The ITO, Ward-1, Tadepallegudem V. Sri K Kumara Swamy, Tadepallegudem

MA 6/VIZ/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6246 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-03-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 11-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D MANOJ KUMAR
• Keywords: Additional evidence
• Section: 154

Judgement Text

MA 6/V/11 K.K.SWAMY, TADEPALLIGUDEM PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER M. A . NO. 6 / VIZAG/20 1 1 (ARISING OUT OF ITA NO.415/VIZAG/2007) ASSESSM ENT YEAR: 2004 - 05 ITO WARD - 1 TADEPALLIGUDEM VS. K. KUMARA SWAMY TADEPALLIGUDEM (APPELLANT) (RESPONDENT) PAN NO.AKZPK 5552A APPELLANT BY: SHRI D. MANOJ KUMAR, DR RESPONDENT BY: SHRI G.V.N. HARI, CA ORDER PER SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER : THIS MISCELLANEOUS APPLICATION IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE TRIBUNAL DATED 19.7.2010 WITH A REQUES T FOR RECALLING OF THE ORDER AS THE TRIBUNAL HAS DECIDED THE ISSUE WITHOUT TAKIN G INTO COGNIZANCE THE JUDGEMENT OF THE APEX COURT IN THE CASE OF MEPCO IN DUSTRIES VS. CIT 319 ITR 208. DURING THE COURSE OF HEARING, THE LD. D.R. HAS INVITED OUR ATTENTION THAT TRIBUNAL HAS DIRECTED THE A.O. TO RE-EXAMINE THE IS SUE IN THE LIGHT OF CANCELLATION DEED AFTER SETTING ASIDE THE ORDER OF THE CIT(A) WHO HAS RIGHTLY CONFIRMED THE ORDER OF THE A.O. PASSED U/S 154 OF T HE ACT ON THE GROUND THAT ADDITIONAL FACTS CANNOT BE EXAMINED U/S 154 OF THE ACT. THE LD. D.R. FURTHER PLACED A RELIANCE UPON THE JUDGEMENT OF THE SUPREME COURT IN THE CASE OF MEPCO INDUSTRIES VS. CIT IN WHICH THE APEX COURT HA S HELD THAT UNDER RECTIFICATION PROCEEDINGS, NO ADDITIONAL EVIDENCE C AN BE CONSIDERED. SINCE THE TRIBUNAL HAS DIRECTED THE A.O. TO CONSIDER THE ADDITIONAL EVIDENCE, THE ERROR APPARENT HAS CREPT IN THE ORDER OF THE TRIBUN AL. THEREFORE, NECESSARY RECTIFICATION IS CALLED FOR. MA 6/V/11 K.K.SWAMY, TADEPALLIGUDEM PAGE 2 OF 3 2. THE LD. COUNSEL FOR THE ASSESSEE ON THE OTHER HA ND HAS SUBMITTED THAT TRIBUNAL HAS DECIDED THE ISSUE IN THE LIGHT OF THE FACTS THAT AFTER CONCLUSION OF ASSESSMENT PROCEEDINGS, NEW DEVELOPMENTS OCCURS AND THESE NEW DEVELOPMENTS HAVE BEARING ON THE DECISION OF THE AS SESSING OFFICER. THEREFORE, THE TRIBUNAL HAS DIRECTED THE A.O. TO LO OK INTO THE DEVELOPMENTS WHICH HAS A DIRECT BEARING ON THE ADJUDICATION OF T HE ISSUES BY THE ASSESSING OFFICER. MOREOVER, THE TRIBUNAL HAS NOT GIVEN ANY RELIEF TO THE ASSESSEE. THE TRIBUNAL HAS SIMPLY DIRECTED THE A.O. TO RE-ADJUDIC ATE THE ISSUE AFRESH IN THE LIGHT OF NEW EVIDENCE WHICH WERE NOT AVAILABLE AT T HE TIME OF ASSESSMENT PROCEEDINGS, IN THE INTEREST OF JUSTICE. 3. HAVING HEARD THE RIVAL SUBMISSIONS AND FROM A CA REFUL PERUSAL OF THE MISCELLANEOUS APPLICATION VIS--VIS THE ORDER OF TH E TRIBUNAL, WE FIND THAT THE TRIBUNAL HAS RESTORED THE MATTER TO THE FILE OF THE A.O. WITH A DIRECTION TO EXAMINE THE ISSUE IN THE LIGHT OF THE DEVELOPMENTS OCCURRED AFTER THE ASSESSMENT PROCEEDINGS. WHATEVER DIRECTIONS WERE G IVEN BY THE TRIBUNAL, IT WAS IN THE INTEREST OF JUSTICE. THEREFORE, WE FIND NO ERROR APPARENT IN THE ORDER OF THE TRIBUNAL. MOREOVER, THE JUDGEMENT REF ERRED TO BY THE REVENUE WAS NEVER QUOTED DURING THE COURSE OF HEARING OF TH E APPEAL. IT IS ALSO IMPORTANT TO MENTION HERE THAT THE TRIBUNAL HAS NOT GRANTED ANY RELIEF TO EITHER OF THE PARTIES. TRIBUNAL HAS SIMPLY SETTING ASIDE THE MATTER TO THE FILE OF THE A.O. WITH A DIRECTION TO RE-ADJUDICATE THE I SSUE AFRESH IN THE LIGHT OF ALL RELEVANT EVIDENCE IN ORDER TO MEET THE ENDS OF JUST ICE. WE THEREFORE, FIND NO ERROR IN THE ORDER OF THE TRIBUNAL AND WE ACCORDING LY REJECT THE MISCELLANEOUS APPLICATION OF THE REVENUE. PRONOUNCED ACCORDINGLY ON 8.3.2011. SD/ - SD/ - (B R BASKARAN) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM, DATED: 8 TH MARCH, 2011. MA 6/V/11 K.K.SWAMY, TADEPALLIGUDEM PAGE 3 OF 3 COPY TO 1 ITO WARD - 1, TADEPALLIGUDEM 2 KOTYALA KUMARA SWAMY, 4 - 48 - 2/B, ROAD NO.2B, P&T COL ONY, TADEPALLIGUDEM-534 101. 3 CIT , RAJAHMUNDRY 4 CIT(A) , RAJAHMUNDRY 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM