The Commissioner of Income Tax-III, RAJKOT-GUJARAT V. Pansuriya Girishbhai J., RAJKOT-GUJARAT

MA 1/RJT/2014

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6491 (ITAT-RAJKOT)
• Duration Of Justice: 5 year(s) 1 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-02-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 07-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Tax effect; Condonation of delay; Set aside
• Section: 119(2)(b); 201; 254(2); 37

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT (CONDUCTED THROUGH E - COURT AT AHMEDABAD) BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER AND SHRI WASEEM AHMED , ACCOUNTANT MEMBER M.A NO .1/RJT/2014 IN ./ ITA NO .444 / RJT / 2013 / ASSTT. YEAR: 2010 - 2011 A.C.I.T, RAJKOT VS PANSURIYA GIRISHBHAI JADAVBHAI, GAYATRI , MAYANI NAGAR, CHANDRESHNAGAR MAIN ROAD, RAJKOT. PAN: A JQPP0956P (APPLICANT) ( RESPON D ENT ) REVENUE BY : SHRI PRAVEEN VERMA, SR. D.R ASSESSEE BY : WRITTEN SUBMISSION / DATE OF HEARING : 31 / 01 /201 9 / DATE OF PRONOUNCEMENT: 18 / 02 /201 9 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER : T HE INSTANT MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS ARISING OUT OF ORDER DATED 29/11/2013 , PASSED BY THE CO - ORDINATE BENCH, IN ITA BEARING NO .444 / RJT/2013 FOR THE ASSESSMENT YEAR 2010 - 20 11. 2. THE REVENUE BY WAY OF THIS MISCELLANEOUS APPLICATION IS SEEKING TO RECTIFY THE MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF TRIBUNAL DATED 29/11/2013. M.A NO .1/RJT/2014 IN ITA NO .444/RJT/2013 A.Y .2010 - 11 2 3. THE LD.DR, BEFORE US SUBMITTED AS UNDER: 2. IN THIS CASE THE ASSESSEE HAS FILED HIS RETURN OF INCOME FOR THE AY 2010 - 11 ON 12.10.2012, I.E. AFTER EXPIRY OF SPECIFIED PERIOD UNDER THE RELEVANT PROVISIONS OF IT ACT. SUBSEQUENTLY, THE ASSESSEE FILED APPLICATION FOR CONDONATION OF DELAY IN FILING RETURN OF INCOME CLAIMING REFUND OF RS 5,771/ - THEREIN BEFORE THE CIT - I, RAJKOT ON 01.11.2012 WHO HAS TRANSFERRED THE CASE TO THE UNDERSIGNED ON 24.12.2012 AS THE JURISDICTION RESTS WITH THIS OFFICE. A REPORT FROM THE AO HAS BEEN CALLED FOR SUBSEQUENTLY. ON PERUSAL OF REPORT SUBMITTED BY THE AO, IT IS FOUND THAT THE ASSESSEE HAS NOT SHOWN ANY COGENT REASON FOR DELAY IN SU BMISSION IN FILING HIS RETURN OF INCOME. THUS, I HAVE PASSED AN ORDER BASED ON THE FACTS EVIDENT FROM RECORDS AFTER GIVING OPPORTUNITY OF BEING HEARD. 3. AGGRIEVED, THE ASSESSEE PREFERRED APPEAL BEFORE THE HON'BLE IT AT WHO HAS ALLOWED T HE APPEAL CITING THE JUDGMENT OF KERALA HIGH COURT IN THE CASE OF PALA MARKETING CO - OP SOCIETY LTD. VS. UNION OF INDIA(311 ITR177). 4. ON VERIFICATION OF THE FACTS DETAILED IN THE ITAT'S ORDER, IT IS NOTICED THAT THE FOLLOWING FACTS HAVE NOT BEEN BROUGHT TO THE NOTICE OF THE HON'BLE IT AT: A) THE APPEAL OF THE ASSESSEE HAS BEEN ADMITTED BY THE IT AT WHICH IS IN CONTRAVENTION OF SECTION 253(1) OF THE IT ACT AS THE ORDER U/S 119(2)(B) IS NOT AN APPEALABLE ORDER BEFORE THE ITAT. B) THE JUDGMENT REFERRED IN THE ORDER HAS BEEN PRONOUNCED BY THE KERALA HIGH COURT WHICH WAS IN REPLY OF WRIT FILED BY THE ASSESSEE. 5. UNDER THESE CIRCUMSTANCES, THE HON'BLE ITAT RAJKOT IS REQUESTED TO ACCEPT THIS MISCELLANEOUS APPLICATION AND PASS SUITABLE ORDER BY REVOKING THE ORDER NO.444/RJT/2013 DATED 29.11.2013 WITH THE PRAYER THAT THE APPEAL FILED BY THE ASSESSEE IS NOT MAINTAINABLE AND THUS REQUIRES TO BE DISMISSED . COPIES OF THE RELEVANT DOCUMENTS ARE ENCLOSED HEREWITH FOR READY REFERENCE. M.A NO .1/RJT/2014 IN ITA NO .444/RJT/2013 A.Y .2010 - 11 3 4. ON THE OTHER HAND THE LD.AR, BEFORE US , SUBMITTED AS UNDER: AT THE TIME OF LAST HEARING FIXED ON 3 - 12 - 2018, WRITTEN SUBMISSION HAVE BEEN FURNISHED ALONG WITH REQUIRE DETAILS. THE SAME MAY KINDLY BE ACCEPTED AND MA FILED BY THE DEPARTMENT MAY KINDLY BE R EJECTED AS PRAYED FOR . 2. COPY OF THE GROUNDS OF APPEAL TAKEN BY THE APPELLANT IN ORIGINAL APPEAL IS ALSO FURNISHED HEREWITH. PARA. 5 THEREOF MAY KINDLY BE CONSIDERED WHICH SHOWS THE SEVERE INABILITY OF THE APPELLANT WHICH HAS CAUSED DELAY IN MAKING CLAIM IN TIME. THE AT MOST HUMANITICAL ANGEL HAS BEEN TAKEN BY THE HON . I.T.A.T BENCH RAJKOT IN ACCEPTING CLAIM OF THE APPELLANT. MORE EVER ALSO BECAUSE OF VERY SMALL TAX EFFECT INVOLVED OF RS. 5,771/ - THE MA IS NOT MAINTAINABLE AND NEEDS DISMISSAL AS PER SUBMISSIONS MADE BEFORE THE HON. BENCH AT THE TIME OF LAST HEARING FIXED ON 3 - 12 - 2018 AS MENTION AT PARA. 1 ABOVE. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE SCOPE OF THE PROVISION OF SECTION 254(2) OF THE A CT IS LIMITED TO THE EXTENT OF THE MISTAKE/ERRORS WHICH ARE APPARENT FROM THE RECORD . T HUS THE MISTAKE WHICH NEEDS TO BE DECIDED AFTER LONG DRAWN PROCESS/REASONING CANNOT AMOUNT TO MISTAKE APPARENT FROM THE RECORD AND ACCORDINGLY THIS CANNOT BE RECTIFIED U/S 254(2) OF THE ACT. 6. THE REVENUE IN THIS MISCELLANEOUS APPLICATION HAS MADE TWO ALLEGATION S AS DETAILED UNDER: 1. THE ORD ER PASSED BY THE LD.CIT (A) U/S 119(2)(B) IS NOT APPEALABLE ORDER BEFORE THE ITAT. 2. THE RELIANCE OF THE ITAT ON THE JUDGMENT OF HON BLE KERALA HIGH COURT IS NOT CORRECT AS IT WAS DECIDED IN PURSUANCE TO THE WRIT PETITION FILED BY THE ASSESSEE. M.A NO .1/RJT/2014 IN ITA NO .444/RJT/2013 A.Y .2010 - 11 4 7. IT IS A FACT THAT THERE CAN BE AN ERROR OF JUDGMENT IN THE ORDER OF THE ITAT , BUT THAT CANNO T BE EQUATED WITH A MISTAKE APPARENT FROM THE RECORD . IN THE INSTANT CASE , THE ITAT HAS DECIDED APPEAL FILED AGAINST THE ORDER PASSED BY THE LD.CIT(A) U/S 119 (2)(B) OF THE ACT WHICH CAN BE AN ERROR OF JUDGMENT BUT THE SAME CANNOT BE HELD AS A MISTAKE APPARENT FROM THE RECORD. 