JAYANTILAL K JAIN, MUMBAI V. INCOME TAX OFFICER 19(3)(2), MUMBAI

MA 850/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0349 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2011-2012
• Appeal Filed On: 16-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHOUDHARY ARUNKUMAR SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH J, MU MBAI BEFORE SHRIB.R.BASKARAN, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER M.A. NO. 850/MUM/2017 IN ITA NO. 1125/MUM/2015 (ASSESSMENT YEAR- 2011-12) JAYANTILAL K. JAIN (SINCE DECEASED THROUGH LRS) 1101, PEARL HERITAGE, DAWOOD BAUG LANE, J.P. ROAD, ANDHERI (WEST), MUMBAI-400058. PAN: AADPJ9239P VS. ITO 19(3)(2), PIRAMAL CHAMBERS, LALBAUG, MUMBAI-40001 2 (APPELLANT) (RESPONDENT) ASSESSEE BY : SH HERO RAI ADVOCAT E REVENUE BY : CHOUDHARY ARUN KUMAR SINGH SR. DR DATE OF HEARING : 16.11..2018 DATE OF PRONOUNCEMENT : 20.11.2018 ORDER UNDER SECTION 254(2) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS MISCELLANEOUS APPLICATION IS FILED BY THE LEGA L HEIRS OF THE ASSESSEE FOR RECTIFICATION OF ALLEGED MISTAKE IN ORDER DATED 31 JULY 2017. IN THE APPLICATION IT IS INTERALIA PLEADED THAT THE ASSES SEE HAS RAISED ADDITIONAL GROUNDS OF APPEAL VIDE HIS APPLICATION DATED 30.01. 2017 AND THAT WHILE DECIDING THE APPEAL ON 31.07.2017, THE ADDITIONAL G ROUNDS OF APPEAL RAISED MA N O. 850/M/2017 IN ITA NO. 1125/2015 2 BY THE ASSESSEE WAS NOT ADJUDICATED, WHICH CONSTITU TE THE MISTAKE APPARENT ON RECORD. 2. THE LD AR FOR THE APPLICANT/ LEGAL HEIR OF THE ASSE SSEE SUBMITS THAT WHILE MAKING SUBMISSION HE HAS RELIED ON CERTAIN CASE LAW S, ON ADDITIONAL GROUNDS OF APPEAL, WHICH HAS BEEN MENTIONED IN THE ORDER OF THE TRIBUNAL. HOWEVER, NO FINDING ON THE ADDITIONAL GROUNDS OF AP PEAL WAS RENDERED BY THE TRIBUNAL. THE LD. AR FOR THE APPLICANT SUBMITS THAT THE ORDER DATED 31.07.2017 MAY BE RECALLED QUA THE ADDITIONAL GROUN D OF APPEALS ONLY. 3. ON THE HAND THE LD. DR FOR THE REVENUE SUBMITS THAT THE ASSESSEE MAY NOT HAVE PRESSED THE ADDITIONAL GROUNDS OF APPEAL WHILE MAKING SUBMISSION, HOWEVER, ON OUR SPECIFIC QUARRY THAT IF HE HAS ANY OBJECTION IF THE ORDER IS RECALLED TO THE EXTENT OF NON-ADJUDICATION ON ADDIT IONAL GROUNDS OF APPEAL. THE LD. DR SUBMITS THAT HE LEFT THE DECISION ON THE WISDOM OF THE BENCH. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE CONTENTS OF THE ORDER PASSED BY THE BEN CH ON 31 JULY 2017. WE HAVE ALSO GONE THROUGH THE RECORD OF THE CASE. THE PERUSAL OF RECORD REVEALS THAT THE ASSESSEE FILED AN APPLICATION ON 3 1 ST JANUARY 2017 AND RAISED ADDITIONAL GROUND OF APPEAL. PERUSAL OF ORDE R DATED 31 JULY 2017 REVEALS THAT NO FINDING WAS GIVEN ON THE ADDITIONAL GROUND OF APPEAL. IN OUR VIEW NOT ADJUDICATING THE ADDITIONAL GROUND OF APPE AL CONSTITUTE A MISTAKE APPARENT ON RECORD WHICH IS RECTIFIABLE MISTAKE WIT HIN THE SCOPE OF SECTION 254(2) OF THE ACT. CONSIDERING THE SUBMISSION OF LE ARNED AR OF THE MA N O. 850/M/2017 IN ITA NO. 1125/2015 3 ASSESSEE THE ORDERS PASSED BY THE BENCH ON 31 ST JULY THOUSAND 17 IS RECALLED TO THE EXTENT OF ADDITIONAL GROUND OF APPEAL RAISED BY ASSESSEE VIDE HIS APPLICATION DATED 30 JANUARY 2017. 5. THE REGISTRY IS DIRECTED TO FIX THE HEARING OF CAS E BY REGULAR BENCH BY SERVING THE NOTICE ON THE LEGAL HEIRS OF THE ASSESS EE AS WELL AS ON THE LEARNED AR OF LEGAL HEIR OF THE ASSESSEE (SH. HIRO RAI ADVOCATE). IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE I S ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH NOVEMBER 2018. SD/- SD/- (B.R. BASKARAN (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 20 /11/2018 S.K.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT.REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/