M/s. Tulsi Digital Colour Lab Pvt. Ltd., RAJKOT-GUJARAT V. The Assistant Commissioner of Income Tax, Circle-2, RAJKOT-GUJARAT

MA 02/RJT/2017

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3300 (ITAT-RAJKOT)
• Duration Of Justice: 2 year(s) 8 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-11-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 09-03-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: MJ RANPURA
• Keywords: Opportunity of being heard
• Section: 201; 254(2); 64

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT (CONDUCTED THROUGH E - COURT AT AHMEDABAD) BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND MS . MADHUMITA ROY, JUDICIAL MEMBER M.A NO.02/RJT/2017 IN ./ ITA NO . 468 /RJT /2014 / ASSTT. YEAR : 2005 - 20 06 M/S TULSI DIGITAL COLOR LAB. PVT. LTD. , CENTRE POINT, NR. KESHUBHAI EYE HOSPITAL , RAJKOT . PAN: AABCT6776E VS . A.C.I.T , CIRCLE - 2, RAJKOT . (APPLICANT) (RESPON D ENT) ASSESSEE BY : SHRI M.J. RANPURA , A.R REVENUE BY : SHRI PRAVEEN VERMA , SR .D R / DATE OF HEARING : 05 / 09 / 201 9 / DATE OF PRONOUNCEMENT: 27 / 11 /201 9 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER : THE ASSESSEE BY WAY OF THIS MISCELLANEOUS APPLICATION IS SEEKING TO RECALL THE ORDER PASSED BY THE ITAT IN ITA NO. 468/RJT/2014 ON THE REASONING THAT THERE IS APPARENT MISTAKE IN THE ORDER OF THE ITAT DATED 21 - 10 - 2016. THE ASSESSEE IN THE MISCELLANEOUS A PPLICATION SUBMITS AS UNDER: M.A NO.02/RJT/2017 IN ITA NO.4 6 8/RJT/2014 ASSTT. YEAR 2005 - 06 2 3.0 THE APPARENT REASON UPHOLDING THE APPELLATE ORDER SEEMS TO BE NON - ATTENDANCE OF DEPOSITOR SHRI G.M. SAVJANI BEFORE THE AO AS PER THE DIRECTION OF HON'BLE ITAT, RAJKOT BENCH, RAJKOT IN APPEAL NO. 84/RJT/2006 DATED 29. 04.2009. IN THIS REGARD HON'BLE MEMBERS' KIND ATTENTION IS INVITED TO WRITTEN SUBMISSION FILED BEFORE THE CIT(A) (SERIAL NO. 1 OF PAPER BOOK) AT PARA 3(C), WHEREIN IT WAS EXPLAINED THAT SINCE THE DEPOSITOR IS AGED ABOUT 80 YEARS (DOB: 16/03/1931) AND AT TH AT TIME HE WAS STAYING AT TANZANIA AND HENCE COULD NOT BE PRODUCED. THESE FACTS REMAIN TO BE CONSIDERED BY LD. CIT(A) IN ITS APPELLATE ORDER DATED 11.06.2014. NOW AS ON THIS DATE HE HAS ATTENDED AGE OF 86 YEARS. 4.0 UNDER THE CIRCUMSTANCES YOUR APPELLANT REQUEST THE MEMBERS TO KINDLY RECALL THE ORDER AND IF DEEMED FIT, THE AO MAY BE DIRECTED TO USE THE ALTERNATE REMEDY I.E. THE ELECTRONIC MEDIA OR THE PROVISION OF SECTION 131(D) OF THE ACT TO GET THE DEPOSITO R REMAIN PRESENT BEFORE THE INCOME - TAX AUTHORITIES AT MUMBAI FOR WHICH HIS ADDRESS IS ALREADY ON RECORD. HOWEVER FOR THE SAKE OF CONVENIENCE IT IS REPRODUCED BELOW: V SHRI G. M SAVJANI, A/104, BORIVALI SHOPPING CENTRE, CHANDA VARKAR LANE BORIVALLI (WEST) , MUMBAI - 400 103 5.0 THE ASSESSEE THEREFORE, PRAYS TO THE HON'BLE ITAT THAT THE ORDER UNDER CONSIDERATION MAY KINDLY BE AMENDED SUITABLY AS STATED ABOVE. IN VIEW OF THE ABOVE, THE LD. AR FOR THE ASSESSEE PRAYED TO RECALL THE ORDER PASS ED BY THE ITAT. 2. ON THE CONTRARY, THE LD. DR VEHEMENTLY SUPPORTED THE ORDER OF THE ITAT. 3. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AND GONE THROUGH THE RECORDS CAREFULLY. SUB SECTION 2 OF SECTION 254 HAS DIRECT BEARING ON THE CONTROVERSY BEFOR E US. THEREFORE IT IS IMPERATIVE UPON US TO TAKE NOTE OF THE RELEVANT PART OF SECTION, WHICH READS AS UNDER: M.A NO.02/RJT/2017 IN ITA NO.4 6 8/RJT/2014 ASSTT. YEAR 2005 - 06 3 ORDERS OF APPELLATE TRIBUNAL. 254. (1) THE APPELLATE TRIBUNAL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THEREON AS IT THINKS FIT. (1A) [***] (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN 63 [SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED], WITH A VIEW TO RECTIFYING ANY MISTAKE APPA RENT FROM THE RECORD 64 , AMEND ANY ORDER PASSED BY IT UNDER SUB - SECTION (1), AND 64 SHALL MAKE SUCH AMENDMENT 64 IF THE MISTAKE IS BROUGHT TO ITS NOTIC E BY THE ASSESSEE OR THE 65 [ASSESSING] OFFICER : PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCING AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INCREASING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UN DER THIS SUB - SECTION UNLESS THE APPELLATE TRIBUNAL HAS GIVEN NOTICE TO THE ASSESSEE OF ITS INTENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD 3 . 1 BEFORE WE EMBARK UPON AN ENQUIRY ON THE FACTS OF PRESENT CASE IN ORDER TO FIND OUT WHETHER ANY APPARENT ERROR COMMITTED BY TRIBUNAL OR NOT WHILE ADJUDICATING THE APPEALS, WE THINK IT APPROPRIATE TO BEAR IN MIND CERTAIN BASIC PRINCIPLES FOR EXERCISING THE POWERS CONTEMPLATED IN SECTION 254(2) OF THE INCOME TAX ACT, 1961. 3 . 2 THERE ARE SERIES OF DECISIONS AT THE END OF THE HON BLE SUPREME COURT AS WELL AS HON BLE HIGH COURT EXPOUNDING SCOPE OF EXERCISING POWERS UNDER SECTION 254(2) OF THE ACT. WE DO NOT DEEM IT NECESSARY TO RECITE AND RECAPITULATE ALL OF THEM, BUT SUFFICE TO SAY THAT CORE OF ALL THESE AUTHORITATIVE PRONOUNCEMENTS IS THAT POWER FOR RECTIFICATION UNDER SECTION 254(2) OF THE ACT CAN BE EXERCISED ONLY WHEN MISTAKE, WHICH IS SOUGHT TO BE RECTIFIED, IS AN OBVIOUS AND PATENT MISTAKE, WHICH IS APPARENT FROM THE RECORD AND NOT A MISTAKE, WHICH IS REQUIRED TO BE ESTABLISHED BY ARGUMENTS AND LONG DRAWN PROCESS OF REASONING ON POINTS, ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. FOR FORTIFYING THIS VIEW, WE MAKE REFERENCE TO THE DECISION OF THE M.A NO.02/RJT/2017 IN ITA NO.4 6 8/RJT/2014 ASSTT. YEAR 2005 - 06 4 HON BLE JURISDICTIONAL HI GH COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LD., 262 ITR 146 WHICH HAS BEEN UPHELD BY THE HON BLE SUPREME COURT REPORTED IN 305 ITR 227. THE HON BLE COURT HAS LAID DOWN FOLLOWING PROPOSITION WHILE CONCLUDING THE JUDGMENT: '(C) THE POW ER OF RECTIFICATION IS TO BE EXERCISED TO REMOVE AN ERROR OR CORRECT A MISTAKE AND NOT FOR DISTURBING FINALITY, THE FUNDAMENTAL PRINCIPLE BEING THAT POWER OF RECTIFICATION IS FOR JUSTICE AND FAIR PLAY; (D) THAT POWER OF RECTIFICATION CAN BE EXERCISED EVEN IF A MISTAKE IS COMMITTED BY THE TRIBUNAL OR EVEN IF A MISTAKE HAS OCCURRED AT THE INSTANCE OF PARTY TO THE APPEAL; (E) A MISTAKE APPARENT FROM RECORD SHOULD BE SELF - EVIDENT, SHOULD NOT BE A DEBATABLE ISSUE, BUT THIS TEST MIGHT BREAK DOWN BECAUSE JUDICIA L OPINIONS DIFFER AND WHAT IS A MISTAKE APPARENT FROM THE RECORD CANNOT BE DEFINED PRECISELY AND MUST BE LEFT TO BE DETERMINED JUDICIALLY ON THE FACTS OF EACH CASE; 3.3 THE GRIEVANCE O F THE ASSESSEE IN THE PRESENT CASE IS THAT THE ISSUE WAS DECIDED AGAI NST THE ASSESSEE BY THE ITAT AS THE ASSESSEE FAILED TO PRODUCE THE DEPOSITOR SHRI G.M. SAVJANI BEFORE THE AO DURING THE ASSESSMENT PROCEEDINGS. HOWEVER, ON PERUSAL OF THE ORDER OF THE ITAT WE NOTE THAT THE NON - ATTENDANCE OF THE DEPOSITOR WAS NOT THE ONLY R EASON FOR DECIDING THE ISSUE AGAINST THE ASSESSEE BUT IT INCLUDES OTHER REASONS AS WELL , AS DETAILED UNDER: I. THE BANK STATEMENT OF THE LENDER FILED DOES NOT REFLECT THE CLOSING BALANCE AFTER TRANSACTION AT ALL. II. THE CREDITWORTHINESS IS NOT VERIFIABLE AT ALL. III. THE CASE LAW RELIED UPON BY THE ASSESSEE I.E. CIT VS. RANCHHOD JIVABHAI NAKHAVA OF HON BLE GUJARAT HIGH COURT WAS ALSO DISTINGUISHED. IV. THE LENDER SHOWS OUR MEAGRE INCOME OF 74,279.00 RELEVANT TO THE ASSESSME NT 2005 - 06 WHICH CASTS SERIOUS ASPIRATIONS ON THE LENDING CAPACITY OF THE IMPUGNED LENDER. V. THE RETURN OF THE LENDER DOES NOT REFLECT THE IMPUGNED LOAN ADVANCED TO THE ASSESSEE. VI. THE PRIMARY ONUS WHICH LAY ON THE ASSESSEE IS NOT FOUND TO BE DISCHARGED. M.A NO.02/RJT/2017 IN ITA NO.4 6 8/RJT/2014 ASSTT. YEAR 2005 - 06 5 IN VIEW OF THE ABOVE WE ARE NOT CONVINCED WITH THE ARGUMENT OF THE LEARNED AR FOR THE ASSESSEE. BESIDES THE ABOVE WE ALSO NOTE THAT THE HON BLE ITAT HAS PASSED A SPEAKING ORDER CONSIDERING MANY OTHER FACTS WHICH HAVE BEEN DISCUSSED IN LENGTH THEREIN AND NO INFIRMITY ON SUCH FINDING WAS POINTED BY THE ASSESSEE. THEREFORE MERELY NON - ATTENDANCE OF THE LENDER WILL NOT LEAD TO CONCLUDE THAT THE ORDER OF THE TRIBUNAL SUFFERS FROM THE APPARENT MISTAKE. 3.4 THE PROVISIONS OF SECTION 254(2) OF THE ACT CAN BE INVOKE D FOR THE MISTAKES WHICH ARE GLARING IN NATURE AND CAN BE POINTED FROM THE FACE OF THE ORDER. THE MISTAKES WHICH REQUIRE APPLICATION OF MIND AND LONG DRAWN PROCESS TO ARRIVE AT THE CONCLUSION CANNOT AMOUNT TO APPARENT MISTAKE. IF THESE TYPES OF MISTAKES AR E CONSIDERED AS APPARENT FROM RECORD THEN IT WOULD LEAD TO REVIEW THE ORDER. IN THIS REGARD WE FIND SUPPORT & GUIDANCE FROM THE JUDGMENT OF HON BLE DELHI HIGH COURT IN THE CASE SMT. BALJEET JOLLY VS. CIT REPORTED IN 113 TAXMAN 38 WHEREIN IT WAS HELD AS UND ER: A BARE LOOK AT SECTION 254(2) MAKES IT CLEAR THAT A 'MISTAKE APPARENT FROM THE RECORD' IS RECTIFIABLE. IN ORDER TO ATTRACT THE APPLICATION OF SECTION 254(2), THE MISTAKE MUST EXIST AND THE SAME MUST BE APPARENT FROM THE RECORD. THE POWER TO RECTIFY THE MI STAKE, HOWEVER, DOES NOT COVER CASES WHERE A REVISION OR REVIEW OF THE ORDER IS INTENDED. 'MISTAKE' MEANS TO TAKE OR UNDERSTAND WRONGLY OR INACCURATELY; TO MAKE AN ERROR IN INTERPRETING; IT IS AN ERROR; A FAULT, A MISUNDERSTANDING, A MISCONCEPTION. 'APPARE NT' MEANS VISIBLE; CAPABLE OF BEING SEEN; EASILY SEEN; OBVIOUS; PLAIN. A MISTAKE WHICH CAN BE RECTIFIED UNDER SECTION 254(2) IS ONE WHICH IS PATENT, WHICH IS OBVIOUS AND WHOSE DISCOVERY IS NOT DEPENDENT ON ARGUMENT OR ELABORATION. THE LANGUAGE USED IN SECT ION 254(2) MAKES IT CLEAR THAT ONLY AMENDMENT TO THE ORDER PASSED UNDER SECTION 254(1) IS PERMISSIBLE WHERE IT IS BROUGHT TO THE NOTICE OF THE TRIBUNAL THAT THERE IS ANY MISTAKE APPARENT FROM THE RECORD. AMENDMENT OF AN ORDER DOES NOT MEAN OBLITERATION OF THE ORDER ORIGINALLY PASSED AND ITS SUBSTITUTION BY A NEW ORDER. WHAT THE ASSESSEE INTENDED, TO DO IN THE INSTANT CASE WAS PRECISELY THE SUBSTITUTION OF THE ORDER, WHICH WAS NOT PERMISSIBLE UNDER THE PROVISIONS OF SECTION 254(2) AND, THEREFORE, THE TRIBUNA L WAS JUSTIFIED IN HOLDING THAT THERE WAS NO MISTAKE APPARENT ON THE FACE OF THE RECORD. WHERE AN ERROR IS FAR FROM SELF - EVIDENT, IT CEASES TO BE AN APPARENT ERROR. IT IS NO DOUBT TRUE THAT A MISTAKE CAPABLE OF BEING RECTIFIED UNDER SECTION 254(2) IS NOT C ONFINED TO CLERICAL OR ARITHMETICAL MISTAKE. ON THE OTHER HAND, IT DOES NOT COVER ANY MISTAKE WHICH MAY BE DISCOVERED BY A COMPLICATED PROCESS OF INVESTIGATION, ARGUMENT OR M.A NO.02/RJT/2017 IN ITA NO.4 6 8/RJT/2014 ASSTT. YEAR 2005 - 06 6 PROOF. AS OBSERVED BY THE APEX COURT IN MASTER CONSTRUCTION CO. (P.) LTD. V. STATE OF ORISSA [1966] 17 STC 360, AN ERROR WHICH IS APPARENT ON THE FACE OF THE RECORD SHOULD BE ONE WHICH IS NOT AN ERROR WHICH DEPENDS FOR ITS DISCOVERY ON ELABORATE ARGUMENTS ON QUESTIONS OF FACT OR LAW. IN VIEW OF THE ABOVE AND AFTER CONSIDERING THE FACTS IN TOTALITY, WE ARE OF THE VIEW THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD WITHIN THE MEANING OF THE PROVISIONS OF SECTION 254(2) OF THE ACT. HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. 4 . IN THE RESULT, THE MISCELLANEOUS APPLICATIO N FILED BY THE ASSESSEE IS DISMISSED . O RDER PRONOUNCED IN THE COURT ON 27 /11 / 2019 AT AHMEDABAD. - SD - - SD - (MS MADHUMITA ROY ) (WASEEM AHMED ) JUDICIAL MEMBER ACCOUNTANT MEMBER (TRUE COPY) A HMEDABAD; DATED 27 / 11 /2019 MANISH