The ACIT (TDS), Presently with the ITO, Ward-6(2), Visakhapatnam v. M/s NMDC Ltd., Visakhapatnam

MA 73/VIZ/2009 | misc
Pronouncement Date: 08-02-2010 | Result: Dismissed

Appeal Details

RSA Number 7325324 RSA 2009
Bench Visakhapatnam
Appeal Number MA 73/VIZ/2009
Duration Of Justice 1 month(s) 16 day(s)
Appellant The ACIT (TDS), Presently with the ITO, Ward-6(2), Visakhapatnam
Respondent M/s NMDC Ltd., Visakhapatnam
Appeal Type Miscellaneous Application
Pronouncement Date 08-02-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 08-02-2010
Assessment Year misc
Appeal Filed On 23-12-2009
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH: VISAKHAPATNAM BEFORE: SRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SRI B.R. BASKARAN ACCOUNTANT MEMBER M.A. NO.73/VIZAG/2009 (ARISING OUT OF ITA NOS.145 146&147/VIZAG/2006) ASSESSMENT YEAR : 2003-04 TO 2005-06 THE ACIT (TDS) {PRESENTLY WITH THE ITO WARD-6(2)} VISAKHAPATNAM VS. M/S. NMDC LTD. VISAKHAPATNAM (APPELLANT) (RESPONDENT) TAN NO.VPNN 00381D APPELLANT BY : SHRI SUBRATA SARKAR CIT(DR) RESPONDENT BY : SHRI C.S. SUBRAHMANYAM CA O R D E R PER B..R. BASKARAN ACCOUNTANT MEMBER : 1. BY THIS PETITION THE REVENUE SEEKS RECALL O F THE COMMON ORDER DATED 20-07- 2009 PASSED BY THIS BENCH ON THE GROUND THAT THE SA ME SUFFERS FROM FOLLOWING IRREGULARITIES: (A) THE HONBLE BENCH CONCEDED THE ARGUMENT OF THE ASSESSEE THAT ONCE IRON ORE IS DUMPED INTO THE MMTC STOCK YARD THE TIT LE OF THE GOODS IS EFFECTIVELY TRANSFERRED TO THE MMTC UPON SHIPMENT. THIS ARGUMENT PUT FORWARD BY THE ASSESSEE FOR THE FIRST TIME WAS NOT SUBJECTED TO ANY VERIFICATION AND WAS ACCEPTED WITHOUT ANY BASIS. T HE HONBLE BENCH OUGHT TO HAVE REMANDED THE MATTER TO THE AO FOR VER IFICATION. (B) AS PER THE GUIDELINES OF THE CBDT IN THE MATTER OF WORK ALLOCATION BETWEEN THE CIT( DRS) AND THE SR. DRS REPRESENTING BEFORE THE ITAT (INSTRUCTION NO.4/2008 DATED 25 TH MARCH 2008) ALL APPEALS IN WHICH THE AGGREGATE OF THE ADDITIONS MADE BY THE A.O. WHI CH ARE UNDER DISPUTE / SUBJECT MATTER OF APPEAL IN A CASE IS MO RE THAN RS.50 LAKHS (FOR VISAKHAPATNAM CITY) OUGHT TO HAVE BEEN ARGUED BY THE CIT(DR). HOWEVER IN THE INSTANT CASE THE SR. D.R. HAS ARGU ED THE CASE. 2 (C) THE CASE WAS LISTED IN THE CAUSE LIST ON 17-6-2 009. THE CIT (DR) WAS ON E.L FOR 5 DAYS FRO 15.6.2009 TO 19.6.2009. THE A.R. (SIC. SR. DR) SOUGHT ADJOURNMENT ON 17.6.2009 WHEN THE CASE WAS C ALLED ON THE GROUND THAT THE CIT (DR) WAS ON LEAVE. THE HONBLE BENCH REFUSED ADJOURNMENT AND FIXED THE CASE FOR HEARING ON THE N EXT DAY I.E. 18.6.2009 WHEN SR. A.R. WAS CONSTRAINED TO ARGUE TH E CASE. THE ORDER OF THE ITAT WAS PASSED ON THE BASIS OF SUCH A RGUMENTS BY THE SR. A.R. UNDER COMPELLING CIRCUMSTANCES AND HENCE OPPORTUNITY GIVEN TO THE DEPARTMENT WAS NOT SUFFICIENT. 