8. SIMILARLY , THE RELIANCE ON THE JUDGMENT OF HON BLE HIGH COURT CAN BE AN ERROR OF JUDGMENT , BUT THE RELIANCE ON THE SAME DOES NOT LEAD TO DRAW AN Y INFERENCE THAT THERE IS A MISTAKE IN THE ORDER OF THE ITAT. 9. AFTER HAVING CO NSIDERING THE FACT IN TOTALITY , WE CONCLUDE THAT THERE WAS NO APPARENT MISTAKE POINTED OUT BY THE LD.DR, IN THE ORDER OF THE TRIBUNAL. THE ALLEGATION MADE BY THE REVENUE AT THE MOST CAN AMOUNT TO THE ERROR IN JUDGMENT AND NOT AN APPARENT MISTAKE FROM THE RECORD. THERE CAN BE AN ERROR OF JUDGMENT IN THE ORDER OF ITAT, BUT THE TRIBUNAL CAN NOT RECTIFY THE SAME. OTHERWISE, IT WILL AMOUNT TO REVIEW ITS OWN ORDER. IN HOLDING SO, WE FIND SUPPORT & GUIDANCE FROM THE JUDGMENT OF HON BLE GUJARAT H IGH COURT IN THE CASE OF CIT(EXEMPTION) VS. GUJARAT INSTITUTE OF HOUSING ESTATE DEVELOPERS REPORTED IN 84 TAXMANN.COM 148 WHEREIN IT WAS HELD AS UNDER: 4. IN THE PRESENT CASE, AS NOTED THE TRIBUNAL HAD GIVEN DETAILED REASONS FOR COMING TO THE CONCLUSION THAT THE PRINCIPLE OF MUTUALITY WOULD NOT APPLY. WHILE ACCEPTING THE ASSESSEE'S RECTIFICATION APPLICATIONS, THE TRIBUNAL UNDERTOOK EQUALLY PAINSTAKING AND ELABORATE CONSIDERATION OF THE VERY SAME ISSUES AND VERY SAME FACTS TO COME TO A CONTRARY CONCLUSION. IT IS NOT NECESSARY NOR POSSIBLE FOR US TO HOLD WHETHER THE TRIBUNAL'S FIRST VIEW WAS CORRECT OR THE SUBSEQUENT ONE. IT IS ENOUGH TO HOLD THAT THE TRIBUNAL COULD NOT HAVE UNDERTAKEN SUCH INCISIVE AND DETAILED EXAMINATION OF FACTS AND LAW TO COME TO THE CO NCLUSION WHICH ARE COMPLETELY CONTRARY TO ITS OWN CONCLUSION ARRIVED AT AFTER DETAILED CONSIDERATIONS. SUCH POWERS SIMPLY DO NOT FLOW FROM THE POWER OF RECTIFICATION UNDER SUB - SECTION (2) OF SECTION 254 OF THE ACT. M.A NO .1/RJT/2014 IN ITA NO .444/RJT/2013 A.Y .2010 - 11 5 5. UNDER THE CIRCUMSTANCES, IN OUR OPINION THE TRIBUNAL COMMITTED A SERIOUS ERROR IN ALLOWING THE ASSESSEE'S RECTIFICATION APPLICATIONS AND RECALLING ITS EARLIER ORDER OF REJECTION OF APPEALS. THE IMPUGNED ORDER DATED 29.07.2016 IS THEREFORE SET ASIDE. CONSEQUENTLY, THE ORDER PASSED BY THE TRIBUNAL OF ALLOWING ALL THE TAX APPEALS OF THE ASSESSEE BY ORDER DATED 25.11.2016 WOULD THEREFORE AUTOMATICALLY BE RENDERED NON - EST. RESULTANTLY, THE TRIBUNAL'S ORIGINAL ORDER DATED 29.09.2015 WOULD BE RESTORED . NEEDLESS TO STATE THAT THE ASSESSEE FEELING AGGRIEVED BY THE SAID ORDER, IT WILL ALWAYS BE OPEN FOR THE ASSESSEE TO FILE TAX APPEALS. THE INTERVENING FACTS AND CIRCUMSTANCES WOULD CERTAINLY BE RELEVANT IN THE CONTEXT OF TECHNICAL DELAY IF ANY THAT MAY ARISE IN THE PROCESS OF FILING SUCH TAX APPEALS . 9.1 IN THIS REGARD WE ALSO PLACE OUR RELIANCE ON THE JUDGMENT OF BOMBAY HIGH COURT IN THE CASE OF RAMESH ELECTRIC & TRADING COMPANY REPORTED IN 77 TAXMAN 43 WHEREIN IT WAS HELD AS UNDER: THE APPELLATE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER THE PROVISIONS OF THE INCOME - TAX ACT, 1961. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO RECTIFY ANY MISTAKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD. THIS IS MERELY A POWER OF AMENDING ITS ORDER. IN THE INSTANT CASE, IN THE FI RST ORDER OF THE TRIBUNAL DATED 9 - 6 - 1975, THERE WAS NO MISTAKE WHICH WAS APPARENT FROM THE RECORD AT ALL. THE TRIBUNAL WAS REQUIRED TO DECIDE WHETHER THE COMMISSION PAYMENT OF RS. 54,000 WAS DEDUCTIBLE UNDER SECTION 37 AFTER EXAMINING THE CIRCUMSTANCES , TH E TRIBUNAL CAME TO THE CONCLUSION THAT IT WAS NOT SO DEDUCTIBLE. THE TRIBUNAL CANNOT, IN EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION SO ARRIVED AT . THE MISTAKE WHICH THE TRIBU NAL IS ENTITLED TO CORRECT IS NOT AN ERROR OF JUDGMENT BUT A MISTAKE WHICH IS APPARENT FROM THE RECORD ITSELF. NO SUCH MISTAKE WAS APPARENT FROM THE RECORD. IN FACT, THIS WAS DOUBTFUL, IF THIS SORT OF AN EXERCISE COULD HAVE BEEN DONE BY THE TRIBUNAL EVEN I F IT HAD THE POWER OF REVIEW. THE TRIBUNAL HAD, PATENTLY, FAR EXCEEDED ITS JURISDICTION UNDER SECTION 254(2) IN REDECIDING THE ENTIRE DISPUTE WHICH WAS BEFORE IT IN THIS FASHION, AND THE TRIBUNAL HAD COMMITTED A GROSS AND INEXPLICABLE ERROR FOR REASONS WHI CH COULD NOT BE UNDERSTOOD. THE POWER OF RECTIFICATION UNDER SECTION 254(2) CAN BE EXERCISED ONLY WHERE THE MISTAKE IS APPARENT FROM THE RECORD, AND NOT A MISTAKE WHICH IS REQUIRED TO BE ESTABLISHED BY ARGUMENTS AND A LONG - DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MIGHT CONCEIVABLY BE TWO OPINIONS. FAILURE BY THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY HAVE BEEN AN ERROR OF JUDGMENT. IN THE INSTANT CASE, THE ALLEGED FAILURE, AT LEAST ON ONE M.A NO .1/RJT/2014 IN ITA NO .444/RJT/2013 A.Y .2010 - 11 6 COUNT, WAS ATTRIBUTED BY THE ASSESSEE TO THE ITO AND NOT THE TRIBUNAL THEREFORE , THE TRIBUNAL HAD NO JURISDICTION UNDER SECTION 254(2) TO PASS THE SECOND ORDER. 9.2 THUS IN OUR CONSIDERED VIEW , THERE I S NO MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF ITAT WHICH CAN BE RECTIFIED U/S 254(2) OF THE ACT. 10. HENCE THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE AT THIS MOMENT IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 18 / 02 / 201 9 AT AHMEDABAD. - SD - ( MAHAVIR PRASAD ) JUDICIAL MEMBER - SD - ( WASEEM AHMED ) ACCOUNTANT MEMBER (TRUE COPY) AHMEDABAD; DATED 18 / 02 / 201 9 MANISH / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A), AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD