ASSISTANT COMMISSIONER OF INCOME TAX 5(1) (2), MUMBAI V. DHARMANANDAN DIAMONDS PRIVATE LIMITED , MUMBAI

MA 889/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6762 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 12-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V VIDHYADHAR
• Assessee Lawyers: DR DANIEL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER MA NO.889/M/2017 (ARISING OUT OF ITA NO.3861/M/2014) ASSESSMENT YEAR: 2009-10 ASSTT. COMMISSIONER OF INCOME TAX-5(1)(2), ROOM NO.568, 5 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 VS. M/S. DHARMANANDAN DIAMONDS PVT. LTD., FC-7081-82, BHARAT DIAMOND BOURSE, BKC BANDRA (EAST), MUMBAI 400 051 PAN: AACCD6676J (APPELLANT) (RE SPONDENT) PRESENT FOR: ASSESSEE BY : DR. DANIEL, A.R. REVENUE BY : SHRI V. VIDHYADHAR, D.R. DATE OF HEARING : 18.05.2018 DATE OF PRONOUNCEMENT : 11.06.2018 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE REVENUE BY FILING THIS MISCELLANEOUS APPLICATI ON SEEKS RECTIFICATION OF THE ORDER PASSED IN ITA NO.3 861/M/2014 VIDE ORDER DATED 21.06.17. 2. THE LD. D.R. SUBMITTED BEFORE THE BENCH THAT APPEA L OF THE ASSESSEE HAS BEEN ALLOWED WITHOUT DISCUSSING AN D DELIBERATING THE BINDING DECISIONS OF THE HONBLE S UPREME COURT AND HIGH COURTS AS RELIED UPON BY THE REVENUE DURING THE COURSE OF HEARING. THE LD. D.R. SUBMITTED BEFORE T HE BENCH THAT THE REVENUE HAS RELIED UPON SIX DECISION S WHERE ONLY THREE CASES WERE DISCUSSED IN THE ORDER AND TH E TRIBUNAL MA NO.889/M/2017 M/S. DHARMANANDAN DIAMONDS PVT. LTD. 2 NAMELY SMT. NAYANTARA AGARWAL VS. CIT (1994) 207 ITR 639 (BOM.), ACIT VS. JITENDRA KUMAR GUPTA IN ITA NO.3431/DEL/2007 AND GUZDAR KAJORA COAL MINES LTD. 85 ITR 599 (SC) AND THUS PRAYED THAT NON CONSIDERATION OF THE HONBLE SUPREME COURT AND THE HIGH COURTS HAS RENDE RED THE ORDER TO HAVE CONTAINED THE APPARENT MISTAKE WHICH NEEDS TO BE RECTIFIED. THE LD. D.R. FINALLY SUBMITTED THAT IN VIEW OF THESE FACTS THE ORDER OF THE TRIBUNAL DATED 21.06.17 MAY PLEASE BE RECALLED SO THAT THE FRESH ORDER COULD BE PASSED AFTER CONSIDERING ALL THE DECISIONS AS RELIED UPON BY THE REVENUE. 3. THE LD. A.R., ON THE OTHER HAND, WHILE RELYING HEAV ILY ON THE ORDER OF THE TRIBUNAL SUBMITTED THAT IT IS TRUE THAT THE REVENUE HAS RELIED ON SIX DECISIONS AS HAS BEEN MEN TIONED ON PAGE NO.16 OF THE TRIBUNAL ORDER WHICH WERE CONSIDER ED FULLY BY THE TRIBUNAL BEFORE PASSING THE ORDER AND ONLY T HEREAFTER THE ORDER WAS PASSED AFTER GIVING ITS OBSERVATION I N PAGE 30 OF THE ORDER. THE LD COUNSEL OF THE ASSESSEE CONTENDED THAT THE SUBMISSIONS OF THE LD. D.R. ARE NOT TENABLE AS THE TRIBUNAL GIVEN A SPECIFIC OBSERVATION THAT DECISIONS RELIED UPON BY THE REVENUE WERE DISTINGUISHABLE. THE LD. A.R. DREW OUR AT TENTION TO PAGE NO.30 OF THE ORDER IN WHICH IT HAS BEEN SPE CIFICALLY MENTIONED THAT ALL THE DECISIONS RELIED ON BY THE L D. A.R. AND LD. D.R. WERE CONSIDERED AND THE TRIBUNAL OBSERVED TH AT THE ASSESSEES CASE WAS SQUARELY COVERED BY THE RATIO R ELIED BY THE LD. A.R. WHEREAS THE DECISIONS REFERRED AND RELI ED BY THE LD. D.R. ARE DISTINGUISHABLE ON FACTS AND THEREFORE A RE NOT APPLICABLE. IN VIEW OF THESE FACTS, THE LD. A.R. PRAY ED BEFORE MA NO.889/M/2017 M/S. DHARMANANDAN DIAMONDS PVT. LTD. 3 THE BENCH THAT THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE SHOULD BE DISMISSED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE P ARTIES AND PERUSED THE MATERIAL ON RECORD. WE FIND FROM THE PERUSAL OF THE PAGE NO.16 OF THE ORDER THAT THE REVENUE HAS STATED SIX DECISIONS IN SUPPORT OF ITS CONTENTIONS WHICH WERE DULY CONSIDERED WHILE PASSING THE ORDER AND THE FACTS OF HAVING CONSIDERED THE SAID DECISIONS ARE DULY STATED ON PA GE NO.30 OF THE SAID ORDER THAT THE DECISIONS REFERRED TO BY TH E LD. D.R. ARE DISTINGUISHABLE ON FACTS AND ARE NOT APPLICABLE . CONSIDERING THE ABOVE OBSERVATION IN THE ORDER, WE DO NOT FIND ANY MISTAKE APPARENT ON THE FACE OF THE ORDER BY THE TRIBUNAL AS ALL THE DECISIONS AS REFERRED AND RELIE D BY THE REVENUE WERE CONSIDERED. ACCORDINGLY, MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11.06.2018. SD/- SD/- (C.N. PRASAD) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 11.06.2018. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ ASSTT. REGISTRAR, ITAT, MUMBAI.