TMI Blog2022 (2) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... ee only. The Registry is directed to list this case on 10.03.2022. - Miscellaneous Application No.28/CTK/2018 - - - Dated:- 4-2-2022 - Shri C.M. Garg, JM And Shri Arun Khodpia, AM For the Assessee : Shri S.N.Sahu, Advocate For the Revenue : Shri M.K.Gautam, CIT-DR ORDER PER C.M.GARG, JM: This miscellaneous application filed by the assessee is arising out of the order dated 10.05.2018, passed by the Tribunal in ITA No.404/CTK/2014. 2. The contents of the miscellaneous application filed by the assessee are as under :- 1) That the petitioner is in receipt of the order dated. 10.05.2018 dismissing the appeal considering only one ground and omitting to consider other grounds following the decision of Tribunal in the case of Sophia Study Circle Vs. Income-tax Officer in ITA No. 286jCTKj2012 dated. 10.06.2013 and some other behind the back of the appellant without bringing the same to the notice of the appellant to have his say in the matter and to make his submission in reply which is against the principle of natural Justice. 2) It has also the law laid down by the jurisdictional High Court of Orissa in the case of Murali Manohar Prabhudayal Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in issue, not considered it was appropriate for Tribunal to recall its order for the purpose of considering the arguments and judgements, afresh. 5) That the case of the petitioner assessee was finally heard on 08.05.2018 being adjourned from time to time several times since 16.02.2017. It was heard at length on all and other points. Even written notes of submissions were submitted. The D.R. was asked by the Honourable bench to produces record only to show to the evidence of service of order u/s. 263 within the statutory period. Even the record was not produced, even on the last date of hearing on 8.5.2018. 6) That on 16.02.2017 the case was heard both on merits as well as on the point of limitation and on subsequent dates, the Bench allowed time to the department only for production of record for verification. 7) That the paper book was submitted containing written notes of submission before ITAT dated 16.02.2017 together with the copy of compliance before the commissioner of Income Tax, Bhubaneswar, vide letter dated 07.02.2014. and in the said letter of the petitioner assessee contractor had written the entire facts which was also referred in course of hearing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he counsel not to object. 13) That even on the last date of hearing on 08.05.2018 the D.R. did not produce any record and only argued that the order has been passed on 30.03.2014. 16) That more so, just on the earlier date, when the counsel for the assessee objected for the adjournment to the department, the Honourable Bench stated in several words that the bench is in favour of the assessee on the point of limitation and the counsel should not object for allowing time to the department for production of records. It was announced in the open court. Therefore, the counsel appearing on behalf of the assessee did not repeat his argument on other points on the last date of hearing. 17) That it is humbly stated all the points were raised both on the point of merits as well as limitation but the learned bench have considered only the considered issue regarding limitation and omitted to deal with other important points on merits citing the decision of Supreme Court in Malbar Industries 243 ITR 83 affecting the maintainability of the merits of the appeal and for that a decision of the same Cuttack Bench in the case of Mangalam Timber was cited which is a part of Paper Book ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and should not differ from its earlier view simply because contrary view is possible was omitted to be considered. 24) That it is settled law decided by Honourable Supreme Court in ;the case of conflicting decisions the one in favour of the assessee should be adopted. Case Law cited : i) Vegetables Product Ltd. Vs. ITO, 88 ITR 192 (SC) ii) Union of India Vs. Onkar S. Kanwar, 258 ITR 761 (SC). 25) It is very important and surprising to note that on the very same issue of limitation, the same Bench ITAT allowed the appeals in favour of the assessee .declartnq the assessment of 7 (seven) consecutive assessment years in the case of Nidan, Berhampur Vs. ACIT, Central Circle-1, on 16 May, 2018 in ITA No. 32 to 37 / CTK / 2018. Passing the order only few days after the filing of the appeals. 26) That it is also surprising to note that the ab ve appeals were heard and disposed of only few days after filing of appeals in an unusual manner for the reasons best known. Whereas the petitioner has been done grave injustice on the same points of limitation. 27) That the order passed contrary to the judicial discipline is a mistake apparent from liable to be r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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