LEILA TRADING LIMITED, PALGHAR V. PRINCIPAL COMMISSIONER OF INCOME TAX 3, THANE

MA 754/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6944 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 29-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJESH YADAV LD
• Assessee Lawyers: HARI OM TULSYAN LD
• Section: 143(3); 263; 2

Judgement Text

MA NO.754/M/2017 ARISING OUT OF ITA NO 3562/MUM/2017 LEILA TRADING LIMITED ASSESSMENT YEAR 2012-13 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI , , BEFORE SHRI MAHAVIR SINGH, JM AND SHRI MANOJ KUMAR AGGARWAL, AM MISCELLANEOUS APPLICATION NO.754/MUM/2017 (ARISING OUT OF ITA NO.3562/MUM/2017) ( / ASSESSMENT YEAR: 2012-13) LEILA TRADING LIMITED (CIN : U70100MH2004PLC149662) GUT NO.123 VILLAGE-BATEGAON, BOISAR(E), TAL PALGHAR DISTT. PALGHAR 401501 / VS. PRINCIPAL COMMISSIONER OF INCOME TAX-3 6 TH FLOOR, A WING ROOM NO.2,ASHAR IT PARK ROAD NO.16Z WAGLE INDUSTRIAL ESTATE THANE -400 604 ./ ./PAN/GIR NO. AABCL-1067-A ( ! /APPELLANT ) : ( '#! / RESPONDENT ) ASSESSEE BY : HARI OM TULSYAN, LD. AR REVENUE BY : RAJESH YADAV. LD.SR. DR / DATE OF HEARING : 04/05/2018 / DATE OF PRONOUNCEMENT : 27/07/2018 MA NO.754/M/2017 ARISING OUT OF ITA NO 3562/MUM/2017 LEILA TRADING LIMITED ASSESSMENT YEAR 2012-13 2 ORDER UNDER SECTION 254(2) OF INCOME TAX ACT, 1961 PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. BY WAY OF THIS MISCELLANEOUS APPLICATION, THE AS SESSEE SEEKS RECTIFICATION / RECALL OF TRIBUNALS ORDER ITA NO.3 562/MUM/2017 DATED 06/09/2017 WHEREIN THE ACTION OF LD. PCIT IN INVOKI NG REVISIONAL JURISDICTION U/S 263 HAS BEEN UPHELD SINCE CERTAIN ASPECT AS TO TAXABILITY OF AGRICULTURAL INCOME WERE NOT EXAMINED BY THE LD. ASSESSING OFFICER. 2. THE LD. AUHTORIZED REPRESENTATIVE [DR] SUBMITTED THAT THE TRIBUNAL HAS UPHELD THE ORDER PASSED BY LD. PR. CIT REVISING THE ASSESSMENT FRAMED BY LD. AO UNDER SECTION 143(3) OF THE ACT. ACCORDING TO THE ASSESSEE, LD. PR. CIT HAD DIRECTED THE LD. AO TO CONDUCT DETAILED INQUIRY TO VERIFY WHETHER THE ASSE SSEE HAD ACTUALLY CARRIED OUT AGRICULTURAL ACTIVITY FOR ACCEPTING THE CLAIM THAT THE LAND IN QUESTION WAS AGRICULTURAL LAND. THE LD. AR SUBMITTE D THAT THE TRIBUNAL HAS SUSTAINED THE REVISION ORDER ON THE FOLLOWING T WO GROUNDS: - A. WHILE IT IS CONCEDED THAT THE ASSESSEE FURNISHE D THE PURCHASE AND SALE AGREEMENTS OF LAND, COPY OF 7/12 EXTRACTS AND COPY OF MAP ETC. HOWEVER NO EVIDENCES WERE FURN ISHED TO PROVE CARRYING OUT OF ANY AGRICULTURAL OPERATIONS. THE ASSESSEE HAD ALSO NOT OBTAINED THE PERMISSION OF THE STATE G OVERNMENT TO CARRY OUT THE AGRICULTURAL OPERATIONS SINCE IT WAS A COMPANY. THUS, THE AO COMPLETELY MISSED OUT THIS VITAL ASPEC T OF THE TRANSACTION. B. SECONDLY, IN THE OPINION OF THE HON'BLE ITAT, TH E CASE WAS FULLY COVERED BY THE SUB-CLAUSE (A) OF THE NEWLY IN SERTED EXPLANATION 2 OF SECTION 263 OF THE ACT W.E.F. 01.0 6.2015 WHICH CREATES A DEEMING FICTION THAT THE ORDER PASSED BY THE A.O