Unique International Pvt.Ltd., Kolkata V. THE DCIT, CIR-8, KOLKATA, Kolkata

MA 64/KOL/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4073 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-02-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 06-07-2015
• Court: TRIBUNAL
• Keywords: Right to appeal

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA [BEFORE SHRI MAHAVIR SINGH, JM & SHRI WASEEM AHMED , AM] M.A. NO.64/KOL/2015 IN I.T.A NO. 1295/KOL/2011 ASSESSMENT YEAR: 2006-07 UNIQUE INTERNATIONAL (P) LTD. VS. DEPUTY COMMISS IONER OF INCOME-TAX, (PAN:AAACU3880F) CIRCLE-8, KOLKATA. ( APPLICANT ) ( RESPONDENT ) DATE OF HEARING: 05.02.2016 DATE OF PRONOUNCEMENT: 05.02.2016 FOR THE APPLICANT: S/SHRI R. P. AGARWALLA SR. ADVO CATE & NIRAV SHETH, FCA FOR THE RESPONDENT: MD. GAYAS UDDIN ANSARI, JCIT, SR. DR ORDER PER SHRI MAHAVIR SINGH, JM : VIDE THIS MISC. APPLICATION ASSESSEE WANTS TO RECTI FY THE TRIBUNALS ORDER DATED 12.02.2015. 2. AT THE OUTSET, LD. COUNSEL FOR THE ASSESSEE SHRI R. P. AGARWAL, SR. ADVOCATE RAISED A PRELIMINARY OBJECTION THAT THE TRIBUNAL HA S PASSED ORDER IN REVENUES APPEAL IN ITA NO.1295/K/2011 FOR AY 2006-07 VIDE ORDER DATED 12.02.2015 BUT THE CROSS OBJECTION ARISING OUT OF THIS APPEAL I.E. CO NO. 60 /K/2011WAS NOT DISPOSED OFF DESPITE IT WAS ARGUED BY HIM. IN VIEW OF THIS, LD. COUNSEL FOR THE ASSESSEE STATED THAT THE TRIBUNAL IS DUTY BOUND TO DISPOSE OF THE CROSS APPE AL I.E. CO OF THE ASSESSEE AND THE REVENUES APPEAL ARISING OUT OF THE SAME APPEAL OF CIT(A). LD. COUNSEL FOR THE ASSESSEE FIRST OF ALL REFERRED TO RULE 22 OF ITAT RULES, 196 3 REGARDING CROSS OBJECTION. RULE 22 READS AS UNDER: 22. CROSS-OBJECTIONS.- A MEMORANDUM OF CROSS-OBJECTIONS FILED UNDER SUB-S ECTION (4) OF SECTION 253 SHALL BE REGISTERED AND NUMBERED AS AN APPEAL AND ALL THE RULES, SO FAR AS MAY BE, SHALL APPLY TO SUCH APPEAL 3. LD. COUNSEL FOR THE ASSESSEE ALSO REFERRED TO TH E DECISION OF HONBLE SUPREME COURT IN THE CASE OF CST VS. VIJAI INT. UDYOG (1985 ) 152 ITR 111 (SC), WHEREIN ON APPEAL, HONBLE SUPREME COURT DID NOT ACCEPT THE VI EW OF THE HIGH COURT THAT THE DOCTRINE OF MERGER HAD APPLICATION TO THE FACTS OF THE CASE. ON ACCOUNT OF THE MISTAKE OF THE TRIBUNAL IN NOT CLUBBING THE TWO APPEALS, THE S TATUTORY RIGHT OF APPEAL OF ONE PARTY 2 M A NO.64/K/2015 UNIQUE INTERNATIONAL (P) LTD., AY 2006-07 COULD NOT BE NEGATIVED. THIS WAS SO BECAUSE IT IS A WELL SETTLED PROPOSITION OF LAW THAT NO PARTY SHOULD SUFFER ON ACCOUNT OF THE MISTAKE OF THE COURT OR THE TRIBUNAL. TO MEET OUT JUSTICE TO THE PARTIES AND OVERCOME THE DIFFICU LTY ARISING IN THE CIRCUMSTANCES OF THE CASE, THE SUPREME COURT DIRECTED THE TRIBUNAL TO HE AR BOTH THE APPEALS AFRESH ON THE SAME DAY AND DISPOSE THEM OFF BY A COMMON JUDGMENT. LD. COUNSEL FOR THE ASSESSEE IN VIEW OF THE ABOVE HONBLE SUPREME COURT JUDGMENT ST ATED THAT WHEN BOTH THE APPEAL OF THE REVENUE AS WELL AS THE CROSS OBJECTION OF THE A SSESSEE ARISING OUT OF THE SAME ORDER OF CIT(A) WAS ARGUED TOGETHER, BOTH SHOULD HAVE BEEN D ISPOSED OF TOGETHER AND NON- DISPOSING OF THE CROSS OBJECTION AND DISPOSING OF O NLY REVENUES APPEAL CONSTITUTE MISTAKE APPARENT FROM RECORD AND HENCE, THE ORDER O F THE TRIBUNAL SHOULD BE RECALLED AND AFTER RECALLING THE TRIBUNALS ORDER IN REVENUE S APPEAL, BOTH THE REVENUES APPEAL AND THE CROSS OBJECTION OF THE ASSESSEE SHOULD BE H EARD TOGETHER. 4. ON THE OTHER HAND, LD. SR. DR OPPOSED THE ARGUME NT OF LD. COUNSEL FOR THE ASSESSEE BUT WITHOUT ANY SUBSTANCE. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE TRIBUNAL IN ITA NO.1295/K/2 011 ON REVENUES APPEAL DISPOSED OF ON 12.02.2015 BUT THE ASSESSEES CROSS OBJECTION ARISING OUT OF THIS APPEAL I.E. CO NO. 60/KOL/2011 WAS NEVER DISPOSED OFF. IN TERM OF THE ABOVE DICTUM OF HONBLE SUPREME COURT, WE RECALL THE TRIBUNALS ORDER IN RE VENUES APPEAL AND DIRECT THE REGISTRY TO FIX THE CROSS OBJECTION OF THE ASSESSEE AND THAT THE APPEAL OF REVENUE TOGETHER ON REGULAR COURSE SO THAT BOTH CAN BE DISPOSED OF TOGE THER. IN TERM OF THE ABOVE, MISC. APPLICATION FILED BY ASSESSEE IS ALLOWED. 6. IN THE RESULT, MISC. APPLICATION OF ASSESSEE IS ALLOWED. 7. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- (WASEEM AHMED) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 5 TH FEBRUARY, 2016 JD.(SR.P.S.) 3 M A NO.64/K/2015 UNIQUE INTERNATIONAL (P) LTD., AY 2006-07 COPY OF THE ORDER FORWARDED TO: 1 . APPLICANT- UNIQUE INTERNATIONAL (P) LTD., 30, J. L. NEHRU ROAD, KOLKATA-700 016 . 2 RESPONDENT DCIT, CIR-8, KOLKATA 3 . THE CIT(A), KOLKATA 4. 5. CIT KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .