SHRI. T SHIVAJI, VELLORE V. ITO WARD 2, VELLORE

MA 1/CHNY/2021

AI Insights

The case involves a Miscellaneous Application filed by Shri T. Shivaji, the assessee, under Section 254(2) of the Income-tax Act, 1961, challenging an earlier Tribunal order which found that certain materials constituted fresh evidence enabling the Assessing Officer to conclude that income had escaped assessment. The assessee argued that these materials were the same as those used in a previous assessment reopening, thus not fresh. The Departmental Representative contended that the application was essentially a request for a review of the Tribunal's decision, which is not permissible under the Act. The Tribunal agreed with the Department's view, citing the Supreme Court's decision in CIT vs Reliance Telecom Limited, and dismissed the application.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 134891 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 2 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-03-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 09-03-2023
• Assessment Year: 2009-2010
• Appeal Filed On: 07-01-2021
• Other Referred Cases: CIT vs M/s. Reliance Telecom Limited in Civil No. 7110/2021
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Rectification of order
• Section: 147; 133A; 254(2)

Judgement Text

आयकर अपीलीय अिधकरण, ‘डी’ ᭠यायपीठ, चे᳖ई IN THE INCOME TAX APPELLATE TRIBUNAL ‘D’ BENCH, CHENNAI ᮰ी वी दुगाᭅ राव, ᭠याियक सद᭭य एवं ᮰ी मंजुनाथ. जी, लेखा सद᭭य के समᭃ BEFORE SHRI V. DURGA RAO, HON’BLE JUDICIAL MEMBER AND SHRI MANJUNATHA. G, HON’BLE ACCOUNTANT MEMBER Misc. Application No. 1/Chny/2021 [In ITA No. 415/Chny/2018] (िनधाᭅरणवषᭅ / Assessment Year: 2009-10) Shri. T. Shivaji, Hasath Street, Melvisharam, Vellore – 632 509. [PAN: DEPPS-7396-B] v. The Income Tax Officer, Ward-2, Vellore. (ᮧाथᭅक /Petitioner) (ᮧ᭜यथᱮ/Respondent) ᮧाथᭅक कᳱ ओरसे/ Petitioner by : Shri. I. Dinesh, Advocate ᮧ᭜यथᱮ कᳱ ओर से/Respondent by : Shri. P. Sajit Kumar, JCIT सुनवाई कᳱ तारीख/Date of Hearing : 10.03.2023 घोषणा कᳱ तारीख/Date of Pronouncement : 22.03.2023 आदेश /O R D E R PER MANJUNATHA. G, ACCOUNTANT MEMBER: The assessee has filed present Miscellaneous Application u/s. 254(2) of the Income-tax Act, 1961 (hereinafter referred to as “the Act”) against order of the Tribunal in ITA No. 415/Chny/2018 dated 18.02.2020 and relevant to assessment year 2009-10. 2. The Ld. Counsel for the assessee, submitted that there is an error in the order of the Tribunal dated 18.02.2020, :-2-: MA. No: 1/Chny/2021 because the Tribunal has given a finding that there is fresh material in the form of cash and source for construction of house and source for cash deposits in SBI bank and said materials undoubtedly constitutes fresh material, enabling the Assessing Officer to form an opinion that income has escaped assessment. But, fact remains that the very same materials were the basis for re-opening of assessment u/s. 147 of the Act, pursuant to survey u/s. 133A of the Act, was conducted in the case of the assessee. The second re-opening of the assessment was based on very same materials which were used against the assessee in the first re-opening of the assessment and thus, the finding recorded by the Tribunal that there is a fresh available material in the form of evidence collected during the course of survey constitutes a fresh material is incorrect and constitutes mistake apparent on record and requires to be rectified u/s. 254(2) of the Act. 3. The Ld. DR present for the revenue, on the other hand submitted that the assessee could not make out a case of Prima Facie mistake apparent on record from the order of the Tribunal, but what was sought from the Miscellaneous Application filed by the assessee is to review the decision :-3-: MA. No: 1/Chny/2021 rendered by the Tribunal in the given facts and circumstances of the case and thus, there is no merit in the Miscellaneous Application filed by the assessee and same should be rejected. 4. We have heard both the parties and considered relevant contents of Miscellaneous Application filed by the assessee and we find that the Tribunal had recorded a factual finding in Para 6 of their order dated 18.02.2020 and held that incriminating material found as a result of survey operations like cash and source for construction of house and source for cash deposits in bank account constitutes a fresh material enabling the Assessing Officer to form an opinion that income had escaped assessment. In our considered view, said finding recorded by the Tribunal is based on facts available on record and arguments advanced by both the sides. Therefore, we are of the considered view that there is no merit in the Miscellaneous Application filed by the assessee to recall the order of the Tribunal dated 18.02.2020, because what was sought through Miscellaneous Application filed by the assessee is nothing but review of the order passed by the Tribunal in the given facts and circumstances of the case. Therefore, we are of the considered view that there is no merit in the Miscellaneous :-4-: MA. No: 1/Chny/2021 Application filed by the assessee, because the scope of powers of Tribunal u/s. 254(2) of the Act is very limited to the extent of rectification of mistake apparent on record and not beyond that as held by the Supreme Court in the case of CIT vs M/s. Reliance Telecom Limited in Civil No. 7110/2021. 5. In this view of the matter and by following the decision of Hon’ble Supreme Court in the case of CIT vs Reliance Telecom Limited (supra), we are of the considered view that the assessee failed to make out the case of mistake apparent on record which can be rectified u/s. 254(2) of the Act and thus, we dismiss the Miscellaneous Application filed by the assessee. 6. In the result, Miscellaneous Application filed by the assessee is dismissed. Order pronounced in the court on 22 nd March, 2023 at Chennai. Sd/- (वी दुगाᭅ राव) (V. DURGA RAO) ᭠याियकसद᭭य/Judicial Member Sd/- (मंजुनाथ. जी) (MANJUNATHA. G) लेखासद᭭य/Accountant Member चे᳖ई/Chennai, ᳰदनांक/Dated: 22 nd March, 2023 JPV आदेश कᳱ ᮧितिलिप अᮕेिषत/Copy to: 1. अपीलाथᱮ/Appellant 2. ᮧ᭜यथᱮ/Respondent 3. आयकर आयुᲦ (अपील)/CIT(A) 4. आयकर आयुᲦ/CIT 5. िवभागीय ᮧितिनिध/DR 6. गाडᭅ फाईल/GF