M/S A J COAL PVT LTD., Mumbai V. ITO 6 (1)(1), Mumbai

MA 71/MUM/2023

AI Insights

The case revolves around the Miscellaneous Application filed by A.J. Coal Pvt. Ltd. under Rule 25 of the Income Tax (Appellate Tribunal) Rule, 1963, seeking to recall an ex-parte order related to their appeal against the Income Tax Officer's assessment for the year 2009-10. The Tribunal had previously dismissed the Department's appeal and partly allowed the assessee's appeal, leading to inconsistencies in the Tribunal's orders regarding the same CIT(A) order. The Department had earlier filed a Miscellaneous Application for recalling the Tribunal's order in the assessee's appeal, which was allowed. The Tribunal, acknowledging the oversight and the need for coherence in its rulings, allowed the assessee's application, recalling the earlier ex-parte order and restoring the appeal to be heard alongside the Department's appeal.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 136050 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-05-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 20-04-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 19-01-2023
• Other Referred Cases: Commissioner of Sales Tax vs. Vijay Int. Udyog
• Laws Referred To: Income Tax (Appellate Tribunal) Rule, 1963
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Peak credit

Judgement Text

म ु ंबई ठ “एस एम स ” स , स सम! IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “ SMC”, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER MA NO. 71/MUM/2023 [ Arising out of ITA NO.5718/MUM/2019 (A.Y . 2009-10] M/s.A.J.Coal Pvt. Ltd. 24A, Coal Depot, Sewri (East), Mumbai – 400 015 PAN: AABCA-0386-M ..... " # /Applicant बन म Vs. Income Tax Officer-6(1)(1), Room No.503, 5 th Floor, Aaykar Bhavan, MK Road, Mumbai – 400 020 ..... " & /Respondent " # ' / Applicant by : Shri Margav Shukla " & ' /Respondent by : Shri V.S. Mahajan स ु न ई ( & / Date of hearing : 21/04/2023 )*+ ( & / Date of pronouncement : 26/5/2023 आदेश/ ORDER PER VIKAS AWASTHY, JM: This Miscellaneous Application has been filed by the assessee under Rule 25 of the Income Tax (Appellate Tribunal) Rule, 1963 for recalling ex-parte order dated 10/06/2021 in ITA No.5718/Mum/2019 for assessment year 2009- 10. 2 MA NO. 71/MUM/2023 2. Shri Margav Shukla appearing on behalf of the assessee submits that appeal of the Revenue in ITA No.5718/Mum/2019 was dismissed by the Tribunal upholding the order of CIT(A) vide order dated 10/06/2021. The cross appeal of the assessee in ITA No.7289/Mum/2019 against the same order of CIT(A) was partly allowed by the Tribunal vide order dated 28/02/2022. Both these appeals were heard on different dates. Hence, two different orders were passed in the cross appeals arising out of same order of the CIT(A). The ld. Authorized Representative of the assessee submitted that this is a mistake apparent on record that needs to be rectified. The ld. Authorized Representative for the assessee further submitted that the Department subsequently filed a Miscellaneous Application vide MA No.212/Mum/2022 for recalling the order of Tribunal in assesee’s appeal in ITA No.7289/Mum/2019. The said Miscellaneous Application of the Revenue was allowed vide order dated 16/12/2022. After disposal of the assessee’s appeal in ITA No.7289/Mum/2019 in ex-parte proceedings, the assessee accepted the order and did not litigate further. However, when the Department’s Miscellaneous Application for recalling order in ITA No.7289/Mum/2019 was allowed, the assessee had to file Miscellaneous Application for recalling order in Department’s appeal to have consistency in the orders. 3. Shri V.S. Mahajan representing the Department vehemently opposed the Miscellaneous Application filed by the assessee. However, the ld. Departmental Representative fairly admitted that the cross appeals field by the assessee and the Department against the same order of CIT(A) have been decided separately by the Tribunal and both orders are incoherent. 4. Both sides heard. It is an undisputed fact that the appeal by the assessee in ITA No.7289/Mum/2019 and appeal by the Department in ITA 3 MA NO. 71/MUM/2023 No.5718/Mum/2019, arising out of the order of Commissioner of Income Tax (Appeals) -12, Mumbai dated 08/05/2019 for assessment year 2009-10 were heard separately by the Tribunal. When the appeal by the Department was heard on 10/06/2021, it was not brought to the notice of Bench, by the Department that the cross appeal by the assessee is also pending for hearing. The appeal of the assessee was partly allowed by granting further relief to the assessee vide order dated 28/02/2022 and the appeal of Revenue was dismissed vide order dated 10/06/2021 by upholding the impugned order. Thus, there was incoherence in both Tribunal orders regarding fate of the impugned order. The order in appeal of the assessee was recalled in a Miscellaneous Application filed by the Department by observing as under: “ 4. Both sides heard. A perusal of the records reveal that the Department in ITA No.5718/Mum/2019 and the assessee in ITA NO.7289/Mum/2019 had assailed the order of CIT(A)-12, Mumbai dated 08/05/2019 for assessment year 2009-10. Ideally, cross appeals should have been listed together for adjudication. The Hon'ble Supreme Court of India in the case of Commissioner of Sales Tax vs. Vijay Int. Udyog reported as 1985 taxamann.com 791 has held that cross appeals should be heard on the same date and disposed off by a common judgment to avoid any further difficulty. However, the appeal of the Revenue in ITA No.5718/Mum/2019 was fixed for hearing on 31/03/2021. The said appeal of the Revenue was decided in ex-parte proceedings qua assessee /respondent vide order dated 10/06/2021. The short issue in appeal was the addition on account of accommodation entries. The Assessing Officer had made addition based on peak credit. The CIT(A) restricted the addition by estimating profit margin on bogus purchases @12.5%. The Revenue in appeal before the Tribunal prayed for upholding the findings of the Assessing Officer. The Tribunal in Revenue’s appeal concurred with the findings of CIT(A) and dismissed the appeal of the Department. 5. Subsequently, appeal of the assessee was fixed for hearing on 25/02/2022. Although the appeal of assessee was fixed before the same Bench almost after one year, the ld.Departmental Representative did not bring it to the notice of the Bench about the outcome of the Departmental appeal heard by the Tribunal. The Bench independently decided the appeal of assessee, in absentia of the assessee and granted part relief by restricting addition on bogus purchases to 5%. Thus, the subsequent order of the Tribunal in appeal by the assessee was at variance to the conclusion in the appeal by Department. This resulted in a mistake apparent on record. Thus, the order of the Tribunal dated 28/02/2022 in ITA No.7289/Mum/2019 deserves to be recalled and the same is recalled.” 4 MA NO. 71/MUM/2023 Thus, for parity of reasons, order dated 10/06/2021 in ITA No.5718/Mum/2019 is recalled and the appeal is restored to its original number. 5. The ld. Authorized Representative for the assessee pointed that appeal of assessee in ITA No.7289/Mum/2019 is fixed for hearing on 01/06/2023. The Registry is directed to fix cross appeal by the Revenue in ITA No.5718/Mum/2019 on the same date along with appeal of assessee. 6. In the result, Miscellaneous Application by the assessee is allowed. Order pronounced in the open Court on Friday the 26 th day of May, 2023. Sd/- (VIKAS AWASTHY) स /JUDICIAL MEMBER म ु ंबई/ Mumbai, , न ं /Dated 26/05/2023 Vm, Sr. PS(O/S) े Copy of the Order forwarded to : 1. #/The Appellant , 2. " & / The Respondent. 3. ु -&( )/ The CIT(A)- 4. ु -& CIT 5. 0 1 " & न , . . ., म ु बंई/DR, ITAT, Mumbai 6. 1 34 5 6 /Guard file. BY ORDER, //True Copy// (Dy./Asstt. Registrar) ITAT, Mumbai