Goenka Diamond And Jewellers Ltd. , ... vs Department Of Income Tax
- CitationI.T.A. No. 509/JP/2011)
Ratio decidendi
The rule this decision rests on
Where an appeal against the impugned order is pending before the High Court under section 260A, a miscellaneous application under section 254(2) seeking rectification of that order is not maintainable and is to be dismissed, the Tribunal following the view that a rectification application cannot proceed while the same order is under challenge in appeal.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
Jh vkj-ih-rksykuh] U;kf;d lnL; ,oa Jh Vh-vkj-ehuk] ys[kk lnL; ds le{k BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM
M.A. No. 37/JP/2012 (Arising out of I.T.A. No. 509/JP/2011) Asstt. Year- 2008-09
D.C.I.T. cuke M/s Goenka Diamond Jewellers Circle-2, Jaipur Vs. Ltd., 40, Panchratana, MSB Ka Rasta, Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAACG 7934 Q vihykFkhZ@Appellant izR;FkhZ@Respondent
jktLo dh vksj ls@ Revenue by : Mrs. Neena Jeph (JCIT) fu/kZkfjrh dh vksj ls@ Assessee by : Shri G.G. Mundra (CA)
lquokbZ dh rkjh[k@ Date of Hearing : 20/03/2015 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 27/03/2015
vkns'k@ ORDER
PER: T.R. MEENA, A.M.
The revenue has filed this Miscellaneous Application U/s 254(2) of the
Income Tax Act, 1961 (in short the Act) on 28/6/2012 against the order of
Coordinate Bench of ITAT, Jaipur in ITA No. 509/JP/2011 for A.Y. 2008-09,
which was passed on 31/01/2012.
2 M.A. No. 37/JP/2012_
DCIT Vs. M/s Goenka Diamond Jewellers
2. The ld. Assessing Officer sought the rectification on the ground that
submission of ld DR has not been considered by the Hon'ble ITAT. It simply
reproduced the written submission made by him. He also cited few court
decisions, which has also not been discussed at all in its order. It is submitted
that in many court's decisions, if cited decision has not been considered any
point or argument raised during the hearing by the Hon'ble Tribunal, it
tantamount to mistake apparent from the record, which should be rectified U/s
254(2) of the Act. She relied upon the decision in the case of Honda Siel
Power Products Ltd. Vs. CIT ITR 466 Vol. 295 (SC) and prayed to recall the
ITAT order dated 31/1/2012 passed in assessee's case for A.Y. 2008-09.
3. The case was heard in length from both the sides. The ld DR drawn our
attention on objection raised in M.A. petition particularly written submission
made by the DR and case law cited by her.
4. At the outset, the learned A.R. for the assessee submitted written reply
on each point of objection raised in M.A. application by the ld Assessing
Officer and argued that the Hon'ble ITAT had considered all the aspects and
submissions made by the ld DR in his letter dated 31/1/2012. Therefore, there
is no apparent mistake on record. The Hon'ble ITAT does not have power to
review its own order U/s 254(2) of the Act. He further submitted that
department has now filed appeal U/s 260A against the impugned judgment 3 M.A. No. 37/JP/2012_ DCIT Vs. M/s Goenka Diamond Jewellers
dated 31/1/2012 in the case of assessee company before the Hon'ble
Rajasthan High Court raising the legal issue, which is pending before the
Hon'ble High Court. Therefore, he prayed to dismiss the M.A. filed by the
revenue.
5. We have heard both the parties and perused the material available on
the record. As the department has filed appeal U/s 260A of the Act before the
Hon'ble Rajasthan High Court in this case for A.Y. 2008-09, now the issue is
pending before the Hon'ble High Court. The Hon'ble Gujarat High Court in the
case of CIT Vs. Muni Seva Ashram (2013) 38 Taxman.com 110 (Gaj.) has held
that if any appeal filed by either side before the High Court in case of M.A. is
not maintainable. By respectfully following the decision of the Hon'ble Gujarat
High Court, we dismiss the M.A. filed by the Revenue.
6. In the result, the Misc. Application of the revenue is dismissed.
Order pronounced in the open court on 27/03/2015.
Sd/- Sd/- ¼vkj-ih-rksykuh½ ¼Vh-vkj-ehuk½ (R.P.Tolani) (T.R. Meena) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member
Tk;iqj@Jaipur
fnukad@Dated:- 27th March, 2015 4 M.A. No. 37/JP/2012_ DCIT Vs. M/s Goenka Diamond Jewellers
*Ranjan
vkns'k dh izfrfyfi vxzsf'kr@Copy of the order forwarded to:
1. vihykFkhZ@The Appellant- The DCIT, Circle-2, Jaipur.
2. izR;FkhZ@ The Respondent-M/s Goenka Diamond Jewellers, Jaipur.
3. vk;dj vk;qDr@ CIT
4. vk;dj vk;qDr¼vihy½@The CIT(A)
5. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur
6. xkMZ QkbZy@ Guard File (M.A. 37/JP/2012)
vkns'kkuqlkj@ By order,
lgk;d iathdkj@Asst. Registrar
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