Nitin Nag, Lucknow V. Dy. Commissioner of Income Tax, Lucknow

MA 76/LKW/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3495 (ITAT-LUCKNOW)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-09-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 07-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIDHI VERMA SINGH
• Assessee Lawyers: B P YADAV COST ACCOUNTANT

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER M.A. NO.76/LKW/2015 (ARISING OUT OF I.T.A.NO.72/LKW/2015) ASSESSMENT YEAR: 2009 10 SHRI NITIN NAG, S/O SHRI ASHOK KUMAR NAG, 360/8 PURANA PAN DARIBA, SADATGANJ, LUCKNOW. PAN:AIRPN1989L VS. DCIT - RANGE - VI, LUCKNOW. (APPLICANT) (RESPONDENT) APPLICANT BY SHRI B. P. YADAV, COST ACCOUNTANT RESPONDENT BY SMT. NIDHI VERMA SINGH, SR. DR. DATE OF HEARING 04/09/2015 DATE OF PRONOUNCEMENT 1 1 /09/2015 O R D E R PER A. K. GARODIA, A.M. THIS MISC. APPLICATION IS FILED BY THE ASSESSEE REQUESTING FOR RECALL OF THIS TRIBUNAL ORDER DATED 23.03.2015. IT IS SUBMITTED IN THE M. A. THAT THE IN THE IMPUGNED TRIBUNAL ORDER, THE TRIBUNAL ORDER IS ON THIS BASIS THAT THE ASSESSEE DID NOT FURNISH ANY EVIDENCE BEFORE THE TRIBUNAL ALSO IN SUPPORT OF THE EXPENSES CLAIMED UNDER THE HEAD PURCHASES AND EXPENSES BUT THIS IS NOT FACTUALLY CORRECT BECA USE ON PAGE 2 OF THE PAPER BOOK IS PROFIT & LOSS ACCOUNT AND BALANCE SHEET AND ON PAGES 3 TO 16 OF THE PAPER BOOK IS COPY OF BANK STATEMENT AND ON PAGES 17 TO 21 OF THE PAPER BOOK IS EXPLANATION OF THE DEBIT AND CREDIT ENTRIES OF THE BANK ACCOUNT BUT THESE PAGES OF THE PAPER BOOK HAS ESCAPED ATTENTION OF THE TRIBUNAL. 2. IN COURSE OF HEARING, SAME CONTENTIONS WERE RAISED. LEARNED AR OF THE ASSESSEE ALSO SUBMITTED THAT SINCE THE RELEVANT PAGES OF THE PAPER BOOK WERE NOT CONSIDERED, IT IS AN APPARENT MISTAKE IN THE TRIBUNAL ORDER AND IN SUPPORT OF THIS [ 2 ] CONTENTION, HE PLACED RELIANCE ON A JUDGMENT OF HONBLE M. P. HIGH COURT RENDERED IN THE CASE OF CIT VS. MITHALAL ASHOK KUMAR, 158 ITR 755. LEARNED DR OF THE REVENUE SUBMITTED THAT THERE IS NO APPARENT MISTAKE IN THE TRIBUNAL ORDER. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND WE FIND THAT A PAPER BOOK OF 21 PAGES IS AVAILABLE IN THE APPEAL FOLDER AND ON PAGE 2 OF THE PAPER BOOK IS PROFIT & LOSS ACCOUNT AND BALANCE SHEET AND ON PAGES 3 TO 16 OF THE PAPER BOO K IS COPY OF BANK PASS BOOK AND ON PAGES 17 TO 21 OF THE PAPER BOOK IS EXPLANATION OF THE DEBIT AND CREDIT ENTRIES OF THE BANK ACCOUNT BUT IN THE IMPUGNED TRIBUNAL ORDER, THERE IS NO REFERENCE TO ANY OF THESE PAGES OF THE PAPER BOOK. IN THE CASE OF CIT VS. MITHALAL ASHOK KUMAR (SUPRA), IT WAS HELD BY HONBLE M. P. HIGH COURT THAT THE TRIBUNAL ORDER IN THE M.A. IS JUSTIFIED IF IN THE ORIGINAL TRIBUNAL ORDER, THERE WAS NON CONSIDERATION OF SOME MATERIAL AVAILABLE ON RECORD. RESPECTFULLY FOLLOWING THIS JUDGMEN T, WE HOLD THAT THERE IS AN APPARENT MISTAKE IN THE IMPUGNED TRIBUNAL ORDER BECAUSE SOME MATERIAL AVAILABLE ON RECORD WAS OMITTED TO BE CONSIDERED IN THE IMPUGNED TRIBUNAL ORDER. HENCE, WE RECALL THE IMPUGNED TRIBUNAL ORDER AND DIRECT THE REGISTRY TO FIX THIS APPEAL FOR HEARING IN REGULAR COURSE BECAUSE THE APPEAL HAS TO BE DECIDED AFRESH AFTER CONSIDERING THE MATERIAL AVAILABLE ON RECORD AND AFTER HEARING BOTH SIDES. 4. IN THE RESULT, THE MISC. APPLICATION OF THE ASSESSEE IS ALLOWED. (ORDER WAS PRONO UNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 1 1 /09/2015 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. DR, ITAT, LUCKNOW ASSTT. REGISTRAR