ACIT, Farrukhabad V. Farrukhabad Investment India Ltd., Farrukhabad

MA 105/AGR/2008

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4832 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 8 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-08-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 23-07-2010
• Assessment Year: 1998-1999
• Appeal Filed On: 28-11-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER AND SHRI P.K. BANSAL, ACCOUNTANT MEMBER M.A. NO.105/AGR/2008 (IN ITA NO.208/AGR/2005) ASST. YEAR: 1998-99 A.C.I.T., CIRCLE 2(1), VS. FARRUKHABAD INVESTME NT (INDIA) LTD., FARRUKHABAD. C/O. HOTEL HINDUSTAN, BARPUR, FARRUKHABAD. (PAN: AACCT 0563 G) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI OM PRAKASH, JR. D.R. RESPONDENT BY : SHRI ANURAG SINHA, ADVOCATE ORDER PER P.K. BANSAL, A.M.: THIS MISCELLANEOUS APPLICATION (M.A.) HAS BEEN FILE D BY THE REVENUE AGAINST THE ORDER DATED 23.07.2008 OF THIS TRIBUNAL IN ITA NO.208/AGR /2005 FOR THE A.Y. 1998-99 BY WHICH THIS TRIBUNAL HAS ANNULLED THE ASSESSMENT AS THE REASONS WERE RECORDED BY THE A.O. UNDER SECTION 148 (2) PRIOR TO THE ISSUE OF NOTICE UNDER SECTION 148. THE TRIBUNAL HAS GIVEN THE FINDING THAT THE REASONS WERE RECORDED ON 28.11.2002 BUT NOTICE UNDE R SECTION 147 WAS ISSUED ON 27.11.2002. 2. LD. D.R. POINTED OUT THAT THE A.O. HAS RECORDED THE REASONS FOR INITIATING ACTION UNDER SECTION 148 ON 28.11.2002 BUT THE DATE OF THE ISSUE OF NOTICE WAS INADVERTENTLY WRITTEN AS 27.11.2002 BY THE DEALING OFFICIAL. THE TRIBUNAL S HOULD HAVE CONSIDERED THIS FACT AND ONCE THIS FACT IS CONSIDERED, THERE WOULD BE A MISTAKE APPARE NT IN THE ORDER OF THIS TRIBUNAL AS IT CANNOT BE 2 SAID THAT THE REASONS WERE RECORDED PRIOR TO THE IS SUE OF NOTICE. THUS, IT WAS CONTENDED THAT THE ORDER OF THIS TRIBUNAL MAY BE RECTIFIED UNDER SECTI ON 254 OF THE ACT. 3. LD. A.R., ON THE OTHER HAND, VEHEMENTLY CONTENDE D THAT THIS TRIBUNAL HAS GIVEN A FINDING OF FACT ON THE BASIS OF THE EVIDENCE BEFORE IT. TH E TRIBUNAL HAS CLEARLY LAID DOWN THAT NOTICE UNDER SECTION 147 HAS BEEN ISSUED ON 27.11.2002 WHI LE THE REASONS FOR INITIATING THE PROCEEDINGS WERE RECORDED UNDER SECTION 148(2) ON 28.11.2002. THUS, THE REASONS WERE RECORDED AFTER THE ISSUANCE OF NOTICE. THE REVENUE IS ALSO NOT DENYIN G THIS FACT BUT ASKED BY SUBMITTING BY WAY OF M.A .THAT THIS THING HAPPENED DUE TO INADVERTENT MI STAKE OF THE DEALING CLERK. THE TRIBUNAL CANNOT REVIEW OR RECONSIDER ITS ORDER. UNDER SECTI ON 254(2) ONLY THAT MISTAKE CAN BE RECTIFIED WHICH IS APPARENT ON RECORD. 4. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE MATERIAL ON RECORD. WE HAVE GONE THROUGH THE ORDERS OF THE TAX AUTHORIT IES BELOW. WE NOTED THAT THE TRIBUNAL HAS GIVEN A CLEAR CUT FINDING OF FACT VIDE ITS ORDER DA TED 23.07.2008 THAT THE REASONS UNDER SECTION 148(2) HAS BEEN RECORDED IN THIS CASE ON 28.11.200 2 WHILE THE NOTICE UNDER SECTION 147 HAS BEEN ISSUED ON 27.11.2002 AND ACCORDINGLY THIS TRIBUNAL HAS CANCELLED THE ASSESSMENT UNDER SECTION 148(2). THE REASONS ARE TO BE RECORDED PRIOR TO TH E ISSUANCE OF NOTICE. THE LD. D.R. BEFORE US COULD NOT POINT OUT ANY MISTAKE APPARENT ON RECORD. HE POINTED OUT THAT THE DATE OF ISSUANCE OF NOTICE WAS INADVERTENTLY WRITTEN AS 27.11.2002 BY T HE DEALING OFFICIAL. HE DID NOT DENY THAT THE DATE OF THE ISSUANCE OF NOTICE AS APPEARS IN THE NO TICE IS NOT 27.11.2002. THIS TRIBUNAL UNDER SECTION 254(2) HAS THE POWER TO RECTIFY A MISTAKE A PPARENT ON RECORD. MISTAKE APPARENT ON RECORD MUST BE A MISTAKE WHICH IS APPARENT ON RECORD. IT CANNOT BE SUBJECT TO ARGUMENTS WHERE LONG 3 DRAWN ARGUMENTS ARE REQUIRED. IT CANNOT BE SAID TH AT A MISTAKE IS APPARENT ON RECORD. ON THE NOTICE DATE IS WRITTEN AS 27.11.2002. THIS FACT IS NOT DENIED BY THE LD. D.R. WHETHER DATE WAS WRONGLY MENTIONED BY THE DEALING OFFICIAL, TO PROVE THIS FACT THE ARGUMENTS AND EVIDENCES ARE REQUIRED. MERELY STATING THAT THE DATE IS WRITTEN INADVERTENTLY BY THE DEALING OFFICIAL WILL NOT CHANGE THE DATE MENTIONED IN THE NOTICE. THIS, IN OUR OPINION, CANNOT BE A MISTAKE APPARENT ON RECORD WITHIN THE PURVIEW OF SECTION 254(2) OF THE ACT. THIS TRIBUNAL HAS GIVEN A FINDING OF FACT UNDER SECTION 254(2). THE TRIBUNAL DOES NOT HAVE T HE POWER TO REVIEW ITS ORDER AT THE GARB OF MISTAKE APPARENT ON RECORD. WE, THEREFORE, ARE OF THE OPINION THAT THERE IS NO MISTAKE APPARENT ON RECORD WHICH IS RECTIFIABLE UNDER SECTION 254(2) AND ACCORDINGLY WE DISMISS THE M.A. FILED BY THE REVENUE. 5. IN THE RESULT, M.A. FILED BY THE REVENUE STANDS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 27.08.2010) SD/- SD/- (R.K. GUPTA) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: AGRA DATE: 27 TH AUGUST, 2010. PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE TR IBUNAL, AGRA TRUE COPY