Shri Dharne G.K., Pune V. DCIT, (Central), Circle 2(2), Pune

ITA 1885/PUN/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2513 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 10-03-2016
• Assessment Year: misc
• Appeal Filed On: 03-10-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K RASTOGI
• Keywords: Block assessment; Right to appeal

Judgement Text

] ]] ] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , !, # $ BEFORE MS. SUSHMA CHOWLA, JM AND SHRI PRADIP KUMAR KEDIA, AM ITA NO.1885/PN/2012 BLOCK ASSESSMENT YEAR 1990-91 TO 2000-01 SHRI DHARNE G. K., L/H ATUL G. DHARNE, PRABHAT ROAD, LANE NO.11, PUNE 411 004. PAN : AIBPD9791N . APPELLANT VS. THE DY. COMMISSIONER OF INCOME TAX, (CENTRAL) CIRCLE-2(2), PUNE. . RESPONDENT / APPELLANT BY : SHRI M. K. KULKARNI / RESPONDENT BY : SHRI S. K. RASTOGI / DATE OF HEARING : 10.03.2016 / DATE OF PRONOUNCEMENT: 18.03.2016 % / ORDER PER PRADIP KUMAR KEDIA, AM : THE PRESENT APPEAL PREFERRED BY THE ASSESSEE IS AGA INST THE ORDER OF CIT(A)-I, PUNE DATED 01.10.2002 RELATING TO BLOCK A SSESSMENT YEAR 1990-91 TO 2000-01 PASSED UNDER SECTION 158BC(C) OF THE INC OME-TAX ACT, 1961 (IN SHORT THE ACT). 2. RELEVANT FACTS GERMANE TO THE PRESENT APPEAL ARE THAT THE ASSESSEE PURSUANT TO NOTICE UNDER SECTION 158BC(C) OF THE AC T FILED RETURN OF INCOME FOR THE BLOCK PERIOD 01.04.1989 TO 14.03.2000 ON 08.06. 2001 IN WHICH HE ADMITTED UNDISCLOSED INCOME OF RS.18,82,978/-. THE ASSESSEE , HOWEVER, DID NOT PAY TAX OF RS.11,29,787/- PAYABLE ON THE IMPUGNED ADMITTED UNDISCLOSED INCOME. THE ASSESSMENT WAS COMPUTED AT RS.24,50,50,784/- AND TA XED THEREON WAS 2 ITA NO.1885/PN/2012 COMPUTED AT RS.16,17,33,520/- VIDE ASSESSMENT DATED 28.03.2002. THE ASSESSEE PREFERRED AN APPEAL BEFORE THE CIT(A). 3. AGAINST THE AFORESAID ASSESSMENT ORDER, THE CIT( A) DISMISSED THE APPEAL AS UN-ADMITTED VIDE ITS ORDER DATED 01.10.2002 ON T HE GROUND THAT SELF ASSESSMENT TAX OF RS.11,29,787/- WHICH WAS MANDATOR ILY REQUIRED TO BE PAID ON THE RETURNED INCOME HAS NOT BEEN PAID. THEREFOR E, THE CIT(A) DISMISSED THE APPEAL FOR NON-COMPLIANCE OF SECTION 249(4)(A) OF THE ACT. 4. AGGRIEVED BY THE ORDER OF THE CIT(A), THE ASSESS EE HAS FILED APPEAL BEFORE THE TRIBUNAL. 5. THE TRIBUNAL ALSO IN ITS EARLIER ORDER VIDE ITA NO.23/PN/2003, ORDER DATED 27.10.2005 DISMISSED THE APPEAL OF THE ASSESS EE AS THE ASSESSEE COULD NOT MAKE AVAILABLE THE EVIDENCE OF PAYMENT OF OUTSTANDI NG SELF ASSESSMENT TAX IN TERMS OF PROVISIONS OF SECTION 249(4)(A) OF THE ACT DESPITE SEVERAL OPPORTUNITIES. 6. IN THE BACKDROP OF THE ABOVE FACTS, THE ASSESSEE AGAIN FILED FRESH APPEAL BEFORE THE TRIBUNAL VIDE FORM NO.36 DATED 28.05.201 5 WHICH IS PRESENTED BEFORE US FOR ADJUDICATION BY WAY OF PRESENT APPEAL . 