Non-consideration of the submissions does constitute mistake and the order can recall

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH, “H ”,

MUMBAI

BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND

SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER

MA No: 145/Mum/2011

Arising out of: ITA No.6830/Mum/2005

Assessment Year: 2002-03

M/s. Greaves Cotton Limited

Industry Manor, Appasaheb

Marathe Marg, Prabhadevi

Mumbai-400 025.

PAN No.: AAACG 2062 M

 (Applicant)

Vs.

Dy. Commissioner of Income Tax ,

Circle-6(3), 5th Floor,

Room No.522, Aayakar Bhavan

Mumbai-400 020.

(Respondent)

Applicant by: Ms. Arati Vissanjee

Respondent by: Mr. P. C. Maurya

Date of hearing: 15.06.2012

Date of Pronouncement: 20.06.2012

ORDER

Per RAJENDRA SINGH (AM).

This Miscellaneous application has been filed by the assessee requesting for recall of the order dated 24.9.2010 of the Tribunal in ITA No.6830/M/05. Apparent mistakes have been pointed out in relation to grounds at Sl.No.(A), (D) and (I) raised by the assessee in the appeal.

2. We have heard both parties in the matter. The ld. AR for the assessee submitted that at the time of hearing of the appeal Bench had directed the assessee to file written submissions which the assessee had done vide letter dated 20th Sept. 2010 which had not been considered by the Tribunal and non-consideration of the submission of the assessee constitutes apparent mistake from record. The ld. AR pointed out that in the written submission the assessee had not pressed ground No.(A) relating to disallowance of expenses under section 14A but the Tribunal had set aside the order of CIT(A) and restored the issue for passing of fresh order by the AO which was an apparent mistake. Similarly assessee had also filed written submission for ground No.(I) relating to disallowance of loss due to irrecoverable debts written off which had not been considered by the Tribunal. The Tribunal in the order observed that the assessee had not given supporting documents regarding working of capital loss and even names and addresses of the parties had not been given. The assessee in the written submissions has mentioned that the assessee had given required information vide rectification application dated 9.7.2005. The assessee had also mentioned that the copy of letter dated 9.7.2005 alongwith annexure had been attached at page 192-196 of the paper book. But these had not been considered by the Tribunal.

3. We have perused the records and considered the matter carefully. It is clear from the records that the assessee had filed written submissions on 20.9.2010 but the same was put up before the Bench only on 24.9.2010 when the order had already been passed. The written submission, therefore, could not be taken into account by the Tribunal. Non-consideration of the submissions of the assessee does constitute mistake apparent from record. We, therefore, re-call the order of the Tribunal in relation to the ground (A) and (I) of the assessee and fix the appeal for hearing on 9.7.2012. The date of hearing was pronounced in the open court and, therefore, no formal notice of hearing is required to be issued by the registry.

4. As regards the mistake pointed out in ground (D), we find that the ground related to disallowance of restructuring expenses of Rs.33,25,113/-. The AO had disallowed expenses as capital expenditure. However, CIT(A) while holding that the expenses were capital in nature allowed the same under section 35D over a period of 5 years. The Tribunal following the decision of the Tribunal in assessee’s own case in 2001-02 in ITA No.3546/M/04 held that the expenditure was allowable as revenue expenditure and dismissed appeal of the revenue. However, by an inadvertent mistake the Tribunal also dismissed the ground (D) of the assessee which actually should have been allowed following the decision of the Tribunal in relation to the revenue’s appeal on the same issue.

4.1. We have perused the records and find the submission of the assessee to be correct. The Tribunal in para 2.1 following the decision  of the Tribunal in assessment year 2001-02 (supra), had set aside the order of CIT(A) and allowed the claim of the assessee as revenue exparte and therefore there is an apparent mistake in the order of the Tribunal in para-7 in which it was inadvertently mentioned that the ground raised by the assessee was dismissed. Therefore, we amend para-7 of the order of the Tribunal by substituting the word “allowed” in place of the word “dismissed” mentioned therein.

5. In the result the miscellaneous application of the assessee is allowed.

Order pronounced in the open court on 20.6.2012.

                                                      Sd/-                               Sd/-

                                        (D. MANMOHAN)       (RAJENDRA SINGH)

                                        VICE PRESIDENT   ACCOUNTANT MEMBER

Mumbai, Dated: 20.6.2012.

Jv

Copy to:

The Applicant

The Respondent

The CIT, Concerned, Mumbai

The CIT (A) Concerned, Mumbai

The DR “ ” Bench

True Copy

By Order

Dy/Asstt. Registrar, ITAT, Mumbai.