TMI Blog2019 (7) TMI 850X X X X Extracts X X X X X X X X Extracts X X X X ..... No.204/PUN/2012 - - - Dated:- 15-3-2019 - SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWASTHY, JM For The Assessee : Shri Sunil Ganoo For The Revenue : Shri Ashok Babu ORDER PER ANIL CHATURVEDI, AM : 1. This Miscellaneous Application (M.A.) filed by the assessee u/s 254(2) of the I.T. Act is arising out of the consolidated order of Tribunal in ITA No.204/PUN/2012 for A.Y. 2008-09. 2. Before us, Ld AR submitted in ITA No.204/PUN/2012 for A.Y. 2008-09, assessee had raised ground No.12 which was with respect to denying the opportunity to cross-examine Mr. Devichand Chhoriya, author of the seized documents. Ld AR submitted that the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of CIT Vs. Aiswarya Trading Company reported in (2011) 323 ITR 521, decision of Allahabad High Court in the case of Hiralal Suratwala Vs. CIT reported in 56 ITR Page 339 (All) and the decision of Hon ble Gujarat High Court in the case of CIT Vs. Smt. Vasantben H. Sheth reported in (2015) 372 ITR 536 (Guj). 4. Thereafter a query was raised to the Learned AR as to whether assessee has preferred appeal against the order of Tribunal before Hon ble High Court and if so then whether The Tribunal can decide the issue in 254(2) proceedings? In response to the query of the Bench, Ld AR submitted that against the quantum order passed by the Tribunal, assessee has filed appeal before the Hon ble Bombay High Court in ITA Nos.471 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble Bombay High Court. The Hon ble Bombay High Court vide order dt.26.11.2018 (in ITA No 471 and 475 of 2016) has admitted the appeals of the assessee for consideration of substantial question of law. In support of assessee s contention that when even though against the order of Tribunal, assessee has filed appeal, still Tribunal can entertain an application u/s 254(2) of the Act seeking rectification of the order passed by Tribunal, Ld.A.R. has placed reliance on the decision of Hon ble Bombay High Court in the case of M/s. R.W. Promotions Private Limited (supra). 7. We find that in the case of R.W. Promotions Pvt. Ltd. (supra), it was the case where against the order of Tribunal, assessee had filed an appeal u/s 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion in the case of Goa Carbon Ltd. Vs. CIT reported in (2011) 332 ITR 209 (Bom). 9. We find that the Hon ble Gujarat High Court in the case of CIT Vs. Muni Seva Ashram reported in (2013) 38 Taxmann.Com 110 (Guj) has held that when appeal has been filed before the Hon ble High Court, the appeal is admitted and substantial question of law has been framed in the said appeal, then the Tribunal cannot recall the order. The relevant portion of the order reads as under : 6. In view of the above stand taken by the learned counsel appearing on behalf of the respondent assessee recorded hereinabove, more particularly when against the impugned judgement and order dtd.11/7/2008 passed in ITA No.633/Ahd/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
