THE ACIT, (CENTRAL)-I, Indore V. M/S. D.P. WIRES PVT. LTD., Mumbai

MA 02/Ind/2018

• Counselvise Citation: [2018] 111 COUNSELVISE.COM (IT) 1499 (ITAT-INDORE)
• Duration Of Justice: 9 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 15-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S AMBEDKAR
• Assessee Lawyers: ANIL K GARG
• Keywords: Unexplained cash credit; Rectification of order; Principle of natural justice
• Section: 254(2)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER MA NO.02/IND/2018 (ARISING OUT OF IT(SS)A NO. 2 TO 6/IND/2016) ASSESSMENT YEAR: 2012-13 A CIT, CENTRAL - 1 INDORE / VS. M/S. D.P. WIRES P. LTD. MUMBAI ( REVENUE ) ( R E SPONDENT ) P.A. NO. AABCD 2393P REVENUE BY SHRI R.S. AMBEDKAR , SR. DR RESPONDENT BY SHRI ANIL K. GARG, CA DATE OF HEARING: 16.11.2018 DATE OF PRONOUNCEMENT: .11.2018 / O R D E R PER MANISH BORAD, A.M: THIS MISC. APPLICATION U/S 254(2) OF THE INCOME TAX ACT 1961, AT THE INSTANCE OF REVENUE IS ARISING OUT OF THE ORDER OF THE TRIBUNAL IT(SS)A NO.06/IND/2016 DATED 26.07.2016 AND MANO.130/IND/20 16 DATED 09.08.2017. THE REVENUE HAS MADE FOLLOWING SUBMISSI ONS THROUGH THIS MISC. APPLICATION. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE APPELLANT ABOVE NAMED SUBMITS AS UNDER:- 1. DEPARTMENTAL APPEAL IN THE CASE OF MIS D.P. WIRE PV T. LTD., MUMBAI, PAN AABCD2393P WAS FILED WITH THE HON'BLE ITAT, INDORE FOR THE A.YS. 2007- MA , D P WIRES P. LTD. 2 08 TO 2012-13 AGAINST THE CIT(A)'S ORDER ON 15/01/2 016 VIDE APPEAL NO. IT(SS)A NOS. 2 TO 6IIND/20 16. 2. THERE WAS ONLY ONE GROUND IN THE APPEAL FOR A.YS. 2 007-08, 2008-09, 2009- 10,2010-11 AND 2012-13 WHERE AS IN A.Y. 2011- 12 THERE WERE TWO GROUNDS OF APPEAL. 3. THE FIRST GROUND OF APPEAL WAS COMMON IN ALL THE A. YS. WHEREAS THE SECOND GROUND APPEAL IN THE A.Y. 2011-12 AS AUTHORI ZED BY THE PRO CIT(CENTRAL), BHOPAL ULS 253(2) OF THE INCOME TAX A CT, 1961 IS READ AS UNDER.- '(2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE THE CIT (A)-3, INDORE ERRED IN DELETING THE ADDITION MADE ON ACCOUNT OF U NEXPLAINED CASH CREDIT AS THE AMOUNT CLAIMED BY THE ASSESSEE RECEIVED AS S HARE APPLICATION MONEY FROM THE COMPANY MIS SONIC BIOCHEM EXTRACTION S PVT. LTD. REMAINED UNEXPLAINED AS THE ASSESSEE FAILED TO JUST IFY THE INTENTION OF INVESTOR COMPANY.' 4. THE HON'BLE ITAT, INDORE VIDE COMBINED ORDER IT(SS) A NOS. 2 TO 6/IND/2016 DATED26/07/2016 HAS DECIDED THE DEPARTME NTAL APPEAL FOR A.YS. 2007-08 TO 2012-13 IN THE CASE OF THE ABOVE M ENTIONED ASSESSEE. 