RAVI ASHISH LAND DEVELOPERS LTD, V. ITO WD 9(3)(4),

MA 682/MUM/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4287 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-01-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2002-2003
• Appeal Filed On: 08-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMARD EEP

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D: MUMBAI BEFORE SHRI R.S. PADVEKAR (JM) AND SHRI RAJENDRA SINGH (AM) M.A. NO.682/MUM/2009 (ARISING OUT OF ITA NO. 1626/M/2006) (ASSTT. YEAR : 2002-03) M/S. RAVI ASHISH LAND APPLICANT DEVELOPERS LTD., 76, LAXMI PALACE, MATHURADAS RD., KANDIVLI (W), MUMBAI 400 067 PAN : AAACR 3476 Q V/S. ITO WD. 9(3)(4) RESPONDENT MUMBAI APPLICANT BY : SHRI NARESH JAIN RESPONDENT BY : SHRI AMARDEEP : O R D E R : PER R.S. PADVEKAR, J.M THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS A PPLICATION U/S. 254(2) OF THE ACT PLEADING THAT THERE IS A MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL IN ASSESSEES CASE FOR A.Y. 2002-03 BEING ITA NO. 1626/MUM/2006 DT. 23.1.2009 AS THE DECISION OF THE ANOTHER BENCH OF THE TRIBUNAL IN THE CASE OF BALAJI TEXTILES INDUSTRIES PVT LTD. V ITO, 49 I TD 177 (BOM) WHICH WAS CITED AT THE TIME OF ARGUMENT WAS NOT CONSIDERED WHILE DE CIDING THE APPEAL OF THE ASSESSEE. 2. WE HAVE HEARD THE PARTIES. THE LD COUNSEL RELIE D ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF HONDA SIEL POW ER PRODUCT LTD. V. CIT [295 ITR 466(SC)] AND SUBMITTED THAT THE DECISION I N THE CASE OF BALAJI TEXTILE M.A NO. 682/MUM/2009 2 INDUSTRIES PVT LTD. (SUPRA) WAS MOST RELEVANT DECIS ION SUPPORTING THE CASE OF THE ASSESSEE AND THOUGH IT WAS SITED AT THE TIME OF THE ARGUMENT, THE SAME WAS NOT CONSIDERED. WE HAVE ALSO HEARD THE LD D.R. WE FIND FORCE IN THE ARGUMENT OF THE LD COUNSEL THAT THE DECISION IN THE CASE OF BALAJI TEXTILE INDUSTRIES PVT LTD.(SUPRA) WAS CITED BY THE LD COUN SEL AT THE TIME OF ARGUMENT AS WELL AS THE COPY OF THE SAID TRIBUNAL DECISION W AS ALSO FILED. WE, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF HONDA SIEL POWER PRODUCT LTD. (SUPRA), RE-CALL OUR ORDER IN ITA NO. 1626/M/2006 DT. 23.1.2009 ON THIS LIMITED ISSUE AND RECTIFY THE SAME AS UNDER. AFTER PARAGRAPH NO. 6 OF THE ORDER, THE FOLL OWING PARAGRAPH IS SUBSTITUTED : 6A. THE LEARNED COUNSEL FOR THE ASSESSEE PLACED HI S HEAVY RELIANCE ON THE DECISION OF THE TRIBUNAL IN THE CAS E OF BALAJI TEXTILE INDUSTRIES PVT. LTD. V/S. ITO, 49 ITD 177 (BOM). THE ARGUMENT OF THE LD COUNSEL IS THAT THE ASSESSEE HAS DISCHARGED THE BURDEN OF PROVING THE GENUINENESS OF THE PURCH ASES, AND EVEN THE CONFIRMATION LETTERS WERE ALSO FILED FROM ALL THE SEVEN PARTIES. IT IS ARGUED THAT SHRI R.R. SHAH ALSO APP EARED BEFORE THE A.O AND ALSO FILED THE CONFIRMATION STATEMENTS STAT ING THAT THE TRANSACTIONS WITH THE ASSESSEE WERE GENUINE. LET U S CONSIDER THE DECISION OF THE BALAJI TEXTILE INDUSTRIES PVT. LTD. , (SUPRA) HEAVILY RELIED ON BY THE ASSESSEE. IN THE SAID CASE, THE A SSESSEE WAS CARRYING ON THE BUSINESS OF TEXTILE. AGAIN THERE W AS A ISSUE OF GENUINENESS OF PURCHASES