DCIT, Ahmednagar V. Ashok SSK Ltd, Ahmednagar

MA 94/PUN/2012

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2718 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 7 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 1998-1999
• Appeal Filed On: 08-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M S VERMA
• Assessee Lawyers: S N DOSHI
• Section: 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE: SHRI R.S. PADVEKAR, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER MA NO. 94 /PN/201 2 (ARISING OUT OF ITA NO. 886 /PN/20 06 ASSESSMENT YEAR : 1998 - 99 D CIT, CIRCLE AHMEDNAGAR VS. ASHOK SSK LTD., ASHOKNAGAR, TAL. - SHRIRAMPUR, DISTT. - AHMEDNAGAR, AHMEDNAGAR (APPELLANT) (RESPONDENT) PAN NO. AACCA3452B APPELLANT BY: MS. M.S. VERMA RESPONDENT BY: SHRI S.N. DOSHI ORDER P ER R.S. PADVEKAR , JM : - T H E REVENUE HAS FILED AN APPLICATION DATED 07 - 03 - 2013 SEEKING THE LEAVE OF THE TRIBUNAL TO WITHDRAW THE MISCELLANEOUS APPLICATION . 2. THE LD. AR FOR THE ASSESSEE TOOK THE OBJECTION FOR ALLOWING THE REVENUE WITHDRAWN MISCELLANEOUS APPLICATION ON THE GROUND THAT THE DEPARTMENT MUST DISCLOSE THE REASONS WHY THEY ARE DESIR ING TO WITHDRAW THEIR APPLICATION. LD. AR ALSO RELIED ON THE ORDER XXIII OF CODE OF CIVIL PROCEDURE S , 1908 WHICH IS IN RESPECT OF WITHDRAWAL OF THE SUITS. 3. WE WOULD LIKE TO NARRATE THE F ACTS IN BRIEF. THE ASSESSEE FILED THE APPEAL BEFORE THE TRIBUNAL BEING ITA NO. 886/PN/2006 CHALLENGING THE IMPUGNED ORDER OF THE CIT(A) DATED 26 - 07 - 2006 , CONFIRMING THE PENALTY LEVIED BY THE ASSESSING OFFICER U/S. 271(1)(C) OF THE ACT FOR THE A.Y. 1998 - 99 TO THE EXTENT OF RS.1.4 CRORES. THE TRIBUNAL ALLOWED THE APPEAL FILED BY THE ASSESSEE VIDE ORDER DATED 19 - 07 - 2007 FOLLOWING THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. PRITHIPAL SINGH AND CO. 249 ITR 670 (SC). AGAINST THE ORDER OF T HE TRIBUNAL IN ITA NO. 886/PN/2006 DATED 19 - 06 - 2007 , THE ASSESSEE FILED MISCELLANEOUS 2 M A NO. 94/PN/2012, ASHOK SSK LTD., AHMEDNAGAR APPLICATION BE ARING NO. 47/PN/2008 POINTING OUT THAT THERE WERE FEW MISTAKES IN THE SAID ORDER . THE ASSESSEES APPLICATION WAS DISPOSED OFF VIDE ORDER DATED 19 - 06 - 2007. THE REVENUE ALSO FILED THE MISCELLANEOUS APPLICATION BE ARING NO. 42/PN/2009 . THE REVENUE PLEADED THAT THERE WAS SUBSEQUENT DECISION OF THE HON'BLE SUPREME COURT ( L ARGER BENCH) IN THE CASE OF CIT VS. GOLD COIN HEALTH FOOD LTD. 304 ITR 308 IN WHICH THE EAR LIER DECISION IN THE CASE OF PRITHIPAL SINGH AND CO. (SUPRA) WAS REVERSED. THE TRIBUNAL ALLOWED THE MISCELLANEOUS PETITION FILED BY THE REVENUE BEARING MA NO. 42/PN/2009 VIDE ORDER DATED 19 - 06 - 2007 BY RECALLING ORDER PASSED IN ITA NO. 886/PN/2006 AND THE CASE WAS AGAIN HEARD ON MERIT. 3.1 THE ASSESSEES APPEAL WAS FINALLY DISPOSED OFF BEING ITA NO. 886/PN/2006 VIDE ORDER DATED 22 - 06 - 2011 AND THE MATTER WAS SET ASIDE TO THE FILE OF THE ASSESSING OFFICER WITH CERTAIN DIRECTIONS. SUBSEQUENTLY, THE DEPARTM ENT MOVED AN APPLICATION ON 07 - 06 - 2012 , WHICH IS PRESENT APPLICATION , BY TAKING THE PLEA THAT THERE ARE TWO ORDERS IN THE SAME APPEAL I.E. ITA NO. 886/PN/2006 DATED 19 - 06 - 2007 AND DATED 22 - 06 - 2011. IT WAS SUBSEQUENTLY REALIZE D THAT THE MISCELLANEOUS APPLI CATION FILED BY THE REVENUE WAS ON ERRONEOUS ASSUMPTION S AS ADMITTEDLY THE ORDER PASSED IN ITA NO. 886/PN/2006 DATED 19 - 06 - 2007 WAS RECALLED AND APPEAL WAS AGAIN HEARD ON MERIT AND THEREAFTER THE SAID APPEAL WAS DISPOSED OFF BY ORDER DATED 22 - 06 - 2011. THI S IS THE PRECISE REASON ON WHICH THE REVENUE IS SEEKING THE LEAVE OF THE TRIBUNAL TO WITHDRAW THE MISCELLANEOUS APPLICATION. WE ALSO FIND THAT IN PARA NO S. 9 AND 10 OF THE MISCELLANEOUS APPLICATION THERE IS A SPECIFIC PLEA OF THE REVENUE WHICH IS AS UNDER : 9. IN THIS CASE TWO ORDERS ARE RECEIVED BEING THE SAME NUMBER AND THE SAME, ASSESSMENT YEAR, AGAINST THE SAME PENALTY U/S. 271(1)(C). THE CIT - I, PUNES LETTER NO. PN/CIT - I/JUDL/2011 - 12/331 DATED 09/12/2011, DIRECTED THE AO TO FILE MISC. APPLICATION BEFO RE THE ITAT, PUNE BENCH, PUNE. 3 M A NO. 94/PN/2012, ASHOK SSK LTD., AHMEDNAGAR 10. IT IS THEREFORE PRAYED THAT THE ORDER BEARING NO. 886/PN/06, DATED 22/06/2011 BE CANCELLED, AS THE SAME IS DECIDED VIDE ORDER DATED 19/06/2007. 4. IN OUR OPINION THE MISCELLANEOUS APPLICATION WAS FILED BY THE REVENUE ON ERRONEOUS ASSUMPTION S THAT THERE ARE TWO FINAL ORDERS OF THE TRIBUNAL IN THE SAME APPEAL . W HEN IN FACT THE EARLIER ORDER WAS RECALLED AND THERE WAS ONLY ONE ORDER. 5. WE HAVE ALSO ANXIOUSLY GONE THROUGH THE ORDER XXIII OF CODE OF CIVIL PROCEDURES, 1908 . IN OUR OPINION THE SAID ORDER DEALS WITH THE WITHDRAWAL OF SUIT S AND NOT THE MISCELLANEOUS PETITION OR APPLICATION. MOREOVER, THE REASON S ARE ALSO GIVEN BY THE REVENUE FOR NOT PRESSING PRESENT MISCELLANEOUS APPLICATION. WE FIND NO MERIT IN THE OBJECTI ON OF THE ASSESSEE , NOT TO ALLOW WITHDRAWAL OF THE MISCELLANEOUS APPLICATION TO THE REVENUE. WE, ACCORDINGLY, ALLOW THE PRAYER OF THE REVENUE TO WITHDRAW MISCELLANEOUS APPLICATION . 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED AS WITHDRAWN. PRONOUNCED IN THE OPEN COURT ON 12 - 01 - 201 5 SD/ - SD/ - ( R.K. PANDA ) ( R.S. PADVEKAR ) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE , DATED : 12 TH JANUARY, 2015 RK/PS COPY TO 1 ASSESSEE 2 DEPARTMENT 3 T HE CIT(A) - I , PUNE 4 THE CIT - I, PUNE 5 THE DR, ITAT, A BENCH, PUNE . 6 GUARD FILE. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR , INCOME TAX APPELLATE TRIBUNAL , PUNE