Shri Rajan Dutt, Jammu ( J&k) V. The Income-tax Officer, Jammu

MA 106/ASR/2014

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4209 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 10 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 06-05-2016
• Assessment Year: 2004-2005
• Appeal Filed On: 09-06-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S KANWAL
• Assessee Lawyers: SUDERSHAN KAPOOR
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER M.A. NOS. 106, 108 & 109(ASR)/2014 (ARISING OUT OF ITA NOS.420, 422 & 423(ASR)/2012) ASSESSMENT YEARS:2004-05, 2004-05 & 2005-06 PAN: AAOPD4913H SHRI RAJAN DATTA S/O VS. THE INCOME TAX OFFICER, SH. GOPAL KRISHAN DATTA, WARD-2(2), JAMMU. 15-CANAL ROAD, OPP. BSF CAMP, PLOURA, JAMMU J & K ) (APPELLANT) (RESPONDENT) APPELLANT BY:SH.SUDERSHAN KAPOOR, ADVOCATE RESPONDENT BY: SH. S.S. KANWAL, DR DATE OF HEARING: 06/05/2016 DATE OF PRONOUNCEMENT: 06/05/2016 ORDER PER A.D. JAIN, JM: THESE THREE MISC. APPLICATIONS FILED BY THE ASSESS EE ARISE OUT OF THE COMMON ORDER OF THE TRIBUNAL DATED 23.04.2014, PASS ED IN ITA NOS.420, 422 & 423(ASR)/2012 FOR THE ASSESSMENT YEARS 2004-0 5, 2004-05 & 2005-06 RESPECTIVELY. 2. WHEN THE CASE WAS CALLED ON THE BOARD, THE LD. C OUNSEL FOR THE ASSESSEE CONTENDED THAT ORIGINALLY THE ASSESSEE FIL ED PETITIONS BEFORE THE LD. CIT, JAMMU, UNDER SECTION 264 OF THE ACT, WHICH WERE DISMISSED BY THE LD. CIT, AS NOT MAINTAINABLE. THEREAFTER, THE A SSESSEE FILED THE M.A. NOS. 106, 108 & 109(ASR)/2014 2 APPEALS BEFORE THE LD. CIT(A), WHO ALSO DISMISSED T HE APPEALS OBSERVING AS UNDER: IN VIEW OF THE ABOVE, IT IS QUITE CLEAR THAT IN CA SES WHERE THE PETITION U/S 263 OF THE I.T. ACT HAS BEEN REJECTED BY THE CIT, JAMMU, NO REMEDY LIES WITH THE CIT(A) EVEN AGAINST THE ORDER ORIGINALLY PASSED BY THE AO AS THE ASSESSEE HAS ALR EADY AVAILED THE REMEDY BEFORE THE CIT, JAMMU U/S 264 OF THE I.T.ACT . HENCE, THESE APPEALS ARE NOT ADMISSIBLE BEFORE THE CIT(A) FOR TH IS REASON ALONE AND ARE TREATED AS DISMISSED BEING INCOMPETENT FOR THE STATISTICAL PURPOSES. 3. IT WAS FURTHER ARGUED BY THE LD. COUNSEL FOR THE ASSESSEE THAT BEING AGGRIEVED WITH THE ORDER OF THE LD. CIT(A), THE ASS ESSEE FILED THE APPEALS BEFORE THE TRIBUNAL AND IT WAS ARGUED BEFORE THE TRIBUNAL THAT THE LD. CIT(A) HAD ERRED IN DISMISSING THESE APPEALS AS BEI NG INCOMPETENT. IT WAS ALSO PLEADED BEFORE THE TRIBUNAL THAT EVEN AFTE R THE DISMISSAL OF PETITION U/S 264 BY THE LD. CIT, THE ASSESSEE HAD T HE RIGHT TO FILE THE APPEALS BEFORE THE CIT(A). FOR THIS, RELIANCE WAS P LACED ON THE CASE OF CIT VS. D. LAKSHMINARAYANAPATHI, 250 ITR 187 ( MA DRAS), WHERE THE HONBLE HIGH COURT HAS OBSERVED AS UNDER: IT IS OPEN TO THE LAW-MAKER TO PROVIDE MORE THAN O NE REMEDY TO THE AGGRIEVED PARTY AND SO LONG AS SUCH REMEDIES AR E AVAILABLE, THE AGGRIEVED PARTIES CAN CERTAINLY INVOKE THEM. THE TRIBUNAL HAS RIGHTLY HELD THAT THE ASSESSEE, NO TWITHSTANDING HIS UNSUCCESSFUL EFFORT AT HAVING THE ORDER REVISED , COULD STILL FILE AN APPEAL AS INVOKING THE REVISIONAL JURISDICTION C OULD NOT CONSTITUTE A BAR TO THE FILING OF AN APPEAL. IT IS FOR THE LEGISLATURE TO IMPOSED SUCH A BAR IF IT CONSIDERS IT NECESSARY TO DO SO. 4. THE LD. COUNSEL FURTHER STATED THAT THE SUBMISSI ONS OF THE ASSESSEE AS WELL AS THE JUDGMENT RELIED UPON HAVE NOT BEEN C ONSIDERED IN THE RIGHT M.A. NOS. 106, 108 & 109(ASR)/2014 3 PERSPECTIVE BY THE TRIBUNAL, WHILE PASSING THE ORDE R. THUS, HE PLEADED THAT NON-CONSIDERATION OF THE ARGUMENTS SUBMITTED B Y THE ASSESSEE BEFORE THE TRIBUNAL AS WELL AS NON- CONSIDERATION O F THE JUDGMENT RELIED UPON ARE THE MISTAKES APPARENT FROM THE RECORD. AC CORDINGLY, HE PRAYED THAT THE CONSOLIDATED ORDER OF THE TRIBUNAL, DATED 23.04.2014 IN THE ABOVE NOTED THREE APPEALS MAY BE RECALLED AND ADJU DICATED AFRESH BY TAKING INTO CONSIDERATION THE SUBMISSIONS OF THE AS SESSEE AND THE AFORE- MENTIONED JUDGMENT OF THE HONBLE MADRAS HIGH COUR T. TO SUPPORT HIS CASE, THE LD. COUNSEL FOR THE ASSESSEE INVITED OUR ATTENTION TO THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD. VS. CIT, 295 ITR 466 (SC). 5. THE LD. DR, ON THE OTHER HAND, RELIED UPON THE O RDER OF THE TRIBUNAL, DATED 23.04.2014 AND SUBMITTED THAT THERE IS NO ERROR IN THE ORDER OF THE TRIBUNAL DUE TO WHICH THE ORDER COULD BE RECALLED. 6. HAVING HEARD BOTH THE PARTIES IN THE LIGHT OF MATERIAL PLACED BEFORE US AND ALSO HAVING GONE THROUGH THE CONSOLIDATED OR DER OF THE TRIBUNAL, DATED 23.04.2014, WE ARE OF THE CONSIDERED OPINION THAT THE TRIBUNAL HAS OBVIOUSLY NOT TAKEN INTO ACCOUNT THE SUBMISSION S OF THE ASSESSEE AND THE DECISION OF THE HONBLE MADRAS HIGH COURT, RELIED UPON IN THE CASE OF CIT VS. D. LAKSHMINARAYANAPATHI (SUPRA) IN RIGHT PERSPECTIVE, WHILE PASSING THE ORDER. THEREFORE, THESE ARE THE M ISTAKES APPARENT ON RECORD IN THE ORDER OF THE TRIBUNAL. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE RECALL THE CONSOLIDATED ORDER, PA SSED BY THE TRIBUNAL, M.A. NOS. 106, 108 & 109(ASR)/2014 4 DATED 23.04.2014, TO DECIDE THE ABOVE THREE APPEALS OF THE ASSESSEE AFRESH. THE REGISTRY IS DIRECTED TO FIX THE MAIN AP PEALS FOR HEARING ON 30.05.2016. NO NEED TO ISSUE NOTICE TO THE PARTIES, AS THE DATE OF HEARING WAS PRONOUNCED IN THE OPEN COURT. 7. IN THE RESULT, ALL THE THREE MISC. APPLICATIONS OF THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 06/05/2016. SD/- SD/- (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER /SKR/ DATED: 06/05/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. RAJAN DATTA, JAMMU 2. THE ITO, WARD 2(2), JAMMU. 3. THE CIT(A), JAMMU. 4. THE CIT, JAMMU. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.