ITO WD 1(1), KALYAN V. CHARDHAM TRADING P.LTD, BHIWANDI

MA 87/MUM/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 9080 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-02-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 21-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T S KHALSA
• Keywords: Additional evidence
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C, MUMBAI BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENT AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MA NO.87/M/2020 (ARISING OUT OF ITA NO.3292/M/2017) ASSESSMENT YEAR: 2011-12 INCOME TAX OFFICER, WARD 1(1), KALYAN 1 ST FLOOR, MOHAN PLAZA, WAYALE NAGAR, KALYAN WEST 421 301 VS. M/S. CHARDHAM TRADING PVT. LTD., B6/B7, ADDL. KALYAN BHIWANDI INDUSTRIAL AREA, VILLAGE : KON BHIWANDI PAN: AADCC9744K (APPELLANT) (RESPONDENT) MA NO.88/M/2020 (ARISING OUT OF ITA NO.3294/M/2017) ASSESSMENT YEAR: 2011-12 INCOME TAX OFFICER, WARD 1(1), KALYAN 1 ST FLOOR, MOHAN PLAZA, WAYALE NAGAR, KALYAN WEST KALYAN 421 302 VS. M/S. CRAFT TRADING PVT. LTD., B9/B10, ADDL. KALYAN BHIWANDI INDUSTRIAL AREA, VILLAGE : KON BHIWANDI - 421302 PAN: AADCC9745J (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI MADHUR AGARWAL, A.R. REVENUE BY : SHRI T.S. KHALSA, D.R. DATE OF HEARING : 05.02.2021 DATE OF PRONOUNCEMENT : 05.02.2021 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: BY THESE MISCELLANEOUS APPLICATIONS, THE REVENUE SEEKS RECTIFICATION OF THE ORDERS PASSED BY THE CO-ORDINATE BENCH IN ITA NO.3292/M/2017 & 3294/M/2017 BOTH DATED 20.08.2019 IN CASE OF TWO ABOVE DIFFERENT ASSESSEE. MA NO.87/M/2020 & ORS (ARISING OUT OF ITA NO.3292/M/2017) M/S. CHARDHAM TRADING PVT. LTD. & ORS. 2 2. THE LD. D.R. SUBMITTED BEFORE THE BENCH THAT VIDE ABOVE ORDERS EVEN DATED 20.08.2019 ,THE TRIBUNAL HAS DISMISSED THE APPEALS OF THE REVENUE. THE DR SUBMITTED THAT UNDER IDENTICAL FACTS IN ITA NOS.3291, 3293 & 3338/M/2017 IN THE CASES OF M/S. AVDHARNA TRADING PVT. LTD., M/S. ABHIROOP TRADING PVT. LTD. AND M/S. AGARSEN MERCANTILE TRADING PVT. LTD., THE CO- ORDINATE BENCH A HAS RESTORED THE MATTER TO THE FILE OF THE AO VIDE ORDER DATED 18.04.2019 TO DECIDE THE SAME DENOVO. THE LD. D.R. PRAYED THAT SINCE THE FACTS IN THE PRESENT CASES WERE IDENTICAL TO ONES AS CITED ABOVE, THEREFORE IT IS PRAYED THAT THE ORDER OF THE TRIBUNAL MAY KINDLY BE RESTORED TO THE FILE OF THE AO TO BE DECIDED AFRESH AS THE SAID ORDERS CONTAINED AN APPARENT AND BLATANT MISTAKE TO THAT EXTENT AND REQUIRED TO BE RECTIFIED AND MAY KINDLY BE RECTIFIED BY RESTORING THESE CASES TO THE FILE OF THE AO. 3. THE LD. A.R., ON THE OTHER HAND, STRONGLY OPPOSED THE ARGUMENTS OF THE LD. D.R. BY SUBMITTING THAT THERE IS NO APPARENT MISTAKE IN THE ORDERS PASSED BY THE COORDINATE BENCH IN THE ABOVE APPEALS AND THEREFORE THE MISCELLANEOUS APPLICATIONS BY THE REVENUE DESERVE DISMISSAL. THE LD. A.R. SUBMITTED THAT IN THIS CASE THE ASSESSMENT WAS FRAMED UNDER SECTION 144 OF THE ACT AND IN THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A), THE ADDITIONAL EVIDENCES WERE ADMITTED AND REMAND REPORT WAS CALLED FOR FROM THE AO. THE LD. A.R. SUBMITTED THAT IN THE REMAND PROCEEDINGS THE AO GOT THE OPPORTUNITY FOR THE FIRST TIME AND RAISED THE RELEVANT ISSUE OF APPLICABILITY OF SECTION 56(2)(VIIA) OF THE ACT ON PURCHASE OF SHARES WHICH THE LD. CIT(A) REFUSED TO ENTERTAIN IN THE REMAND PROCEEDINGS. THE LD. A.R., THEREFORE, PRAYED THAT IN VIEW OF MA NO.87/M/2020 & ORS (ARISING OUT OF ITA NO.3292/M/2017) M/S. CHARDHAM TRADING PVT. LTD. & ORS. 3 THESE FACTS THERE IS NO MISTAKE APPARENT IN THE ORDERS PASSED BY THE CO-ORDINATE BENCH OF THE TRIBUNAL WHICH ARE SOUGHT TO THE RECTIFIED BY THE REVENUE BY VIRTUE OF THE ABOVE MISCELLANEOUS PETITIONS. THE LD. A.R., THEREFORE, PRAYED BEFORE THE BENCH THAT MISCELLANEOUS APPLICATIONS BY THE REVENUE MAY KINDLY BE DISMISSED. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE OBSERVE THAT THERE IS NO APPARENT MISTAKE IN THE ORDERS PASSED BY THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE ABOVE APPEALS. WE DO NOT FIND ANY MERIT IN THE CONTENTIONS OF THE LD. D.R. THAT THESE APPEALS SHOULD BE RESTORED TO THE FILE OF THE AO TO BE DECIDED AFRESH AND DENOVO IN LINE WITH THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IN ITA NOS.3291, 3293 & 3338/M/2017 VIDE ORDER DATED 18.04.2019. THE ISSUE OF APPLICABILITY OF SECTION 56(2)(VIIA) OF THE ACT WHICH WAS RAISED FOR THE FIRST TIME BEFORE THE LD. CIT(A) IN THE REMAND PROCEEDINGS BY THE AO CAN NOT BE A GROUND BEFORE THE TRIBUNAL AT THIS STAGE TO RESTORE THESE APPEALS TO THE FILE OF THE AO. ACCORDINGLY, WE ARE INCLINED TO DISMISS BOTH THE MISCELLANEOUS APPLICATIONS RAISED BY THE REVENUE. 5. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIONS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 05.02.2021. SD/- SD/- (MAHAVIR SINGH) (RAJESH KUMAR) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI, DATED: 05.02.2021. * KISHORE, SR. P.S. MA NO.87/M/2020 & ORS (ARISING OUT OF ITA NO.3292/M/2017) M/S. CHARDHAM TRADING PVT. LTD. & ORS. 4 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.