5. IN THIS ORDER, THE HON'BLE ITAT, INDORE HAS DECIDED THE APPEAL AS PER THE GROUND NO. 1 ONLY IN ALL THE A. Y S. WHEREAS NO JUD GMENT WAS GIVEN ON THE ISSUE RAISED BY THE DEPARTMENT ON GROUND NO. 2 IN T HE A.Y. 2011-12 AS MENTIONED ABOVE. 6. IT IS PERTINENT TO MENTION HERE THAT PRO CIT(CENTRA L), BHOPAL HAS WELL MENTIONED THE SECOND GROUND OF APPEAL FOR A.Y. 2011 -12 IN HIS AUTHORIZATION ORDER ULS 253(2) OF THE INCOME TAX AC T, 1961DATED 11/01/2016 WHICH WAS PRODUCED BEFORE HON'BLE ITAT A T THE TIME OF FILING APPEAL BUT INADVERTENTLY THE SAME GROUND REMAINED T O MENTION IN GROUNDS OF APPEAL IN FORM NO. 36 SIGNED BY AO. 7. AS, THE SECOND GROUNDS OF APPEAL WAS AVAILABLE BEFO RE HON'BLE ITAT AS PER AUTHORIZATION ORDER ULS 253(2) OF THE INCOME TA X ACT, 1961 DATED 11/01/2016 OF PRO CIT(CENTRAL), BHOPAL AND INADVERT ENTLY IT REMAINED TO MENTION IN GROUNDS OF APPEAL (FORM NO.36) SIGNED BY AO AND THE SAME WAS NOT ADJUDICATED BY HON'BLE ITAT THEREFORE, MISC ELLANEOUS APPLICATION WAS FILED BEFORE THE HON'BLE ITAT AS THE MISTAKE IS APPARENT FROM THE RECORDS. MA , D P WIRES P. LTD. 3 8. THE HON'BLE ITAT HAS DISMISSED THE MISCELLANEOUS AP PLICATION FILED BY THE DEPARTMENT VIDE ITS ORDER MA NO.130/INDL2016 DA TED 09108/2017. WHILE ADJUDICATING THE DECISION THE HON'BLE ITAT HE LD THAT 'THERE IS NO SUCH GROUND RAISED IN SAID APPEAL MEMO NOR AS MENTI ONED IN AUTHORIZATION OF APPEAL BY THE PRO CIT(CENTRAL}. TH EREFORE, WE DID NOT FIND ANY MISTAKE APPARENT FROM RECORDS IN THE IMPUGNED O RDER PASSED BY THE TRIBUNAL.' 9. THE CONTENTION OF HON'BLE IT AT THAT NO SUCH GROUND MENTIONED IN AUTHORIZATION OF APPEAL BY THE PRO CIT(CENTRAL) IS FACTUALLY INCORRECT. THE SAID SECOND GROUNDS OF APPEAL WAS WELL MENTIONED IN THE AUTHORIZATION ORDER ULS 253(2) OF THE IT ACT, 1961 FOR A.Y. 2011- 12 DATED 11/01/2016 WHICH WAS PRODUCED BEFORE HON'BLE ITAT AT THE TIME OF FILING APPEAL. THE COPY OF AUTHORIZATION ORDER ULS 253(2) OF THE INCOME TAX ACT, 1961 DATED 11/01/2016 IS ENCLOSED HEREWITH FOR READY REFERENCE. 10. HENCE, THIS MISCELLANEOUS APPLICATION IS BEING FILED BEFORE THE HON'BLE I.T.A.T. WITH A REQUEST FOR RECALLING AND RESTORING THE SECOND GROUND OF APPEAL AS MENTIONED SUPRA. THE AUTHORIZATION OF THE CIT(CENTRAL), BHOPAL U/S 254(2) DATED 06.02.2018 IS ENCLOSED HEREWITH. 2. LD. DEPARTMENTAL REPRESENTATIVE (DR) FURTHER SUB MITTED THAT IN THE AUTHORIZATION ORDER ISSUED BY THE LD. PR. CIT, CENT RAL DATED 11.01.2016, DIRECTIONS WERE GIVEN TO THE LD. ACIT, CENTRAL (1), TO RAISE THE GROUND RELATING TO UNEXPLAINED CASH CREDIT RECEIVED BY THE ASSESSEE AS SHARE APPLICATION MONEY FROM M/S SONIC BIOCHEM EXTRACTION S PVT. LTD. BUT DUE TO INADVERTENCE ON THE PART OF THE CONCERNED REVENU E OFFICER THIS GROUND WAS NOT TAKEN UP BEFORE THE TRIBUNAL AND THE SAME W AS NOT MENTIONED IN FORM NO.36 BY THE REVENUE AUTHORITIES. 