RIDDHI SIDDHI COMM. CO. LTD, MUMBAI V. ITO WD 3(3)(1), MUMBAI

ITA 3865/MUM/2009

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75766 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 01-08-2013
• Assessment Year: 1990-1991
• Appeal Filed On: 15-06-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Rectification of order; Search and seizure; Principle of natural justice; Period of limitation; Time period of passing order; Reassessment proceedings
• Section: 143(3); 68; 148; 90; 154

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D , MUMBAI [ , [ , BEFORE SHRI RAJENDRA , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDIC IAL MEMBER ./ ITA NO S . 3864 & 3865/M/2009 ( [ [ / ASSESSMENT YEAR S : 1989 - 90 & 1990 - 91 ) M/S. RIDDHI SIDDHI COMM. CO. LTD. SHRI DINESH JAJODIA, C.A. BHARAT PHOTO HOUSE, R.NO. 4, ( 1 ST FLOOR ) , 547, KALBADEVI ROAD, MUMBAI 400 00 2 PAN: AAAC R1886N / VS. ITO - WD.3(3)(1), AAYAKAR BHAVAN, 6 TH FLOOR, M.K. ROAD, MUMBAI 20 ( / APPELLANT) ( / RESPONDENT) / ASSESSEE BY : SHRI A.K. SHARMA, A.R. / R ESPONDENT B Y : SHRI SANJEEV JAIN, D.R. / DATE OF HEARING : 24.02 . 201 4 / DATE OF PRONOUNCEMENT : 28.02.2014 / O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE ABOVE NOTED APPEALS HAVE BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS CIT(A)] RELATING TO ASSESSMENT YEARS 1989 - 90 AND 1990 - 91 RESPECTIVELY, BOTH DECIDED BY WAY OF SEPARATE ORDERS DATED 31.03.09. SINCE THE GROUNDS OF APPEAL RAISED IN BOTH THE APPEALS ARE IDENTICAL AND EVEN THE FACTS AND CIRCUMSTANCES AND THE ISSUES RAISED THEREIN ARE ALSO IDENTICAL, HENCE BOTH THE APPEALS ARE TAKEN UP TOGETHER FOR DISPOSAL WITH THIS COMMON ORDER. FOR THE SAKE OF CONVENIENCE FACTS HAVE BEEN TAKEN FROM THE ITA NO.3864/M/2009. ITA NO .3864 & 3865/M/2009 M/S. RIDDHI SIDDHI COMM. CO. LTD. 2 2. THE BRIEF FACTS ARE THAT A SEARCH AND SEIZURE ACTION WAS CARRIED OUT AT THE PREMISES OF ONE SHRI SHIVCHARAN AGAR WAL, WHO WAS TAX CONSULTANT OF THE ASSESSEE COMPANY. ON THE BAS IS O F T H E SEIZED MATERIAL FOUND AT THE PREMISES O F SHRI SHIVCHARAN AGARWAL , SUBSTANTIAL ADDITION OF RS.17, 00 , 000/ - AND RS.39,20, 000/ - WERE MADE IN THE HANDS OF THE ASSESSEE I N AN ASSESSMENT MADE VIDE ASSESSMENT ORDER DATED 28.03.2001, UNDER SECTION 143(3) R.W.S. 1 4 7 OF THE INCOME TAX ACT (HEREINAFTER REFE RRED TO AS THE ACT) . PROTECTIVE ADDITIONS WERE MADE IN THE HANDS OF SHRI SHIVCHARAN AGARW AL. BOTH I.E. THE ASSESSEE AS WELL SHRI SHIVCHARAN AGARWAL, CHALLENGED THE ASSESSMENT ORDER IN APPEAL BEFORE THE CIT(A). THE ID. CIT(A) CONFIRMED THE PROTECTIVE ADD ITION IN A. Y .1990 - 91 IN THE HANDS OF SHRI SHIVCHARAN AGARWAL VIDE HIS ORDER DATED 30.03.04 WHEREAS , DELETED THE ADDITION FROM HANDS OF THE ASSESSEE VID E HIS OR DER DATED 3 . 2 . 03. SHRI SHIVCHARAN AGARWAL CHALLENGED TH E ORDER OF L D . CI T ( A ) VIDE ITA N O .3276/M/0 4 . SIM I LARLY THE REVENUE CHALLENGED THE ORDER OF T H E L D . CI T(A ) IN THE CASE OF ASSESSEE VI D E ITA NO.4373 & 4374/ M /03 IN ASSESSMENT YEAR 1989 - 90 & 90 - 91. THE TRIBUNAL DECIDED ALL THO SE APPEALS BY A COMMON OR DER D ATED 10.03.06, WHEREBY IT ALLOWED THE APPEAL OF SHRI SHIVCHARAN A GARWAL, DELETED T H E ADDITION FROM HIS HAND AND CONFIRMED THE ADDITION IN THE HANDS OF THE ASSESSEE. 3. DISSATISFIED WITH THE ORDER OF THE TRIBUNAL THE ASSESSEE FILED THE MISCELLANEOUS APPLICATIONS BEARING NO. 351 & 352/M/06 BEFORE TH E TRIBUNAL, CONTENDING THAT THE SUBMISSIONS WERE MADE DURING THE COURSE OF HEARING OF THE APPEAL BEFORE THE TRIBUNAL THAT THE NOTICE UNDER SECTION 143(2) OF THE ACT WAS NOT ISSUED WITHIN THE LIMITATION PROVIDED IN THE PROVISO OF THE SECTION AND FURTHER THA T THE REOPENING OF THE ASSESSMENT BY THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS AO) WAS BAD IN LAW. BUT THE TRIBUNAL HAD FAILED TO CONSIDER THE SUBMISSIONS RELATING TO ABOVE ISSUES WHILE DECIDING THE APPEALS ON ITA NO .3864 & 3865/M/2009 M/S. RIDDHI SIDDHI COMM. CO. LTD. 3 MERITS VIDE ORDER DATED 10.03.06. TH E TRIBUNAL VIDE ORDER DATED 29.10.07 DISMISSED THE SAID APPLICATIONS OBSERVING AS UNDER: THE PRESENT TWO MISCELLANEOUS APPLICATIONS ARE DIRECTED AT THE INSTANCE OF ASSESSEE M/S. RIDDHI SIDHI COMMERCIAL LTD. POINTING OUT AN APPARENT ERROR IN THE ORDER OF THE TRIBUNAL DATED 10/3/06 PASSED IN ITA NOS.4373 & 4374/M/03. 2. WITH THE ASSISTANCE OF LD. REPRESENTATIVES WE HAVE GONE THROUGH THE RECORD CAREFULLY. THE APPEALS OF THE ASSESSEE HAVE BEEN DECIDED BY THE LD. CIT(A) BY A COMMON ORDER DATED 3/2/03. THESE APPEALS WERE HEARD ALONG WITH THE APPEAL OF ONE SHIV CHARAN AGARWAL I.E. ITA NO.3276/M/04. THE ISSUES IN ALL THESE THREE APPEALS WERE INTER CONNECTED AND INTER LINKED. 3. BOTH THE MISCELLANEOUS APPLICATIONS ARE ALMOST SIMILARLY WORDED AND RUNNING INTO 2 1 PAGES. THE ASSESSEE HAS NARRATED THE FACTS OF THE CASE IN BOTH THE MISCELLANEOUS APPLICATIONS. IN PARA TWO OF THE MISCELLANEOUS APPLICATION THE ASSESSEE HAS POINTED OUT THE ARGUMENTS RAISED BY THE LD. COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING THE APPEALS. IN PARA 3 & 4 IT HAS BEEN CONTENDED BY THE ASSESSEE THAT SUBMISSIONS INVOLVING LEGAL ISSUES WERE MADE BY THE LD. COUNSEL FOR THE ASSESSEE I.E. NOTICE UNDER SECTION 143(2) OF THE ACT WAS NOT ISSUED WITHIN THE LIMITATION PROVIDED IN THE PROVISO OF THE SECTION. THE NEXT THE NEXT LEGAL SUBMISSION MADE BY THE LD. COUNSEL FOR THE ASSESSEE WAS IN RESPECT OF RE - OPENING OF ASSESSMENT BY ISSUANCE OF NOTICE UNDER SECTION 148. IT IS PLEADED IN THE APPLICATION THAT LD. COUNSEL FOR THE ASSESSEE SOUGHT TIME FO R MAKING AN APPLICATION TO TAKE UP ALL THESE GROUNDS OF APPEAL. 4. THE LD. COUNSEL FOR THE ASSESSEE SPECIFICALLY TOOK US THROUGH THE MISCELLANEOUS APPLICATION AND CONTENDED THAT TRIBUNAL HAS NOT ITA NO .3864 & 3865/M/2009 M/S. RIDDHI SIDDHI COMM. CO. LTD. 4 CONSIDERED THE ISSUE WITH REGARD TO RE - OPENING OF ASSESSMENT AS WELL AS NON - ISSUE OF NOTICE UNDER SECTION 143(2) OF THE ACT. HE FURTHER CONTENDED THAT THE NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED WITHOUT AVAILING PRIOR APPROVAL FROM THE HIGHER AUTHORITIES. THE A.O CANNOT ISSUE SUCH NOTICE IN VIEW OF THE LIMI TATION PROVIDED UNDER SECTION 151 OF THE ACT. 5. THE LD. D.R., ON THE OTHER HAND, POINTED OUT THAT ALL THESE ISSUES HAVE BEEN CONSIDERED BY THE TRIBUNAL AND THERE IS NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL. 6. WE HAVE DULY CONSIDERED THE RIVAL C ONTENTIONS. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. RAMESH ELECTRIC & TRADING CO. 203 ITR 497 HAS PROPOUNDED THE FOLLOWING PRINCIPLE REQUIRED TO BE KEPT IN MIND WHILE APPRECIATING THE ISSUE, REGARDING FINDING OUT AN APPARENT MISTAKE I F ANY, COMMITTED BY THE TRIBUNAL WHILE EXERCISING THE POWERS UNDER SECTION 254(2) OF THE ACT. THE TRIBUNAL CANNOT, IN EXERCISE OF ITS POWER OF RECTIFICATION LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION SO ARRIVED A T. THE MISTAKE WHICH THE TRIBUNAL IS ENTITLED TO CORRECT IS NOT AN ERROR OF JUDGMENT BUT A MISTAKE WHICH IS APPARENT FROM THE RECORD ITSELF. NO SUCH MISTAKE WAS APPARENT FROM THE RECORD. IN FACT WE DOUBT IF THIS SORT OF AN EXERCISE COULD HAVE BEEN DONE BY THE TRIBUNAL EVEN IF IT HAD THE POWER OF REVIEW. THE TRIBUNAL HAS, PATENTLY, FAR EXCEEDED ITS JURISDICTION UNDER SECTION 254(2) OF THE INCOME - TAX ACT IN REDECIDING THE ENTIRE DISPUTE WHICH WAS BEFORE IT IN THIS FASHION, AND THE TRIBUNAL HAS COMMITTED GROS S AND INEXPLICABLE ERROR FOR REASONS WHICH WE FAIL TO UNDERSTAND. MR. INAMDAR, LEARNED ADVOCATE FOR THE ASSESSEE, DREW OUR ATTENTION TO A JUDGMENT OF THE MADHYA PRADESH HIGH COURT IN THE CASE OF CIT V. ITA NO .3864 & 3865/M/2009 M/S. RIDDHI SIDDHI COMM. CO. LTD. 5 MITHALAL ASHOK KUMAR [1986] 158 ITR 755. THE MADHYA P RADESH HIGH COURT SAID THAT THE TRIBUNAL CAN CORRECT ITS MISTAKE BY RECTIFYING THE SAME IN CASE IT IS BROUGHT TO ITS NOTICE THAT THE MATERIAL WHICH WAS ALREADY ON RECORD BEFORE DECIDING THE APPEAL ON MERITS WAS NOT CONSIDERED BY IT. IT, HOWEVER, SAID THAT THIS WILL DEPEND ON THE FACTS OF EACH CASE. AND WHETHER IT AMOUNTS TO A REVIEW OR RECTIFICATION WILL DEPEND ON THE FACTS OF EACH CASE. IN OUR VIEW, THESE WIDE OBSERVATIONS DO NOT ACCORD WITH THE DECISION OF THE SUPREME COURT ON THIS POINT IN D.S. BALARA M V. VOLKART BROTHERS [1971] 82 ITR 50. SIMILARLY, THE DECISION OF THE ALLAHABAD HIGH COURT IN THE CASE OF LAXMI ELECTRONIC CORPORATION LTD. V. CIT [1991] 188 ITR 398 TO THE EFFECT THAT IF THE TRIBUNAL FAILS OR OMITS TO DEAL WITH AN IMPORTANT CONTENTION A FFECTING THE MAINTAINABILITY/MERITS OF AN APPEAL, IT MUST BE DEEMED TO BE A MISTAKE APPARENT FROM THE RECORD WHICH CAN BE RECTIFIED BY THE TRIBUNAL BY ITS SUBSEQUENT ORDER, IS ALSO, IN OUR VIEW, IN THE TEETH OF THE SUPREME COURT JUDGMENT IN THE CASE OF BAL ARAM V. VOLKART BROTHERS [1971]82 ITR 50. IN FACT, WE FIND THAT THE DECISION IN THE CASE OF BALARAM V. VOLKART BROTHERS [1971]82 ITR 5 (SC), WAS NOT BROUGHT TO THE ATTENTION OF THE LEARNED JUDGES WHO DECIDED THE ABOVE CASE. IN OUR VIEW, THE POWER OF RECT IFICATION UNDER SECTION 254(2) OF THE INCOME - TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS APPARENT FROM THE RECORD AND NOT A MISTAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS, AS HAS BEEN SHOWN IN THE PRESENT CASE. FAILURE BY THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR, APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. I N THE PRESENT CASE, THE ALLEGED FAILURE, AT LEAST ON ONE COUNT, IS ATTRIBUTED BY THE ASSESSEE TO THE INCOME - TAX OFFICER AND ITA NO .3864 & 3865/M/2009 M/S. RIDDHI SIDDHI COMM. CO. LTD. 6 NOT THE TRIBUNAL. IN OUR VIEW, THE TRIBUNAL HAD NO JURISDICTION UNDER SECTION 254(2) TO PASS THE SECOND ORDER. IN THE LIGHT OF THE ABOVE RATIO OF LAW WE HAVE GONE THROUGH THE RECORD CAREFULLY. THE ASSESSEE IN PARA NO.2 OF THE MISCELLANEOUS APPLICATION HAS PROPOUNDED THE SUBMISSIONS RAISED BY ITS COUNSEL AT THE TIME OF HEARING. WE FIND THAT ALL THESE SUBMISSIONS HAVE BEEN CONSIDERED BY THE TRIBUNAL. THE ONLY GRIEVANCE OF THE ASSESSEE IS THAT ISSUES TRIED TO BE RAISED ENUMERATED IN PARA NO.3 & 4 OF THE MISCELLANEOUS APPLICATION WERE NOT PERMITTED TO BE RAISED AND TIME WAS NOT GRANTED FOR FILING ADDITIONAL GROUNDS OF APPEAL. THE ASSE SSMENT IN THIS CASE WAS MADE ON 28/3/01. APPEALS WERE FILED ON 30/4/01. THESE APPEALS WERE DECIDED ON 3/2/03. THE ASSESSEE HAS NEVER TAKEN UP THESE PLEAS BEFORE THE LD. REVENUE AUTHORITIES BELOW. WE HAVE SPECIFICALLY PERUSED THE GROUNDS OF APPEAL FILED BEFORE THE LD. CIT(A). WE HAVE SPECIFICALLY TAKEN CONGNIZANCE OF THE GROUND RAISED BEFORE THE TRIBUNAL IN PARA NO.1 OF THE TRIBUNAL ORDER. THE SUBMISSIONS IN THE MISCELLANEOUS APPLICATION , IS ONLY A DESPERATE ATTEMPT ON THE PART OF ASSESSEE TO SOMEHOW D ISLODGE THE DECISION CAME AGAINST THE ASSESSEE. EVEN AT THE TIME OF HEARING, WE HAVE CONFRONTED THE LD. COUNSEL FOR THE ASSESSEE TO A NUMBER OF MATERIALS. HE HAS NOT RAISED ANY SUCH ARGUMENTS. HE JUST TRIED TO TAKE ADJOURNMENT AFTER HEARING WAS OVER. T HEREFORE, WE DO NOT FIND ANY APPARENT MISTAKE IN THIS ORDER. THE MISCELLANEOUS APPLICATIONS OF THE ASSESSEE ARE DISMISSED. 4 . THEREAFTER THE ASSESSEE AGAIN FILED ANOTHER MISCELLANEOUS APPLICATION NO.680/M/07 RAISING ALMOST THE IDENTICAL ISSUES. THE TR IBUNAL AGAIN DISMISSED THE SAID APPLICATION OF THE ASSESSEE VIDE ORDER DATED 6.5.08 OBSERVING AS UNDER: 4. NOW THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS APPLICATION . WE HEARD THE LD. REPRESENTATIVES AND GONE THROUGH THE APPLICATION ITA NO .3864 & 3865/M/2009 M/S. RIDDHI SIDDHI COMM. CO. LTD. 7 CAREFULLY. ON PERUSAL OF THE RECORD WE FIND THAT ON IDENTICAL FACTS AND CIRCUMSTANCES ASSESSEE HAS FIELD THE EARLIER TWO APPLICATIONS WHICH ARE RUNNING INTO 21 PAGES. IT AGAIN FILED THE PRESENT MISCELLANEOUS APPLICATION WHICH IS RUNNING INTO 10 PAGES. IT HAS REITERAT ED ALL THE FACTS AND ARGUMENTS WHICH HAVE BEEN RAISED DURING THE COURSE OF HEARING OF APPEALS. WE ON THE STRENGTH OF HONBLE BOMBAY HIGH COURT DECISION IN THE CASE OF CIT VS. RAMESH ELECTRIC TRADING COMPANY, 203 ITR 497 HAS TAKEN INTO CONSIDERATION THE PR INCIPLES PROPOUNDED BY THE HONBLE HIGH COURT, WHICH ARE REQUIRED TO BE KEPT IN MIND WHILE APPRECIATING THE ISSUE, REGARDING FINDING OUT OF APPARENT MISTAKE, IF ANY COMMITTED BY THE TRIBUNAL WHILE EXERCISING THE POWERS UNDER SECTION 254(2) OF THE ACT. LET US CONSIDER THE APPARENT MISTAKES POINTED OUT BY THE ASSESSEE IN THE PRESENT MISCELLANEOUS APPLICATION. THE FIRST APPARENT MISTAKE POINTED OUT IN THE MISCELLANEOUS APPLICATION IS THAT NOTICE UNDER SECTION 143(2) WAS ISSUED BEYOND THE PERIOD OF 12 MONTHS FROM END OF THE MONTH IN WHICH RETURNS HAVE BEEN FILED. WE HAVE ALREADY DEALT WITH THIS ISSUE WHILE DISPOSING OF THE EARLIER MISCELLANEOUS APPLICATION. THE SECOND MISTAKE POINTED OUT BY THE ASSESSEE IS THAT THE TRIBUNAL HAS NOT CONSIDERED THE DECISION OF THE CO - ORDINATE BENCH REPORTED IN 36 ITD 247, WHEREIN IT HAS BEEN HELD THAT SECTION 68 CANNOT BE INVOKED IN RESPECT OF REPAYMENT OF LOANS. THE TRIBUNAL IN THE PRESENT CASE HAS CONSIDERED THIS ISSUE IN PARA 17 OF ITS ORDER DISPOSING THE APPEAL OF THE REVE NUE. THE TRIBUNAL HAS TOTALLY DISBELIEVED THIS STORY OF REPAYMENT OF LOANS AND EMPHATICALLY HELD THAT IT IS THE ASSESSEES MONEY WHICH HAS BEEN ROUTED THROUGH BOGUS PAPER ENTITIES TO GIVE A COLOUR OF GENUINE TRANSACTION EXHIBITING THE ADVANCEMENT OF LOAN AND ITS RE - PAYMENT, WHERE IS THE RATIO APPLICABLE IN THE PRESENT CASE. THE DECISIONS OF THE CO - ORDINATE BENCH OR OF THE HIGHER AUTHORITIES ARE NOT REQUIRED TO BE REFERRED IN ROUTINE WAY. THEY ARE TO BE APPLIED IF IDENTICAL SETS OF FACTS ARE AVAILABLE. I N THE NEXT MISTAKE IT HAS BEEN POINTED OUT THAT THE TRIBUNAL HAS VIOLATED THE PRINCIPLE OF NATURAL JUSTICE. WE FIND THAT IT IS AGAIN REITERATION OF THE ARGUMENTS RAISED AT THE TIME OF ORIGINAL HEARING OF APPEALS. THERE IS NO APPARENT MISTAKE POINTED BY T HE ASSESSEE. A NUMBER OF ARGUMENTS NOT CONNECTED WITH ISSUE HAVE BEEN RAISED IN THE MISCELLANEOUS APPLICATION MOREOVER ASSESSEE HAS FILED ONE MISCELLANEOUS APPLICATION WHEREAS THE TRIBUNAL HAS DECIDED TWO APPEALS OF THE REVENUE AND DISPOSED OF TWO MISCELL ANEOUS APPLICATIONS. ANY WAY EVEN IF WE IGNORE THIS TECHNICALITY, THERE IS NO MERIT IN THE CONTENTIONS OF THE ASSESSE E, THEREFORE, IT IS DISMISSED. 5 . IN THE MEANTIME WHEN THE MATTER WAS PENDING BEFORE THE AO FOR GIVING ITA NO .3864 & 3865/M/2009 M/S. RIDDHI SIDDHI COMM. CO. LTD. 8 EFFECT TO THE ORDER OF THE TRIBUN AL DATED 10.03.06 , THE ASSESSEE MOVED ANOTHER RECTIFICATION APPLICATION DATED 28.02.06 UNDER SECTION 154 OF THE ACT WITH THE A SSESSING O FFICER ON 01.03.06 RAISING THE SAME ISSUES AGAIN WHICH WERE RAISED BY THE ASSESSEE VIDE MISCELLANEOUS APPLICATIONS FILE D BEFORE THE TRIBUNAL AND ULTIMATELY DISMISSED BY THE TRIBUNAL. THE AO THEREAFTER PASSED THE ORDER GIVING EFFECT TO THE TRIBUNALS ORDER VIDE ORDER DATED 20.03.07. THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) AGAINST THE ORDER OF THE AO GIVING EFFECT T O THE TRIBUNALS ORDER , RAISING VARIOUS GROUNDS. HOWEVER, THE LD. CIT(A) VIDE IMPUGNED ORDER HELD THAT THE AO WAS JUSTIFYING IN GIVING EFFECT TO THE ORDER OF THE TRIBUNAL. HENCE, THE ASSESSEE IS IN APPEAL BEFORE US. THE GROUNDS OF APPEAL OF THE ASSESSE E ARE AS UNDER: 1 . THE LD. CIT(A) ERRED IN DISMISSING THE GROUND RAISED RELATING TO LIMITATION UNDER SECTION 153(2A) WITHOUT OBTAINING THE PROOF OF SERVICE OF TRIBUNALS ORDER BY THE RESPONDENT. THEREFORE, THE REVENUE BE DIRECTED TO SUPPLY THE PROOF OF SE RVICE AND ACCORDINGLY THE LEGAL GROUND BE ADJUDICATED. 2 . THE LD. CIT(A) ERRED IN DISMISSING THE GROUND RAISED RELATING TO VALIDITY OF PASSING OF EFFECT ORDER DATED 20 - 03 - 2007 WITHOUT DECIDING THE PENDING PETITION UNDER SEC. 154. THEREFORE, THE EFFECT ORD ER DATED 20 - 03 - 2007 BE DECLARED NOT MAINTAINABLE. 3 . THE LD. CIT(A) ERRED IN DISMISSING THE ADDITIONAL GROUND RAISED RELATING TO JURISDICTION OF EFFECT ORDER VIZ - A - VIZ ASSESSMENT ORDER IN VIEW OF FINDING GIVEN BY THE TRIBUNAL IN PARA 10 OF ITS ORDER DATED 10 - 03 - 2006. THEREFORE, THE EFFECT ORDER DATED 20 - 03 - 2007 BE DECLARED AS ILLEGAL. 4 . THE LD. CIT(A) ERRED IN DISMISSING THE ADDITIONAL GROUND RAISED RELATING TO VALIDITY OF RE - OPENING OF ASSESSMENT ORDER DATED 28 - 03 - 2001 WITHOUT RECORDING THE REASONS AND I GNORING THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT (194 ITR 548) R.W. DECISION OF HONBLE S.C. (247 ITR 271). THEREFORE, THE ASSESSMENT MADE BE DECLARED VOID AB - INITIO. ITA NO .3864 & 3865/M/2009 M/S. RIDDHI SIDDHI COMM. CO. LTD. 9 NOW WE TAKE UP FOR ADJUDICATION THE DIFFERENT GROUNDS OF APPEAL . GROUN D NO.1 : 6. THE LD. A.R. AT THE OUTSET HAS STATED THAT HE DOES NOT PRESS THE FIRST GROUND OF APPEAL, HENCE THIS GROUND OF APPEAL IS DISMISSED BEING NOT PRESSED. GROUND NO.2: 7. THE MAIN CONTENTION OF THE LD. A.R. HAS BEEN THAT BEFORE GIVING EFFECT TO TH E ORDER OF THE TRIBUNAL VIDE ORDER DATED 20.03.2007 , THE AO WAS FIRSTLY REQUIRED TO DECIDE THE PENDING PETITION MOVED BY THE ASSESSEE UNDER SECTION 154 OF THE ACT. HE THEREAFTER SUBMITTED THE DETAILED EXPLANATION AS TO HOW THE RE - OPENING OF THE ASSESSMENT WAS BAD IN LAW AND THAT NO NOTICE UNDER SECTI ON 143(2) OF THE ACT WAS ISSUED. T O STRESS THE POINT THAT IF THE ISSUES RAISED BY THE ASSESSEE VIDE ITS MISCELLANEOUS APPLICATION MOVED UNDER SECTION 154 OF THE ACT BEFORE THE AO WOULD HAVE BEEN ADJUDICATED BY THE AO , THEN THE ENTIRE REOPENING WOULD HAVE BEEN SET ASIDE AND AS SUCH THE ORDER GIVING EFFECT TO THE ORDER OF THE TRIBUNAL WAS BAD IN LAW. 8 . ON THE OTHER HAND THE LD. D.R. HAS CONTENDED THAT THE ISSUES RAISED BY THE ASSESSEE VIDE APPLICATION UNDER SECTION 154 BEFORE THE AO HAD ALREADY BEEN CONSIDERED AND DECIDED AGAINST THE ASSESSEE BY THE TRIBUNAL WHILE DISMISSING ITS APPLICATIONS MOVED UNDER SECTION 254(2) OF THE ACT AND FURTHER THAT THE APPLICATION MOVED BY THE ASSESSEE UNDER SECTION 154 OF THE ACT WAS BEYOND THE PERIOD OF LIMITATION OF FOUR YEARS. HE HAS FURTHER CONTENDED THAT THE SCOPE OF SECTION 154 WHICH PERTAINS TO THE RECTIFICATION OF ORDERS APPARENT ON THE RECORD IS VERY LIMITED AND THE DEBATABLE ISSUES INVOLVING EXAMINATION OF EVIDENCE E TC. CANNOT BE DECIDED IN THE APPLICATION UNDER SECTION 154 OF THE ACT. HE HAS FURTHER CONTENDED THAT EVEN PROPER APPROVAL BEFORE REOPENING WAS TAKEN BY THE ITA NO .3864 & 3865/M/2009 M/S. RIDDHI SIDDHI COMM. CO. LTD. 10 AO FROM THE HIGHER AUTHORITIES. EVEN THE ASSESSEE PARTICIPATED IN THE PROCEEDINGS WITHOUT OBJECTING TO THE SERVICE OF NOTICE UNDER SECTION 143(2) AND AFTER THE CONCLUSION OF PROCEEDING , THE PLEA CANNOT BE RAISED BY THE ASSESSEE AS TO THE ISSUANCE OF NOTICE UNDER SECTION 143(2) OF THE ACT. HE HAS RELIED UPON THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF VISION INC [2012] 21 TAXMANN.COM 515. 9 . ON THE OTHER HAND, LD. A.R. HAS RELIED UPON ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF BALMUKUND ACHARYA VS. DCIT (1987) 136 ITR 355 (BOM) TO STRESS THE POINT THAT THE APPE AL CANNOT BE ENTERTAINED IN PART. ONCE THE APPEAL IS FILED AND ENTERTAINED THEN ALL THE GROUNDS CAN BE RAISED BY THE APPELLANT REQUIRING CONSIDERATION. HE HAS FURTHER CONTENDED THAT THOUGH THE LD. CIT(A) HAS ALLOWED THE ADDITIONAL GROUND NO.1 OF THE APPE AL, HOWEVER HE HAS DISALLOWED THE OTHER GROUNDS OF THE APPEAL. HE HAS FURTHER RELIED UPON AN AUTHORITY OF THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF HV TRANSMISSIONS LTD. IN ITA NO.2230/M/2010 DECIDED ON 07.10.11 TO STRESS THE POINT THAT THE I NITIATION OF REASSESSMENT PROCEEDINGS IN THE CASE OF ASSESSEE WERE BAD IN LAW. HE HAS FURTHER RELIED UPON ANOTHER AUTHORITY OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. SMT. ARUNA LUTHRA 252 ITR (P & H) (FB) TO STRESS THE POINT THAT THE PROVISIONS OF SECTION 154 NOT ONLY PROVIDE FOR RECTIFICATION OF MISTAKE IN THE ORDER BUT ALSO RELATING TO MISTAKE ON THE RECORD OF THE CASE WHICH WOULD INCLUDE EVIDENCE ALSO. 10 . WE HAVE CONSIDERED THE SUBMISSIONS OF THE LD. REPRESENTATIVES OF THE PARTIES AND HAVE ALSO GONE THROUGH THE RECORD. 1 1 . THE ASSESSEE IS AGGRIEVED AGAINST THE ORDER OF THE AO GIVING EFFECT TO THE ORDER OF THE TRIBUNAL ON THE GROUNDS THAT BEFORE GIVING EFFECT TO THE ORDER OF ITA NO .3864 & 3865/M/2009 M/S. RIDDHI SIDDHI COMM. CO. LTD. 11 THE TRIBUNAL , THE AO HAS NOT DECIDED THE APPLICA TION MOVED BY THE ASSESSEE UNDER SECTION 154 OF THE ACT. WE MAY OBSERVE THAT THE PROCEEDINGS UNDER S ECTION 154 OF THE ACT HAVE NOTHING TO DO WITH THE ACTION OF THE AO IN GIVING EFFECT TO THE ORDER OF THE TRIBUNAL. ADMITTEDLY , THE APPEAL OF THE ASSESSEE W AS DECIDED ON MERITS BY THE TRIBUNAL VIDE ORDER DATED 10.03.06. THE AO WAS DUTY BOUND TO GIVE EFFECT TO THE ORDER OF THE TRIBUNAL. EVEN THOUGH AN APPLICATION UNDER SECTION 154 MOVED BY THE ASSESSEE WAS PENDING BEFORE THE AO , STILL IT CANNOT BE SAID THAT THE AO WAS NOT JUSTIFIED IN GIVING EFFECT TO THE ORDER OF THE TRIBUNAL. THE ASSESSEE HAS GOT A SEPARATE REMEDY AGAINST THE DECISION OR NON - DECISION ON ITS APPLICATION