Baladeb Mohapatra, Jagatsinghpur V. ITO, Ward-1, Paradeep

MA 06/CTK/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3092 (ITAT-CUTTACK)
• Duration Of Justice: 8 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 15-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J K LENKA
• Keywords: Rectification of order; Condonation of delay
• Section: 201; 254(2); 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI C.M. GARG, JM & SHRI L.P. SAHU, AM MISCELLANEOUS APPLICATION NO. 06 /CTK/201 9 ( / ASSESSMENT YEAR : 201 1 - 20 12 ) BALADEB MOHAPATRA, PAHANA , PANKAPAL, JAGATSINGHPUR VS. ITO WARD - 1, PARADEEP ./ PANNO. : A KHPM 1731 F ( / APPELLANT ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI SUNIL MISHRA, ADVOCATE /REVENUE BY : SHRI J.K.LENKA , DR / DATE OF HEARING : 1 8 / 1 1 /2019 / DATE OF PRONOUNCEMENT : 19 / 1 1 /2019 / O R D E R PER L.P.SAHU , A M : THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE SEEKING REVIEW OF THE ORDER PASSED BY THE TRI BUNAL IN ITA NO.344/CTK/2016 VIDE ORDER DATED 31.08.2017 2. LD. AR BEFORE US SUBMITTED THAT AGAINST THE ABOVE ORDER OF THE TRIBUNAL, THE ASSESSEE FILED AN APPEAL BEFORE THE HONBLE HIGH COURT WHICH WAS REGISTERED AS INCOME TAX APPEAL NO. 51/2017 AND THE HO NBLE HIGH COURT VIDE ORDER DATED 06.02.2019 HAS DIRECTED THE TRIBUNAL TO DECIDE THE REVIEW PETITION TO BE FILED BY THE ASSESSEE AS EXPEDITIOUSLY AS POSSIBLE, PREFERABLY WITHIN A PERIOD OF FOUR MONTHS FROM THE DATE OF FILING OF SUCH REVIEW PETITION, HENCE, THIS REVIEW M A NO. 06 /CTK/201 9 2 PETITION HAS BEEN FILED BY THE ASSESSEE PRAYING THEREIN THAT THE ORDER DATED 31.08.2017 MAY KINDLY BE REVIEWED CONSIDERING THE SUBMISSIONS OF THE ASSESSEE. 3. LD. DR, ON THE OTHER HAND, RELIED ON THE ORDER OF THE AUTHORITIES BELOW. 4. AFTER CO NSIDERING THE SUBMISSIONS OF BOTH THE SIDES AND PERUSING THE ENTIRE MATERIAL AVAILABLE ON RECORD ALONG WITH THE SUBMISSIONS OF THE ASSESSEE AS WELL AS THE ORDER OF HONBLE HIGH COURT PLACED ON RECORD , WE FIND THAT THE APPEAL OF THE ASSESSEE IN ITA NO.344/C TK/2016 WAS DISMISSED BY THE TRIBUNAL VIDE ORDER DATED 31.08.2017. THEREAFTER, WITHOUT AVAILING THE REMEDY AVAILABLE TO THE ASSESSEE, THE ASSESSEE FILED AN APPEAL BEFORE THE HONBLE HIGH COURT IN INCOME TAX APPEAL NO. 51/2017, HOWEVER, THE HONBLE HIGH COUR T VIDE ORDER DATED 06.02.2019 HAS OBSERVED THAT PROPER REMEDY FOR THE ASSESSEE IS TO FILE A REVIEW PETITION BEFORE THE INCOME TAX APPELLATE TRIBUNAL AND THEREBY DIRECTED TO DO SO. THE OBSERVATIONS OF THE HONBLE HIGH COURT IN THIS REGARD ARE AS UNDER : - 06.02.2019 HEARD MR. S.MISHRA, LEARNED COUNSEL FOR THE APPELLANT AND LEARNED STANDING COUNSEL FOR THE INCOME TAX DEPARTMENT. 2. BY WAY OF THIS INCOME TAX APPEAL, THE APPELLANT HAS CHALLENGED THE ORDER DATED 31.08.2017 PASSED BY THE LEARNED INCOME TAX AP PELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK IN I.T.A NO.344/CTK/2016 FOR THE ASSESSMENT YEAR 2011 - 2012. 3. THE ARGUMENT CANVASSED BY LEARNED COUNSEL FOR THE ASSESSEE - APPELLANT DO NOT FIND FAVOUR WITH THE JUDGMENT OF M A NO. 06 /CTK/201 9 3 THE LEARNED TRIBUNAL. HOWEVER, LEARNED COU NSEL FOR THE APPELLANT SAYS THAT THEY HAD ARGUED THE SAID POINTS BEFORE THE LEARNED TRIBUNAL. IF IT IS SO, ,THE PROPER REMEDY FOR THE APPELLANT IS TO FILE A REVIEW PETITION BEFORE THE LEARNED TRIBUNAL. 4. IF SUCH A REVIEW PETITION IS FILED WITHIN A MONTH FROM TODAY ALONG WITH A CERTIFIED COPY OF THIS ORDER, LEARNED TRIBUNAL SHALL DEAL WITH THE CONTENTIONS RAISED BY THE APPELLANT AND DISPOSE OF SUCH REVIEW PETITION IN ACCORDANCE WITH LAW AS EXPEDITIOUSLY AS POSSIBLE, PREFERABLY WITHIN A PERIOD OF FOUR MONTH S FROM THE DATE OF FILING OF SUCH REVIEW PETITION. 5. IT IS MADE CLEAR THAT WE HAVE NOT EXPRESSED ANY OPINION ON THE MERITS OF THE CASE. HOWEVER, THE PERIOD FROM 13.10.2017 TILL TODAY TAKEN BY THE APPELLANT, IN PURSING THIS APPEAL WILL BE TAKEN INTO CONS IDERATION FOR CONDONATION OF DELAY WHILE CONSIDERING THE REVIEW BY THE TRIBUNAL. 6. ORIGINAL COPY OF THE IMPUGNED ORDER MAY BE RETURNED TO THE APPELLANT SUBSTITUTING ATTESTED PHOTOCOPIES THEREOF. 7. WITH THE ABOVE OBSERVATION/DIRECTION, THE APPEAL STAND S DISPOSED OF. ALL CONNECTED MISC. CASES/I.AS. ARE DISPOSED OF ACCORDINGLY. URGENT CERTIFIED COPY OF THIS ORDER BE GRANTED ON PROPER APPLICATION. 5. ON THE ABOVE DIRECTIONS OF THE HONBLE HIGH COURT, THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATI ON AND ON CAREFUL PERUSAL OF THE CONTENTS OF THE MISCELLANEOUS APPLICATION FILED BEFORE US, WE OBSERVE THAT THE SUBMISSIONS OF THE ASSESSEE TRIGGER TO REVIEW OF THE ORDER DATED 31.08.2017, WHICH WE DO NOT HAVE ANY RIGHT/POWER U/S 254(2) OF THE ACT TO REVIE W OUR ORDER. T HE SCOPE OF SECTION 254(2) OF THE ACT TO RECTIFY MISTAKE APPARENT FROM RECORD IS VERY LIMITED AND TRIBUNAL CANNOT REVIEW ITS OWN DECISIONS WITHIN LIMITED SCOPE OF SECTION 254(2) OF THE ACT UNLESS THERE IS A MISTAKE APPARENT FROM RECORDS. OUR VIEW IS ALSO SUPPORTED BY THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN M A NO. 06 /CTK/201 9 4 THE CASE OF CIT VS. JAGABANDHU ROUL, [1983] 12 TAXMAN 156 (ORI.), WHEREIN THE HONBLE HIGH COURT HAS HELD AS UNDER : - IN OUR OPINION, THE TRIBUNAL DOES NOT HAVE A POWER OF REV IEW. WHAT HAS BEEN GIVEN UNDER SECTION 254(2) IS ONE OF RECTIFICATION OF MISTAKES. THERE CAN BE NO TWO OPINIONS THAT THE POWER OF REVIEW HAS TO BE STATUTORILY CONFERRED . 7. IN THE INSTANT CASE, NO REFERENCE HAS BEEN MADE BY THE TRIBUNAL WHILE DISPOSING OF THE APPEAL TO DHADI SAHU'S CASE ( SUPRA ) BECAUSE THE SAME HAD NOT BEEN PLACED BEFORE IT. WHEN DHADI SAHU'S CASE WAS NOT BEFORE THE TRIBUNAL AT THE APPELLATE STAGE FOR CONSIDERATION, AND THE ASSESSEE APPLIED TO THE TRIBUNAL TO REVIEW ITS DECISION BY APPLYING THE PRINCIPLE IN DHADI SAHU'S CASE ( SUPRA ), IT WAS REALLY NOT AN APPLICATION WITHIN THE AMBIT OF SECTION 254(2) BUT WAS ONE FOR REVIEW. IN THE CASE OF PAWAN KUMAR MORE ( SUPRA ) , THIS COURT OBSERVED: 'ON THE BASIS OF THE LAW INDICATED IN THE AFORESAID DECI SION, THE ASSESSEE MADE AN APPLICATION PURPORTING TO BE UNDER SECTION 154 OF THE ACT TO THE APPELLATE TRIBUNAL. THE TRIBUNAL TOOK THE VIEW THAT THERE WAS NO ERROR APPARENT ON THE FACE OF THE RECORD AND, ACCORDINGLY, DECLINED TO INTERFERE. THE ASSESSEE