD BE DISMISSED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT DU RING THE COURSE OF HEARING THE DEPARTMENTAL REPRESENTATIVE A DMITTED UPON A QUERY PUT TO HIM FROM THE BENCH THAT THE NAM E OF THE ASSESSEE IS NOT MENTIONED IN THE SEARCH WARRANT AND THEREAFTER A VIEW WAS TAKEN BY THE BENCH HOLDING T HAT THERE IS NO SEARCH AGAINST THE ASSESSEE AND THERE PROCEE DINGS U/S 153A OF THE ACT ARE VOID AB-INITIO. IN OUR OPINI ON, THERE IS NO MISTAKE APPARENT ON THE FACE OF THE ORDER WHICH FAL LS WITHIN THE AMBIT OF SECTION 254(2) OF THE ACT AND THEREFOR E THE MAS FILED BY THE REVENUE ARE NOT MAINTAINABLE. MA NOS.57 TO 61/M/2018 (ARISING OUT OF ITA NOS.4814/M/2013 & ORS M/S. DORF KETAL CHEMICALS LLC-1 3 5. ACCORDINGLY, WE DISMISS THE MISCELLANEOUS APPLICA TIONS FILED BY THE REVENUE. ORDER PRONOUNCED IN THE OPEN COURT ON 23.08.2018. SD/- SD/- (MAHAVIR SINGH) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 23.08.2018. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ ASSTT. REGISTRAR, ITAT, MUMBAI.