OF RS. 1,84,695/- MADE DUR ING THE PREVIOUS YEAR RELATING TO THE A.Y. 85-86 AND IN THO SE CASES, THE TWELVE PARTIES OF THE BHIWANDI WERE INVOLVED. THE A.O ISSUED THE SUMMONS TO THOSE PARTIES, BUT THE SUMMONS COULD NOT BE SERVED. IN THE SAID CASES ALSO, THE CROSSED CHEQUES WERE IS SUE. IT WAS PLEADED BY THE ASSESSEE THAT THE PAYMENTS WERE MADE BY THE CROSSED CHEQUES IN THE NAME OF THE PARTIES AND THE ASSESSEE CANNOT BE HELD RESPONSIBLE FOR NON-SERVICE OF THE S UMMONS ON THE PARTIES. IT WAS ALSO CONTENDED IN THAT CASE TH AT IN RESPECT OF ONE OF THE PARTY NAMELY SHRI SITARAM DYEING AND PR INTING MILLS M.A NO. 682/MUM/2009 3 PVT. LTD., THERE WERE CERTAIN LOAN TRANSACTIONS AND THE ASSESSEE SOLD THE GOODS TO M/S. SITARAM DYEING AND PRINTING MILLS PVT. LTD. AND ADJUSTED THE SALE PROCEEDS AGAINST THE LOAN TAK EN BY IT. ON THE ABOVE SET OF FACTS, THE TRIBUNAL HELD THAT THER E WAS NO REASON TO DISBELIEVE THE TRANSACTION BETWEEN M/S. SITARAM DYEING AND PRINTING MILLS PVT. LTD. IN THE PRESENT CASE, THE FACTS ARE TOTALLY DIFFERENT WHICH WE HAVE ALREADY NARRATED HEREIN-AB OVE. THE A.O DEPUTED THE INSPECTOR TO VERIFY THE ADDRESSES AND S ERVE THE NOTICES BUT CONCERN PARTIES COULD NOT BE FOUND AT T HE GIVEN ADDRESSES BUT STRANGELY SUBSEQUENTLY A.O. RECEIVES ALLEGE CONFIRMATION LETTER SHOWING SAME ADDRESSES . IT IS WELL SETTLED PRINCIPLE THAT WHILE APPLYING THE RATIO OR LEGAL PRINCIPLES OF ANY DECISION, THE FACTS SHOULD BE IDENTICAL. IN OUR OP INION, THE DECISION RELIED ON BY THE LD COUNSEL IN THE CASE OF BALAJI TEXTILE INDUSTRIES PVT. LTD. (SUPRA) IS NOT HELPFUL TO THE ASSESSEE AS THE FINDING GIVEN IN THAT CASE IS BASED ON THE RESPECTI VE FACTS 3. THE ORDER OF THE TRIBUNAL IN ITA NO. 1622/M/206 DT. 23.1.2009 HAS BEEN RECTIFIED U/S. 254(2) AS ABOVE AND THERE IS NO OTHER CHANGE IN ANY FINDING OR REASONING GIVEN BY THE TRIBUNAL IN THE SAID ORDE R AND ALL THE FINDINGS AND REASONS GIVEN BY THE TRIBUNAL STAND AS IT IS. 4. IN THE RESULT, THE MISCELLANEOUS PETITION IS ALL OWED IN THE TERMS INDICATED AS ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 21ST DAY OF JANUARY, 2010. SD/- SD/- (RAJENDRA SINGH) (R. S. PADVEKAR) ACCOUNTANT MEMBER JU DICIAL MEMBER MUMBAI, ON THIS 21ST DAY OF JANUARY , 2010. :US COPY TO: M.A NO. 682/MUM/2009 4 1. APPLICANT 2. RESPONDENT , 3.THE CIT(A)-IX, MUMBAI 4.THE CIT IX, MUMBAI 5.THE DR, D BENCH, MUMBAI 6.GUARD FILE BY ORDER TRUE COPY ASSTT..REGISTRAR, ITAT, MUMBAI. M.A NO. 682/MUM/2009 5 US DATE INITIALS 1. DRAFT DICTATED ON 15/1/10 --------------- SR.P.S . 2. DRAFT PLACED BEFORE AUTHORITY 18/1/10 -------- ------ SR.P.S. 3. DRAFT PROPOSED & PLACED ----------- ---------- --- JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED ----------- ----------- -- JM/AM BY SECOND MEMBER 5. APPROVED DRAFT COMES TO ----------- ------------ - SR.P.S. THE SR. P.S./P.S 6. KEPT FOR PRONOUNCEMENT ON --------- ----------- -- SR.P.S. 7. FILE SENT TO THE BENCH CLERK --------- --------- ---- SR.P.S. 8. DATE ON WHICH FILE GOES TO THE ------- --------- ---- 9. DATE OF DISPATCH OF ORDER --------- --------- ----