Income Tax Appellate Tribunal - Mumbai
Rameh Abaji Walawalkar , vs Department Of Income Tax on 5 July, 2013
आयकर अपील य अ धकरण "डी" यायपीठ मुंबई म।
IN THE INCOME TAX APPELLATE TRIBUNAL "D" BENCH, MUMBAI
ी पी.एम
पी एम.
एम जगताप,
जगताप लेखा सद य एवं अ मत शु ला, या यक सद य के सम ।
BEFORE SHRI P.M. JAGTAP, AM AND SHRI AMIT SHUKLA, JM
M.A. No.83/Mum/2013
(Arising out of ITA No. 1534/Mum/2010)
Assessment Year 2003-04
Dy. Commissioner of बनाम Shri Ramesh Abaji
बनाम/
Income-tax, Walavalkar,
Vs.
Circle-3, A-703, Shreeji Ville,
Thane (W), Opp. Nitin Compound,
Mumbai- 400602 Panchpakhadi,
Thane(W),
Mumbai-400602
थायी ले खा सं . /PAN : AALPW8136C
(Revenue) .. ( यथ / Respondent)
Revenue by : Shri Ajay
यथ क ओर से/ Respondent by : Shri C.N. Vare
सन
ु वाई क तार ख /Date of Hearing : 05-07-2013
घोषणा क तार ख /Date of Pronouncement : 05-07-2013
आदे श / O R D E R
PER P.M. JAGTAP, A.M.
ी पी.एम. जगताप, लेखा सद य :
By this Miscellaneous Application, the Revenue is seeking rectification of the mistake alleged to have crept in the order of the Tribunal dated 22.06.2012 passed in ITA No. 1534/Mum/2010
2. The ground on which the rectification of the order of the Tribunal dated 22.06.2012 has been sought by the revenue, as given in the Miscellaneous Application filed before us, is as under:
"The Hon'ble ITAT 'D' Bench Mumbai vide common order no. 852/mum/2009 and 1534/Mum/2010 dated 22.06.2012 allowed the appeal of the assessee on the 2 M.A. No.83/Mum/2013 Shri Ramesh Abaji Walavalkar ground that the notice under section 143(2) was not issued to the assessee and therefore the proceeding is vitiated on that account. As the assessee has appeared as well as cooperated in the enquiry and reassessment proceedings and not raised the issue of non-service of notice u/s. 143(2) of the act, the appeal was filed before the Hon'ble High Court by referring provision of section 292BB of the act which is 'Doctrine of waiver'.
Section 292BB says as "where an assessee has appeared in any proceeding or co-operated in any inquiry relating to an assessment or reassessment, it shall be deemed that any notice under any provision of this Act, which is required to be served upon him as been duly served upon him in time in accordance with the provision of this act and such assessee shall be precluded from taking any objection in any proceeding or inquiry under this.
Section 292BB was inserted with effect from 01.04.2008 and assessment order was passed on 05.12.2008. Hence the same is applicable in the instant case.
The Hon'ble High Court was of the view that if the contention is not raised before the Tribunal and if section 292BB is applicable, then the Department was required to move M.A. before the ITAT.
Considering the facts of the case and as per directions of Hon'ble High Court as discussed above, the miscellaneous application is being made for restoration of this appeal for AY 2003-04. Further it is prayed that the order of the Hon'ble ITAT passed vide no. 1534/Mum/2010 dated 22.06.2012 set aside and the appeal filed by the revenue is restored."3 M.A. No.83/Mum/2013
Shri Ramesh Abaji Walavalkar
3. We have heard the arguments of both sides and also perused the relevant material on record. As per the direction of the Tribunal, the ld. DR has placed a copy of the judgment of the Hon'ble Bombay High Court dated 1st March 2013 passed in ITA No. (L)No.1822 of 2012 referred to in the miscellaneous application, which reads as under:-
"Office Objections waived.
Heard, Admit on the following substantial question of law.
Whether on the facts and in the circumstances of the case the Tribunal was justified in holding that the assessment done u/s.147 for A.Y. 2003-04 is not valid, ignoring the fact that the assessee has appeared as well as cooperated in the enquiry and reassessment proceedings and in view of provision of Section 292BB, the assessment cannot be held as invalid for the reason of non issue of notice u/s. 143(2) of the Income Tax Act, 1961"?
4. It is manifest from the judgment of the Hon'ble Bombay High Court that there is nothing to suggest or adjudicate that a direction has been given by the Lordships to the department to move the miscellaneous application before the tribunal as claimed by the department. As a matter of fact, the issue of applicability of the provisions of section 292BB in the case of the assessee for A.Y.2003- 04 involving substantial question of law has been admitted by the Hon'ble Bombay High Court and this issue now is pending for consideration of their Lordships on merit. Moreover, there is nothing on record to show that the issue relating to applicability of section 292BB was raised before the Tribunal at the time of hearing of the appeal by raising any contention as now raised in the miscellaneous application. Furthermore, issue as to whether the provisions of 4 M.A. No.83/Mum/2013 Shri Ramesh Abaji Walavalkar section 292BB inserted in the statute with effect from 01.04.2008 are applicable to the pending assessment or are applicable to the assessments for A.Y. 2008-09 and onwards is a highly debatable issue which, in our opinion, cannot be entertained and considered in the rectification proceedings u/s. 254(2), the scope of which is very limited. We therefore find no merit in this miscellaneous application filed by the revenue and dismiss the same.
5. In the result, the miscellaneous application of the revenue is dismissed.
Order pronounced in the open court on the conclusion of hearing on 05th July, 2013.
आदे श क घोषणा खुले यायालय म दनांकः 05th July, 2013 को क गई ।
(AMIT SHUKLA) (P.M. JAGTAP)
या यक सद य JUDICIAL MEMBER लेखा सद य/ACCOUNTANT MEMBER
मुंबई Mumbai; दनांक Dated 05.07.2013
न.स./Shekhar , PS
आदे श क त ल प अ े षत/Copy
षत of the Order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent.
3. आयकर आयु (अपील) / The CIT (A) - , Mumbai
4. आयकर आयु /CIT - Mumbai
5. वभागीय त न ध, आयकर अपील य अ धकरण, मंब ु ई / DR, ITAT, Mumbai " Bench
6. गाड फाईल / Guard file.
आदे शानुसार/
ार BY ORDER,
स या पत त //True Copy//
उप/सहायक
उप सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, धकरण मंब ु ई / ITAT, Mumbai