ITO 17(2)(1), MUMBAI V. JAINAM CONSTRUCTIONS, MUMBAI

MA 645/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6489 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-02-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2012-2013
• Appeal Filed On: 26-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANOJ KUMAR SINGH SRDR
• Assessee Lawyers: NARAYAN ATAL

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL F BENCH MUMB AI BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER M.A. NO. 645/MUM/2018 IN ITA NO.5292/MUM/ 2016 (A.Y. 2012-13 ) M.A. NO. 752/MUM/2018 IN ITA NO.5292/MUM/ 2016 (A.Y. 2012-13 ) ITO 17(2)(1), ROOM NO. 134, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-20. VS. M/S JAINAM CONSTRUCTIONS, B-10, SHANKHESHWAR DARSHAN, SETH MOTISHA LANE, MAZGAON, MUMBAI -400010. PAN: AACFJ8965D APPELLANT RESPONDENT APPELLANT BY : SHRI MANOJ KUMAR SINGH (SR-DR) RESPONDENT BY : SHRI NARAYAN ATAL (AR) DATE OF HEARING : 15.02.2019 DATE OF PRONOUNCEMEN T : 15.02.2019 ORDER UNDER SECTION 254(1) OF INCOMETAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THESE CROSS MISCELLANEOUS APPLICATION (M.A.) ARE FI LED FOR RECTIFICATION OF ALLEGED MISTAKE IN ORDER DATED 18.05.2018 PASSED BY THE TRIBUNAL. THE REVENUE IN ITS M.A. NO. 645/MUM/2018 CONTENDED THAT WHILE DECIDING THE APPEAL, THE REVISED GROUND OF APPEAL FILED BY REVEN UE ON 09.05.2018 WAS NOT CONSIDERED AND ADJUDICATED. THE TRIBUNAL ADJUDICATE D THE APPEAL ON THE BASIS OF THE ORIGINAL GROUND OF APPEAL RAISED BY REVENUE WHILE FILING THE APPEAL. THE LD. DR SUBMITS THAT NON-ADJUDICATION OF REVISED GROUNDS OF APPEAL IS A MISTAKE APPARENT ON RECORD. THE LD. DR PRAYED FOR R ECALLING THE ORDER DATED 18.05.2018. THE LD. DR FURTHER SUBMITS THAT THERE W AS SUBSTANTIAL VARIATION IN THE REVISED GROUNDS OF APPEAL. MA NO. 645 & 752 MUM 2018-M/S JAINAM CONSTRUCTIONS 2 2. THE ASSESSEE IN ITS M.A. NO. 752/MUM/2018 CONTENDED THAT IN PARA-6 OF THE ORDER, THE TRIBUNAL WHILE DECIDING THE APPEAL OF RE VENUE HAVE NOTED THE SUBMISSION OF REPRESENTATIVE OF ASSESSEE THAT HE WI LL NOT PRESS HIS CROSS OBJECTION IN CASE REVENUES APPEAL IS NOT SUCCEEDED ON MERIT. THE APPEAL OF REVENUE WAS DISMISSED, THEREBY THE CROSS OBJECTION OF ASSESSEE WAS ALSO DISMISSED AS NOT PRESSED. THE LD. AR OF THE ASSESSE E SUBMITS THAT IN CASE THIS TRIBUNAL RECALLED THE ORDER DATED 18.05.2018, THE O RDER ON CROSS OBJECTION MAY ALSO BE RECALLED FOR ADJUDICATION AFRESH. 3. WE HAVE CONSIDERED THE SUBMISSION OF BOTH THE PARTI ES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. PERUSAL OF RECORD REVEALS THAT THE REVENUE FILED REVISED GROUNDS OF APPEAL ON 09.05.20 18. THOUGH, THE COMPARISON OF GROUNDS RAISED BY REVENUE ORIGINALLY AS WELL AS IN REVISED GROUND OF APPEAL, THERE IS NO SUBSTANTIAL DIFFERENC E. HOWEVER, KEEPING IN VIEW THAT WHILE DECIDING THE APPEAL OF REVENUE, THE REVISED GROUND OF APPEAL WAS ESCAPED FROM THE ATTENTION OF THE TRIBUNAL AS N ONE OF THE PARTIES AT THE TIME OF HEARING BROUGHT OR REFERRED THE REVISED GRO UND OF APPEAL. THE TRIBUNAL ADJUDICATED THE APPEAL OF THE REVENUE ON T HE BASIS OF GROUNDS OF APPEAL RAISED ORIGINALLY. THEREFORE, WE FIND THAT T HERE IS MISTAKE APPARENT ON RECORD, WHICH NEEDS RECTIFICATION; THEREFORE, CONSI DERING THE SUBMISSION OF LD. DR FOR THE REVENUE, THE ORDER PASSED ON 18.05.2 018 IS RECALLED. IN THE RESULT, M.A. FILED BY REVENUE IS ALLOWED. MA NO. 645 & 752 MUM 2018-M/S JAINAM CONSTRUCTIONS 3 4. AS WE HAVE RECALLED THE ORDER DATED 18.05.2018, WHI CH IS COMMON ORDER QUA THE APPEAL OF THE REVENUE AS WELL AS ON CROSS OBJEC TION RAISED BY REVENUE. THEREFORE, CONSIDERING THE SUBMISSION OF LD. AR OF THE ASSESSEE, WE RECALL THE ORDER ON THE CROSS OBJECTIONS OF THE ASSESSEE A S WELL. 5. AS WE HAVE RECALLED THE ORDER DATED 18.05.2018, THE REFORE, REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HERING AFRESH BY REG ULAR BENCH AFTER NOTICE TO THE PARTIES. THE BENCH CLERK IS ALSO DIRECTED TO MA INTAIN THE FILE IN A PROPER MANNER BEFORE PLACING THE FILE BEFORE THE BENCH FOR HEARING. 6. IN THE RESULT, M.A. FILED BY ASSESSEE IS ALSO ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 15.02.2019. SD/- SD/- N. K. PRADHAN PAWAN SINGH ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 15.02.2019 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR F BENCH, ITAT, MUMBAI 6. GUARD FILE BY OR DER, DY./ASST. REGISTRAR ITAT, MUMBAI