ACIT, Central Circle, Tirupati, Hyderabad V. P. Hari Babu, Tirupati, Tirupathi

MA 1/HYD/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4317 (ITAT-HYDERABAD)
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-04-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 15-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M SITARAM
• Assessee Lawyers: S RAMA RAO

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI D.MANMOHAN, VICE PRESIDENT AND SHRI S.RIFAUR RAHMAN, ACCOUNTANT MEMBER MA NO.1/HYD/2016(IN MA NO.38/HYD/2015 IN ITA NO.1653/HYD/2010) : ASSESSMENT YEAR 2008-09 ASSTT. COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE, TIRUPATI V/S SHRI P.HARI BABU, TIRUPATI (PAN - AIKPP 6931 D ) (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI M.SITARAM RESPONDENT BY : SHRI S.RAMA RAO DATE OF HEARING 29.1.2016 DATE OF PRONOUNCEMENT 19.4.2016 O R D E R PER D.MANMOHAN, VICE PRESIDENT : THIS MISCELLANEOUS APPLICATION IS FILED BY THE RE VENUE, APPARENTLY AGAINST THE ORDER PASSED IN MA NO.38/HYD /2015, WHICH IN TURN ARISES OUT OF THE ORDER PASSED IN ITA NO.1653/ HYD/2010. 2. FACTS AS NARRATED IN THE MISCELLANEOUS APPLICAT ION ARE BRIEFLY STATED. CONSEQUENT TO THE SEARCH AND SEIZU RE PROCEEDINGS, ASSESSEE ADMITTED TOTAL INCOME OF RS.82,27,840, WHE REAS THE ASSESSING OFFICER DETERMINED THE INCOME AT RS.8,29, 79,278; IN PARTICULAR, AN AMOUNT OF RS.80,44,959 WAS ADDED BY THE ASSESSING OFFICER ON THE GROUND THAT THERE IS NO DOCUMENTARY PROOF IN SUPPORT OF THE EXPENDITURE CLAIMED TO HAVE BEEN INCURRED BY TH E ASSESSEE. THIS DISALLOWANCE WAS CONFIRMED BY THE CIT(A) PARTLY. I N OTHER WORDS, RS.77,44,959 WAS DELETED BY THE CIT(A) AND THE REVE NUE PREFERRED AN APPEAL BEFORE THE TRIBUNAL. ONE OF THE MAIN OBJECT IONS OF THE REVENUE WAS THAT THE CIT(A) OUGHT NOT TO HAVE ADMITTED FRES H EVIDENCES THAT WERE NOT PRODUCED BEFORE THE ASSESSING OFFICER AT T HE TIME OF MA NO.1/HYD/2016(IN MA NO.38/HYD/2015 IN ITA NO.1653/HYD/2010) SHRI P.HARI BABU, TIRUPATI 2 ASSESSMENT PROCEEDINGS. IT WAS CONTENDED THAT THE CIT(A) HAD VIOLATED RULE 46A OF THE IT RULES BY ADMITTING FRES H EVIDENCE, OVERLOOKING THE FACT THAT THE ASSESSEE DID NOT PROD UCE THE SAME BEFORE THE ASSESSING OFFICER IN SPITE OF THE OPPORT UNITY GIVEN. ASSESSEE ALSO PREFERRED A CROSS APPEAL WITH REGARD TO THE AD DITION OF RS.3 LAKHS CONFIRMED BY THE CIT(A). THE ITAT CONFIRMED THE DEC ISION OF THE CIT(A) WITH REGARD TO THE ADDITION OF RS.3 LAKHS WH ILE DEALING WITH THE ASSESSEES APPEAL. ACCORDING TO THE REVENUE, THE PL EA IN ITS APPEAL WITH REGARD TO THE VIOLATION OF RULE 46A WAS NOT CO NSIDERED BY THE TRIBUNAL, THOUGH IT WAS SPECIFICALLY RAISED IN ITS GROUNDS. 3. AGAINST THE ORDER OF THE TRIBUNAL, THE MATTER WAS TAKEN TO THE HIGH COURT. THE HIGH COURT WAS NOT INCLINED TO ADMIT THE APPEAL ON THE GROUND THAT THE TRIBUNAL HAS NOT CONSIDERED THE GROUND URGED BY THE REVENUE, AND HENCE, IT IS AN ERROR APPARENT ON THE FACE OF THE RECORD. THE HON'BLE HIGH COURT ALSO OBSERVED THAT I T IS FOR THE REVENUE TO MOVE AN APPLICATION UNDER S.254(2) OF THE ACT. T HUS, LIBERTY WAS GRANTED TO THE REVENUE TO MAKE AN APPLICATION BEFOR E THE TRIBUNAL. 