M/S VIIKING BEVERAGES PVT LTD., Mumbai V. ITO WARD 15 (3)(2), Mumbai

MA 75/MUM/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7193 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-08-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2015-2016
• Appeal Filed On: 13-02-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SAMATHA MULLAMUDI
• Keywords: Application of stay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F MUMBAI BEFORE SHRI RAVISH SOOD (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) M.A. NO. 75/MUM/2020 (S.A. NO. 37/MUM/2020) ASSESSMENT YEAR: 2015 - 16 M/S VIIKING BEVERAGES PVT. LTD., 6 TH FLOOR, JMJ HOUSE, ORCHARD AVENUE, HIRANANDANI GARDENS, POWAI, MUMBAI - 400076. VS. ITO WARD - 15(3)(2), AAYAKAR BHAVAN, M.K. ROAD MUMBAI - 400020. PAN NO. AAECB1368F APPELLANT RESPONDENT ASSESSEE BY : MR. RAJIV KHANDELWAL, AR REVENUE BY : MR. SAMATHA MULLAMUDI, DR DATE OF HEARING : 17/02/2020 DATE OF PRONOUNCEMENT : 11/08/2020 ORDER PER N.K. PRADHAN, A.M. BY MEANS OF THIS MISCELLANEOUS APPLICATION (MA), THE APPLICANT SEEKS RECTIFICATION OF THE ORDER DATED 23.01.2020 PASSED BY THE ITAT F BENCH MUMBAI ( SA NO. 37/MUM/2020 ) FOR THE ASSESSMENT YEAR (AY) 2015 - 16. 2. THE LD. COUNSEL FOR THE APPLICANT SUBMITS THA T (I) ON A QUERY FROM THE BENCH REGARDING THE STATUS OF STAY APPLICATION BEFORE THE INCOME TAX AUTHORITIES, THE AR INFORMED THAT STAY APPLICATION HAS BEEN FILED WITH THE ASSESSING OFFICER BY LETTER DATED APRIL 15, 2019 WHICH HAS BEEN REJECTED BY HIS LETTER DATED 25.06.2019 AND THAT NO FURTHER APPLICATION FOR STAY OF DEMAND HAS BEEN FILED WITH THE PR. COMMISSIONER OF INCOME TAX, (II) THE M/S VIIKING BEVERAGES PVT. LTD. MA NO. 75/MUM/2020 2 TRIBUNAL HAS DISMISSED THE STAY APPLICATION, NOT FOR THE REASON THAT THE APPLICANT HAS NOT APPROACHED THE PR. CIT BEFORE F ILING IT WITH THE TRIBUNAL BUT STATING IN PARA 3 OF THE ORDER, ON A QUERY FROM THE BENCH REGARDING THE STATUS OF THE APPLICATION OF STAY OF DEMAND BEFORE THE INCOME TAX AUTHORITIES, THE LD. COUNSEL FAILED TO CLARIFY., (III) THERE WAS NO DISCUSSION ON MER ITS OF THE CASE AND IN FACT THERE DID NOT ARISE AN OCCASION TO GO INTO THE MERITS OF THE CASE DURING THE HEARING IN AS MUCH AS THE DISCUSSIONS WERE RESTRICTED TO ONLY INQUIRY OF THE STATUS OF APPLICATION FOR STAY OF DEMAND BEFORE THE INCOME TAX AUTHORITIES AND (IV) THE TRIBUNAL HAS DISCUSSED THE MERITS OF THE CASE AT LENGTH, WHICH WILL PREJUDICE THE STAY APPLICATION FILED BEFORE THE PR. CIT. THUS THE LD. COUNSEL SUBMITS THAT : A. THE ORDER OF THE TRIBUNAL DATED 23.01.2020 BE AMENDED TO MENTION THE REASONS G IVEN DURING THE COURSE OF HEARING ON 23 RD JANUARY, 2020 OR MAY SUITABLY AMEND ITS ORDER AS IT DEEMS FIT, AND/OR B. THE SAID O RDER OF THE TRIBUNAL BE RECALLED AND/OR C. THE TRIBUNAL MAY GRANT SUCH FURTHER AND OTHER RELIEFS AS IT DEEMS FIT. 3. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) SUBMITS THAT THERE IS NO PRIMA FACIE MISTAKE IN THE IMPUGNED ORDER OF THE TRIBUNAL. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD . IN THE INSTANT CASE, WHILE DECIDING THE STAY APPLICATION FILED BY THE APPLICANT, THE FACTS DELINEATED IN THE LETTER DATED 18.01.2020 FILED BY THE ASSESSEE BEFORE THE TRIBUNAL HAVE BEEN TAKEN INTO ACCOUNT. NOWHERE IN THE IMPUGNED ORDER, THE TRIBUNAL HAS D ECIDED THE ISSUE ON MERIT. THERE CANNOT BE ANY DISPUTE THAT NOT ONLY THE CONTENTIONS OF THE LD. M/S VIIKING BEVERAGES PVT. LTD. MA NO. 75/MUM/2020 3 COUNSELS BUT ALSO THE DOCUMENTS FILED BEFORE THE BENCH SHOULD BE CONSIDERED WHILE DECIDING THE ISSUE IN STAY PETITIONS. IN VIEW OF THE ABOVE FACTS, THERE IS NO MISTAKE APPARENT FROM RECORD IN THE IMPUGNED ORDER. A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DEC ISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM THE RECORD. THIS VIEW IS SUPPORTED BY THE DECISION OF THE HONBLE SUPREME COURT IN T.S. BALARAM, ITO V. VOLKART BROS ., (1971) 82 ITR 50 (SC), MASTER CONSTRUCTION CO. P. LTD. V. STATE OF ORISS A , AIR 1966 SC 1047, KARAM CHAND THAPAR & BROS. (COAL SALES) LTD. V. STATE OF U.P. (1976) TAX LR 1921, 1927 (SC) AND CCE V. ASCU LTD ., (2003) 9 SCC 230, 232. IN VIEW OF THE ABOVE FACTS AND POSITION OF LAW, THE PRESENT MA BEING DEVOID OF MERIT IS DISMISSED . WE NOTE THAT THIS APPEAL WAS HEARD IN 17.02.2020 .THE PRONOUNCEMENT IS DELAYED D UE TO LOCKDOWN IN VIEW OF COVID - 19 PANDEMIC. ORDER IS PRONOUNCED TODAY AS PER RULE 34(4) BY PLACING IT ON THE NOTICE BOARD . 5. IN THE RESULT, THE MA IS DISMISSED. SD/ - SD/ - ( RAVISH SOOD ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 11/08/2020 RAHUL SHARMA, SR. P.S. M/S VIIKING BEVERAGES PVT. LTD. MA NO. 75/MUM/2020 4 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI