The ITO, Ward-3,, Mehsana v. Shri Shakaraji Viraji Thakor, Mehsana

MA 278/AHD/2008 | 1995-1996
Pronouncement Date: 18-02-2010 | Result: Dismissed

Appeal Details

RSA Number 27820524 RSA 2008
Bench Ahmedabad
Appeal Number MA 278/AHD/2008
Duration Of Justice 1 year(s) 3 month(s) 1 day(s)
Appellant The ITO, Ward-3,, Mehsana
Respondent Shri Shakaraji Viraji Thakor, Mehsana
Appeal Type Miscellaneous Application
Pronouncement Date 18-02-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted SMC
Tribunal Order Date 18-02-2010
Assessment Year 1995-1996
Appeal Filed On 17-11-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL : D BENCH : A HMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA J.M. & HONBLE SH RI N.S. SAINI A.M.) M.A. NOS. 275 276 277 & 278/AHD./2008 (ARISING OUT OF I.T.A. NOS. 198 199 200 & 201 /AHD./2008) ASSESSMENT YEAR : 1992-1993 TO 1995-1996 INCOME TAX OFFICER WARD-3 MEHSANA VS.- SHRI SH AKRAJI VISAJI THAKOR KALOL (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI C.K. MISHRA SR . D.R. RESPONDENT BY : SHRI UMAID SINGH BHATI O R D E R PER SHRI T.K. SHARMA JUDICIAL MEMBER : THESE MISCELLANEOUS APPLICATIONS FILED BY THE REVEN UE ARE ARISING OUT OF THE DECISION DATED 11.06.2008 OF THE ITAT SMC BENCH AHMEDABAD IN I .T.A. NOS. 198 TO 201/AHD./2008 FOR THE ASSESSMENT YEARS 1992-93 TO 1995-96 RESPECTIVELY. T HE CONTENTS OF THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE READ AS UNDER :- BACK GROUND FACTS OF THE MISCELLANEOUS APPLICATION VIDE ITS ORDER IN ITA NO. 198 199 200 AND 201/AHD /2008 DATED 11.06.2008 HON'BLE ITAT HAS DISPOSED OFF THE DEPART MENTAL APPEAL FOR A.Y. 1992-93 1993-94 1994-95 & 1995-96. 2. THE FACTS OF THE CASES ARE THAT THE ISSUE OF NO TICE U/S. 148 WAS ON THE BASIS OF AUDIT OBJECTION AND THERE WAS NO INDEP ENDENT SATISFACTION OF THE A.O. AND THE NOTICE U/S. 148 WAS NOT PROPERLY S ERVED. C.I.T(A) HAS ALLOWED THE APPEAL OF THE ASSESSEE STATING THAT THE RE-OPENING U/S. 147 OF THE ACT WAS NOT PROPER AND ACCORDINGLY THE NOTICE I SSUED U/S. 148 AND THE ASSESSMENT FRAMED THEREAFTER ARE QUASHED. 3. THE DEPARTMENT WENT IN APPEAL BEFORE THE ITAT AND THE HON'BLE ITAT HAS DISMISSED THE REVENUES APPEAL ILLUMINE RE LYING UPON THE DECISION OF THE HON'BLE ITAT RAJKOT BENCH IN THE C ASE OF RAJOO ENGINEERS LTD. CBDTS CIRCULAR DATED 24.10.2005. 4. THE HON'BLE ITAT HAS ERRED IN DISMISSING THE REV ENUES APPEAL ILLUMINE RELYING ON THE BASIS OF TAX EFFECT. SINCE IN THESE CASES THE REMEDIAL ACTION WERE TAKEN AS PER AUDIT OBJECTION SO THESE CASES COME UNDER THE EXCEPTIONAL CATEGORY. WHERE THE APPEALS N EED TO BE FILED IRRESPECTIVE OF TAX EFFECT. 2 MA NOS. 275-278/AHD/200 8 5. IT IS PRAYED THAT THE MISTAKE AS POINTED OUT ABO VE MAY KINDLY BE RECTIFIED. 2. AT THE TIME OF HEARING ON BEHALF OF REVENUE SHRI C.K. MISHRA SR. D.R. APPEARED AND CONTENDED THAT IN THESE CASES OF THE DEPARTMENT FOR ALL THE F OUR ASSESSMENT YEARS UNDER APPEALS THE REMEDIAL ACT ION WERE TAKEN AS PER AUDIT OBJECTION THEREFORE THESE CASES COME UNDER THE EXCEPTIONAL CATEGORY. THE HON'BLE TRIBUNAL DISMISSED ALL THE APPEALS ON THE G ROUND THAT TAX EFFECT IN EACH ASSESSMENT YEAR UNDER CONSIDERATION IS BELOW RS.2 LAKHS. THE LD. D.R. SUB MITTED THAT ALL THE APPEALS FILED BY THE REVENUE AR E COVERED UNDER THE EXCEPTIONAL CATEGORY THEREFORE INSTEAD OF DISMISSING THE APPEALS THE TRIBUNAL OUG HT TO HAVE DECIDED ALL THE FOUR APPEALS OF THE REVENUE ON MERITS. SINCE THIS WAS NOT DONE THE TRIBUNAL MAY RE- CALL ITS ORDER AND DECIDE ALL THE APPEALS OF THE RE VENUE AFRESH AFTER PROVIDING OPPORTUNITY OF BEING H EARD TO THE ASSESSEE. 3. ON THE OTHER HAND SHRI UMAID SINGH BHATI APPEAR ED ON BEHALF OF THE ASSESSEE AND CONTENDED THAT THE MOOT QUESTION FOR CONSIDERATION IS THAT WHETHER THE AUDIT OBJECTION WAS ACCEPTED BY THE DEPARTMENT OR NOT IRRESPECTIVE OF REMEDIAL ACTION. IF THE AUDIT O BJECTION IS NOT ACCEPTED BY THE DEPARTMENT THEN TH E REMEDIAL ACTION AS PER AUDIT OBJECTION WOULD NOT BE APPLICABLE. NEITHER IN THE GROUNDS OF APPEALS NOR AT THE TIME OF HEARING THE LD. D.R. POINTED OUT OR PR ODUCED ANY EVIDENCE TO SHOW THAT THE AUDIT OBJECTIO N WAS ACCEPTED BY THE DEPARTMENT. EVEN OTHERWISE ALSO IN VIEW OF THE JUDGMENT OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS.- CONCORD PHARMAC EUTICALS [14 DTR (GUJ.) 186] THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE ARE REQUIRED TO B E DISMISSED BECAUSE THE REVENUE HAS NOT MENTIONED IN THE GROUNDS OF APPEALS THAT THE ASSESSMENTS WERE RE-OPENED ON THE BASIS OF AUDIT OBJECTION. HE ACCORDINGLY SUBMITTED THAT THERE IS NO MISTAKE APPA RENT FROM THE RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE INCOME TAX ACT 1961. THEREFORE ALL THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE BE DISMISSED. 4. RIVAL SUBMISSIONS WERE CONSIDERED. THE HON'BLE G UJARAT HIGH COURT IN THE CASE OF CONCORD PHARMACEUTICALS (SUPRA) HELD AS UNDER :- APPEALS FILED BY THE DEPARTMENT BEFORE TRIBUNAL HA VING TAX EFFECT BELOW THE LIMITS PRESCRIBED BY CBDT CIRCULARS WERE RIGHTLY DI SMISSED BY TRIBUNAL WITHOUT GOING INTO MERITS; HOWEVER IN CASES WHERE OBJECTIO NS WERE RAISED BEFORE TRIBUNAL EITHER IN THE MEMO OF APPEAL OR AT THE TIME OF HEAR ING TO THE EFFECT THAT PARTICULAR APPEAL WAS COVERED BY AN EXCEPTION AND DESPITE THAT THE TRIBUNAL HAD DISMISSED THE APPEAL WITHOUT CONSIDERING THE SAID OBJECTION AN APPLICATION MAY BE MADE BY THE DEPARTMENT BEFORE THE TRIBUNAL WHEREUPON THE TR IBUNAL MAY CONSIDER THE SAME. 3 MA NOS. 275-278/AHD/200 8 5. IT IS PERTINENT TO NOTE THAT IN THE GROUNDS OF A PPEALS REVENUE HAS NOT MENTIONED THAT THE APPEALS BY THE REVENUE WERE FILED ON THE BASIS OF AUDIT OBJ ECTION WHICH ARE ACCEPTED. THE TRIBUNAL HAS DECIDE D ALL THE APPEALS ON THE BASIS OF SUBMISSIONS MADE AT THE TIME OF HEARING. AS A MATTER OF FACT TRIBUNAL HAS TAKEN A CONSCIOUS DECISION AND BY THESE MISCELLANEO US APPLICATIONS REVENUE IS MERELY SEEKING THE REVIEW. 