M/s. Volvo India Pvt. Ltd., Bangalore V. Deputy Commissioner of Income Tax, LTU, Bangalore

MA 91/BANG/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6132 (ITAT-BANGALORE)
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-01-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 02-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R N SIDDAPPAJI CIT HEARD ON PR
• Assessee Lawyers: DARPAN KRIPLANI S

Judgement Text

MP.91/BANG/2018 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BENGALURU BENCH 'B', BENGALURU BEFORE SHRI. A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI. LALIET KUMAR, JUDICIAL MEMBER MP NO.91/BANG/2018 (IN I.T.A NO.1353/BANG/2010 (ASSESSMENT YEAR : 2006-07) M/S. VOLVO INDIA P. LTD, YALACHAHALLY VILLAGE, TAVAREKARE POST, HOSKOTE, BENGALURU 562122 .. APPELLANT PAN : AAACV6747N V. DEPUTY COMMISSIONER OF INCOME-TAX (LTU), BENGALURU .. RESPONDENT ASSESSEE BY : SHRI. VED JAIN AND SHRI. DARPAN KRIPL ANI, ADVOCATES REVENUE BY : SHRI. R. N. SIDDAPPAJI, ADDL. CIT HEARD ON : 18.01.2019 PRONOUNCED ON : 24.01.2019 O R D E R PER LALIET KUMAR, JUDICIAL MEMBER : THIS MISCELLANEOUS PETITION IS FILED BY THE ASSESS EE AGAINST THE ORDER OF THE TRIBUNAL IN ITA NO.1353/BANG/2010, DT. 11.12.2019, FOR THE ASSESSMENT YEAR 2006-07. MP.91/BANG/2018 PAGE - 2 02. THIS MP WAS ORIGINALLY FILED ON 02.04.2018, AND THE REVISED MP WAS FILED ON 27.06.2018. EVEN THE REVISED MP IS WITHIN TIME. IN PARA 1 OF THE REVISED MP, IT WAS MENTIONED AS UN DER : 1. VIDE LETTER DTD. 14-9-2017 HON'BLE BENCH WAS INFORMED THAT ASSESSEE'S PARENT COMPANY VIDE APPLIC ATION DATED 12-7-11 HAS INVOKED ARTICLE 26 - MUTUAL AGREE MENT PROCEDURE (MAP) OF THE INDIA SWEDEN TREATY FOR WHIC H COMPETENT AUTHORITIES WERE MEETING AT DELHI IN 2017 . AS SOON AS MAP FINALIZATION WAS INFORMED, ASSESSE FILED A L ETTER DTD. 17/11/17 BEFORE HON'BLE BENCH WITHDRAWING THE ITAT APPEALS FOR AYS. 2006-07 AND 2007-08 (ANNEXURE 2), COPY WAS FILED WITH ID DR'S OFFICE ALSO. HOWEVER THE HON'BLE BENCH, INADVERTENTLY HAS NOT CONSIDERED THIS WITHDRAWAL LE TTER DTD. 17/11/2017 AND INSTEAD OF DISMISSING THE APPEAL AS WITHDRAWN THE IMPUGNED ORDER DTD. 11-12-2017 HAS BEEN PASSED. IT IS PERTINENT TO MENTION THAT IN AY 2007-08, ITAT VIDE ORDER DTD 191-18 ON SIMILAR INTIMATION HAS DISMISSED THE APPEAL AS WITHDRAWN (ANNEXURE 3). SINCE THE IMPUGNED ORDER IS PASSED WITHOUT CONSIDERING THE SAID APPEAL WITHDRAW AL LETTER FILED BY THE ASSESSEE, IT IS A MISTAKE APPAR ENT FROM RECORD AND THE APPEAL WHICH SHOULD HAVE BEEN DISMIS SED AS WITHDRAWN HAS BEEN DECIDED ON MERIT AND IN VIEW OF ACCUSATORY PARA 23 OF THE ORDER GREAT HARDSHIP AND PREJUDICE HAS BEEN CAUSED TO ASSESSEE. 03. THE LD. AR FOR THE ASSESSEE HAS SUBMITTED BEFOR E US THAT THE TRIBUNAL HAD HEARD THE MATTER ON 15.09.2017. ON 17 .11.2017, THE ASSESSEE HAD FILED AN APPLICATION TO WITHDRAW THE A PPEALS FOR A. YS. 2006-07 AND 2007-08. HOWEVER, THE TRIBUNAL IGNORIN G THE WITHDRAWAL APPLICATION FILED ON 17.11.2017, HAD PAS SED AN ORDER ON MERIT DISMISSING THE APPEAL FILED BY THE ASSESSEE, VIDE ORDER DT.11.12.2017. IT WAS ALSO SUBMITTED BY THE LD. AR THAT THE MP.91/BANG/2018 PAGE - 3 TRIBUNAL IN THE CASE OF THE ASSESSEE FOR AY 2007-08 HAD CONSIDERED THE SIMILAR SUBMISSIONS OF THE ASSESSEE WHEREBY THE ASSESSEE HAS SOUGHT TO WITHDRAW THE APPEAL AND THE TRIBUNAL HAD GRANTED THE PERMISSION TO WITHDRAW THE APPEAL. 04. ON THE OTHER HAND THE LD. DR HAD SUBMITTED THAT THE TRIBUNAL IS NOT BOUND TO ENTERTAIN ANY APPLICATION FOR WITHD RAWING THE MATTER. THEREFORE THE TRIBUNAL BECAME FUNCTUS OFFICIO AFTER THE MATTER WAS HEARD AND RESERVED ON 15.09.2017. 05. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RECORD. IT IS AN UNDISPUTED FACT BROUGHT TO OUR NOTICE THAT THE ASSESSEE VIDE COMMUNICATION DT.17.11.2017 HAD SOUGHT TO WITHDRAW THE APPEALS FILED BEFORE THE TRIBUNAL WITHOUT ANY CONDITION. O NCE THE ASSESSEE IS DOMINUS LITUS OF THE LITIGATION TO CHOSE TO WITH DRAW THE APPEALS WITHOUT ANY RESERVATION, THEN IN THE OPINION OF THE BENCH THE TRIBUNAL IS DUTY BOUND TO GRANT PERMISSION FOR WITH DRAWAL OF APPEAL. 06. IN THE PRESENT CASE UNDOUBTEDLY AS MENTIONED AB OVE THE ASSESSEE HAD MOVED APPLICATION DT.17.11.2017 SEEKIN G WITHDRAWAL OF APPEAL AND THE LETTER WAS FILED BEFORE THE REGIS TRY TO THIS EFFECT. IN OUR OPINION THE ASSESSEE CANNOT WASH AWAY ITS HA NDS BY MERELY MAKING AN APPLICATION FOR WITHDRAWAL BEFORE THE REG ISTRY. IT IS THE DUTY OF THE ASSESSEE / REGISTRY TO BRING TO THE NOT ICE OF THE BENCH ABOUT THE FILING OF SUCH APPLICATION IN A REASONABL E TIME OR AS SOON AS THE SAME IS FILED. THE LD. AR FOR THE ASSESSEE CAN ALWAYS MENTION THE MATTER TO THE BENCH THAT THE ASSESSEE W ISHES TO MP.91/BANG/2018 PAGE - 4 WITHDRAW THE APPEALS. ONCE THE ASSESSEE WISHES TO WITHDRAW THE APPEAL, THE BENCH WOULD NOT HAVE ANY OPTION BUT TO PERMIT THE ASSESSEE TO WITHDRAW THE APPEAL. HOWEVER IN THE PR ESENT CASE THE ASSESSEE / REGISTRY WERE REMAINED SILENT AFTER MAK ING / RECEIVING THE APPLICATION FOR WITHDRAWAL OF APPEAL AND IN THE SE FACTS THE TRIBUNAL HAS PASSED A DETAILED ORDER ON MERIT. AS THE NEEDFUL HAS NOT BEEN DONE BY THE ASSESSEE / REGISTRY WHICH PRO MPTED TRIBUNAL TO PASS THE ORDER, HENCE PRECIOUS TIME AND ENERGY OF TRIBUNAL SPENT IN DECIDING THE APPEAL. HENCE THE ASSESSEE AND R EGISTRY ARE ADVISED TO BE CAREFUL IN FUTURE IN PUTTING THE APP LICATION / APPEAL BEFORE THE BENCH . IN LIGHT OF THE ABOVE, AS MENTIONED HEREIN ABOVE THE ASSESSEE IS THE DOMINUS LITUS AND HAVE A RIGHT TO WITHDRAW THE APPE AL AT ANY TIME BEFORE DECISION OF THE APPEAL AND HAD MOVED APPLIC ATION BEFORE PASSING OF ORDER ON 17/11/2017, THUS MATERIAL ERROR WAS COMMITTED BY THE TRIBUNAL , HENCE WE RECALL THE ORDER PASSED BY THE TRIBUNAL, DT.11.12.2017 AND PERMIT THE ASSESSEE TO WITHDRAW T HE APPEAL. 06. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMIS SED AS WITHDRAWAL AND MISC. APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 24 TH DAY OF JANUARY, 2019. SD/- SD/- (A. K. GARODIA) (LALIET KUMAR) ACCOUNTANT MEMBER JUDICIAL MEMBE R BENGALURU DATED : 24.01.2019 MP.91/BANG/2018 PAGE - 5 MCN* COPY TO: 1. THE ASSESSEE 2. THE ASSESSING OFFICER 3. THE COMMISSIONER OF INCOME-TAX 4. COMMISSIONER OF INCOME-TAX(A) 5. DR 6. GF, ITAT, BANGALORE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.