HAS, THEREFORE, COME WITH THIS WRIT APPLICATION ASKING FOR QUASHING OF THE IMPOSITION OF PENALTY ON THE GROUND THAT THE STATUTORY AUTHORITY HAD NO JURISDICTION TO EXERCISE OR ALTERNATIVELY TO ISSUE A DIRECTION TO THE TRIBUNAL TO RECTIFY THE MISTAKE. ON THE RAT IO OF THE DECISION OF THIS COURT IN DHADI SAHU'S CASE [1976] 105 ITR 56 (ORI.), THE IMPOSITION OF PENALTY IN THE MATTER IS ADMITTEDLY WITHOUT JURISDICTION. LEARNED STAN DING COUNSEL HAS, HOWEVER, CONTENDED THAT THE PENALTY PROCEEDINGS HAD BECOME FINAL SEVERAL YEARS BACK AND IT WOULD NOT BE APPROPRIATE TO ALLOW THE CONCLUDED MATTER TO BE REOPENED AT THIS POINT OF TIME. HE AGAIN SUBMITS THAT THE MATTER HAD ONCE COME BEFORE THIS COURT AND THE REFERENCE APPLICATION UNDER SECTION 256(2) OF THE ACT HAD ALSO BEEN REJECTED. MERELY BECAUSE THE EFFECT OF THE LAW WHICH HAS BEEN DECLARED IN DHADI SAHU'S CASE [1976] 105 ITR 56 (ORI.) IS AGAINST THE REVENUE, IT WOULD NOT MEAN THAT EVERY MATTER WHERE A DIFFERENT VIEW HAD BEEN TAKEN AND HAS BECOME FINAL SHOULD BE PERMITTED TO BE REOPENED. WE FIND FORCE IN THE OBJECTION OF THE LEARNED STANDING COUNSEL.' (PP. 1014 - 15) WE ARE INCLINED TO AGREE WITH THE LEARNED STANDING COUNSEL THAT THE TRIBUNAL EXCEEDED ITS JURISDICTION WHEN IT REVIEWED ITS EARLIER DECISION PURPORTING TO ACT UNDER SECTION 254(2) AND VACATED THE PENALTY THE IMPOSITION OF WHICH IT HAD UPHELD WHILE DISPOSING OF THE APPEAL. LEARNED STANDING COUNSEL HAD STATED TO US AT THE TIME OF HEARING THAT IT WOULD BE ENOUGH IF THE SECOND QUESTION REFERRED TO US BE ANSWERED. OUR ANSWER TO THE SECOND QUESTION, THEREFORE, SHALL BE: ON THE FACTS AND IN THE CIRCU MSTANCES OF THE CASE, THE TRIBUNAL WAS NOT LEGALLY COMPETENT TO REVERSE ITS FINAL DECISION IN EXERCISE OF POWERS UNDER SECTION 254(2) . M A NO. 06 /CTK/201 9 5 6. RESPECTFULLY FOLLOWING THE ABOVE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT, WE DO NOT ACCEPT THE PRAYER OF TH E ASSESSEE FOR REVIEW OF THE ORDER PASSED BY THE TRIBUNAL DATED 31.08.2017. HOWEVER, ON THE DIRECTION OF THE HONBLE HIGH COURT VIDE ORDER DATED 06.02.2019, TO AVAIL THE REMEDY AVAILABLE TO THE ASSESSEE, WE ACCEPT THE MISCELLANEOUS APPLICATION FILED BY TH E ASSESSEE TO THE EXTENT OF RECALLING OF THE SAME TO HEAR AFRESH. ACCORDINGLY, WE R ESTORE THE ORDER DATED 31.08.2017 PASSED IN ITA NO.344/CTK/2017 TO ITS ORIGINAL NUMBER AND DIRECT THE REGISTRY TO LIST THE APPEAL FOR HEARING AFRESH ON 13.12.2019 . NO SEPAR ATE NOTICE IS TO BE SERVED AS BOTH THE PARTIES HAVE BEEN INFORMED IN THE OPEN COURT ITSELF. 7 . IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED TO THE EXTENT AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 19 /1 1 /2019. SD/ - ( C.M.GARG ) SD/ - (L.P.SAHU) / JUDICIAL MEMBER / ACCOUNTANT MEMBER CUTTACK; DATED 19 / 11 /201 9 PRAKASH KUMAR MISHRA, SR.P.S. M A NO. 06 /CTK/201 9 6 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) ITAT CUTTACK BENCH, CUTTACK 1. / THE APPELLANT - BALADEB MOHA PATRA, PAHANA, PANKAPAL, JAGATSINGHPUR 2. / THE RESPONDENT - ITO WARD - 1, PARADEEP 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, CUTTACK 6. / GUARD FILE. //TRUE COPY//