7. MR. M. K. KULKARNI, THE LD. AUTHORIZED REPRESENT ATIVE FOR THE ASSESSEE SUBMITTED THAT SELF ASSESSMENT TAX OF RS.12,50,000/ - WAS PAID ON 22.08.2008. HE ACCORDINGLY PRESSED HIS CONTENTIONS THAT THE PRE SENT APPEAL BEFORE THE TRIBUNAL SHOULD BE TAKEN AS MAINTAINABLE AFTER PAYM ENT OF SELF ASSESSMENT TAX HITHERTO AND SUITABLE RELIEF AS RAISED BY WAY OF GR OUNDS OF APPEAL SHOULD BE GRANTED TO THE ASSESSEE. 8. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVE NUE OBJECTED TO THE SUBMISSIONS OF THE ASSESSEE AND SUBMITTED THAT SECO ND APPEAL IS NOT MAINTAINABLE AT THE THRESHOLD. 3 ITA NO.1885/PN/2012 9. WE FIND AT THE OUTSET THAT THE PRESENT APPEAL IN ITA NO.1885/PN/2012 CANNOT BE ENTERTAINED. THE ASSESSEE HAS ALREADY AV AILED REMEDY BY FILING APPEAL BEFORE THE TRIBUNAL IN ITA NO.23/PN/2003 DAT ED 27.10.2005 WHICH HAS BEEN DISPOSED OF UNDER SECTION 254(1) OF THE ACT AS PER PROCEDURE PRESCRIBED IN LAW. THE STATUTE PROVIDES REMEDY AGAINST THE OR DER PASSED UNDER SECTION 254(1) OF THE ACT IN SPECIFIED CIRCUMSTANCES BY WAY OF RECALLING THE PREVIOUS ORDER OF THE TRIBUNAL IN TERMS OF SECTION 254(2) OF THE ACT. THE ASSESSEE FAILED TO TAKE RECOURSE TO THE REMEDY AVAILABLE UNDER STAT UTE. THE PREVIOUS ORDER HAS NOT BEEN CANCELLED OR RECALLED BY THE TRIBUNAL. ON THE FACE OF SUBSISTING ORDER OF THE TRIBUNAL ON THE SAME CAUSE OF ACTION IN THE CASE OF SAME ASSESSEE, IT IS DENUDED OF ITS POWER TO SIT IN APPEAL IN THE SAME M ATTER AFRESH. THERE IS NO PROVISION IN ACT TO ENTERTAIN THE SECOND APPEAL AGA IN ON THE SAME CAUSE OF ACTION ARISING FROM THE ORDER OF THE CIT(A). NEEDL ESS TO SAY, THE RIGHT TO APPEAL IS NOT INHERENT RIGHT VESTED UPON THE ASSESS EE. THE RIGHT TO APPEAL UNDER INCOME-TAX ACT ARE STATUTORY IN NATURE AND ARE GOVE RNED BY SPECIFIC STATUTORY PROVISIONS IN THIS REGARD. HAVING ALREADY DISPOSED OF THE APPEAL ARISING OUT OF THE ORDER OF THE CIT(A), THE TRIBUNAL IS NOT VESTED WITH POWER TO ENTERTAIN FRESH APPEAL ON THE SAME CAUSE OF ACTION. THE TRIB UNAL HAVING PASSED AN ORDER IN ITA NO.23/PN/2003 DATED 27.10.2005 HAS BECOME FUNCTUS OFFICIO AND IS NOT CONFERRED WITH POWER TO REVIEW IN SUPERSESSION OF I TS EARLIER ORDER. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED AS NOT MAINTAINABLE IN LAW. ORDER PRONOUNCED ON THIS 18 TH DAY OF MARCH, 2016. SD/- SD/- ( SUSHMA CHOWLA ) ( PRADIP KUMAR KEDIA ) / JUDICIAL MEMBER # / ACCOUNTANT MEMBER PUNE ; DATED : 18 TH MARCH, 2016. 4 ITA NO.1885/PN/2012 % & '() *)' / COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-I, PUNE; 4) THE CIT-I, PUNE; 5) THE DR A BENCH, I.T.A.T., PUNE; 6) GUARD FILE. %+ / BY ORDER , ' # //TRUE COPY// $ %& # '( / SR. PRIVATE SECRETARY ) '* , / ITAT, PUNE