3. LD. DR REQUESTED THAT THE ORDER OF THE TRIBUNAL DATED 26.07.2016 MAY BE RECALLED SO AS TO ADJUDICATE THE GROUND WHICH WA S NOT RAISED IN THE APPEAL MEMO IN FORM NO.36 THOUGH, THE AUTHORIZATION FOR THE SAME WAS DULY GIVEN BY LD. PR. CIT, CENTRAL. 4. PER CONTRA LD. COUNSEL FOR THE ASSESSEE OPPOSED THE SUBMISSIONS MADE BY THE LD. DR SUBMITTING THAT THE GROUND WHICH THE REVENUE AUTHORITIES MA , D P WIRES P. LTD. 4 HAVE NOT RAISED IN FORM NO. 36 NOR THERE WAS ANY DI SCUSSION DURING THE COURSE OF HEARING BEFORE THE TRIBUNAL ABOUT RAISING THE ADDITIONAL GROUND. FURTHER THE ALLEGED AUTHORIZATION LETTER GI VING BY LD. PR. CIT, CENTRAL DATED 11.01.2016 NEVER COME UP FOR CONSIDER ATION BEFORE THE HON'BLE TRIBUNAL ON THE DATE OF HEARING ON 26.07.20 16. HE FURTHER CONTENDED THAT THE ALLEGED ORDER OF THE TRIBUNAL DA TED 26.07.2016 CANNOT BE RECALLED FOR ADJUDICATING THE GROUND WHIC H WAS NEVER TAKEN UP BY THE REVENUE AUTHORITIES IN THE APPEAL MEMO OF FO RM NO.36 AS WELL AS DURING THE COURSE OF HEARING AND ALL THE GROUNDS RA ISED BEFORE THE TRIBUNAL HAVE DULY BEEN ADJUDICATED. THEREFORE, THE RE IS NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL. 5. IN SUPPORT OF THIS CONTENTION LD. COUNSEL FOR TH E ASSESSEE REFERRED AND RELIED ON THE JUDGMENT OF HON'BLE HIGH COURT OF ALL AHABAD IN THE CASE OF CIT VS. M/S. RAZA HUSSAIN CONTRACTOR IN ITANO.189 O F 2009 DATED 3 RD OCTOBER, 2012 AND ANOTHER JUDGMENT OF HON'BLE HIGH COURT OF MADRAS IN THE CASE OF MRM PERIANNAN CHETTIAR VS. CIT 39 ITR 1 59 (1960). 6. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORD PLACED BEFORE US AND GONE THROUGH THE IMPUGNED ORDER OF THE TRIBU NAL, THE MISC. APPLICATION AS WELL AS THE JUDGMENT REFERRED AND RE LIED BY THE LD. COUNSEL FOR THE ASSESSEE. THE REVENUE HAS RAISED TH IS MISC. APPLICATION PLEADING THAT ONE OF THE GROUND RELATING TO DELETIO N OF ADDITION BY THE LD. CIT(A) ON ACCOUNT OF UNEXPLAINED CASH CREDIT IN THE FORM OF SHARE APPLICATION MONEY RECEIVED BY THE ASSESSEE FROM M/S . SONIC BIOCHEM EXTRACTIONS PVT. LTD. WAS THOUGH DULY MENTIONED IN THE AUTHORIZATION ORDER U/S 253(2) OF THE ACT DATED 11.06.2016 ISSUED BY LD. PR. CIT, CENTRAL, BHOPAL BUT DUE TO INADVERTENCE THIS GROUND WAS NOT TAKEN UP IN THE APPEAL BEFORE THE TRIBUNAL IN THE APPEAL MEMO O R FORM NO.36. AS A RESULT OF WHICH THIS GROUND COULD NOT BE ADJUDICATE D. THE REVENUE IS NOW MA , D P WIRES P. LTD. 5 PLEADING THAT THE ORDER OF THE TRIBUNAL IT(SS)NO.2 TO 6/IND/2016 DATED 26.07.2016 MAY BE RECALLED FOR THE LIMITED PURPOSE OF ADJUDICATING THE ABOVE REFERRED GROUND. 7. WE FIND THAT THERE IS NO DISPUTE TO THE FACT THA T IN THE FORM NO.36 FILED BY THE REVENUE AUTHORITIES ALLEGED GROUND OF DELETI ON OF ADDITION FOR UNEXPLAINED CASH CREDIT IN THE FORM OF SHARE APPLIC ATION MONEY FROM M/S. SONIC BIOCHEM EXTRACTIONS PVT. LTD. WAS NOT ME NTIONED. IT IS ALSO NOT DISPUTED THAT DURING THE COURSE OF HEARING BEFO RE THE TRIBUNAL ON 26.07.2016 REVENUE HAS NOT MADE ANY REQUEST OF RAIS ING AN ADDITIONAL GROUND NOR THE ALLEGED AUTHORIZATION ORDER OF PR. C IT, CENTRAL DATED 11.01.2016 CAME UP FOR CONSIDERATION. 8. WE FIND THAT THE TRIBUNAL HAS ADJUDICATED ALL TH E GROUNDS RAISED BEFORE IT. NOW THE REVENUE IS PLEADING THROUGH THIS MISC. APPLICATION TO RECALL THE ORDER OF THE TRIBUNAL FOR ADJUDICATING G ROUND WHICH WAS NEVER RAISED BEFORE IT. HON'BLE HIGH COURT OF ALLAHABAD I N THE CASE OF CIT VS. M/S. RAZA HUSSAIN CONTRACTOR (SUPRA) HELD THAT THE POWERS OF RECALL BY THE TRIBUNAL CANNOT BE EXERCISED IN SUBSTITUTION TO THE POWERS OF REVIEW OR RECTIFICATION OF MISTAKE BY OBSERVING AS FOLLOW S: 11. THE POWERS OF REVIEW, RECTIFICATION AND RECALL ARE CLEARLY UNDERSTOOD IN LEGAL TERM. THE POWER OF REVIEW MAY BE EXERCISED, W HERE THERE IS AN ERROR APPARENT ON THE FACT OF RECORD TO BE CONSIDERED AND DECIDED BY THE JUDICIAL OR QUASI JUDICIAL AUTHORITY. THE POWER OF RECTIFYING THE MISTAKE IS DIFFERENT IN NATURE. IF THE MISTAKE HAS CREPT IN THE ORDER BY WAY OF INADVERTENCE OR FO R ANY REASON WHATSOEVER, THE JUDICIAL OR QUASI JUDICIAL AUTHORIT Y CAN AMEND ANY ORDER PASSED BY IT, BUT THAT SUCH POWER CANNOT BE USED TO REVIEW THE JUDGMENT AND TO CONSIDER THE GROUNDS, WHICH WERE NOT CONSIDE RED BY IT. 12. IN CONTRADISTINCTION TO THE POWERS OF REVIEW OR RECTIFICATION OF MISTAKE THE POWERS FOR RECALLING THE ORDER CAN BE EXERCISED IN THE CIRCUMSTANCES, WHERE THE AUTHORITY HAS MADE A WRONG ORDER OR THAT THE ORDER IS VIOLATIVE OF PRINCIPLE OF NATURAL JUSTICE INASMUCH AS ANY OF THE AFFECTED PARTIES WAS NOT HEARD. THE ORDER MAY ALSO BE RECALLED WHERE ANY OF THE AFFECTED PARTY HAD DIED, AND NO REPRESENTATIVE WAS BROUGHT ON RECO RD. THE POWER TO MA , D P WIRES P. LTD. 6 RECALL IS ORDINARILY EXERCISED IN CASES WHERE THE A FFECTED PARTY WAS NOT HEARD OR THAT THERE ARE CIRCUMSTANCES IN WHICH THE AUTHORITY COULD NOT HAVE MADE AN ORDER OR JUDGMENT. THE POWER OF RECALL CANNOT BE EXERCISED IN SUBSTITUTION TO THE POWERS OF REVIEW OR RECTIFIC ATION OF MISTAKE. 13. IT IS NOT NECESSARY TO ANY JUDICIAL OR QUASI JU DICIAL AUTHORITY TO MEET EACH AND EVERY GROUNDS, WHICH HAS BEEN TAKEN BY THE APPLICANT- APPELLANT IN THE APPLICATION OR APPEAL. THE JUDICIA L OR QUASI JUDICIAL AUTHORITY IS REQUIRED TO CONSIDER AND DECIDE ONLY T HOSE GROUNDS, WHICH WERE PRESSED BEFORE IT. IT IS ALWAYS ADVISABLE TO S AY AT THE END OF THE JUDGMENT/ORDER, WHETHER ANY OTHER GROUND WAS PRESSE D. THE ABSENCE OF SUCH RECITAL, HOWEVER, HAS TO BE UNDERSTOOD IN THE SENSE THAT NO OTHER GROUND WAS PRESSED. 14. IN THE PRESENT CASE, WE FIND THAT THERE IS NO I NDICATION IN THE ORDER DATED 30.5.2008 THAT ANY GROUND, OTHER THAN THE GROUNDS C ONSIDERED BY THE TRIBUNAL, WAS PRESSED. THE REFERENCE TO GROUND NOS. 7,8 AND 9 OR GROUND NO.2, WHICH IS SUBSTANCE OF GROUND NOS. 7, 8 AND 9, THE APPLICANT VIRTUALLY WANTED THE REHEARING OF THE APPEAL BY THE TRIBUNAL. THE TRIBUNAL COMMITTED GROSS ERROR OF LAW IN RECALLING ITS ORDER AND ALSO STATING THAT RECALL IS ONLY TO THE LIMITED EXTENT. 15. ON THE AFORESAID DISCUSSIONS, WE FIND THAT THE TRIBUNAL ERRED IN LAW IN RECALLING ITS ORDER ON THE PRETEXT OF RECTIFYING THE MISTAKE, AND PERMITTING ITSELF TO REHEAR THE MATTER AS IF IT WAS EXERCISING THE POWER OF APPEAL OVER ITS OWN JUDGMENT. 9. HON'BLE HIGH COURT OF MADRAS IN THE CASE OF MRM PERIANNAN CHETTIAR (SUPRA) HELD THAT TRIBUNAL IS NOT COMPETENT TO DEC IDE MATTER NOT SUBJECT MATTER OF APPEAL BEFORE IT. 10. WE, THEREFORE, RESPECTFULLY FOLLOWING THE ABOVE JUDGMENTS AS WELL AS IN THE GIVEN FACTS AND CIRCUMSTANCES OF THE CASE, A RE OF THE CONSIDERED OPINION THAT NO APPARENT MISTAKE ON THE RECORD HAS BEEN COMMITTED BY THE TRIBUNAL IN THE ORDER IN IT(SS)ANO.06/IND/2016 DATED 26.07.2016 AS ALLEGED GROUND OF DELETION OF ADDITION BY LD. CIT(A ) FOR THE ALLEGED UNEXPLAINED CASH CREDIT FROM M/S. SONIC BIOCHEM EXT RACTIONS PVT. LTD. WAS NEVER TAKEN UP FOR ADJUDICATION BEFORE THE TRIB UNAL BY THE REVENUE AUTHORITIES. WE, THEREFORE, FIND NO MERIT IN THE MI SC. APPLICATION FILED BY THE REVENUE AND THE SAME DESERVES TO BE DISMISSED. MA , D P WIRES P. LTD. 7 11. IN THE RESULT, THIS MISC. APPLICATION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON .11.20 18 . (KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER INDORE; DATED : / 11/2018 CTX? P.S/. . . COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUA RD FILE. BY ORDER ASSISTANT REGISTRAR, INDORE