ANANT SHELTERS P. LTD, v. ITO WD 9(1)(1),

MA 602/MUM/2009 | 2001-2002
Pronouncement Date: 16-07-2010 | Result: Allowed

Appeal Details

RSA Number 60219924 RSA 2009
Assessee PAN AADCA7836N
Bench Mumbai
Appeal Number MA 602/MUM/2009
Duration Of Justice 10 month(s) 21 day(s)
Appellant ANANT SHELTERS P. LTD,
Respondent ITO WD 9(1)(1),
Appeal Type Miscellaneous Application
Pronouncement Date 16-07-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 16-07-2010
Assessment Year 2001-2002
Appeal Filed On 25-08-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI BEFORE SHRI D.K. AGARWAL JM AND SHRI J. SUDHAKAR REDDY AM M.A. NO.602/MUM/2009 (ARISING OUT OF I.T.A.NO.85370/MUM/2004) ASSESSMENT YEAR : 2001-02 M/S.ANANT SHELTERS PVT. LTD. 21 VEENA BEENA GROUND FLOOR OPP. BANDRA RLY STATION BANDRA (W) MUMBAI 400 050. PAN: AADCA 7836 N VS. THE INCOME-TAX OFFICER WARD 9(1)(1) MUMBAI. (APPLICANT) (RESPONDENT) APPLICANT BY BY : SHRI M. SUBRAMANIAN RESPONDENT BY : SHRI HARI GOVIND SINGH O R D E R PER J. SUDHAKAR REDDY AM: BY THIS MISCELLANEOUS APPLICATION THE ASSESSEE ST ATES THAT MISTAKES APPARENT FROM RECORD HAVE CREPT IN THE ORDER OF TH E TRIBUNAL DATED 28.02.2008 INASMUCH AS THERE IS A DELAY OF THREE AND HALF MON THS BETWEEN THE DATE OF HEARING AND THE DATE OF PRONOUNCEMENT OF THE ORDER AND THIS HA S RESULTED IN THE TRIBUNAL OMITTING TO MAKE REFERENCE TO THE CONTENTIONS CANVASSED BY T HE ASSESSEE AD ALSO TO REFER ANY OF THE CASE LAWS CITED BY THE ASSESSEE DURING THE COUR SE OF HEARING. 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE TRIBUNAL HAS FAILED TO CONSIDER THE FOLLOWING CONTENTIONS RAISED BY THE AS SESSEE DURING THE COURSE OF HEARING: (I) THAT ALL THE LOANS RAISED WERE BY WAY OF CHEQUES AN D WERE RECEIVED THROUGH BANKING CHANNELS; (II) THAT THE ASSESSMENT ORDER WAS PASSED IN VIOLATION O F RULES OF NATURAL JUSTICE AS THE ORDER HAS BEEN PASSED BY THE ASSESSI NG OFFICER ON THE DATE 2 OF FINAL HEARING ITSELF I.E. 30.12.2003 ON WHICH D AY NO HEARING TOOK PLACE AS THE ASSESSMENT WAS ALREADY COMPLETED. (III) THAT THE ASSESSING OFFICERS REMAND REPORT HAS BEEN OMITTED TO BE CONSIDERED FULLY AND PROPERLY AND VARIOUS EVIDENCES SUBMITTED BY THE ASSESSEE DURING THE COURSE OF REMAND PROCEEDINGS HA VE REMAINED UNNOTICED AND UNCONSIDERED. (IV) THE ASSESSEE HAS RAISED VARIOUS OTHER CONTENTIONS S UCH AS THAT IT HAD INTER ALIA ESTABLISHED THE IDENTITY OF THE CREDITO RS THEIR FINANCIAL CAPACITY AND ALSO THE GENUINENESS OF THE LOAN TRANSACTION E TC. 3. THE SUM AND SUBSTANCE OF THIS MISCELLANEOUS APPL ICATION IS THAT A MISTAKE IN FACT HAS OCCURRED AS ALL THE CONTENTIONS AND PAPERS ON R ECORD WAS NOT LOOKED INTO BY THE TRIBUNAL. RELIANCE WAS PLACED ON THE DECISION OF T HE JURISDICTIONAL HIGH COURT IN THE CASE OF SHIVSAGAR VEG. RESTAURANT V. ACIT 16 DTR (BOM). RELIANCE WAS ALSO PLACED ON THE FOLLOWING CASE LAWS: (I) LAXMI ELECTRONIC CORPN. LTD. 188 ITR 398 (ALL .) (II) HONA SIEL POWER PRODUCTS V.CIT 295 ITR 466 ( SC) 4. THE LEARNED DEPARTMENTAL REPRESENTASTIVE ON THE OTHER HAND SUPPORTED THE ORDER OF THE TRIBUNAL AND SUBMITTED THAT ALL ASPECT S HAVE BEEN CONSIDERED AND THERE IS NO MISTAKE APPARENT FROM RECORD. 5. RIVAL CONTENTIONS HAVE BEEN HEARD. THE TRIBUNAL HAS HEARD THE APPEAL ON 15.11.2007 AND THE ORDER WAS PASSED ON 28.02.2008. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE HONBLE HIGH COURT. THE HIGH COURT VIDE INCOME-TAX APPEAL NO. 1169 OF 2008 DATED 5 TH MARCH 2009 HAS HELD AS UNDER: 3 LEARNED COUNSEL SEEKS TO LEAVE TO WITHDRAW THE APP EAL WITH LIBERTY TO A MISC. APPLICATION TO TAKE ALL GROUNDS AVAILABL E. APPEAL DISMISSED AS WITHDRAWN WITH LIBERTY AS PRAYED FOR. 6. ON PERUSAL OF THE PAPER BOOK FILED BY THE ASSESS EE DURING THE COURSE OF HEARING AND ALSO ON PERUSAL OF WRITTEN SUBMISSIONS MADE BY THE ASSESSEE BEFORE THE TRIBUNAL IT IS CLEAR THAT THE CASE LAWS RELIED ON BY THE ASSESS EE HAVE NOT BEEN DEALT WITH OR DISTINGUISHED IN THE TRIBUNAL ORDER. HONBLE HIGH COURT IN THE CASE OF SHIVSAGAR VEG. RESTAURANT VS. ACIT (SUPRA) AT PARA 17 HAS HELD AS FOLLOWS: . OMISSION TO MAKE REFERENCE TO THE CONTENTIONS CANVASSED CAN ONLY BE ATTRIBUTED TO THE DELAYED DELIVERY OF JUDGM ENT. IN THE CIRCUMSTANCES WITHOUT GOING INTO THE MERITS OR DEM ERITS OF THE IMPUGNED ORDER DELAY IN DELIVERY OF JUDGMENT BY IT SELF IS SUFFICIENT TO SET ASIDE THE IMPUGNED ORDER PASSED BY THE TRIBUNAL TO THE EXTENT IT IS CHALLENGED BY THE APPELLANT 7. THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF U NITED BUILDERS V. ACIT (2000) TTJ (DEL.) 11 HELD THAT WHEN ALL THE GROUNDS OF APP EAL HAVE NOT EFFECTIVELY DISPOSED OF BY THE TRIBUNAL AND WHEN SOME OF THE AFFIDAVITS FIL ED BY THE ASSESSEE AND THE JUDGMENTS CITED BY IT WERE NOT DISCUSSED THEN THER E WOULD BE A MISTAKE APPARENT FROM RECORD AND THE ORDER OF THE TRIBUNAL SHOULD BE RECALLED. 8. APPLYING THE PROPOSITIONS LAID DOWN THEREIN TO T HE FACTS OF THE CASE WE HOLD THAT THE TRIBUNAL HAS OMITTED TO CONSIDER SOME OF THE CO NTENTIONS RAISED BY THE ASSESSEE AND HAS ALSO NOT DEALT WITH THE JUDGMENTS CITED BY THE ASSESSEE AND HENCE THERE IS A MISTAKE APPARENT FROM RECORD REQUIRING RECTIFICATIO N. THUS WE RECALL THE IMPUGNED 4 ORDER OF THE TRIBUNAL DATED 28 TH FEBRUARY 2008. WE DIRECT THE REGISTRY TO POST T HE APPEAL FOR FRESH HEARING IN DUE COURSE. 9. IN THE RESULT THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH DAY OF JULY 2010. SD. SD. (D.K.AGARWAL) (J. SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED THE 16 TH JULY 2010. KN COPY TO: 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT IX MUMBAI 4. THE CIT(A)-IX MUMBAI 5. THE DR ABENCH MUMBAI BY ORDER ASST. REGISTRAR I.T.A.T MUM BAI.