Shri Zabuben Prabhatbhai Desai, Ahmedabad V. The Income Tax Officer, Ward-5(2)(4), Ahmedabad

MA 106/AHD/2021

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 0446 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-07-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 17-05-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD (THROUGH VIRTUAL COURT) BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER M.A. NO. 106/AHD/2021 (IN M.A. NO.326/AHD/2019) (IN ITA NO. 1408/AHD/2017) (ASSESSMENT YEAR: 2007-08) SMT. ZABUBEN PRABHATBHAI DESAI 2, KAILASH SOCIETY, B/H H. K. HOUSE, ASHRAM ROAD, AHMEDABAD VS. ITO WARD-5(2)(4), AHMEDABAD [ PAN NO. AAPPD7928M ] ( APPELLANT ) .. ( RESPONDENT ) M.A. NO. 107/AHD/2021 (IN M.A. NO.327/AHD/2019) (IN ITA NO. 1409/AHD/2017) (ASSESSMENT YEAR: 2007-08) SHRI GAURANG P. DESAI 2, KAILASH SOCIETY, B/H. H. K. HOUSE, ASHRAM ROAD, AHMEDABAD VS. ITO WARD-5(2)(2), AHMEDABAD [PAN NO. ABKPD4280E] ( APPELLANT ) .. ( RESPONDENT ) M.A. NO. 108/AHD/2021 (IN M.A. NO.328/AHD/2019) (IN ITA NO. 1410/AHD/2017) (ASSESSMENT YEAR: 2007-08) RINABEN N DESAI 2, KAILASH SOCIETY,B/H H. K. HOUSE,ASHRAM ROAD, AHMEDABAD VS. ITO WARD-5(2)(4), AHMEDABAD [ PAN NO. AAMPD42135D] ( APPELLANT ) .. ( RESPONDENT ) - 2 - MA NO.10 6/AHD/2021 (IN M.A. NO. 326/AHD/2019) (IN ITA NO.1408/A/17) & 05 OTHERS ASST.YEAR 2007-08 M.A. NO. 109/AHD/2021 (IN M.A. NO.349/AHD/2019) (IN ITA NO. 1407/AHD/2017) (ASSESSMENT YEAR: 2007-08) SHRI NISHITH PRABHATBHAI DESAI 2, KAILASH SOCIETY, B/H H. K. HOUSE, ASHRAM ROAD, AHMEDABAD VS. ITO WARD-5(2)(5), AHMEDABAD [PAN NO. AAPPD7867B] ( APPELLANT ) .. ( RESPONDENT ) M.A. NO. 110/AHD/2021 (IN M.A. NO.350/AHD/2019) (IN ITA NO. 1411/AHD/2017) (ASSESSMENT YEAR: 2007-08) SMT. PUNITABEN GAURANGBHAI DESAI 2, KAILASH SOCIETY, B/H H. K. HOUSE, ASHRAM ROAD, AHMEDABAD VS. ITO WARD-5(2)(5), AHMEDABAD [PAN NO. AETPD8351E] ( APPELLANT ) .. ( RESPONDENT ) M.A. NO. 111/AHD/2021 (IN M.A. NO.351/AHD/2019) (IN ITA NO. 1412/AHD/2017) (ASSESSMENT YEAR: 2007-08) SHRI PRABHATBHAI KARSANBHAI DESAI 2, KAILASH SOCIETY, B/H H. K. HOUSE, ASHRAM ROAD, AHMEDABAD VS. ITO WARD-5(2)(5), AHMEDABAD [ PAN NO. ABMPD0029K] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI SAKAR SHARMA, A.R. RESPONDENT BY : SHRI SHYAM PRASAD, SR. D.R. DATE OF HEARING 16/07/2021 DATE OF PRONOUNCEMENT 20/07/2021 - 3 - MA NO.10 6/AHD/2021 (IN M.A. NO. 326/AHD/2019) (IN ITA NO.1408/A/17) & 05 OTHERS ASST.YEAR 2007-08 O R D E R PER MS. MADHUMITA ROY - JM: BY MEANS OF THIS BUNCH OF APPLICATIONS THE ASSESSE E SEEKS TO GET RECALLED THE ORDER OF THE TRIBUNAL DATED 28.04.2021 PASSED IN M.A. NOS . 326 TO 328/AHD/2019 IN ITA NO. 1408 TO 1410/AHD/2017 AND M.A. NOS. 349&350/AHD/201 9 IN ITA NO. 1407&1411/AHD/2017 FOR THE A.Y. 2007-08 BY ELABORAT ING REASONS WITH A REQUEST TO RECTIFY THE ORDER PASSED IN M.A. NO. 326/AHD/2019. SINCE ALL THE MATTERS ARE IDENTICAL AND ARE HEARD ANALOGOUSLY ARE BEING DISPOSED OF BY A COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE LD. COUNSEL FOR THE ASSESSEE WHILE ARGUING O N THE BASIS AND REASONS AS PRAYED FOR RECTIFICATION OF THE ORDER SPECIFIC QUESTION WA S RAISED BY US AS TO WHETHER THE ORDER PASSED IN THE MA COULD BE RECALLED UNDER SECTION 25 4(2). HOWEVER, HE COULD NOT GIVE ANY APPROPRIATE REPLY BUT JUST PLEADED THAT THE ORD ER SHOULD BE RECALLED/MODIFIED/RECTIFIED. 3. THE LD. DR VEHEMENTLY ARGUED THAT THE MA DOES NO T LIE AGAINST THE ORDER PASSED IN THE MA. IT WAS SUBMITTED BY HIM THAT THE ORDER COULD ONLY BE RECALLED IF ORDER IS PASSED UNDER SECTION 254(1) AND RECTIFICATION OF RE CTIFICATION IS NOT PERMISSIBLE. RELIANCE WAS PLACED ON THE DECISION OF THE HONBLE ORISSA HI GH COURT IN THE CASE OF CIT V. ITAT (196 ITR 838). THEREFORE, THE APPLICATION OF THE A SSESSEE IS NOT MAINTAINABLE WHICH SHOULD BE DISMISSED AS THE LEGITIMATE SUBMISSION MA DE BY THE LD. DR. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS MADE BY THE RESPECTIVE PARTIES, AND WE HAVE ALSO PERUSED THE RELEVANT MATERIALS AVAILABLE ON RE CORD. WE FIND THAT BY MEANS OF PRESENT APPLICATIONS, THE ASSESSEE SEEKS TO GET RECTIFIED/M ODIFIED THE ORDER PASSED IN APPLICATION OF THE ASSESSEE UNDER SECTION 254(2). HOWEVER, WE FIND THAT THE HONBLE ORISSA HIGH - 4 - MA NO.10 6/AHD/2021 (IN M.A. NO. 326/AHD/2019) (IN ITA NO.1408/A/17) & 05 OTHERS ASST.YEAR 2007-08 COURT IN THE CASE OF CIT VS. ITAT (SUPRA) WHILE REJ ECTING THE CASE OF THE APPLICANT OBSERVED AS FOLLOWS: SECTION 254(2) OF THE INCOME-TAX ACT, 1961, EMPOWE RS THE TRIBUNAL TO AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1) WITH A VIEW TO RECTIFYI NG ANY MISTAKE APPARENT FROM THE RECORD AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER. THERE FORE, TO ATTRACT THE APPLICABILITY OF SECTION 254(2 ), THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED MUST BE APP ARENT FROM THE RECORD AND THE SAME MUST BE IN ANY O RDER PASSED UNDER SUB-SECTION (1) OF SECTION 254. AN ORD ER REJECTING AN APPLICATION FOR RECTIFICATION UNDER SECTION 254(2) IS NOT AN ORDER PASSED UNDER SECTION 254(1) AND IT CANNOT BE RECTIFIED UNDER SECTION 25 4(2). 5. RECENTLY, THE HONBLE MADRAS HIGH COURT IN THE C ASE OF DR. S. PANNEERSELVAM VS. ACIT & OTHERS IN W.P. NOS. 18693 AND 18694 OF 2006 HAS ALSO TAKEN THE SAME VIEW THE OBSERVATION WHEREOF IS AS FOLLOWS: IN THE PRESENT CASE, THE RECTIFICATION WAS O RDERED IN TERMS OF SECTION 254(2) AND IT GOT MERGED WITH THE ORIGINAL ORDER PASSED UNDER SECTION 254(1) . WHAT HAS BEEN REFUSED BY THE TRIBUNAL WHILE ALLOW ING THE APPLICATION UNDER SECTION 254(2) SHOULD BE READ AS HAVING BEEN REJECTED. THEREFORE, THE PETITIONER CANNOT FILE ANOTHER APPLICATION TO GRANT FURTHER BE NEFITS. SUCCESSIVE APPLICATION FOR RECTIFICATION OF THE ORIGINAL ORDER CANNOT BE MAINTAINED AS IT WILL DEFE AT THE OBJECT OF SECTION 254(2) OF THE ACT. SECTION 254(2) OF THE INCOME TAX ACT, 1961, PROVIDES FOR RECTIFICA TION OF ANY MISTAKE APPARENT FROM THE ORDER PASSED BY IT UNDER SECTION 254(1) OF THE ACT. ONCE THIS HAS BEEN DONE, NO FURTHER APPLICATION IS MAINTAINABLE. THE REMEDY BY WAY OF APPEAL IS THE ONLY COURSE OPEN. HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE AND PARTICULARLY THE STATUTORY PROVISION UNDER SECTION 254(2) IT IN FOUN D THAT THE RECTIFICATION APPLICATION MOVED UNDER SECTION 254(2) ON M.A. IS NOT PERMISSIB LE. RESPECTFULLY, FOLLOWING THE DECISIONS PASSED BY THE HONBLE MADRAS HIGH COURT A ND ORISSA HIGH COURT WE HOLD THAT THE APPLICATION OF THE ASSESSEE IS NOT MAINTAINABLE AND AS SUCH SAME IS DISMISSED. 6. IN THE COMBINED RESULTS, ALL MISC. APPLICATIONS FILED BY THE ASSESSEE ARE STANDS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 20/07/2021 SD/- SD/- (WASEEM AHMED) (MS. MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 20/07/2021 TANMAY, SR.PS - 5 - MA NO.10 6/AHD/2021 (IN M.A. NO. 326/AHD/2019) (IN ITA NO.1408/A/17) & 05 OTHERS ASST.YEAR 2007-08 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A). 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 19/07/2021. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 19/07/2021 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 20/07/2021 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 20/07/2021 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 20 /07/2021 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER