Smt. Vandana Poddar, Bangalore V. DCIT, Bangalore

MA 74/BANG/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4835 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-09-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 14-09-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 09-08-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BANGALORE BENCH B BEFORE DR. O.K NARAYANAN, VICE PRESIDENT AND SHRI GEORGE GEORGE K, JUDICIAL MEMBER M .P NO.74/BANG/2010 (IN ITA NO.943/B/09) (ASST. YEAR - 2006-07) SMT. VANDANA PODDAR, 487, 10 TH CROSS, RMV EXTENSION, SADASHIVNAGAR, BANGALORE. . APPELLANT VS. THE DY. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE 1(1), BANGALORE. . RESPONDENT APPELLANT BY : SHRI P.T TIWARI, CHARTERED ACCOU NTANT RESPONDENT BY : SMT. JACINTA ZIMIK VASHAI, ADDL. COMMISSIONER OF INCOME-TAX O R D E R PER DR. O.K NARAYANAN, VICE PRESIDENT : THIS MISC. PETITION IS FILED BY THE ASSESSEE, WHIC H IS IN THE NATURE OF RECTIFICATION PETITION. THIS PETITION IS FILED IN THE CONTEXT OF THE ORDER OF THE TRIBUNAL DATED 26 TH APR, 2010 PASSED IN THE CASE OF SMT. VANDANA PODDAR VS. DCIT IN ITA NO.943/BANG/200 9. M.P NO.74/B/10 2 2. THE FULL TEXT OF THE PETITION IS REPRODUCED BELO W FOR PROPER COMPREHENSION OF THE MISTAKES POINTED OUT BY THE AS SESSEE : 1)IN RESPONSE TO AN APPEAL FILED BY THE ASSESSEE ABOVE NAMED, THE LEARNED TRIBUNAL BENCH B, BANGALORE HAVE PASSED AN ORDER DATED 26.4.2010 UNDER WHICH THE SAID APPEAL HAS BEEN DISMISSED. 2) THE ASSESSEE MOST RESPECTFULLY SUBMITS FOR RECONSIDERATION OF THE MATTER ONCE AGAIN IN LIGHT OF THE FOLLOWING FACTS TO GIVE JUSTICE TO THE ASSESSEE. 3) AS ALREADY SUBMITTED THE BRIEF FACTS OF THE CASE ARE THAT HE ASSESSING OFFICER ASSESSED THE LONG TERM AND SHORT TERM CAPITAL GAIN OF RS.13,71,286/- AND RS.3,78,763/- RESPECTIVELY OF THE ASSESSEE AS BUSINESS INCOME AGAINST WHICH THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A) WHO AFTER DISCUSSING THE MATTER IN DETAIL ALLOWED THE RELIEF AND RESTORED THE CAPITAL GAIN INCOME UNDER THE HEAD CAPITAL GAIN ONLY. 4) IN THE PARA NO. 13 OF THE ORDER OF THE LD. CIT(A) DT. 11.02.2009 (ORIGINAL ORDER OF CIT(A) IT HAS BEEN CLEARLY DISCUSSED THAT INCOME FROM M.P NO.74/B/10 3 SHARES IS NOTHING BUT CAPITAL GAIN INCOME AND IT WAS ONLY DUE TO INADVERTENCE OR MISTAKE THE AMOUNT OF LONG TERM CAPITAL GAIN OF RS.13,71,286/- WAS OMITTED TO BE MENTIONED IN THE ORDER. 5) IT MAY ALSO BE KINDLY OBSERVED THAT IN THE ENTIRE DISCUSSION OF CIT(A) OF PARA 13 OF THE ORDER, NO WHERE ANY NEGATIVE OR ADVERSE FINDING HAS BEEN GIVEN ON LONG TERM CAPITAL GAIN INCOME OF THE ASSESSEE. IT IS ONLY WHILE CONCLUDING AND GIVING RELIEF, THE SPECIFIC MENTION OF THE AMOUNT OF LONG TERM CAPITAL GAIN WAS NOT MENTIONED WHICH IS PURELY A MISTAKE AND/OR DUE TO INADVERTENCE. 6) THE ASSESSEE HAS CLEARLY SOUGHT RELIEF BY A SPECIFIC GROUND ON LONG TERM CAPITAL GAIN AND THE SAME HAS NOT BEEN DEALT CLEARLY. 7) WHILE IT IS APPRECIATED THAT FOR THE SUCCESSOR COMMISSIONER THE ISSUE APPEARED TO HAVE BEEN DEBATABLE BUT HE COULD HAVE EXAMINED THE ISSUE IN LIGHT OF THE SUBMISSIONS MADE BY THE ASSESSEE AND COULD HAVE ASKED FOR REQUIRED DOCUMENTS AND INFORMATION TO GIVE A CLEAR-CUT FINDING IN THE MATTER AS AGAINST REJECTING THE APPLICATION. M.P NO.74/B/10 4 8) THE ASSESSEE PRAYS THE HONBLE BENCH FOR RECONSIDERATION OF THE MATTER IN LIGHT OF THE ABOVE FACTS AND REQUEST THAT THE MATTER MAY KINDLY BE RECONSIDERED AND THE SAME MAY BE RESTORED BACK TO THE LD. CIT(A) FOR RECONSIDERATION AS THERE HAS BEEN NO NEGATIVE FINDING OR REJECTION OF THE GROUND TAKEN IN THE APPEAL BEFORE THE LD. CIT(A). 9) PASSING OF THE APPROPRIATE ORDER BY THE HONBLE BENCH WITH THE DUE RECONSIDERATION SHALL IMMENSELY HELP THE ASSESSEE AND RESTORATION OF THE MATTER TO LD. CIT(A) SHALL GIVE AN OPPORTUNITY FOR GETTING THE FULL JUSTICE TO THE ASSESSEE. 10) THE LD. BENCH MAY PASS SUCH APPROPRIATE ORDER AS THEY DEEM FIT FOR WHICH THE ASSESSEE SHALL BE DUTY BOUND TO PRAY. 3. WE HEARD SHRI P.T TIWARI, THE LEARNED CHARTERED ACCOUNTANT APPEARING FOR THE ASSESSEE PETITIONER AND SMT. JACI NTA ZIMIK VASHAI, THE LEARNED ADDL. COMMISSIONER OF INCOME-TAX APPEAR ING FOR THE REVENUE. M.P NO.74/B/10 5 4. IT IS ALSO NECESSARY TO SEE THE OPERATING PORTIO N OF THE ORDER PASSED BY THE TRIBUNAL. 4. WE HEARD BOTH THE SIDES IN DETAIL. THE CASE OF THE ASSESSEE IS THAT IN SPITE OF THE DISCUSSIONS MADE IN THE COURSE OF HEARING, THE QUANTUM OF RELIEF GRANTED BY THE CIT(A) HAS BEEN INSUFFICIENT. THIS CANNOT BE A MATTER OF RECTIFICATION THAT TOO BEFORE ANOTHER SUCCESSOR COMMISSIONER. SECONDLY AS PUT IN BY THE COMMISSIONER IN HIS ORDER, THE ISSUE IS HIGHLY DEBATABLE. THEREFORE, HE HAS RIGHTLY REJECTED THE PETITION FILED BY THE ASSESSEE U/S 154. 5. WE CANDIDLY ADMIT THAT DISCUSSION MADE BY THE TR IBUNAL IN ITS ORDER ON THE GROUNDS RAISED BY THE ASSESSEE IN HER APPEAL IS QUITE INADEQUATE AND DOES NOT SHOW THAT THE FACTS OF THE CASE HAVE BEEN PROPERLY CONSIDERED BY THE TRIBUNAL. SUCH A NON-SP EAKING ORDER WOULD INVARIABLY RESULT IN THE TRAVESTY OF JUSTICE. 6. IT WAS ALSO BROUGHT TO OUR NOTICE THAT ON CONCLU SION OF THE HEARING OF THE APPEAL, WE HAD STATED IN THE OPEN CO URT THAT THE MATTER WOULD BE REMITTED BACK TO THE CIT(A) FOR RECONSIDER ING THE CASE AND TO PASS AN APPROPRIATE ORDER IN ACCORDANCE WITH LAW . BUT IN FACT, THE M.P NO.74/B/10 6 APPEAL HAS BEEN DISMISSED BY THE TRIBUNAL. WE DO N OT THINK IN A MATTER LIKE THIS, A COUNSEL WOULD MAKE MISREPRESEN TATION IN THE COURT. THEREFORE, IF SUCH AN INDICATION WAS MADE EARLIER I N THE COURT ON CONCLUSION OF HEARING OF THE APPEAL, THE DESTINY OF THE APPEAL SHOULD NOT HAVE BEEN CHANGED WITHOUT HEARING THE PARTIES A GAIN. 7. THEREFORE IN ALL FAIRNESS, WE ADMIT THAT THE ORD ER PASSED BY THE TRIBUNAL SUFFERS FROM APPARENT MISTAKES, FOR WHICH THE ASSESSEE PETITIONER IS ENTITLED TO SEEK REMEDIES AVAILABLE I N LAW. WE, THEREFORE, FIND THAT THE MISC. PETITION FILED BY THE ASSESSEE IS JUSTIFIED. 8. ACCORDINGLY, WE RECALL PARAGRAPH 4 OF OUR ORDER DATED 26.4.2010 PASSED IN ITA NO.943/B/2009 AND REMIT BAC K THE FILE TO THE CIT(A) TO SHOULD RE-CONSIDER THE WHOLE ISSUE IN THE LIGHT OF THE AVERMENTS MADE BY THE ASSESSEE PETITIONER. M.P NO.74/B/10 7 8. IN RESULT, THE MISC. PETITION FILED BY THE ASSES SEE IS ALLOWED AND THE ORDER IN ITA NO.943/B/09 IS AMENDED AND THE MAT TER IS REMITTED BACK TO THE CIT(A) RESULTING IN ALLOWING OF THE APP EAL FILED BY THE ASSESSEE FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON FRIDAY , THE 17TH DAY OF SEPTEMBER 2010, AT BANGALORE. SD/- SD/- (GEORGE GEORGE K) (DR. O.K N ARAYANAN ) JUDICIAL MEMBER V ICE PRESIDENT VMS. COPY TO : 1. THE ASSESSEE 2. THE REVENUE 3.THE CIT CONCERNED. 4.THE CIT(A) CONCERNED. 5.DR 6.GF BY ORDER, ASST. REGISTRAR, ITAT, BANGALOR E.