The ITO, Ward-1, Kakinada V. M/s Jonnala Venkateswara Rao & Others, Mandapeta

MA 84/VIZ/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5832 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-10-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 08-10-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 06-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J SIRI KUMAR
• Assessee Lawyers: C V S MURTHY

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI BR BASKARAN, ACCOUNTANT MEMBER MA NO. 84 /VIZAG/ 20 10 (ARISING OUT OF ITA NO.512/VIZAG/2004) ASSESSMEN T YEAR : 2001 - 02 JONNALA VENKATESWARA RAO & OTHERS MANDAPETA ITO WARD - 1 KAKINADA (APPELLANT) VS. (RESPONDENT) GIR NO.J - 309 APPELLANT BY: SHRI J. SIRI KUMAR, DR RESPONDENT BY: SHRI C.V.S. MURTHY, CA ORDER PER SHRI S.K. YADAV, JUDICIAL MEMBER : - THIS MISCELLANEOUS APPLICATION IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE TRIBUNAL DATED 24.3.2010 IN ITA NO.512/VIZAG/2004 WITH THE SUBMISSION THAT THE TRIBUNAL HAS NOT CONSIDERED THE ORDER OF THE TRIBUNAL IN THE CASE OF SMT. KIRAN LATA REPOR TED IN 318 ITR 44, JUDGEMENT OF THE ALLAHABAD HIGH COURT IN THE CASE OF ROHTAS PROJECTS LTD., VS. CIT REPORTED IN 204 CTR 139 (ALL) AND ORDER OF THE TRIBUNAL IN THE CASE OF DCIT VS. SUBHAN BUILDERS 104 ITD 126 (LUCKNOW)(SB). WHILE ADJUDICATING THE IMPUGNE D ISSUE THE TRIBUNAL HAS TAKEN A DECISION , CONTRARY TO THE RATIO LAID DOWN IN THE AFORESAID JUDGEMENTS. THEREFORE, AN ERROR HAS CREPT IN THE ORDER OF THE TRIBUNAL WHICH CALLS FOR A RECTIFICATION. 2. THE LD. COUNSEL FOR THE ASSESSEE ON THE OTHER HAND HA S SUBMITTED THAT THE JUDGEMENTS WHICH THE REVENUE INTENDS TO RELY , WERE NEVER REFERRED DURING THE COURSE OF HEARING OF THE APPEAL. MOREOVER, THE TRIBUNAL HAS ADJUDICATED THE ISSUE FOLLOWING THE OTHER ORDERS OF THE TRIBUNAL AND JUDGEMENTS OF THIS RAJASTHAN HIGH COURT. THEREFORE, THE TRIBUNAL HAS ADJUDICATED THE ISSUE IN THE LIGHT OF MATERIAL AVAILABLE BEFORE IT AND ALSO AS PER LAW. THROUGH THIS MISCELLANEOUS APPLICATION, THE REVENUE IS SEEKING A REVIEW OF THE ORDER OF THE TRIBUNAL WHICH IS NOT PERMISSIBLE U/S 254(2) OF THE I.T. ACT. 2 3 . WE HAVE CAREFULLY EXAMINED THE MISCELLANEOUS APPLICATION VIS - - VIS THE ORDER OF THE TRIBUNAL AND WE FIND THAT THE ORDERS/ JUDGEMENT WHICH THE REVENUE INTENDS TO REFER DURING THE COURSE OF HEARING OF THE MISCELLANEOUS APPLICA TIONS WERE NOT AT ALL REFERRED DURING THE COURSE OF HEARING OF THE APPEAL. MOREOVER, THE TRIBUNAL HAD ADJUDICATED THE ISSUE IN THE LIGHT OF MATERIAL AVAILABLE ON RECORD AND THE ORDER OF THE TRIBUNAL IN THE CASE OF R.K. PALACE, TANUKU IN ITA NO.361/VIZAG/2 003 AND ALSO THE JUDGEMENTS OF THE RAJASTHAN HIGH COURT. THE TRIBUNAL HAS TAKEN INTO ACCOUNT THE RELEVANT MATERIAL PLACED BEFORE IT WHILE ADJUDICATING THE IMPUGNED ISSUE. THEREFORE, IT CANNOT BE CALLED THAT THERE IS AN ERROR APPARENT IN THE ORDER OF THE TRIBUNAL. SINCE NO ERROR APPARENT IN THE ORDER OF THE TRIBUNAL IS NOTICED, WE DECLINE TO INTERFERE WITH THE SAME. ACCORDINGLY THE M.A. OF THE REVENUE IS DISMISSED. 4 . IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE REVENUE IS DISMISSED. PRONOUNCED I N THE OPEN COURT ON 19.10 .20 10 SD/ - SD/ - (BR BASKARAN) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER VG/SPS VISAKHAPATNAM, DATED 19 TH OCTOBER , 20 10 COPY TO 1 M/S. JONNALA VENKATESWARA R AO & OTHERS, YEDIDHA ROAD, MANDAPETA 2 ITO WARD - 1, KAKINADA 3 THE CI T, RAJAHMUNDRY 4 THE CIT (A) , RAJAHMUNDRY 5 THE DR, ITAT, VISAKHAPATNAM. 6 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUN AL VISAKHAPATNAM