M/S. INDIAN RARE EARTHS LTD., V. ITO 1(2)(1),

MA 78/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6412 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2003-2004
• Appeal Filed On: 09-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V MOHAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, I, MUMBAI BEFORE S/SHRI D.K.AGARWAL (JM) AND RAJENDRA SINGH ( A.M ) MISCELLANEOUS APPLICATION NOS.77,78 AND 79/MUM/2011 ARISING OUT OF ITA NOS.5247,5248 AND 5249/MUM/2007 (ASSESSMENT YEARS: 2002-03,2003-04 AND 2004-05) INDIAN RARE EARTH LTD. 1207, VEER SAVARKAR MARG, NEAR SIDDI VINAYAK TEMPLE, PRABHADEVI, MUMBAI-400028 PAN: AAACI-2799-F THE INCOME TAX OFFICER RANGE 1(2)-1, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 APPLICANT V/S RESPONDENT APPLICANT BY : SHRI V.MOH AN RESPONDENT BY : SHRI R.K.GUPT A. O R D E R PER D.K.AGARWAL (JM) ALL THESE THREE MISCELLANEOUS APPLICATIONS DATED 7.2.2011 FILED BY THE ASSESSEE ARE DIRECTED AGAINS T THE CONSOLIDATED ORDER PASSED BY THE TRIBUNAL IN ASSE SSEES APPEALS ITA NOS.5247, 5248 AND 5249/MUM/2007 AND I N REVENUES APPEALS IN ITA NO.5266,5267 AND 5268/MUM/2007 FOR THE ASSESSMENT YEARS 2002-03, 200 3-04 AND 2004-05. SINCE FACTS ARE IDENTICAL AND ISSUE INVOLVED IS COMMON, ALL THESE MISCELLANEOUS APPLICATIONS BY THE ASSESSEE ARE DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVEYANCE. MA NO.77,78 AND 79/MUM/2011 ARISING OUT OF ITA NOS.5247,5248 AND 5249/MUM/2007 (AYS: 2002-03,2003-04 AND 2004-05 2 2. IN THE MISCELLANEOUS APPLICATIONS, THE ASSESSEE SUBMITTED THAT ALL THESE APPEALS WERE TREATED AS UN ADMITTED FOR WANT OF COD APPROVAL. IT WAS FURTHER SUBMITTED THAT IN THE ORDER UNDER REFERENCE MENTIONED BY THE TRIBUN AL THAT THE ASSESSEE/REVENUE ARE AT LIBERTY TO MOVE THE TRI BUNAL BY AN APPROPRIATE PETITION FOR RECALLING ALL THE CASE S AND IF THE BENCH IS SO SATISFIED ABOUT THE REASONS FOR DELAY IN GETTING COD APPROVAL, THEN THIS ORDER SHALL BE RECALLED SO AS TO TREAT THESE APPEALS AS ADMITTED. IT WAS FURTHER SUBMITTE D THAT ON RECEIPT OF THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (A), THE ASSESSEE FILED AN APPLICATION TO THE COD SEEKING THEIR PERMISSION TO THE APPEAL BEFORE THE TRIBUNAL ON 30.8.2007. THUS, IT CAN BE SEEN THAT THERE WAS NO DELAY ON THE PART OF THE ASSESSEE IN MAKING THE APPLICATI ON TO THE COD FOR OBTAINING THEIR APPROVAL. SINCE NOW THE AS SESSEE GOT THE COD APPROVAL VIDE LETTER DATED 6.5.2008, TH EREFORE, THE ORDER PASSED BY THE TRIBUNAL IN ASSESSEES AP PEALS BE RECALLED. 3. AT THE TIME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITS THAT IN VIEW OF THE REASONS MENT IONED IN THE MISCELLANEOUS APPLICATIONS, THE ORDER PASSED B Y THE TRIBUNAL BE RECALLED WHICH WAS NOT OBJECTED TO BY T HE LEARNED D.R. MA NO.77,78 AND 79/MUM/2011 ARISING OUT OF ITA NOS.5247,5248 AND 5249/MUM/2007 (AYS: 2002-03,2003-04 AND 2004-05 3 4. HAVING CAREFULLY HEARD THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECO RD, WE FIND MERITS IN THE PLEA OF THE ASSESSEE THAT THE TRIBUN AL WHILE DISMISSING THE APPEALS FOR WANT OF COD APPROVAL O BSERVED HOWEVER THE ASSESSEE/REVENUE ARE AT LIBERTY TO MOV E THIS TRIBUNAL BY APPROPRIATE PETITION FOR RECALLING THE CASES AND IF THE BENCH IS SO SATISFIED ABOUT THE REASONS FOR TH E DELAY IN GETTING THE COD APPROVAL, THEN THIS ORDER SHALL BE RECALLED SO AS TO TREAT THESE APPEALS AS ADMITTED . HOWEVER, WE FIND THAT THE COD HAS GRANTED APPROVAL ON 6.5.2008 AND THE ORDER WAS PASSED BY THE TRIBUNAL ON 4.3.2009. IT W AS THE DUTY OF THE ASSESSEE TO BRING TO THE NOTICE OF THE TRIBUNAL ABOUT THE COD APPROVAL WHICH HE FAILED TO DO SO. EV EN AT THIS STAGE NO SUCH EXPLANATION WAS GIVEN. THIS BEI NG SO AND KEEPING IN VIEW THAT THE COD HAS GRANTED THE APPRO VAL TO THE ASSESSEE TO PURSUE THE APPEALS FOR THE ASSESSME NT YEARS 2002-03, 2003-04 AND 2004-05 VIDE LETTER DATED 6.5. 2008, THEREFORE, WE RECALL OUR ORDER DATED 4.3.2009 FOR HEARING OF THE APPEALS FILED BY THE ASSESSEE. ALL THESE APPEAL S BY THE ASSESSEE ARE FIXED FOR HEARING ON 14.7.2011 AS PRON OUNCED IN THE OPEN COURT. ACCORDINGLY, MISCELLANEOUS APPL ICATIONS FILED BY THE ASSESSEE ARE ALLOWED. 5. IN THE RESULT, THE ASSESSEES MISCELLANEOUS APPLICATIONS STAND ALLOWED. MA NO.77,78 AND 79/MUM/2011 ARISING OUT OF ITA NOS.5247,5248 AND 5249/MUM/2007 (AYS: 2002-03,2003-04 AND 2004-05 4 ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E. ON 27 TH MAY 2011. SD SD (RAJENDRA SINGH) (D.K.A GARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 27TH MAY, 2011 SRL:27511 COPY TO: 1. APPLICANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILED. BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI