Shri M.Basheer Ahamed, Needamangalam V. ITO, Nagapattinam

ITA 1569/CHNY/2009

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6531 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 7 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 04-05-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 07-10-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S SRIDHAR
• Section: 154

Judgement Text

IN THE INCOME - TAX APPELLATE TRIBUNAL CHENNAI A BENCH, CHENNAI. BEFORE SHRI.U.B.S. BEDI J.M. & SHRI. N.S. SAINI A.M. I.T.A. NO. 1569 / MDS/2009 ASSESSMENT YEAR: 2001 - 02 SHRI BASHEER AHAMED, C/O KEEN & CO., CA, WHITE HOUSE , 55 - A SOUTH MAIN STREET, TIRUVA RUR 610 001. [PAN: A IOPB6763D ] VS. THE INCOME TAX OFFICER, WARD I(2), NAGAPATTINAM. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI S. SRIDHAR REVENUE BY : SHRI SHAJI P. JACOB ORDER PER U.B.S. BEDI, J.M . TH IS APPEAL OF THE ASSESSEE IS DIRECTED AG AINST THE ORDER OF THE LD. CIT(A) , TIRUCHIRAPALLI DATED 29 . 0 7 .200 9 PASSED UNDER SECTION 154 OF THE INCOME TAX ACT FOR THE ASSESSMENT YEAR 2001 - 02. 2. THIS APPEAL WAS FOUND TO BE DEFECTIVE IN AS MUCH AS THE TRIBUNAL FEE PAID WAS TO THE EXTENT OF ` .500/ - A GAINST DUE AMOUNT OF ` . 5738/ - AND DEFICIENCY LETTER WAS ISSUED TO THE ASSESSEE, WHO MADE GOOD THE DEFICIENCY BY PAYING THE DEFICIT FEE OF ` . 5240/ - ON 01.12.2009 AND THE ASSESSEE S COUNSEL REQUESTED THAT SINCE THE PAYMENT OF DEFICIT FEE HAS BEEN MADE AT THE VERY FIRST OPPORTUNITY ON NOTICE RECEIVED AND THE ASSESSEE WAS U N DER BONAFIDE IMPRESSION THAT THE APPEAL FEE AGAINST ORDER PASSED BY THE LD. CIT(A) UNDER SECTION 154 IS ONLY ` .500/ - , T HEREFORE THE DELAY, IF ANY , SHOULD BE CONDONED AND THE APPEAL BE I.T.A. NO . 1 569/MDS/09 2 ADMITT ED FOR HEARING. THE LD. DR DID NOT OBJECT TO SUCH PLEA OF THE ASSESSEE S COUNSEL. 2.1 AFTER HEARING BOTH THE SIDES AND CONSIDERING THE RIVAL SUBMISSIONS, WE ARE SATISFIED THAT THE DELAY CAUSED IN MAKING DEFICIT FEE IS FOR A BONAFIDE REASON, THEREFORE, WHI LE ACCEPTING THE REQUEST OF THE ASSESSEE S COUNSEL, WE ADMIT THE APPEAL FOR HEARING. 3. WHILE ARGUING THE APPEAL ON MERIT, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD FILED APPLICATION UNDER SECTION 154 BEFORE THE LD. CIT(A) POINTING OUT CERTAIN GLARING MISTAKE S IN HIS ORDER AND HE, WITHOUT APPROPRIATELY CONSIDERING THOSE APPARENT MISTAKE S IN THE ORDER PASSED, REJECTED SUCH APPLICATION. THEREFORE, THE ORDER OF THE LD. CIT(A) IS NOT TENABLE IN LAW. IT WAS FURTHER SUBMITTED THAT THE ASS ESSEE HAS RAISED VERY VITAL ISSUE IN THE APPLICATION FILED BEFORE THE LD. CIT(A) AND BY FILING COPY OF THE SAID APPLICATION POINTING OUT VARIOUS PLEA S RAISED IN THE SAID APPLICATION , HAS SUBMITTED THAT THE ORDER OF THE LD. CIT(A) PASSED ON THE APPLICATION OF THE ASSESSEE UNDER SECTION 154 SHOULD BE SET ASIDE AND MATTER SHOULD BE RESTORED BACK ON THE FILE OF THE LD. CIT(A) WITH THE DIRECTION TO PASS APPROPRIATE AND LEGAL ORDER ON THE APPLICATION OF THE ASSESSEE. HE WAS FAIR ENOUGH TO FURTHER SUBMIT THAT NO D OUBT, THE ORDER OF THE LD. CIT(A) HAS BEEN CONFIRMED BY THE TRIBUNAL AND FURTHER APPEAL HAS BEEN FILED BY THE ASSESSEE IN THE HIGH COURT STILL , THE ASSESSEE COULD INVOKE THE JURISDICTION OF THE LD. CIT(A) UNDER SECTION 154 TO CONSIDER AND DECIDE THE ISSUE S WHICH WERE SUBJECT MATTER OF APPEAL AND WERE NOT DECIDED BY HIM, BECAUSE THERE IS SPECIFIC PROVISION IN THIS REGARD, WHICH COULD NOT BE OVERLOOKED I.T.A. NO . 1 569/MDS/09 3 OR BRUSHED ASIDE BY JUST REJECTING THE APPLICATION . S INCE THERE ARE GLARING MISTAKE S, I T WAS , THUS PLEADED F OR APPROPRIATE RELIEF. AT THIS JUNCTURE, IT WAS POINTED OUT TO THE LD. COUNSEL FOR THE ASSESSEE THAT WHETHER ALL THE POINTS RAISED IN THE APPLICATION OF THE ASSESSEE WERE ALSO PART OF THE GROUNDS OF APPEAL BEFORE THE TRIBUNAL OR NOT AND TO ANSWER THIS QUER Y, IT WAS SUBMITTED BY THE LD. AR THAT PARTLY THOSE ISSUES WERE RAISED AND PARTLY NOT RAISED AND TO DEMONSTRATE THIS, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE IN RELATION TO NON - SERVICE OF NOTICE UNDER SECTION 143(2) WAS RAISED, BUT NOT AP PROPRIATELY DEALT WITH BY THE LD. CIT(A) THOUGH CONSIDERED, AS SUCH, IT GIVES VALID CAUSE FOR RECTIFICATION, IT WAS, THUS PLEADED THAT THE ORDER OF THE LD. CIT(A) SHOULD BE SET ASIDE AND MATTER MAY BE RESTORED BACK ON HIS FILE WITH THE DIRECTION TO DECIDE THE RECTIFICATION APPLICATION AFRESH. WHEREAS, THE LD. DR SUBMITTED THAT THE ASSESSEE HAS NEITHER POINTED OUT ANY MISTAKE BEFORE THE LD. CIT(A) IN THE ORDER ORIGINALLY PASSED BY HIM NOR BEFORE US TO SHOW THAT THERE IS ANY APPARENT MISTAKE, WHICH REQUIRES R ECTIFICATION, OTHERWISE ALSO, THE POINTS WHICH WERE RAISED IN THE APPLICATION OF THE ASSESSEE BEFORE THE LD. CIT(A) WERE DULY RAISED IN THE APPEAL OF THE ASSESSEE , WHO CONSIDERED ALL THOSE POINTS AND DECIDED THE APPEAL GIVING ELABORATE REASONING AND BASIS . SO, THERE WAS NO REASON FOR RECTIFYING THE ORDER AND THE LD. CIT(A) HAS, AFTER APPROPRIATELY CONSIDERING THE APPLICATION OF THE ASSESSEE AND THE APPEAL ORDER PASSED, DISMISSED THE APPLICATION AND SINCE THE PLEAS AS RAISED IN THE APPLICATION DO NOT GIVE A NY CAUSE FOR RECTIFICATION, AS THERE IS NO MISTAKE APPARENT FROM THE ORDER PASSED BY THE LD. CIT(A) IN APPEAL PROCEEDINGS, THEREFORE THE APPLICATION OF THE I.T.A. NO . 1 569/MDS/09 4 ASSESSEE HAS RIGHTLY BEEN REJECTED BY THE LD. CIT(A), WHOSE ACTION IS FREE FROM ANY INFIRMITY OR FLA W, REQUIRES FURTHER CONFIRMATION. IT WAS, THUS PLEADED FOR CONFIRMATION OF THE IMPUGNED ORDER. 4. WE HAVE HEARD BOTH THE SIDES AND CONSIDERED THE MATERIAL ON RECORD AND FIND THAT THE ASSESSEE HAS NOT BEEN ABLE TO POINT OUT ANY APPARENT MISTAKE IN THE ORD ER PASSED BY THE LD. CIT(A) IN APPEAL AND MOREOVER ALL THE POINTS RAISED IN THE APPLICATION UNDER SECTION 154 HAVE BEEN RAISED IN THE APPEAL, WHICH HAVE DULY BEEN CONSIDERED AND DECIDED BY PASSING A SPEAKING ORDER, WHICH ORDER HAS ALREADY BEEN CONFIRMED BY THE TRIBUNAL. THEREFORE, IN VIEW OF THE FACTS, CIRCUMSTANCES AND MATERIAL ON RECORD, WE DO NOT FIND ANY JUSTIFIABLE REASON TO INTERFERE IN THE ORDER PASSED BY THE LD. CIT(A), WHICH IS CONFIRMED AND THE APPEAL OF THE ASSESSEE IS DISMISSED. 5. IN THE RESU LT, THE APPEAL OF THE ASSESSEE STANDS DISMISSED. O RDER PRONOUNCED ON 27 .05 .2011 . SD/ - SD/ - ( N.S. SAINI ) ACCOUNTANT MEMBER (U.B.S. BEDI) JUDICIAL MEMBER CHENNAI, DATED, THE 27 . 0 5 .2011 VM/ - TO:THE ASSESSEE//A.O./CIT(A)/CIT/D.R .