MOVED UNDER SECTION 154 OF THE ACT. THERE IS NOTHING PROVIDED IN THE SECTION 154 OF THE ACT THAT PENDING SUCH APPLICATION MOVED UNDER THIS SECTION , THE AO IS PREVENTED FROM GIVING EFFECT TO THE ORDER OF THE APPELLATE AUTHORITY. IT IS TO BE NOTICED THAT U NDER SECTION 154(1A) WHERE ANY MATTER HAS BEEN CONSIDERED AND DECIDED IN ANY PROCEEDIN G BY WAY OF APPEAL OR REVISION , THE AO CANNOT DECIDE THE SAID MATTER UNDER SECTION 154 BUT ANY MATTER OTHER THAN THE MATTER WHICH HAS BEEN SO CONSIDERED AND DECIDED BY THE APPELLATE AUTHORITY. SO FAR THE QUESTION OF LIMITATION FOR MOVING AN APPLICATION UNDER SECTION 154 IS CONCERNED, A DMITTEDLY, THE APPLICATION WAS MOVED BY THE ASSESSEE UNDER SECTION 154 TO THE AO ON 01.03.06 WHEREAS , THE ASSESSMENT ORDER WAS PASSED BY THE AO ON 28.03.01. THE SAID APPLICATION WAS BEYOND THE LIMITATION PERIOD OF FOUR YEAR S AS IS PROVIDED UNDER SECTION 154(7) OF THE ACT. NOW THE ARGUMENT OF THE LD. A.R HAS BEEN THAT THE ORDER OF THE AO HAS MERGED WITH THAT OF THE ORDER OF THE CIT(A), H ENCE, THE APPLICATION WAS MOVED WITHIN THE LIMITATION OF FOUR YEARS FROM THE DATE OF OR DER OF THE CIT(A). AS OBSERVED ABOVE, AS PER THE PROVISIONS OF SECTION 154(1A) , IF A MATTER HAS BEEN CONSIDERED AND DECIDED BY THE APPELLATE AUTHORITY , THE APPLICATION CANNOT ITA NO .3864 & 3865/M/2009 M/S. RIDDHI SIDDHI COMM. CO. LTD. 12 BE MADE IN RELATION TO THAT MATTER BEFORE THE AO WHO ORIGINALLY PASSED THE ORDE R. THE AO COULD HAVE DEALT THE APPLICATION IN RELATION TO THE MATTER WHICH HAS NOT BEEN THE SUBJECT MATTER BEFORE THE APPELLATE AUTHORITY. IN THAT EVENT THE LIMITATION PERIOD OF FOUR YEARS WILL COME INTO O PERATION. THE ASSESSEE COULD HAVE MOVED A RECTIF ICATION MISTAKE UNDER SECTION 154 TO THE CIT(A) IN THAT EVENT BUT NOT TO THE AO. FURTHER, THE MATTER HAS TRAVELLED UPTO THE TRIBUNAL AND HAS BEEN DECIDED ON THE MERITS. THE LD. REPRESENTATIVE OF THE ASSESSEE HAS STATED AT BAR THAT THE ASSESSEE HAS NOT FILE D ANY APPEAL AGAINST THE ORDER OF THE TRIBUNAL DATED 10.03.06. T HE ASSESSEE HAD MOVED RECTIFICATION APPLICATIONS UNDER SECTION 254 BEFORE THE TRIBUNAL TWICE AT DIFFERENT TIMES RAISING THE SAME ISSUES AS HAVE BEEN RAISED BY THE ASSESSEE BEFORE THE AO. THE SAID APPLICATIONS HAVE ALREADY BEEN DISMISSED BY THE TRIBUNAL. UNDER SUCH CIRCUMSTANCES, THE APPLICATION MOVED OR PENDING BEFORE THE AO ON THE SIMILAR GROUNDS WHICH HAVE ALREADY BEEN ADJUDICATED BY THE TRIBUNAL , BECOMES INFRUCTUOUS AND NULLITY AND T HE AO BECOMES F U N CT US - OFFICIO TO DECIDE THE SAID APPLICATION ON MERITS. THE REASON BEHIND IS THAT THE AO CANNOT SIT IN APPEAL RELATING TO THE MATTER WHICH HAS ALREADY BEEN ADJUDICATED BY THE TRIBUNAL. ONCE THE ASSESSEE MOVED THE APPLICATION UNDER SECT ION 254 OF THE ACT BEFORE THE TRIBUNAL AND THE SAME HAS BEEN CONSIDERED AND DECIDED BY THE TRIBUNAL, THE ORDER OF THE TRIBUNAL WOULD BE BINDING UPON THE AO AND THE AO HAS NO JURISDICTION TO DECIDE THE APPLICATION MOVED UNDER SECTION 154 ON THE MATTER WHIC H HAS ALREADY BEEN DECIDED BY THE TRIBUNAL. EVEN AS OBSERVED ABOVE, THE ASSESSEE HAS INDEPENDENT REMEDY TO MOVE TO THE HIGHER AUTHORITIES RAISING THE ISSUE RELATING TO ADJUDICATION OR NO N - ADJUDICATION OF ITS APPLICATION , BUT ON THAT GROUND IT CANNOT BE S AID THAT THE ORDER GIVING EFFECT TO THE ORDER OF THE TRIBUNAL WAS BAD IN LAW. HENCE, WE DO NOT FIND ANY MERIT IN THIS GROUND OF THE APPEAL AND THE SAME IS HEREBY DISMISSED. ITA NO .3864 & 3865/M/2009 M/S. RIDDHI SIDDHI COMM. CO. LTD. 13 GROUND NO.3 