4. ACCORDINGLY, A MISCELLANEOUS APPLICATION WAS F ILED BEFORE THE TRIBUNAL. WHILE ADJUDICATING THE SAID MISCELLAN EOUS APPLICATION NUMBERED AS MA NO.38/HYD/2015, THE TRIBUNAL OBSERVE D AS UNDER- 10. HENCE, THE LD DR POINTED OUT THAT WHILE SETTIN G ASIDE THE ORDER, THE TRIBUNAL HAS TAKEN CARE TO ADDRESS ALL T HE ISSUES. THE TRIBUNAL HAD LEFT IT TO THE ASSESSING OFFICER TO DE TERMINE THE ISSUES ON WHICH THE ADDITIONS WAS MADE AFTER CONSID ERATION OF THE EVIDENCES AND HENCE THE TRIBUNAL HAS NOT COMMIT TED AN ERROR IN NOT CONSIDERING THE GROUND NO.3 RAISED BY THE DEPARTMENT. SINCE THERE IS NO ERROR APPARENT U/S. 254(2), WE DISMISS THE MISCELLANEOUS APPLICATION FILED BY THE DEPARTMENT. MA NO.1/HYD/2016(IN MA NO.38/HYD/2015 IN ITA NO.1653/HYD/2010) SHRI P.HARI BABU, TIRUPATI 3 5. SINCE THE TRIBUNAL HAS NOT DISCUSSED THE ISSUE S SPECIFICALLY, AGAIN MISCELLANEOUS APPLICATION WAS FILED, UNFORTUN ATELY THE REVENUE SOUGHT TO FILE THE SAME AS A MISCELLANEOUS PETITION ARISING OUT OF MA NO.38/HYD/2015. 6. LEARNED COUNSEL APPEARING FOR THE ASSESSEE SUBM ITTED THAT PROVISIONS OF S.254(2) OF THE IT ACT, 1961 ARE MEAN T TO RECTIFY AN ORDER PASSED UNDER S.254(1) OF THE ACT, WHEREAS IN THE INSTANT CASE, REVENUE SEEKS REVIEW OF ORDER PASSED UNDER S.254(2) OF THE ACT, WHICH IS NOT PERMISSIBLE UNDER THE ACT. LEARNED CO UNSEL FILED WRITTEN SUBMISSIONS LISTING OUT A NUMBER OF AUTHORITIES ON THIS ASPECT, INCLUDING THE DECISION OF THE HON'BLE ORISSA HIGH C OURT IN THE CASE OF CIT V/S. ITAT AND OTHERS (196 ITR 838), WHEREIN IT WAS OBSERVED AS UNDER- THE APPEAL REFERRED TO IN THE PROVISION IS ONE F ILED UNDER SECTION 253. THEREFORE, THE ORDER WHICH CAN BE RECT IFIED MUST BE ONE WHICH HAS BEEN PASSED BY THE TRIBUNAL IN AN APPEAL FILED UNDER SECTION 253. IN OUR VIEW, AN O RDER REJECTING AN APPLICATION FOR RECTIFICATION UNDER S ECTION 254(2) IS NOT AVAILABLE TO BE RECTIFIED UNDER SECTI ON 254(2). THE SAME MAY RELATE TO AN APPEAL, BUT IT IS NOT AN ORDER PASSED BY THE TRIBUNAL UNDER SUB-SECTION (1) OF SEC TION 254. AS INDICATED ABOVE, THE ASSESSEES APPLICATION FOR RECTIFICATION UNDER SECTION 254(2) WAS REJECTED BY THE TRIBUNAL. THE SECOND APPLICATION WAS FOR RECTIFICAT ION OF SOME ALLEGED MISTAKE IN THE SAID ORDER OF REJECTION . SECTION 254(2) HAD NO APPLICATION TO SUCH AN ORDER. THE TRI BUNAL WAS NOT JUSTIFIED IN PURPORTING TO ACT UNDER SECTIO N 254(2) AND PASSING THE IMPUGNED ORDER. IN VIEW OF THIS, W E DO NOT THINK IT NECESSARY TO DEAL WITH THE SUBMISSIONS RELATING TO THE DISPUTE WHETHER THERE WAS ANY RECTIFIABLE MI STAKE APPARENT FROM THE RECORD OR NOT. 7. ON THE OTHER HAND, LEARNED DEPARTMENTAL REPRES ENTATIVE SUBMITTED THAT IT WAS ERRONEOUSLY CAPTIONED AS MP A RISING OUT OF MA NO.38/HYD/2015, WHICH SHOULD BE TREATED AS MISCELLA NEOUS PETITION FILED AGAINST THE ORDER PASSED IN ITA NO.1653/HYD/2 010. AT ANY RATE, MA NO.1/HYD/2016(IN MA NO.38/HYD/2015 IN ITA