Itxa/91/2008 Of M/S Kwality Laminators,Mum v. The Asstt. Commissioner Of Income-Tax,Central,Circle-10

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.91 OF 2008 M/s.Kwality Laminators ..Appellant V/s. The Assistant Commissioner of Income Tax,Mumbai & anr. ..Respondents Mr.A.R.Singh, Advocate, for appellant Mr.A.S.Rao, Advocate, for the respondents CORAM : F.I.REBELLO & K.U.CHANDIWAL, JJ. DATE : 27TH JUNE, 2008 P.C. .Assessee has preferred this appeal and had formulatedseveral questions in paragraph 17 of the Appeal Memo. 2.The appeal filed by the assessee before CIT(A) wasdismissed, against which the assessee preferred an appeal beforeITAT. From the order of ITAT it is clear that what was canvassed andargued before ITAT was not the merits of the case but the fact that assessee was not given an opportunity of hearing. The learnedTribunal thereafter, by its Order dated 30[th] November, 2005 rejectedthe said contention and dismissed the appeal. 3. The appellant herein thereafter, moved an application before ITAT on the ground of failure by advocate to raise an importantissue which was rejected against which Writ Petition No.1694 of 2007came to be filed. The Writ Petition was dismissed with liberty topetitioner to raise the contention if any other appropriate remedywould be available. The appellant has thereafter, filed the presentappeal. 4.The appellant herein in this appeal had raised twocontentions. Firstly that he was denied opportunity of putting his caseand secondly that after CIT(A) had come to the conclusion that at thehighest the addition based on peak period would be in the sum ofRs.21, 30, 469/- could not have proceeded to make addition in thesum of Rs.74, 37, 040/- which would clearly amount to an error of law. 5. Insofar as the first contention is concerned, after hearing the counsel we are of the opinion that no question would arise on thefacts as decided by authorities of law. However, we admit the appeal on the second question. 6. It is submitted on behalf of the appellant that even, though, the point of addition of Rs.74,37,040/- was not raised before ITAT onaccount of failure by his counsel to raise the point that would notpreclude him from contesting that error as it is an error on the face ofrecord. It is submitted that error if it is not corrected would lead tomanifest injustice and that itself would amounts to an error of law. 7.After hearing counsel we are of the opinion that after CIT(A)on the basis of working purchases found that payments works outRs.21,30,469/- the additions made of Rs.74,37,040/- clearly amountsto manifest error on the face of record. The Tribunal in its jurisdictionought to have corrected the said error even, if not raised by thecounsel for the appellant. Considering the facts of the case and more so, for the reasons this Court had refused to entertain the Writ Petition against the order passed in Miscellaneous Application to enable theappellant to raise it in proper form which has been done by way of anappeal, we allow the appeal on that ground. 8. Considering the above, the impugned order of ITAT dated 30[th] November, 2005 for the assessment year 1982-83 is set aside asalso the Order of CIT(A) dated 25[th] March, 1997. The matter isrestored back to CIT(A) for de-novo considerations on the issue ofadditions as discussed earlier including merits thereof. The appeal isdisposed of accordingly. 9.The assessee to appear before the Commissioner of theappeals on 14[th] July, 2008 at 11.00 A.M. If the appellant fail to appearthen it would be open to the Commissioner to dismiss the appeal fornon-appearance. (F.I.REBELLO, J.) 5 (K.U.CHANDIWAL, J.)