6. AFTER HEARING BOTH THE SIDES WE HAVE CAREFULLY GONE THROUGH THE CONTENTS OF THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE. WE FIND CONSIDER ABLE FORCE IN THE SUBMISSION MADE BY THE LD. AUTHORIZED REPRESENTATIVE OF THE ASSESSEE THAT THER E IS NO MISTAKE APPARENT FROM RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE INCOME TAX ACT 19 61. IT IS WELL SETTLED LAW THAT TRIBUNAL HAS NO POW ER TO REVIEW ITS OWN ORDER UNDER SECTION 254(2) OF THE ACT. THE TRIBUNAL CANNOT IN EXERCISE OF ITS POWER OF RECTIFICATION UNDER SECTION 254(2) LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT OF ITS VIEW. IN THESE CASES TRIBUNAL AFTER CONSIDERING THE RIVAL SUBMISSIONS AT THE TIME OF HEARING DISMISSED THE APPEALS ON THE GROUND THAT THE TAX EF FECT IN EACH OF THE APPEALS IS BELOW RS. 2 LAKHS. T O THIS PROPOSITION AT THE TIME OF HEARING NO OBJECTION W AS RAISED BY THE LD. D.R.. BE THAT AS IT MAY BY TH ESE MISCELLANEOUS APPLICATIONS THE REVENUE IS MERELY S EEKING REVIEW OF ORDER OF THE TRIBUNAL AND ADMITTEDLY THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER. 7. THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. KA RAM CHAND THAPAR AND BROSS P. LTD. REPORTED IN 176 ITR 535 (SC) HELD THAT THE DECISION OF THE TRIBUNAL HAS NOT TO BE SCRUTINIZED SENTENCE BY SENTENCE MERELY TO FIND OUT WHETHER SOME INCIDENTAL FACT WHICH APPEARS ON THE RECORD HAS NOT BEEN NOTICED BY THE TRIBUNAL IN ITS JUDGMENT. IN OUR OPI NION THERE IS NO MISTAKE APPARENT FROM RECORD WITH IN THE MEANING OF SECTION 254 (2). HOWEVER IT IS WEL L SETTLED LAW THAT WHAT CAN BE RECTIFIED U/S. 254 ( 2) IS A MISTAKE WHICH IS APPARENT AND PATENT FROM THE RECO RD. UNLESS THERE ARE MANIFEST ERRORS WHICH ARE OBVIOUS CLEAR AND SELF-EVIDENT THE TRIBUNAL CANNO T RECALL ITS PREVIOUS ORDER IN AN ATTEMPT TO REVIEW THE ORDER. THE MISTAKE HAS TO BE SUCH FOR WHICH NO ELAB ORATE REASON OR ENQUIRY IS NECESSARY. THE POWERS SO CONFERRED U/S. 254 (2) DO NOT CONTEMPLATE REHEARING WHICH WOULD HAVE THE EFFECT OF RE-WRITING AN ORDER AFFECTING THE MERITS OF THE CASE. OTHERWISE THERE W OULD BE NO DISTINCTION BETWEEN THE POWER TO REVIEW AND THE POWER TO RECTIFY A MISTAKE. THE POINT RAISED IN THE MISC. APPLICATION SUBMITTED BY THE REVENUE VIRTUALLY SEEKS A REVIEW OF THE ORDER PASSED BY THI S TRIBUNAL WHICH IS CLEARLY BEYOND THE SCOPE OF SECTION 254 (2). 8. IN VIEW OF THE FOREGOING DISCUSSION WE ARE CONV INCED THAT THERE CANNOT BE ANY DISPUTE WITH THE PROPOSITION THAT POWER UNDER SUB-SECTION (2) OF SEC TION 254 IS TO RECTIFY THE MISTAKE APPARENT FROM TH E 4 MA NOS. 275-278/AHD/200 8 RECORD BUT THAT POWER DOES NOT CLOTHE THE TRIBUNAL WITH THE JURISDICTION TO REVIEW OF ITS EARLIER ORD ER OR RE- WRITE A FRESH JUDGMENT. BY PRESENT MISCELLANEOUS AP PLICATIONS REVENUE VIRTUALLY SEEKING REVIEW THEREFORE ALL THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE ARE REJECTED. 9. IN THE RESULT ALL THE MISCELLANEOUS APPLICATION S FILED BY THE DEPARTMENT ARE DISMISSED. THE ORDER WAS PRONOUNCED IN THE COURT ON 18.02.201 0 SD/- SD/- (N.S. SAINI) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 18 / 02 / 2010 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R. ITAT AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGIS TRAR ITAT AHMEDABAD LAHA/SR.P.S.