United Builders Vs. Assistant Commissioner of - Court Judgment

Excerpt:
1. this miscellaneous application running into 32 pages duly supported with affidavit of shri p. l. juneja, advocate supreme court duly accompanied with copy of extract of different case laws has been moved by the learned counsel for the assessee for rectification of the order dt. 10th may, 1999, by which ita no. 299/del/98 was disposed of.2. at the very beginning, learned counsel for the assessee mentioned that miscellaneous application is containing all the arguments and the same be treated as submission of the learned counsel for the assessee.a perusal of the application shall show that learned counsel has taken up different grounds and the first ground is that tribunal has not decided all the grounds agitated in the grounds of appeal and the same stand rejected in sub silentio which is not as per provisions of law as findings were to be recorded on the basis of arguments or on the foolproof documentary evidence and unrebutted affidavits. the second plea from the learned counsel is that person against whom the order is passed is entitled to know the reasons as to why his prayer is rejected but it has not been done in the impugned order of the tribunal. the judgment of the hon'ble supreme court in 68 itr 462 (sic) was referred to in which it was laid down that tribunal must decided the appeal with due care on the basis of material facts and record. its finding on all the contentions has been ignored. the tribunal has not looked into the remaining evidence. the guidelines laid down by hon'ble supreme court in 1992 elt 449 were again ignored. the other plea was that orders of the authorities below were null and void but by remanding the matter back to the cit(a) by tribunal amounts to validation of the null and void order of ao and cit(a) which is contrary to the judgment of hon'ble supreme court laid down at air 1976 sc 1900. the decision of itat reported at 35 itd 276 (sic), colonisers vs. asstt. cit (1993) 45 ttj (hyd)(sb) 114 : (1992) 41 itd 57 (hyd)(sb) and 55 itr 180 (sic) were not followed and it amounts to inconsistency and indiscrimination.some of the affidavits of cas and assessee had been ignored. some of the grounds of the assessee have not been considered and most of the judgments which were referred to and even copies thereof were placed at record either have been referred to or not applied. it was also the case of the learned counsel that tribunal has wrongly noted that cit(a) did not decide the appeal of the assessee on merit while cit(a) categorically recorded that provisions of s. 68 of the act had rightly been invoked by the ao and that amounts to disposal on merit. no specific findings had been recorded on the submissions of the counsel though submissions were reproduced in the order. legal points were also reproduced but not applied nor assessee was given the benefit of those decisions. special cost should have been awarded to the assessee in this case and tribunal has not considered that plea. it is also the plea that reasons were not given by the tribunal as to why case law referred to and relied by the assessee has not been applied. the basis of these facts are that this amounts to glaring mistake apparent on the record and the same be rectified by recalling the order and rectifying the same.3. learned counsel, even after completion of the hearing had been kind enough in sending relevant extract of order of different benches of the tribunal, of different high courts and hon'ble supreme court through postal authority and the last was the copy of order of tribunal delhi b bench decision in the case of smt. rita sahni vs. ito in which misc.appln. no. 62/del/96 was allowed on the ground that all the grounds were not effectively disposed of and order was recalled by the tribunal.4. learned departmental representative argued that order of the tribunal is passed on appreciation of all the material facts as well as case law and requires no interference as there is no apparent mistake in the said order.5. we have considered the rival submissions and perused the material to which our attention was drawn during the course of hearing by the learned counsel for the assessee and by the learned departmental representative. the main plank of learned counsel's arguments is that some of the affidavits remained to be discussed and some of the judgments of the tribunal benches as well as of hon'ble supreme court remained to be discussed and assessee had not been extended benefit thereof and this is apparent mistake on record. we do agree to this contention and to meet the ends of justice, it will be in the fitness of things to recall the order of the tribunal and to restore the appeal to its original number so that all the aspects of the matter as argued by the learned counsel during the hearing of miscellaneous application be also looked into. we order accordingly.6. miscellaneous application is allowed and the order dt. 10th may, 1999 in ita no. 299/del/1998 is hereby, recalled. registry is directed to refix the appeal for disposal on merit afresh.

Judgment:
1. This miscellaneous application running into 32 pages duly supported with affidavit of Shri P. L. Juneja, Advocate Supreme Court duly accompanied with copy of extract of different case laws has been moved by the learned counsel for the assessee for rectification of the order dt. 10th May, 1999, by which ITA No. 299/Del/98 was disposed of.

2. At the very beginning, learned counsel for the assessee mentioned that miscellaneous application is containing all the arguments and the same be treated as submission of the learned counsel for the assessee.

A perusal of the application shall show that learned counsel has taken up different grounds and the first ground is that Tribunal has not decided all the grounds agitated in the grounds of appeal and the same stand rejected in sub silentio which is not as per provisions of law as findings were to be recorded on the basis of arguments or on the foolproof documentary evidence and unrebutted affidavits. The second plea from the learned counsel is that person against whom the order is passed is entitled to know the reasons as to why his prayer is rejected but it has not been done in the impugned order of the Tribunal. The judgment of the Hon'ble Supreme Court in 68 ITR 462 (sic) was referred to in which it was laid down that Tribunal must decided the appeal with due care on the basis of material facts and record. Its finding on all the contentions has been ignored. The Tribunal has not looked into the remaining evidence. The guidelines laid down by Hon'ble Supreme Court in 1992 ELT 449 were again ignored. The other plea was that orders of the authorities below were null and void but by remanding the matter back to the CIT(A) by Tribunal amounts to validation of the null and void order of AO and CIT(A) which is contrary to the judgment of Hon'ble Supreme Court laid down at AIR 1976 SC 1900. The decision of ITAT reported at 35 ITD 276 (sic), Colonisers vs. Asstt. CIT (1993) 45 TTJ (Hyd)(SB) 114 : (1992) 41 ITD 57 (Hyd)(SB) and 55 ITR 180 (sic) were not followed and it amounts to inconsistency and indiscrimination.

Some of the affidavits of CAs and assessee had been ignored. Some of the grounds of the assessee have not been considered and most of the judgments which were referred to and even copies thereof were placed at record either have been referred to or not applied. It was also the case of the learned counsel that Tribunal has wrongly noted that CIT(A) did not decide the appeal of the assessee on merit while CIT(A) categorically recorded that provisions of s. 68 of the Act had rightly been invoked by the AO and that amounts to disposal on merit. No specific findings had been recorded on the submissions of the counsel though submissions were reproduced in the order. Legal points were also reproduced but not applied nor assessee was given the benefit of those decisions. Special cost should have been awarded to the assessee in this case and Tribunal has not considered that plea. It is also the plea that reasons were not given by the Tribunal as to why case law referred to and relied by the assessee has not been applied. The basis of these facts are that this amounts to glaring mistake apparent on the record and the same be rectified by recalling the order and rectifying the same.

3. Learned counsel, even after completion of the hearing had been kind enough in sending relevant extract of order of different Benches of the Tribunal, of different High Courts and Hon'ble Supreme Court through postal authority and the last was the copy of order of Tribunal Delhi B Bench decision in the case of Smt. Rita Sahni vs. ITO in which Misc.

Appln. No. 62/Del/96 was allowed on the ground that all the grounds were not effectively disposed of and order was recalled by the Tribunal.

4. Learned Departmental Representative argued that order of the Tribunal is passed on appreciation of all the material facts as well as case law and requires no interference as there is no apparent mistake in the said order.

5. We have considered the rival submissions and perused the material to which our attention was drawn during the course of hearing by the learned counsel for the assessee and by the learned Departmental Representative. The main plank of learned counsel's arguments is that some of the affidavits remained to be discussed and some of the judgments of the Tribunal Benches as well as of Hon'ble Supreme Court remained to be discussed and assessee had not been extended benefit thereof and this is apparent mistake on record. We do agree to this contention and to meet the ends of justice, it will be in the fitness of things to recall the order of the Tribunal and to restore the appeal to its original number so that all the aspects of the matter as argued by the learned counsel during the hearing of miscellaneous application be also looked into. We order accordingly.

6. Miscellaneous application is allowed and the order dt. 10th May, 1999 in ITA No. 299/Del/1998 is hereby, recalled. Registry is directed to refix the appeal for disposal on merit afresh.