India Trimmings P Ltd., Annur V. ACIT, Coimbatore

MA 87/CHNY/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8956 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-09-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 24-08-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 02-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K RAJAGOPAL
• Assessee Lawyers: S SRIDHAR
• Keywords: Transfer pricing

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, CHENNAI BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER M.P. NO .87/MDS/2012 (IN ITA. NO.1865/MDS/2011) (ASSESSMENT YEAR : 2007-08) M/S. INDIA TRIMMINGS (P) LTD., 6/36, PILLAIAPPANPALAYAM, ANNUR-641 653. PAN:AAAC1639N VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE-IV(2), COIMBATORE-641 018. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI S.SRIDHAR, ADVOCATE RESPONDENT BY : SHRI K.RAJ AGOPAL, JCIT DATE OF HEARING : 24 TH AUGUST, 2012 DATE OF PRONOUNCEMENT : 6 TH SEPTEMBER, 2012 O R D E R PER VIKAS AWASTHY, JUDICIAL MEMBER: THE PRESENT MISCELLANEOUS PETITION HAS BEEN FILED BY THE ASSESSEE WITH A PRAYER TO RECALL THE ORDER DAT ED 24.04.2012 WHICH WAS DECIDED EX-PARTE. A PERUSAL OF THE ORDER SHOWS THAT ON THE DATE FIXED I.E. 24.04.2012, AN APPLICATION FOR ADJOURNMENT WAS MOVED BY THE COUNSE L FOR THE ASSESSEE. HOWEVER, ON THE SUBMISSIONS MADE BY THE D.R., THE BENCH DECIDED THE CASE ON THE BASIS OF THE DECI SION OF THE CO-ORDINATE BENCH CITED BY THE D.R. M.P. NO.87M DS/2012 2 2. THE COUNSEL FOR THE ASSESSEE CONTENDED THAT THE TRIBUNAL VIDE ORDER DATED 24.04.2012 HAS REMITTED T HE MATTER BACK TO THE ASSESSING OFFICER WITH A DIRECTION TO C OMPLY WITH THE PROVISIONS OF SECTION 144C OF THE ACT, WHEREAS THE REVENUE IN THE GROUNDS OF APPEAL HAD CATEGORICALLY SUBMITTED THAT THE LEARNED CIT(A) OUGHT TO HAVE DELETED THE A DDITION MADE BY THE TRANSFER PRICING OFFICER RATHER THAN AL L THE ADDITIONS INCLUDING THE ADDITIONS MADE BY THE ASSE SSING OFFICER. THE ORDER OF THE TRIBUNAL IMPLIES THAT T HE MATTER HAS BEEN REMITTED BACK TO THE ASSESSING OFFICER TO TAKE INTO CONSIDERATION THE ENTIRE ASSESSMENT ORDER. THEREFOR E, THE ORDER DATED 24.4.2012 NEEDS TO BE RECALLED AND AN OPPORTUNITY OF HEARING SHOULD BE GIVEN TO THE ASSES SEE IN THE INTEREST OF JUSTICE. 3. WE HAVE HEARD THE SUBMISSIONS MADE BY THE COUNSE L FOR THE ASSESSEE. ON THE DATE FIXED I.E. 24.4.2012, AN APPLICATION FOR ADJOURNMENT WAS GIVEN BY THE ASSESS EE AND IT WAS THE FIRST DATE OF POSTING AFTER THE SERVICE OF NOTICE, THE MATTER WAS DECIDED BY THE BENCH AFTER DECLINING THE APPLICATION FOR ADJOURNMENT. THE APPLICATION FOR AD JOURNMENT M.P. NO.87M DS/2012 3 WAS DECLINED AS THE D.R. HAD RELIED ON THE ORDER OF THE CO- ORDINATE BENCH OF THE TRIBUNAL IN ITA NO.1591/MDS/2 011 DATED 30 TH JANUARY, 2012 IN THE CASE OF M/S. LASON INDIA PVT. LTD. 4. SECTION 254 OF THE ACT DEALS WITH ORDERS PASSED BY THE TRIBUNAL. THE RELEVANT EXTRACT OF SECTION 254(1) IS REPRODUCED HEREIN BELOW:- SEC. 254(1): THE APPELLATE TRIBUNAL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNIT Y OF BEING HEARD, PASS SUCH ORDERS THEREON AS IT THINKS FIT. THUS, A PLAIN READING OF SUB-SECTION (1) OF SECTION 254 QUOTED HEREINABOVE MAKES IT MORE THAN CLEAR THAT TH E TRIBUNAL WILL PASS AN ORDER AFTER AFFORDING OPPORT UNITY OF HEARING TO BOTH THE PARTIES TO APPEAL. 5. RECTIFICATION OF AN ORDER STEMS FROM THE FUNDAME NTAL PRINCIPLE THAT JUSTICE IS ABOVE ALL. THEREFORE, IN THE INTEREST OF JUSTICE AND EQUITY, WE DEEM IT APPROPRIATE TO RECAL L THE ORDER M.P. NO.87M DS/2012 4 DATED 24.04.2012 AND DIRECT THE REGISTRY TO POST TH E MATTER FOR REHEARING ON MERITS. 6. THE MISCELLANEOUS PETITION OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THURSDAY, T HE 6 TH DAY OF SEPTEMBER, 2012 AT CHENNAI. SD/- SD/- ( N.S. SAINI ) ( VIKAS AWASTHY ) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 6 TH SEPTEMBER, 2012. SOMU COPY TO: (1) APPELLANT (4) CIT(A) (2) RESPONDENT (5) D.R. (3) CIT (6) G.F.