NO.1653/HYD/2010) SHRI P.HARI BABU, TIRUPATI 4 SINCE THE CONCERNED ISSUE WAS OMITTED TO BE CONSIDE RED IN MA NO.38/HYD/2015, IT CANNOT BE SAID THAT THE REVENUE IS SEEKING RECTIFICATION OF THE SAME ISSUE AGAIN, SINCE IT WAS NEVER CONSIDERED BY THE TRIBUNAL EARLIER. LEARNED DEPARTMENTAL REPRESEN TATIVE REFERRED TO THE ORDERS PASSED BY THE TRIBUNAL TO HIGHLIGHT THAT SPECIFIC GROUND WAS RAISED IN THE APPEAL WITH REGARD TO VIOLATION OF TH E PROCEDURE PRESCRIBED UNDER RULE 46A BUT THE TRIBUNAL HAS NOT SPECIFICALLY CONSIDERED THE SAME, AND OMISSION TO CONSIDER SHOUL D BE TREATED AS A PURE AND SIMPLE MISTAKE, WHICH IS RECTIFIABLE IN E XERCISE OF THE POWERS VESTED ON THE TRIBUNAL UNDER S.254(2) OF THE ACT, W ITHOUT GIVING EMPHASIS ON THE FORM; EMPHASIS SHOULD BE ON THE SUB STANCE RATHER THAN ON THE FORM. 8. THE LEARNED COUNSEL, ON THE OTHER HAND, SUBMITS THAT EVEN ON MERITS, THE TRIBUNAL IS DEEMED TO HAVE CONSIDERE D THIS ISSUE. IN FACT, REVENUE WAS OF THE VIEW THAT GROUND NO.3 WAS NOT CONSIDERED BY THE TRIBUNAL WHICH IS NOT CORRECT. 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS AND PERUSED THE RECORD. AT THE OUTSET, IT NEEDS TO BE P OINTED OUT THAT THE ISSUE RAISED IN THE FIRST MISCELLANEOUS APPLICATION AND THE SECOND MISCELLANEOUS PETITION, VIZ. THE PRESENT ONE, ARE O NE AND THE SAME. THOUGH THE REVENUE HAS INTENDED TO FILE A FRESH MIS CELLANEOUS APPLICATION AGAINST ORDER IN ITA NO.1653/HYD/2010, BUT IT IS AGAINST THE SAME ISSUE SINCE IT WAS NOT ADDRESSED BY THE IT AT IN THE FIRST MISCELLANEOUS APPLICATION. THE FACT REMAINS THAT I N THE INSTANT CASE THE REVENUE SOUGHT TO FILE A MISCELLANEOUS PETITION AGAINST ORDER IN MA NO.38/HYD/2015 WHICH IMPLIES THAT IT WAS CHALLENGIN G AN ORDER PASSED UNDER S.254(2) OF THE ACT, WHICH IS NOT PERMISSIBLE IN LAW SINCE A PETITION CAN BE FILED ONLY AGAINST AN ORDER PASSED UNDER S.254(1) OF THE ACT. IN THE LIGHT OF VARIOUS DECISIONS CITED BY THE LEARNED COUNSEL MA NO.1/HYD/2016(IN MA NO.38/HYD/2015 IN ITA NO.1653/HYD/2010) SHRI P.HARI BABU, TIRUPATI 5 APPEARING ON BEHALF OF THE ASSESSEE, WE ARE OF THE FIRM VIEW THAT THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE REVE NUE IS NOT MAINTAINABLE AND THEREFORE, IT IS DISMISSED ON THAT LIMITED ISSUE. 10. REVENUE IS, HOWEVER FREE TO MOVE A FRESH MISCE LLANEOUS APPLICATION, IF PERMISSIBLE UNDER LAW, AGAINST ORDE R IN ITA NO.1653/HYD/2010 OR TO MOVE HIGH COURT, IF THE ORDE R PASSED BY THE ITAT IN MA NO.38/HYD/2105 IS FOUND TO BE CONTRARY T O LAW. WITH THESE OBSERVATIONS, THE MISCELLANEOUS APPLICATION FILED B Y THE REVENUE IS DISMISSED. PRONOUNCED ACCORDINGLY IN THE COURT ON 19TH APRI L, 2016 SD/- SD/- (S.RIFAUR RAHMAN) (D.MANMOHAN) ACCOUNTANT MEMBER. VICE PRESIDENT DT/- 19TH APRIL, 2016 COPY FORWARDED TO: 1. SHRI P.HARI BABU, PLOT N O.8, VIDYANAGAR COLONY, TIRUAPTI 2. DY. COMMISSIONER OF INCOME - TAX CENTRAL CIRCLE TIRUPATI 3. COMMISSIONER OF INCOME - TAX(APPEALS) VII HYDERABAD 4. COMMISSIONER OF INCOME - TAX CENTRAL HYDERABAD 5. DEPARTMENTAL REPRESENTATIVE ITAT, HYDERABAD B.V.S.