NTUC INCOME INSURANCE CO OPERATIVE LTD, MUMBAI V. DDIT (IT) 4(2), MUMBAI

MA 728/MUM/2018

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5306 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 11-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 254(2); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE S/SHRI G S PANNU, VP, & SANDEEP GOSAIN, JM MA NO. 728/MUM/2018 (ARISING OUT OF ITA NO.4443/MUM/2015 FOR A.Y.2005-0 6) NTUC INCOME INSURANCE CO - OPERATIVE LTD., C/O BSR & LLP, 2 ND FLOOR, LODHA EXCELUS, APOLLO MILLS COMPOUND, N M JOSHI MARG, MAHALAXMI, MUMBAI 400 011. PAN AACCN1839K VS. D Y D IRECTOR OF INCOME TAX (IT) 4(2) MUMBAI. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI NIRAJ SHETH RESPONDENT BY : SHRI NISHANT SAMAIYA DATE OF HEARING : 26.07.2019 DATE OF PRONOUNC EMENT : 26.07.2019 O R D E R PER G S PANNU,VICE-PRESIDENT: THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATI ON SEEKING RECALL OF THE ORDER OF THE TRIBUNAL, DATED 23 RD MAY 2018, IN ITA NO. 4443/MUM/2015 FOR A.Y. 2005-06. 2. IN THIS MISCELLANEOUS APPLICATION THE GRIEVANCE OF THE ASSESSEE IS TWO-FOLD. FIRSTLY, THE LEARNED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT 2 MA 728/MUM/2018 NTUC INCOME INSURANCE CO-OPERATIVE LIMITED. THE TRIBUNAL HAS INADVERTENTLY NOT TAKEN COGNIZANCE OF THE ADDITIONAL GROUND OF APPEAL FILED VIDE LETTER DATED 01.08.2017 , WHICH IS AS UNDER: THE CIT(A) OUGHT TO HAVE HELD THAT RE-ASSESSMENT U NDER SECTION 147 OF THE ACT WAS WITHOUT JURISDICTION SECONDLY, IT IS POINTED OUT THAT THOUGH SOME OF THE ARGUMENTS HAVE BEEN NOTED BY THE ASSESSEE IN ORDER THERE HAS BEEN IMPRO PER ADJUDICATION, IN AS MUCH, AS THE APPEAL HAS BEEN DISPOSED OFF BY RELYIN G ON AN EARLIER PRECEDENT ON SIMILAR ISSUE IN THE CASE OF L G ASIAN PLUS LTD.(ITA NOS. 2645 & 2691/MUM/2008 DATED 27 TH MAY 2011) 3. ON THE OTHER HAND, THE LEARNED DR HAS SUBMITTED THAT THERE IS NO MISTAKE WITHIN THE MEANING OF SECTION 254(2) OF THE ACT IN THE ORDER DATED 23.05.2018 (SUPRA), BUT DID NOT CONTROVERT THE FACT UAL MATRIX THAT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE HAS NOT BE EN ADDRESSED IN THE ORDER DATED 23.05.2018 (SUPRA). 4. ON THE AFORESAID TWO POINTS, WE HAVE HEARD THE R IVAL PARTIES. IN SO FAR AS THE NON-CONSIDERATION OF THE ADDITIONAL GROU ND IS CONCERNED, THE PLEA OF THE ASSESSEE IS BORNE OUT OF RECORD. OSTENSIBLY , NON-CONSIDERATION OF THE ADMISSIBILITY AND/OR MERIT OF THE ADDITIONAL GROUND IS A MISTAKE WHICH IS RECTIFIABLE WITHIN THE MEANING OF SECTION 254(2) OF THE ACT. ACCORDINGLY, THE 3 MA 728/MUM/2018 NTUC INCOME INSURANCE CO-OPERATIVE LIMITED. ORDER DATED 23 RD MAY 2018, IS RECALLED FOR THE LIMITED PURPOSE OF C ONSIDERING THE ADDITIONAL GROUND AS PER LAW. THE REGISTRY IS DIRECTED TO POST THE APPEAL BEFORE A REGULAR BENCH IN ORDER TO CONSIDER THE AFORESAID AS PER LAW. 5. IN SO FAR AS THE OTHER MISTAKE SOUGHT TO BE CANV ASSED IS CONCERNED, THE SAME TANTAMOUNTS TO REVIEW OF ORDER OF THE TRIB UNAL, WHICH IS NOT PERMISSIBLE U/S. 254(2) OF THE ACT. HENCE, THE SAM E IS DECLINED. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS PARTLY ALLOWED AS ABOVE. ORDER DICTATED AND PRONOUNCED IN COURT ON 26 TH JULY, 2019 IN THE PRESENCE OF BOTH THE PARTIES. SD/- SD/- (SANDEEP GOSAIN) (G S PANNU) JUDICIAL MEMBER VICE-PRESIDENT MUMBAI, DATED : 26 TH JULY, 2019 SA COPY OF THE ORDER FORWARDED TO : 1. THE APPLICANT. 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. THE CIT 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ( ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, MUMBAI