ASST CIT CIR 23(1), V. RAPHAEL SEQUERIA,

MA 6/MUM/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1884 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-05-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: K
• Assessment Year: 2003-2004
• Appeal Filed On: 09-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARSHVARDHAN DATAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH K, MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER M.A. NO. 07/MUM/2014 (ARISING OUT OF ITA NO. 6958/MUM/2007) ASSESSMENT YEAR: 2004-05 & M.A. NO. 06/MUM/2014 (ARISING OUT OF ITA NO. 6957/MUM/2007) ASSESSMENT YEAR: 2003-04 & M.A. NO. 08/MUM/2014 (ARISING OUT OF ITA NO. 6959/MUM/2007) ASSESSMENT YEAR: 2005-06 ACIT RG 23(1) C-12, 6 TH FLOOR, PRATYAKSHKAR BHAVAN BANDRA-KURLA COMPLEX MUMBAI- 400 051 VS. SHRI RAPHAEL SQUERIA HANUMAN SILK MILLS COMPOUND KANJURMARG, MUMBAI-400 078 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI HARSHVARDHAN DATAR RESPONDENT BY : SHRI RAVI PRAKASH DATE OF HEARING : 09.05.2014 DATE OF PRONOUNCEMENT : 09.05.2014 O R D E R PER DR. S.T.M. PAVALAN, JM: VIDE MISCELLANEOUS APPLICATIONS FILED AS ABOVE, TH E REVENUE HAS SOUGHT RECALL OF THE ORDER PASSED BY THIS TRIBUNAL DATED 07.06.20 13 IN MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE AGAINST THE TRIBUNALS COMMON ORDER DATED 08.10.2009 IN ITA NOS. 6957 TO 6959/MUM/2007. 2. AT THE OUTSET, IT IS NOTED THAT THE PRESENT MISC ELLANEOUS APPLICATIONS ARE FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE TRI BUNAL ADMITTING THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE AG AINST THE COMMON ORDER DATED 08.10.2009 FOR THE ASSESSMENT YEARS 2003-04 TO 2005 -06. IN THIS CONNECTION, IT IS M.A. NO. 07/MUM/2014 M.A. NO. 06/MUM/2014 M.A. NO. 08/MUM/2014 ASSESSMENT YEAR: 2003-04, 04-5 & 05-06 SHRI RAPHAEL SQUERIA 2 PERTINENT TO MENTION THAT TO ATTRACT APPLICABILITY OF SECTION 254(2), A MISTAKE WHICH IS SOUGHT TO BE RECTIFIED MUST BE APPARENT FROM THE RE CORD AND THE SAME MUST BE IN ANY ORDER PASSED UNDER SUBSECTION 1 OF SECTION 254. THE ORDER REFERRED TO IN SECTION 254(1) IS ONE RELATES TO AN APPEAL FILED EITHER BY THE ASSESSEE OR BY THE REVENUE AND IT IS REFERRED TO IN THE PROVISION U/S 253. THEREFO RE, THE ORDER WHICH CAN BE RECTIFIED MUST BE ONE WHICH HAS BEEN PASSED BY THE TRIBUNAL I N AN APPEAL FILED U/S 253. AN ORDER REJECTING/ALLOWING AN APPLICATION FOR RECTIFI CATION U/S 254(2) CANNOT BE FURTHER RECTIFIED U/S 254(2). THE SAME MAY RELATE TO AN APP EAL BUT IS NOT AN ORDER PASSED BY THE TRIBUNAL UNDER SUBSECTION 1 OF SECTION 254. THE SAID LEGAL POSITION IS SUPPORTED BY THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNA L IN THE CASE OF SHRI PADAM PRAKASH (HUF) VS. ITO [2011] 9 TAXMAN.COM 178 (DELHI)(SB), THE DECISION OF THE HIGH COURT OF KERALA IN THE CASE OF CIT VS. AISHWARYA TRADING COMPANY [2010] 192 TAXMAN 385 (KER) AND THE DECISION OF THE HIGH COURT OF ORISSA IN TH E CASE OF CIT VS. PRESIDENT ITAT [1992] 63 TAXMAN 338 (ORI) . CONSIDERING THE SAID LEGAL POSITION, WE ARE OF THE CONSIDERED VIEW THAT THE PRESENT MISCELL ANEOUS APPLICATIONS FILED BY THE REVENUE ARE NOT MAINTAINABLE IN LAW AND HENCE THE S AME ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 09 TH DAY OF MAY, 2014. SD/ SD/ (P.M. JAGTAP) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 15.05.2014 *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR K BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.