1 2 . VIDE GROUND NO.3 THE ASSESSEE HAS RAISED THE ISSUE OF VALIDITY OF THE REOPENING ON THE MERITS OF THE CASE. THE AO WHILE GIVING EFFECT TO THE ORDER OF THE TRIBUNAL WAS NOT SUPPOSED TO GIVE ANY FINDING ON THE MERITS OF THE CA SE BUT ONLY COURSE BEFORE HIM WAS TO GIVE EFFECT TO THE ORDER OF THE TRIBUNAL AS SUCH. HENCE T HIS ISSUE RAISED BY THE ASSESSEE IS ACCORDINGLY DISMISSED. GROUND NO.4 1 3 . VIDE GROUND NO.4 THE ASSESSEE HAS AGAIN RAISED THE ISSUE RELATING TO THE VALIDITY OF THE REOPENING OF THE ASSESSMENT ON MERITS. THE SAID ISSUE HAS ALREADY BEEN RAISED BY THE ASS ESSEE IN HIS RECTIFICATION APPLICATIONS AS OBSERVED ABOVE BEFORE THE TRIBUNAL AND THE SAID RECTIFICATION APPLICATIONS HAVE ALREADY BEEN DISMISSED BY THE TRIBUNAL VIDE ORDER DATED 29.10.07 AND 0 6.05.08 RESPECTIVELY. SINCE THE MATTER HAS ALREADY BEEN ADJUDI CATED BY THE TRIBUNAL AND THE ASSESSEE HAS NOT FILED ANY APPEAL BEFORE THE HONBLE HIGH COURT, THE FINDING S OF THE TRIBUNAL HAVE BECOME FINAL AND THERE WAS NO JURISDICTION EITHER TO THE AO OR TO THE CIT(A) TO RE - ADJUDICATE THESE ISSUES ON MERITS EITHER ON ANY APPLICATION MOVED UNDER SECTION 154 OR OTHERWISE. MOREOVER, THE ABOVE ISSUES HAVE NO RELATION WITH THE ORDER GIVING EFFECT TO THE ORDER OF THE TRIBUNAL AND AS SUCH THIS ISSUE IS ALSO ACCORDINGLY DISMISSED. 1 4 . SO FAR SO THE AUTHORITIES RELIED UPON BY THE ASSESSEE ARE CONCERNED, IT MAY BE OBSERVED THAT THE DECISION OF BALMUKUND ACHARYA VS. DCIT (SUPRA) IS QUITE DISTINGUISHABLE ON ITS OWN FACTS AND CIRCUMSTANCES. HOWEVER, IT MAY BE FURTHER OBSERVED THAT THE LD. CIT(A) VIDE IMPUGNED ORDER HAS CONSID ERED AND DECIDED EACH OF THE ISSUE RAISED BEFORE IT, HENCE THE SAID DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF BALMUKUND ACHARYA VS. DCIT (SUPRA) IS OF NO HELP TO THE ASSESSEE. SO FAR THE A NOTHER DECISION OF THE HONBLE PUNJAB & HARYANA H IGH COURT IN THE CASE OF CIT VS. SMT. ARUNA ITA NO .3864 & 3865/M/2009 M/S. RIDDHI SIDDHI COMM. CO. LTD. 14 LUTHRA (SUPRA) IS CONCERNED, IT MAY BE OBSERVED THAT THE ISSUE BEFORE THE HONBLE HIGH COURT WAS RELATING TO THE JURISDICTION OF THE AO TO RECTIFY THE ORDER UNDER SECTION 154 IN VIEW OF THE SUBSEQUENT DECISION OF THE JURISDICTIONAL HIGH COURT OR THE HONBLE SUPREME COURT INTERPRETING A PROVISION AND TAKING A VIEW CONTRARY TO THE VIEW THAT WAS TAKEN BY THE AO/AUTHORITY. THE SAID DECISION HAS NO APPLICABILITY TO THE CASE OF THE ASSESSEE. MOREOVER, THE RECTIFICAT ION APPLICATIONS MOVED BY THE ASSESSEE HAVE ALREADY BEEN DECIDED BY THE TRIBUNAL AND THE ASSESSEE HAS NOT FILED ANY APPEAL AGAINST THE DECISIONS OF THE TRIBUNAL IN THIS RESPECT. HENCE, WHILE CHALLENGING THE ORDER OF THE AO GIVING EFFECT TO THE ORDER OF TH E TRIBUNAL THIS ISSUE HAS NO RELEVANCY. ANOTHER AUTHORITY OF THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF HV TRANSMISSIONS LTD. (SUPRA) , IS AGAIN ON THE ISSUE OF VALI DITY OF REOPENING AND THE SAME HA S ALSO NO APPLICABILITY IN RELATION TO THE PRE SENT APPEAL OF THE ASSESSEE. 1 5 . IN VIEW OF OUR FINDINGS GIVEN ABOVE, BOTH THE APPEALS ARE HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH FEB, 201 4 . 28.02.2014 SD/ - SD/ - ( / RAJENDRA ) ( [ / SANJAY GARG) / ACCOUNTANT MEM BER / JUDICIAL MEMBER / MUMBAI ; / DATED 28.02 . 2014 * KISHORE / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. ITA NO .3864 & 3865/M/2009 M/S. RIDDHI SIDDHI COMM. CO. LTD. 15 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. [ / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI