DEPUTY COMMISSIONER OF INCOME TAX 3(3) 2, MUMBAI V. SUPARNA CHEMICALS LIMITED , MUMBAI

MA 861/MUM/2017

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 4618 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-05-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2004-2005
• Appeal Filed On: 22-11-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ABI RAMA KARTIKEYAN
• Section: 37(1); 201; 35AB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G , MUMBAI BEFORE SHRI SHAMIM YAHYA , A CCOUNTANT M EMBER AND SHRI SANDEEP GOSAIN , JUDICIAL MEMBER AND MA NO .861/MUM/2017 (ARISING OUT OF ITA NO. 7914 /MUM/201 1) ASSESSMENT YEAR - 2004 - 05 DCIT - 3( 3)(2), ROOM NO.609, 6 TH FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400020 / VS. M/S SUPARNA CHEMICALS LTD. 54A, MITTAL TOWER, NARIMAN POINT, MUMBAI - 400021 PAN NO. AABCS4578F ( / RE VENUE) ( / A SSESSEE ) / REVENUE BY SHRI ABIRAMA KARTIKEYAN / ASSESSEE BY NONE / DATE OF HEARING : 22/02/2019 / DATE OF ORDER : 17.05. 201 9 / O R D E R S ANDEEP GOSAIN (JUDICIAL MEMBER) THIS PRESENT MISCELLANEOUS APPLICATION FILED BY THE REVENUE FOR RECALLING THE ORDER OF THE TRIBUNAL DATED 19/04 /2017 IN ITA NO.7914/MUM/2011 IN THE CASE OF M/S SUPARNA CHEMICALS LTD. FOR ASSESSMENT YEAR 2004 - 05. M A NO. 861 MUM/2017 , 2 2. TODAY NONE HAS APPEARED ON BEHALF OF THE RESPONDENT /ASSESSEE. FROM THE PERUSAL OF NOTESHEET, WE NOTICED THE ON PREVIOUS DATES, THE ASSESSEE HAS BEEN S EEKING ADJOURNMENT ON ONE PRETEXT TO ANOTHER. EVEN ON THE LAST DATE OF HEARING, NOTICE WAS AGAIN DIRECTED TO BE ISSUED UPON THE ASSESSEE, BUT EVEN IN SPITE OF THAT, NOBODY APPEARED ON BEHALF OF THE ASSESSEE, WHICH SHOWS THAT ASSESSEE IS NOT INTERESTED IN P URSING THE PRESENT MISC. APPLICATION. ON THE OTHER HAND, LD. DR/APPLICANT IS PRESENT IN THE COURT AND IS READY WITH ARGUMENT, THEREFORE WE HAVE DECIDED TO PROCEED WITH THE HEARING OF THE PRESENT MISC. APPLICATION EX - PARTE WITH THE ASSISTANCE OF LD. DR AND THE MATERIAL PLACED ON RECORD. 3. AFTER HAVING GONE THROUGH THE A PPLICATION FILED BY THE REVENUE, WE FIND THAT THROUGH THE PRESENT MA, REVENUE WANTS TO GET ORDER DATED 06.04.18 PASSED IN SA NO. 204/MUM/18 FILED BY THE AS SESSEE IN THE APPEAL ARISING OUT OF ITA NO 4143/MUM/13 FOR SEEKING STAY. VIDE ORDER DATED 06.04.18, THE TRIBUNAL HAD GRANTED STAY OF RECOVERY OF DEMAND . M A NO. 861 MUM/2017 , 3 4. AT THE OUTSET, IT WAS SUBMITTED THAT THE PRESENT MISCELLANEOUS APPLICATION OUGHT TO HAVE BEEN FILED WITHIN THE STIPULATED PERIOD OF 1 80 DAYS FROM THE DATE OF PASSING OF THE SAID ORDER OF THE TRIBUNAL I.E. BY 15/10/2017. HOWEVER, THE ITAT ORDER DATED 19/04/2017 IN ITA NO.7914/MUM/2011 WAS RECEIVED IN THE OFFICE OF PR. CIT - 3, MUMBAI, ON 30/06/2017 AND THUS IN THIS WAY THERE IS DELAY OF 38 DAYS IN FILING THE PRESENT MISCELLANEOUS APPLICATION. 5 . AFTER PERUSAL OF THE RECORDS, WE FIND THAT AS PER STAND TAKEN BY THE REVENUE, THE ORDER OF THE TRIBUNAL WAS RECEIVED IN THE OFFICE OF PR. COMMISSIONER OF INCOME TAX - 3, MUMBAI ON 30/06/2017. THEREF ORE, THE REVENUE HAD ATTAINED KNOWLEDGE ON 30/06/2017 WITH REGARD TO PASSING OF THE ORDER . T HUS IF CALCULATED 180 DAYS FROM 30/06/2017 THEN THE PRESENT APPLICATION FILED BY THE REVENUE IS IN LIMITATION, THEREFORE , WE ADMIT THE PRESENT MISCELLANEOUS APPLIC ATION FOR DECIDING THE SAME ON MERITS. 6 . FROM THE PERUSAL OF THE MISCELL ANEOUS APPLICATION, WE FOU ND THAT ALTHOUGH THE ITAT HAD UPHELD THE DECISION OF THE M A NO. 861 MUM/2017 , 4 LD. CIT(A) BY DISMISSING THE APPEAL OF THE REVENUE BUT INADVERTENTLY COULD NOT TAKEN INTO ACCOUNT THE FACT THAT THE ASSESSEE HAS CLAIMED DEDUCTION UNDER BOTH THE SECTIONS I.E. 35AB AND SECTION 37(1) SIMULTANEOUSLY. THUS, THIS FACT NOW POINTED OUT BEFORE US AMOUNTS TO APPARENT MISTAKES FROM THE RECORD. 7. THEREFORE KEEPING IN VIEW THE ABOVE DISCUSSIO NS, WE RECALL THE ORDER OF THE TRIBUNAL DATED 19.04.17 PASSED IN ITA NO. 7914./MUM/11 TO THE EXTENT GROUND NO.1 . THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR DECIDING THE GROUND NO.1 AFRESH. NECESSARY NOTICES BE ALSO ISSUED. 8. IN THE RESULT, MISCE LLANEOUS APPLICATION FILED BY THE REVENUE IS ALLOWED IN TERMS INDICATED HEREINABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 17/05 / 2019 SD/ - SD/ - S SD/ - D/ - SD/ - ( SHAMIM YAHYA ) ( SANDEEP GOSAIN ) ACCOUNTAN T MEMBER JUDICIAL MEMBER MUMBAI; DATED : 17/05 / 201 9 SHEKHAR, P.S/. . . M A NO. 861 MUM/2017 , 5 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT (RESPECTIVE ASSESSEE) 2. / THE RESPONDENT. 3. ( ) / THE CIT, MUMBAI. 4. / CIT(A) - , MUMBAI , 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE CO// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI