ITO wd-2(3) Nashik., Nashik v. M/s Raj Constructions,, Nashik

MA 44/PUN/2012 | misc
Pronouncement Date: 30-04-2014 | Result: Dismissed

Appeal Details

RSA Number 4424524 RSA 2012
Assessee PAN AABFR7053D
Bench Pune
Appeal Number MA 44/PUN/2012
Duration Of Justice 2 year(s) 3 day(s)
Appellant ITO wd-2(3) Nashik., Nashik
Respondent M/s Raj Constructions,, Nashik
Appeal Type Miscellaneous Application
Pronouncement Date 30-04-2014
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 30-04-2014
Assessment Year misc
Appeal Filed On 26-04-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE SHRI G.S.PANNU ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR JUDICIAL MEMBER M.A. NO.44/PN/2012 ARISING OUT OF ITA NO.1189/PN/2009 (ASST. YEAR: 2006-07) ACIT CIRCLE-2 NASHIK APPLICANT VS. M/S. RAJ CONSTRUCTIONS 333 WADHAWA HOUSE REST CAMP ROAD DEOLALI CAMP DIST. NASHIK PAN: AABFR7053D RESPONDENT APPLICANT BY : SMT. M.S. VERMA RESPONDENT BY : SHRI NIKHIL PATHAK ORDER PER G.S. PANNU A.M: BY WAY OF THE PRESENT PETITION REVENUE HAS CONTEN DED THAT A MISTAKE WITHIN THE MEANING OF SECTION 254(2) OF THE INCOME-TAX ACT 1961 (IN SHORT THE ACT) HAS CREPT I N TO THE ORDER OF THE TRIBUNAL DATED 30.11.2011 IN AS MUCH A S THE REVENUE HAD FILED AN ADDITIONAL GROUND VIDE LETTER DATED 12.02.2010 AND THE SAID ADDITIONAL GROUND OF APPEAL HAS NOT BEEN TAKEN UP WHILE DECIDING THE APPEAL. THE ADDIT IONAL GROUND NOT CONSIDERED BY THE TRIBUNAL READS AS FOLL OWS: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE CIT(A) ERRED IN DELETING THE ADDITION MADE OF RS.44 02 153 /- ON ACCOUNT OF DISALLOWANCE OF EXCESS LABOUR CHARGES I N ABSENCE OF SUFFICIENT EVIDENCE. 2. IN BRIEF THE FACTS ARE THAT THE CAPTIONED APPEA L WAS PREFERRED BY THE REVENUE BEFORE THE TRIBUNAL ON 01. 10.2009 WHICH WAS DIRECTED AGAINST THE ORDER OF THE CIT(A) DATED 30.07.2009 WHICH IN TURN HAS ARISEN FROM AN ORDER P ASSED BY THE ASSESSING OFFICER U/S.143(3) DATED 31.12.2008 P ERTAINING TO THE ASSESSMENT YEAR 2006-07. 3. IN TERMS OF THE MEMO OF APPEAL FILED BY THE REVE NUE THE ONLY GROUND RAISED WAS RELATING TO THE ACTION OF TH E CIT(A) IN DELETING THE ADDITION MADE BY THE ASSESSING OFFICER OF 10 50 000/- BY INVOKING SECOND 68 OF THE ACT. THE APPEAL WAS LISTED FOR HEARING SEVERAL TIMES STARTING FROM 31.01.2011 AND FINALLY ON 20.10.2011 THE APPEAL WAS HEARD AND THE ORDER WAS PASSED ON 30.11.2011. THE APPEAL OF THE REVENUE WAS DISMISSED FOR THE REASONS ASSIGNED IN THE ORDER DATED 30.11.2011 AND THE ONLY ISSUE ADJUDICATED WAS AS PE R THE GROUNDS OF APPEAL RAISED WHICH DID NOT CONTAIN THE AFORESTATED ADDITIONAL GROUND OF APPEAL. THE REVEN UE NOW CONTENDS BY WAY OF THE PRESENT APPLICATION THAT THE AFORESAID ADDITIONAL GROUND WHICH RELATES TO THE ACTION OF TH E CIT(A) IN DELETING THE ADDITION OF 44 02 153/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF DISALLOWANCE OF EXCESS LABOUR CHARGES ETC. WAS NOT CONSIDERED. 3. IN THE ABOVE BACKGROUND WE HAVE PERUSED THE APP EAL FOLDER AND FIND THAT NO SUCH ADDITIONAL GROUND HAS BEEN RAISED OR RECEIVED BY THE TRIBUNAL. WHEN THE AFORE SAID POSITION WAS PUT ACROSS TO THE PARTIES LD. DEPARTM ENTAL REPRESENTATIVE RESPONDED BY FURNISHING A COPY OF TH E LETTER DATED 12.02.2010 WRITTEN BY THE ACIT CIRCLE-2 NAS HIK PURPORTING TO FILE THE AFORESAID ADDITIONAL GROUND OF APPEAL. HOWEVER THE AFORESAID COMMUNICATION DOES NOT INDIC ATE AS TO WHETHER THE SAID ADDITIONAL GROUND OF APPEAL WAS RECEIVED BY THE TRIBUNAL. THEREFORE HAVING REGARD TO THE R ECORDS OF THE TRIBUNAL BEFORE US THERE IS NO SUCH ADDITIONAL GROUND RAISED AND RECEIVED BY THE TRIBUNAL AT THE TIME OF HEARING OF APPEAL. THEREFORE IN VIEW OF THE AFORESAID FACT S ITUATION ITSELF THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS LIABLE TO BE REJECTED. 4. NOTWITHSTANDING THE AFORESAID EVEN OTHERWISE I T IS QUITE CLEAR THAT WHEN THE APPEAL WAS HEARD BY THE B ENCH REVENUE NEVER ARGUED OR PRESSED FOR ADMISSION OF TH E AFORESTATED ADDITIONAL GROUND OF APPEAL AND THEREFO RE IT WAS NOT TAKEN INTO CONSIDERATION AT THE TIME OF PASSING OF ORDER IN THE APPEAL OF THE REVENUE. CONSEQUENTLY IN THI S VIEW OF THE MATTER ALSO WE FIND NO MISTAKE IN THE ORDER OF THE TRIBUNAL WITHIN THE MEANING OF SECTION 254(2) OF TH E ACT. 5. BEFORE PARTING WE MAY REFER TO THE JUDGMENT OF HONBLE MADRAS HIGH COURT IN THE CASE OF SOUTHERN GROUP IND USTRIES LTD. (2008) 300 ITR 113 (MAD) WHEREIN A SOMEWHAT SIMILAR SITUATION AROSE. IN THE CASE BEFORE HONBLE MADRAS HIGH COURT THE TRIBUNAL WAS APPROACHED BY THE REVENUE B Y WAY OF MISCELLANEOUS APPLICATION WHEREIN IT WAS PLEAD ED THAT AN ADDITIONAL GROUND OF APPEAL WAS NOT CONSIDERED BY T HE TRIBUNAL WHILE DISPOSING OF THE APPEAL OF THE REVEN UE. THE TRIBUNAL RECORDED A FACTUAL FINDING THAT NO SUCH GR OUND WAS RAISED AND RECEIVED BY THE TRIBUNAL DURING THE PEND ENCY OF THE APPEAL BEFORE THE TRIBUNAL AND THEREFORE MISCE LLANEOUS APPLICATION WAS DISMISSED. THE AFORESAID ACTION OF THE TRIBUNAL DELETING THE MISCELLANEOUS APPLICATION WAS CONFIRMED BY THE HONBLE MADRAS HIGH COURT. HAVING REGARD TO THE FACT SITUATION IN THE PRESENT CASE WHICH WE HAVE ELUCIDATED IN THE EARLIER PARAGRAPHS THE PARITY OF REASONING LAID DOWN BY THE HONBLE MADRAS HIGH COURT CLEARLY APPLIES HEREIN ALSO. 6. IN VIEW OF THE AFORESAID DISCUSSION WE THEREFO RE DISMISS THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE AS THERE IS NO MISTAKE APPARENT FROM RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE ACT. 7. IN THE RESULT THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS THE 30 TH DAY OF APRIL 2014. SD/- SD/- (R.S. PADVEKAR) (G.S.PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE DATED 30 TH APRIL 2014 GCVSR COPY TO:- 1) DEPARTMENT 2) ASSESSEE 3) THE CIT(A)-I NASHIK 4) THE CIT-I NASHIK 5) THE DR A BENCH I.T.A.T. PUNE. 6) GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY ITAT PUNE.