THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI M. BALAGANESH, (AM) AND SHRI AMARJIT SINGH (JM) M.A. N0.725/M/2018 I.T.A. No.5831/Mum/2014 (Assessment Year: 2006-07) Oleofine Organics DCIT Circle-10(2) (India) Pvt. Ltd. Vs. Aayakar Bhavan Maharshi (Now amalgamated with Karve Marg, Mumbai- Fine Organic Industries 400020. Ltd .) Fine House, Anandji Street Off M. G. Road, Ghatkopar (E), Mumbai- 400077. PAN/GIR No. : AAACO1352Q (Appellant) .. (Respondent) Assessee by: Shri K.K. Ved/ Ms. S. R. Khatri Revenue by: Shri Manish Kr. Singh (Sr. AR) Date of Hearing: 15.03.2019 Date of Pronouncement: 12.04.2019 ORDER PER AMARJIT SINGH (JM): This order shall dispose of Miscellaneous Application Bearing No. 725/M/18Arising out of ITA. No. 5831/M/14 for A.Y.2006-07. 2. It is averred that Hon ble ITAT has decided appeal bearing ITA No.5831/M/2014 for A.Y.2006-07 on dated 17.04.2015. applicant raised three grounds which are hereby reproduced as under.:- 1. re-opening of assessment u/s 147 and consequential re- assessment u/s 143(3) r.w.s. 147 is invalid and bad in law. 2. Ld. AO & CIT(A) have failed to appreciate that condition as regards unit being small scale is required to be satisfied/examined only in first/initial year of claiming of deduction u/s 80IB(3). 3. Ld. AO has erred on facts and in law in denying claim of deduction of Rs.2,20,37,548/- made u/s 80IB(3). CIT(A) has erred in confirming same. 2 M No.725/M/2018 A.Y.2006-07 After hearing appeal, Hon ble ITAT has decided case on merits but did not decide legal issue raised as ground no. 1. Thereafter, revenue has filed appeal before Hon ble High Court by virtue of ITA No. 449 of 2016 and grounds on merits has been decided in favour of revenue. Hon ble High Court also allowed assessee to raise legal grounds before Hon ble ITAT, therefore, order qua legal ground which has been mentioned at serial number 1 is liable to be recalled and to be decided in interest of justice. 3. We have heard argument advanced by Ld. Representative of parties and perused record. Hon ble ITAT has decided ITA. No.5831 & 5832/M/2014 for A.Y. 2006-07 & 2010-11 by virtue of order dated 17.04.2015. However, present miscellaneous application has been filed in pursuance of order passed by Hon ble ITAT in ITA. No.5831/M/2014 for A.Y. 2006-07. Hon ble ITAT has decided case on merits and allowed claim of assessee by virtue of order dated 17.04.2015. legal issue was not decided. Subsequently, revenue filed appeal before Hon ble High Court of Bombay in view of Income Tax Appeal No.449 of 2016 which was decided in favour of revenue on merits by virtue of order dated 04.02.2019. relevant finding has been given in para no. 3 which is hereby reproduced as under.: - 3. It is undisputed position that question is decided in favour of Revenue by judgment of Supreme Court in case of Deputy Commissioner of Income Tax Vs. ACE Multi Axes Systems, 401 ITR 141. Identical issue had also come up for consideration in Income Tax Appeal No.455 of 2016 filed by Revenue against this very assessee, in which this Court had by order dated 9 February, 2018 allowed Revenue's appeal. This appeal, however, would present another angle to entire controversy. Before Tribunal, assessee had questioned very jurisdiction of Assessing Officer to reopen assessment during which proceedings, subject issue come up for consideration. Tribunal in impugned judgment in view of holding issue on merits in favour of assessee, did not find it necessary to examine question of validity of 2 3 M No.725/M/2018 A.Y.2006-07 reopening of assessment. Now that we have reversed decision of Tribunal on merits of assessee's claim of deduction, question of validity of reopening of assessment assumes significance. As noted, though such question was raised before Tribunal, Tribunal did not decide same being alternative contention. Under circumstances, this question we place back to Tribunal for its consideration and decision on merits. For such limited purpose, proceedings are placed before Tribunal. We are informed that assessee has already filed application for rectification before Tribunal on this ground. It would be open to Tribunal to combine above application with this direction and give common decision. 4. On appraisal of above mentioned finding, we are of view that legal issue is required to be decided by Hon ble ITAT, therefore, we recall order to that extent and adjourned case on 16.05.2019 for arguments, there is no need to issue notices to parties because decision has been announced in presence of representative of parties. Accordingly, we allowed present miscellaneous application. 5. In result, miscellaneous application filed by assessee is allowed. Order pronounced in open court on 12.04.2019. Sd/- Sd/- (M. BALAGANESH) (AMARJIT SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai; Dated : 12.04.2019 Vijay 3 4 M No.725/M/2018 A.Y.2006-07 /Copy of Order forwarded to : 1. Appellant 2. Respondent. 3. CIT(A)- 4.CIT 5. DR, ITAT, Mumbai 6. Guard file. BY ORDER, True Copy (Dy./Asstt.Registrar) ITAT, Mumbai 4 Oleofine Organics (India) Pvt. Ltd. (Now amalgamated with Fine Organic Industries Ltd.) v. DCIT Circle-10(2), Mumbai