SHALL BE DEEMED TO BE ERRONEOUS AND PREJUDICIAL TO THE IN TEREST OF REVENUE IF THE SAME IS PASSED WITHOUT MAKING ENQUIR IES AND VERIFICATION WHICH SHOULD HAVE BEEN MADE. MA NO.754/M/2017 ARISING OUT OF ITA NO 3562/MUM/2017 LEILA TRADING LIMITED ASSESSMENT YEAR 2012-13 3 3. THE LEARNED AR SUBMITTED THAT CARRYING OUT OF AG RICULTURAL OPERATIONS WAS NOT A DECISIVE FACTOR FOR DETERMININ G THE NATURE OF THE LAND HELD BY CO-ORDINATE BENCH OF THIS TRIBUNAL IN ITO VS. SPECIAL LAND ACQUISITION OFFICER [ITA NO. 4174/MUM/2009], THE COPY OF WHICH WAS ALREADY PLACED ON RECORD DURING ORIGINAL HEARING OF THE APPEAL AT ASSESSEES PAPER-BOOK PAGE NUMBERS 11 TO 18 . ACCORDING TO LD. AR THIS JUDGMENT OF THE TRIBUNAL HAS NOT BEEN CONSIDER ED WHILE FRAMING THIS ORDER AND THEREFORE, THE SAME CONSTITUTE MISTAKE AS PER THE DECISION OF HONBLE SUPREME COURT RENDERED IN HONDA SIEL POWER PRODUCTS LIMITED VS. CIT (2007) 295 ITR 466 (SC) WHEREIN IT WAS HELD THAT WHEN PREJUDICE RESULTS FROM AN ORDER ATTRIBUTABLE TO A T RIBUNALS MISTAKE, ERROR OR OMISSION THEN IT IS THE DUTY OF THE TRIBUNAL TO SET IT RIGHT. THEREFORE, NON-CONSIDERATION OF THE ORDER OF THE CO-ORDINATE B ENCH AS RELIED UPON AMOUNTS TO MISTAKE APPARENT FROM RECORD. SECONDLY, THE LD. AR SUBMITTED THAT FOLLOWING GROUND NO. 1(C) OF THE MEM ORANDUM OF GROUNDS OF APPEAL AS CONTESTED WAS NOT AT ALL ADJUDICATED: - THE LEARNED PR. CIT ERRED IN LAW AND FACTS IN INIT IATING THE REVISION PROCEEDINGS UNDER SECTION 263 MERELY ON TH E BASIS OF OBSERVATION OF THE AUDIT PARTY PER CONTRA, LD. DR AGITATED THE APPLICATION AND RELIED ON THE O RDER OF THE TRIBUNAL. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND GONE THR OUGH THE FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND FROM THE FAC TS OF THE CASE THAT THE TRIBUNAL HAS NOT CONSIDERED THE CO-ORDINATE BEN CH ORDER IN THE CASE OF SPECIAL LAND ACQUISITION OFFICER (SUPRA) AND THE SAME, IN VIEW OF THE MA NO.754/M/2017 ARISING OUT OF ITA NO 3562/MUM/2017 LEILA TRADING LIMITED ASSESSMENT YEAR 2012-13 4 CITED DECISION OF HONBLE APEX COURT RENDERED IN HONDA SIEL POWER PRODUCTS LIMITED VS. CIT (SUPRA) CONSTITUTE MISTAKE APPARENT FROM RECORD. SECONDLY, NON-ADJUDICATION OF A PARTICULAR GROUND M AKES THE ORDER ERRONEOUS. ACCORDINGLY, FINDING STRENGTH IN T HE ARGUMENTS OF LD. AR, WE RECALL THE ORDER AND DIRECT THE REGISTRY TO RE-FIX THIS APPEAL BEFORE REGULAR BENCH FOR FRESH HEARING ON 27/08/2018. NO S EPARATE NOTICE THEREOF WOULD BE REQUIRED, IN THIS REGARD. 5. RESULTANTLY, THE MISCELLANEOUS APPLICATION OF TH E ASSESSEE STAND ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH JULY, 2018 SD/- SD/- (MAHAVIR SINGH) (M ANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 27.07.2018 SR.PS:- THIRUMALESH ! / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT 2. '#! / THE RESPONDENT 3. * ( ) / THE CIT(A) 4. * / CIT CONCERNED 5. '%- , - , / DR, ITAT, MUMBAI 6. / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI