Itxa/5899/2010 Of The Commissioner Of Income Tax Mumbai v. Anuradha Corporation

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.5899 OF 2010 The Commissioner of Income Tax-12 ..Appellant. V/s. M/s. Anurdha Corporation ..Respondent. Mr. Vimal Gupta for the appellant. Mr. Jitendra Singh for the respondent. CORAM : J.P. DEVADHAR AND A.A.SAYED, JJ. DATED : 19TH JULY, 2011 P.C. :- 1.Matter not on board. By consent of the parties, taken up for admission. 2.The questions of law raised by the revenue in this appeal read thus:- (A)Whether on the facts and in the circumstances of the case and in law, the ITAT is right in recalling its own speaking order and re- deciding the matter, even though it has no power to review its own order ?law, the ITAT is right in recalling its own speaking order and re- deciding the matter, even though it has no power to review its own order ? (B)Whether on the facts and in the circumstances of the case and in law, the ITAT is right in admitting the additional ground of 'limitation' raised by the assessee while deciding the appeal on second occasion ?law, the ITAT is right in admitting the additional ground of 'limitation' raised by the assessee while deciding the appeal on second occasion ? (C)Whether on the facts and in the circumstances of the case and in law, the ITAT is right in disregarding the provisions of section 292 BB of the I.T. Act and admitting the additional ground of 'limitation' which was not contested by the assessee before the assessing officer, CIT(A) and even before the Tribunal on first occasion and also during the course of moving Miscellaneous Application before the Tribunal ?law, the ITAT is right in disregarding the provisions of section 292 BB of the I.T. Act and admitting the additional ground of 'limitation' which was not contested by the assessee before the assessing officer, CIT(A) and even before the Tribunal on first occasion and also during the course of moving Miscellaneous Application before the Tribunal ? (D)Whether on the facts and in the circumstances of the case and in law, the ITAT is right in allowing the Miscellaneous Application on 5/5/2008 on the pretext that the assessee was not heard in spite of the fact that the order of the Tribunal dtd. 21/9/2007 is a speaking order which clearly mentions that the assessee was represented by Shri Sagar Jajoo and the assessee was also heard as is evident from opening lines of para-3, para-7, para-13 and para-16 of its order dated 21/9/2007 ?law, the ITAT is right in allowing the Miscellaneous Application on 5/5/2008 on the pretext that the assessee was not heard in spite of the fact that the order of the Tribunal dtd. 21/9/2007 is a speaking order which clearly mentions that the assessee was represented by Shri Sagar Jajoo and the assessee was also heard as is evident from opening lines of para-3, para-7, para-13 and para-16 of its order dated 21/9/2007 ? (E)Whether on the facts and in the circumstances of the case and in law, the ITAT is right in deciding the issue on technical ground of 'limitation' without going into the merits of the case ?law, the ITAT is right in deciding the issue on technical ground of 'limitation' without going into the merits of the case ? (F)Whether on the facts and in the circumstances of the case and in law, the ITAT is right in holding that the notice u/s.143(2) is mandatory in block assessments ?law, the ITAT is right in holding that the notice u/s.143(2) is mandatory in block assessments ? 2.Counsel for the revenue states that questions (A), (B) and (D) do not arise out of the order of the Tribunal, because ITAT has passed fresh order on merits after the Misc. Application was allowed on 5/5/2008. 3.As regards questions (E) & (F) are concerned, counsel for the parties state that the said questions stand answered against the revenue by the decision of the Apex Court in the case of ACIT & Anr. V/s. Hotel Blue Moon reported in (2010) 321 ITR 362. Hence the said questions cannot be entertained. (F)Whether on the facts and in the circumstances of the case and in law, the ITAT is right in holding that the notice u/s.143(2) is mandatory in block assessments ?law, the ITAT is right in holding that the notice u/s.143(2) is mandatory in block assessments ? 2.Counsel for the revenue states that questions (A), (B) and (D) do not arise out of the order of the Tribunal, because ITAT has passed fresh order on merits after the Misc. Application was allowed on 5/5/2008. 3.As regards questions (E) & (F) are concerned, counsel for the parties state that the said questions stand answered against the revenue by the decision of the Apex Court in the case of ACIT & Anr. V/s. Hotel Blue Moon reported in (2010) 321 ITR 362. Hence the said questions cannot be entertained. 4.As regards question (C) is concerned, Section 292BB has been introduced by Finance Act, 2008 with effect from 1/4/2008. In the present case, the block assessment relates to the period from 1/4/1990 to 24/8/2000 and hence Section 292BB will have no application to the present case. Accordingly, question (C) cannot be entertained. 5.In the result, the appeal is dismissed with no order as to costs. (A.A. SAYED, J.) (J.P. DEVADHAR, J.)