2. WE HAVE HEARD THE COUNSEL FROM BOTH SIDES. IN THE FIRST GROUND THE REVENUE SUBMITS THAT THE ARGUMENT REGARDING TRANSFER OF TIT LE WAS PUT FORWARD FOR THE FIRST TIME BY THE ASSESSEE. HOWEVER FROM ORDER OF LD CIT (A) WE NOTICE THAT THE SAID SUBMISSIONS OF THE ASSESSEE HAS BEEN RECORDED IN PA RA 7.1(2) OF HIS ORDER. HENCE THE IMPUGNED SUBMISSION OF THE ASSESSEE CANN OT BE TAKEN AS A NEW FACT AS CONTENDED BY THE REVENUE. HENCE ON ACCOUNT OF THIS GROUND IT CANNOT BE SAID THAT THERE IS MISTAKE APPARENT FROM THE RECORD IN THE ORDER PASSED BY THE TRIBUNAL AND ACCORDINGLY THIS GROUND FAILS. 2.1. AS PER THE SECOND AND THIRD GROUND OF TH E REVENUE IT IS CONTENDED THAT THE REVENUE WAS DEPRIVED OF SUFFICIENT OPPORTUNITY FOR THE REASON THAT THE REVENUE WAS COMPELLED TO REPRESENT THE CASE BY SR. DR WHER E AS IT HAS TO BE REPRESENTED BY THE CIT(DR) AS PER THE INSTRUCTIONS OF THE CBDT. HOWEVER THE FACT REMAINS THAT THE APPEALS WERE DECIDED AFTER DU LY HEARING THE SR. D.R AND THUS SUFFICIENT OPPORTUNITY WAS GIVEN TO THE DEPART MENT. THE ALLOCATION OF THE REPRESENTATION WORK BETWEEN THE OFFICERS OF THE DEP ARTMENT IS THEIR INTERNAL MATTER AND WE ARE AFRAID THE TRIBUNAL HAS NO ROLE TO PLAY IN IT. FURTHER THE POWER OF THE TRIBUNAL U/S 254(2) OF THE ACT IS VERY LIMITED I.E . IT CAN AMEND THE ORDER PASSED U/S 254(1) IN ORDER TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD. IT WAS NOT SHOWN TO US THAT THE REPRESENTATION MADE BY A JUNIO R OFFICER WOULD AMOUNT TO MISTAKE APPARENT FROM THE RECORD. IN VIEW OF THE FOREGOING WE DO NOT FIND ANY MERIT IN THIS GROUND ALSO. 3 3. IN THE RESULT WE DISMISS THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE. PRONOUNCED ACCORDINGLY ON 08/02/2010 SD/- SD/- (SUNIL KUMAR YADAV) (B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER VISAKHAPATNAM DATE : 08 TH FEBRUARY 2010 A COPY OF THIS ORDER IS FORWARDED TO : 01 THE ACIT (TDS) {PRESENTLY WITH ITO WARD-6(2)} VISAKHAPATNAM 02 THE CHIEF REGIONAL MANAGER M/S. NATIONAL MINERA L DEVELOPMENT CORPORATION LTD. KHANIJ BHAWAN PORT AREA VISAKHA PATNAM-530 035(AP) 03 CIT (A)-II VISAKHAPATNAM 04 CIT VISAKHAPATNAM 05 DR ITAT VISAKHAPAATNAM 06 GUARD FILE. BY ORDER SENIOR PRIVATE SECRETARY ITAT VISAKHAPATNAM BENCH