Income Tax Appellate Tribunal - Mumbai
Bharat R. Ruia(Huf), Mumbai vs Assistant Commissioner Of Income Tax ... on 20 January, 2020
1 MA Nos. 202-205/Mum/2017 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH "B", MUMBAI Before Shri MAHAVIR SINGH (JUDICIAL MEMBER) AND Shri G MANJUNATHA (ACCOUNTANT MEMBER) M.A. No.202 /Mum/2017 (Arising out of ITA No.750/Mum/2014) (Assessment Year: 2005-06) & M.A. No.203 /Mum/2017 (Arising out of ITA No.751/Mum/2014) (Assessment Year: 2006-07) & M.A. No.204 /Mum/2017 (Arising out of ITA No.752/Mum/2014) (Assessment Year: 2007-08) & M.A. No.205 /Mum/2017 (Arising out of ITA No.753/Mum/2014) (Assessment Year: 2008-09) Bharat R. Ruia (HUF) VS ACIT, Central Circle-47 Prop. B.R.International Mumbai Ruia House 19, Bhausaheb Hire Marg Malabar Hills Mumbai-400 006 PAN : AACHB3596E APPLICANT RESPONDENT Applicant by Shri Vijay Mehta, AR Respondent by Shri. Kumar Padmapani Bora, DR Date of hearing 03.01.2020 Date of pronouncement 20 .01.2020 2 MA Nos. 202-205/Mum/2017 O R D ER Per G MANJUNATHA: AM The assessee has filed these miscellaneous applications u/s 254(2) of the I.T.Act, 1961 against the order of the Tribunal, dated 08/02/2017 in ITA No's. 750 to 753/Mum/2014 for AY's 2005-06 to 2008-
09.
2. The assessee has narrated facts and mistakes stated to be apparent on record in the order of the Tribunal, dated 08/02/2017 and the contents of miscellaneous applications filed by the assessee for all four years is more or less identical. Therefore, for the sake of brevity, the contents of miscellaneous applications filed for AY 2005-06 in M.A. NO. 202/Mum/2017 are reproduced as under:-
The above mentioned appeals were disposed off by the Hon'ble Appellate Tribunal Mumbai Bench "B" vide order dated 08-02-2017. The Appellant is moving this application before the Hon'ble ITAT "B" Bench Mumbai as certain mistakes apparent from record have crept into the Order. The appellant request to rectify the mistakes apparent from the record brings the following facts for your Honours considerations which are as stated here under;
The said order suffers from mistake which is apparent from records as the Hon'ble Members of the Bench should have considered our adjournment application which was available on record before confirming the penalty order pending the disposable of the quantum order pending the disposable of the quantum order and should have considered the additional grounds of appeal which the appellant had filed before ITAT on 25.05.2015 and therefore the disposal of the penalty order when quantum, is pending would constitute a mistake apparent from record which has crept into the order has perhaps been over looked due to over sight Your Honour may kindly consider the following chorology of the events are as follows: AY 2005-06 Date Particulars Remarks 31-01-2014 Appellant filed the appeal against Matter fixed onl3- the Order of the CIT (A) 38 order 07-2015.
received on 6th December 2013.
Appeal No ITA 750 to 753/MUM/ 3 MA Nos. 202-205/Mum/2017 2014.
25-05-2015 & Department also filed the appeal Matter fixed 22-07-2015 against the Order of the CIT (A) on 38 order received on 6* 22-07-2015 December 2013. Appeal No ITA 949 to 952/MUM/ 2014.
03-07-2015 The appellant filed the paper book for AY 2005-06 15-02-2016 & The appellant filed a letter Matter fixed on 13- 18-02-2016 requesting for an adjournment of 07-2016 the matter on the grounds that the Appellant had filed an appeal against the rejection the AQ's order against the application made u/s 154 on 31st March 2015 to CIT (A) - 50 raising certain legal issues on the quantum and the matter was pending before the CIT (A)- 50 The ITAT adjourned the matter for AY 2005-06 07-07-2016 & The appellant filed a letter Matter fixed on 24-
13-07-2016 requesting the matter adjourned 08-2016 as the CIT (A) 50 had still not disposed off the appeal filed on the quantum. The ITAT adjourned the matter which was fixed for hearing on for all the AY i,e. For AY 2005-06 22-08-2016 & The appellant filed a letter Matter fixed on 11- 24-08 2016 requesting the matter to be 01-2017 adjourned as the CIT (A) 50 had still not disposed off the appeal filed on the quantum. The ITAT adjourned the matter for For AY 2005-06 11-01 2017 The appellants representative CA Chandrashekhar could not appear nor seek an adjournment and the reasons for the same have been explained in the Affidavit attached herewith and Annexed as Annexure A 4 MA Nos. 202-205/Mum/2017 On the basis of the above mentioned we may request your Honour's to recall your order which was passed on 08-02-2017 ex-parte as non appeared, •ace it is submitted that when quantum appeal is pending and in the interest of Justice Penalty matter should have been kept in abeyance until disposal of the quantum appeal.
We may further invite your Honors' attention that on the basis of our adjournment letter filed earlier for reasons stated herein in above your Honors1 had given us three adjournment on the grounds that the quantum order have been pending to be disposed of by the CIT (A) - 50 and that the penalty matter may be taken up only after the quantum matter has reached its finality . since the facts are the same we may request your Honors1 to recall penalty order so passed on 08-02-2017 as it would amount to mistake apparent on record to confirm a penalty order when the quantum order is pending before the CIT (A) - 50.
WE would like to rely on the following decisions where the courts have given the powers to the Hon'ble Tribunal to exercise its powers of rectification under section 254(2) to recall its order in entirety:
1} Honda Siel Power Products Ltd vs CIT - 295 1TR 466 (SC) order dated 26-11-2007.
2) Lachman Dass Bhatia Hingwaila (P) Ltd v AC1T (2011) 330 1TR 243 (Delhi) The Appellant submit that the Hon'ble ITAT should have considered our adjournment application which was available on record before confirming the penalty order pending the disposable of the quantum order and should have considered the Additional grounds of appeal which the appellant had filed before ITAT on 2505-2015 and therefore the disposal of the penalty order when quantum, is pending would constitute a mistake apparent from record which has crept into the order.
Prayer;
1) The Hon'ble Bench may be pleased to rectify the mistake as pointed out herein above and recall the order dated 08-02-2017 and pass a fresh order in terms of section 254 (1) of the Act.
2) The Hon'ble Bench may recall the order dated 08-02-2017 and pass an appropriate order in terms of section 254(1) or modify or amend the order already passed.
3) Any other relief which the Hon'ble Bench may deem fit.
3. We have heard both the parties and perused the contents of the miscellaneous applications filed by the assessee along with order of the Tribunal, dated 08/02/2017. We find that the Tribunal has disposed of 5 MA Nos. 202-205/Mum/2017 appeals filed by the assessee in ITA No. 750-753/Mum/2014 challenging levy of penalty u/s 271(1)(c) of the I.T.Act, 1961. We find that the Tribunal has disposed of the appeal of the assesee ex-parte for non appearance of the assessee. The contentions of the assessee is that there is an error in the order of the Tribunal, inasmuch as in disposing of penalty appeals, when the quantum appeal was pending before the Ld.CIT(A). We find that when, the quantum appeal is pending before the lower authorities, disposing of penalty appeal on the same issues on which penalty has been levied would constitute a mistake apparent on record. Therefore, we are of the considered view that there is a merit in the miscellaneous applications filed by the assessee and accordingly, the order of the Tribunal in ITA. No's. 750 to 753/Mum/2014 is recalled and the appeals are posted for hearing on 26/02/2020, for which no separate notice will be issued to either parties.
4. In the result, miscellaneous applications filed by the assessee for all AY's are disposed of in terms of our observations given hereinabove Order pronounced in the open court on 20 .01.2020 Sd/- Sd/-
MAHAVIR SINGH G MANJUNATHA
JUDICIAL MEMBER ACCOUNTANT MEMBER
Mumbai, Dt : 20.01.2020
Thirumalesh, Sr.PS
Copy of the Order forwarded to :
1. The Appellant
2. The Respondent.
3. The CIT(A), Mumbai.
6
MA Nos. 202-205/Mum/2017
4. CIT
DR, ITAT, Mumbai
5.
6. Guard file.
स ािपत ित //True Copy//
BY ORDER,
(Asstt. Registrar)
ITAT, Mumbai