AZMEL LTD, V. ASST CIT 6((1),

MA 583/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1167 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 10-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AJAY R SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'A' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER MA NO. 583/MUM/2012 (ARISING OUT OF ITA NO. 5070/MUM/2011) (ASSESSMENT YEAR: 2006-07) M/S. AMZEL LIMITED A C I T - 6(1) THE CRESCENT BUSINESS PARK ROOM NO. 506, 5TH FLOOR UNIT NO. 102, SAKINAKA VS. AAYAKAR BHAVAN, M.K. ROAD TELEPHONE EXCHANGE LANE ANDHERI (E), MUMBAI 400072 MUMBAI 400020 PAN - AAACA3991K APPLICANT RESPONDENT APPLICANT BY: SHRI AJAY R. SINGH RESPONDENT BY: SHRI RAVI PRAKASH DATE OF HEARING: 08.11.2013 DATE OF PRONOUNCEMENT: 08.11.2013 O R D E R PER D. MANMOHAN, V.P. VIDE MISCELLANEOUS APPLICATION DATED 10.09.2012 THE ASSESSEE HEREIN REQUESTED FOR RECALL OF THE ORDER DATED 30.05.2012 ON THE GROUND THAT THE IMPUGNED ORDER IS BASED ON CERTAIN INCORRECT FACTS AND THEREFORE DESERVES TO BE RECALLED FOR FRESH HEARING. THERE WAS A DIFFEREN CE OF OPINION BETWEEN THE MEMBERS OF THE DIVISION BENCH WITH REGARD TO THE IS SUE OF RECALL AND THUS THE MATTER WAS PLACED BEFORE THIRD MEMBER. 2. IT DESERVES TO BE NOTICED THAT IN THE OPINION OF TH E LEARNED ACCOUNTANT MEMBER THERE IS NO MISTAKE APPARENT IN THE DECISION OF THE TRIBUNAL IN AS MUCH AS THE ULTIMATE DECISION TO CONFIRM LEVY OF PE NALTY IS BASED ON PROPER REASONING. THE SECOND MEMBER, ON THE OTHER HAND, WA S OF THE VIEW THAT THE IMPUGNED ORDER OF THE TRIBUNAL HAS NOT REFLECTED TH E CORRECT FACTS AND HENCE THE ORDER SUFFERS FROM MISTAKE APPARENT FROM RECORD WHICH DESERVES TO BE RECALLED. MA NO. 583/MUM/2012 M/S. AMZEL LIMITED 2 3. THE FOLLOWING QUESTIONS WERE REFERRED TO THE HON'BL E PRESIDENT THE BE PLACED BEFORE THE THIRD MEMBER: - 1. WHETHER ON THE FACTS AND CIRCUMSTANCES DISCUSS ED BY THE TRIBUNAL IN THE APPELLATE ORDER, CAN IT BE SAID THAT THE FAC TUAL ERRORS POINTED OUT BY THE ASSESSEE IN THE MISCELLANEOUS APPLICATIO N WILL HAVE ANY IMPACT ON THE DECISION TAKEN BY THE TRIBUNAL OR THA T THE DECISION OF THE TRIBUNAL WOULD HAVE BEEN DIFFERENT IF THE CO RRECT FACTS HAD BEEN CONSIDERED. 2. WHETHER CONSIDERING THE FACTS THAT THERE IS DIFF ERENCE OF OPINION BETWEEN THE TWO MEMBERS AS TO WHETHER THE FACTUAL E RRORS WILL HAVE ANY IMPACT ON THE DECISION OF THE TRIBUNAL OR NOT, CAN THE ORDER BE RECALLED FOR FRESH ADJUDICATION UNDER SECT ION 254(2) UNDER WHICH, NO DEBATABLE ISSUES CAN BE CONSIDERED. 4. AT THE TIME OF HEARING THE LEARNED THIRD MEMBER REF RAMED THE QUESTION WHICH READS AS UNDER: - WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE ORDER OF THE TRIBUNAL DATED 30-5-2012 PASSED U/S 254(1) CAN BE RECALLED FOR A FRESH DECISION IN THE PROCEEDINGS U/S 254(2)? 5. IN HIS OPINION THE SAID QUESTION DESERVES TO BE ANS WERED IN THE AFFIRMATIVE BY HOLDING THAT THE ORDER OF THE TRIBUN AL DATED 30.05.2012 PASSED UNDER SECTION 254(1) OF THE ACT SHOULD BE RE CALLED FOR DE NOVO ADJUDICATION. 6. IN VIEW OF THE MAJORITY WE HEREBY RECALL THE ORDER DATED 30.05.2012 AND DIRECT THE REGISTRY TO POST THE APPEAL FOR FRES H HEARING ON 18.03.2014. PRONOUNCED ACCORDINGLY IN THE OPEN COURT. 7. THE REGISTRY IS DIRECTED TO INFORM THE PARTIES WITH REGARD TO THE FRESH DATE OF HEARING. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH NOVEMBER, 2013. SD/- SD/- (RAJENDRA SINGH) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 8 TH NOVEMBER, 2013 MA NO. 583/MUM/2012 M/S. AMZEL LIMITED 3 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) VI, MUMBAI 4. THE CIT VI, MUMBAI CITY 5. THE DR, A BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.