Satya Sankalp Villa (Ellisbridge) Pvt. Ltd., Ahmedabad V. The Income Tax Officer, Ward-8(1), Ahmedabad

MA 113/AHD/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 5026 (ITAT-AHMEDABAD)
• Duration Of Justice: 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-08-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 18-07-2024
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 132; 153A; 254(2); 72; 13; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, AHMEDABAD BEFORE Ms. SUCHITRA KAMBLE, JUDICAL MEMBER & SHRI NARENDRA PRASAD SINHA, ACCOUNTANT MEMBER MISCELLANEOUS APPLICATION No. 113/Ahd/2024 (in I.T.A. No. 1132/Ahd/2014) (िनधा榁रण वष榁 िनधा榁रण वष榁 िनधा榁रण वष榁 िनधा榁रण वष榁 / Assessment Years : 2004-05) Sa ty a Sa nk al p Vi ll a (El li sb ri dg e) P . Lt d. Dh ar mad ev H ou se , Sh ya mal C ro ss R oa d, Sat el li te, A h med ab ad, Gu jar at 3 80 01 5 बनाम बनामबनाम बनाम/ V s . Th e In co me T ax O ffi ce r W ar d – 8( 1) , Ah me dab ad 瀡थायी लेखा सं./जीआइआर सं./P A N / G IR N o . : A A IC S 2 7 0 7 B (Appellant) . . (Respondent) अपीलाथ牸 ओर से /Appellant by : Shri Mahesh Chhajed, A.R. 灹瀄यथ牸 क琉 ओर से/Respondent by : Shri Ashok Kumar Suthar, Sr. DR D a t e o f H e a r i n g 09/08/2024 D a t e o f P r o n o u n c e m e n t 13/08/2024 O R D E R PER SHRI NARENDRA PRASAD SINHA, AM: The present Miscellaneous Application is filed by the assessee to modify the order passed by this Tribunal in ITA No. 1132/Ahd/2014 dated 24.06.2024 for A.Y. 2004-05. 2. Shri Mahesh Chhajed, Ld. AR of the assessee submitted that there were certain mistakes in the order dated 24.06.2024, which was required to be rectified. He submitted that the assessee had made a submission that assessment order passed by the AO was without jurisdiction as it was in contravention to Instruction No.08 dated 14.08.2002 of CBDT, which was MA No.113/Ahd/2024 (Satya Sankalp Villa (Ellisbridge) Pvt. Ltd. vs. ITO) A.Y.– 2004-05 - 2 – not considered by the Ld. Tribunal in its order. He further submitted that the issue of satisfaction note not being recorded by the AO of the assessee before assumption of jurisdiction under Section 153C of Income Tax Act, 1961 (in short ‘the Act’) was not properly dealt in the order. The case laws relied by the assessee in this regard were also not considered. The Ld. AR further submitted that the contention of the assesse that the addition was not based on any incriminating material was not properly examined by the Ld. Tribunal. According to the Ld. AR, no incriminating material was found in the course of search and this fact was not taken note by the Ld. Tribunal in its order. The Ld. AR relied upon the decision of Hon’ble Supreme Court in the case of Nisha Synthetics Ltd. vs. CIT, 82 taxman.com 72 (SC) and submitted that if papers are received by the ITAT, the same was required to be considered and for that failure the Tribunal was directed under Section 254 of the Act to pass fresh order. 3. Per contra, Shri Ashok Kumar Suthar, Ld. SR. DR submitted that there was no mistake apparent from record in the order of the Ld. Tribunal. He submitted that the order was a speaking order and all the issues raised by the assessee were properly dealt in the order of the Ld. Tribunal in great detail. He further submitted that the case laws relied upon by the assessee were also considered and dealt with in the order. 4. We have carefully considered the Miscellaneous Application of the assessee and the rival submissions. 5. As regarding non-consideration of CBDT Instruction No. 08 dated 14.08.2002 and the Instruction F.No.286/88/2008-IT(Inv.II) dated 17.09.2008, even though no mention of the same is made in the order, it was MA No.113/Ahd/2024 (Satya Sankalp Villa (Ellisbridge) Pvt. Ltd. vs. ITO) A.Y.– 2004-05 - 3 – duly considered while passing the original order. It was found that the said Instructions were in respect of centralization of search cases to the Central charge. Further the Instruction was only advisory in nature and it was not made mandatory to centralise all the search cases with one AO in the Central charge. In the case of the assessee, no search action under Section 132 of the Act was conducted nor was the proceeding under Section 153A of the Act initiated in this case. In the case of assessee only the proceeding u/s 153C of the Act was initiated. As no search was conducted in the case of the assessee, the said Instructions were not found applicable to the case of the assessee. Merely because no specific mention of this fact was made in the order, it doesn’t mean that the submission of the assessee was not considered. The assessee was also well aware of the fact that no search action was conducted in its case and, therefore, these Instructions were not applicable to its case. The reliance placed by the assessee on these Instructions was only found to be misleading, still we refrained from passing any adverse remark. 6. The contention of the assessee that the arguments on the non-recording of satisfaction note by the AO were not considered, it also not found correct. This aspect has been dealt in the order at great length in Para 10 to Para 13 of the order. The reliance placed by the assessee on the decision of Hon’ble Supreme Court in the case of Super Malls (P.) Ltd., [2020] 115 taxmann.com 105 (SC) was also dealt in detail in Para 11 of the order. Therefore, we do not find any mistake in the order as the issue of satisfaction note of the AO was duly discussed and adjudicated in the order. 7. The next objection of the assessee that the addition being not based on any incriminating material was not properly addressed, is also found to be incorrect. This matter has been dealt in Para 14 to 16 of the order. The MA No.113/Ahd/2024 (Satya Sankalp Villa (Ellisbridge) Pvt. Ltd. vs. ITO) A.Y.– 2004-05 - 4 – decision of Hon’ble Supreme Court in the case of PCIT vs. Abhisar Buildwell (P.) Ltd., [2023] 149 taxmann.com 399 (SC), as relied upon by the assessee was also discussed in para-13 of the order. The contention of the assessee that no incriminating material was found during search was considered in the context of provision of Section 153C of the Act which refers to only seized material and it was categorically held in the order that the addition made by the AO was based on the seized material. The seized material as relied upon in the assessment order had a bearing on the determination of total income of the assessee and this fact was duly considered. We, therefore, do not find any mistake in the order. 8. Other contention of the assessee is that all the case laws as referred in its submission were not considered in the order of the Ld. Tribunal. It is not necessary for us to dwell upon all the decisions cited in the written submission. It was the responsibility of the assessee to first explain as to how those decisions were identical on facts. The assessee might have quoted a number of judicial pronouncements in its written submission but it is not necessary for us to deal with each and every decision as cited. When an issue has been adjudicated by the Hon’ble Supreme Court we didn’t deem it necessary to deal with the decisions of the subordinate courts on the same issue. The case laws which were argued and relied upon before us in the course of hearing have all been discussed and taken note of, in the order. We don’t find any mistake in this respect in the order. 9. In view of the above facts we don’t find any mistake apparent from record in the order dated 24.06.2024. By filing the present Misc. application the assessee has precisely requested to recall the order and to allow another MA No.113/Ahd/2024 (Satya Sankalp Villa (Ellisbridge) Pvt. Ltd. vs. ITO) A.Y.– 2004-05 - 5 – opportunity of being heard on the issues which have all been considered in the order. The reliance of the assessee on the judgement of Nisha Synthetics Ltd. (supra) is also found to be misplaced. In that case the Tribunal had already received some documents which was not considered but in our case we have not only considered the documents but also adjudicated each and every issue raised by the assessee. The provision of Section 254(2) of the Act is intended to only rectify the mistake apparent from the records and we don’t find any such mistake apparent in the order. The power of Section 254(2) of the Act cannot be utilized to recall and review the order on its merit. The Hon’ble Supreme Court in the case of CIT vs. Reliance Telecom Limited (2021) 133 taxmann.com 41 (SC) has categorically held as under: “3.2 Having gone through both the orders passed by the ITAT, we are of the opinion that the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 is beyond the scope and ambit of the powers under Section 254(2) of the Act. While allowing the application under Section 254(2) of the Act and recalling its earlier order dated 06.09.2013, it appears that the ITAT has re- heard the entire appeal on merits as if the ITAT was deciding the appeal against the order passed by the C.I.T. In exercise of powers under Section 254(2) of the Act, the Appellate Tribunal may amend any order passed by it under sub-section (1) of Section 254 of the Act with a view to rectifying any mistake apparent from the record only. Therefore, the powers under Section 254(2) of the Act are akin to Order XLVII Rule 1 CPC. While considering the application under Section 254(2) of the Act, the Appellate Tribunal is not required to re-visit its earlier order and to go into detail on merits. The powers under Section 254(2) of the Act are only to rectify/correct any mistake apparent from the record. 4. In the present case, a detailed order was passed by the ITAT when it passed an order on 06.09.2013, by which the ITAT held in favour of the Revenue. Therefore, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under Section 254(2) of the Act. If the Assessee was of the opinion that the order passed by the ITAT was erroneous, either on facts or in law, in that case, the only remedy available to the Assessee was to prefer the appeal before the High Court, which as such was already filed by the Assessee before the High Court, which the Assessee withdrew after the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013. Therefore, as such, the order passed MA No.113/Ahd/2024 (Satya Sankalp Villa (Ellisbridge) Pvt. Ltd. vs. ITO) A.Y.– 2004-05 - 6 – by the ITAT recalling its earlier order dated 06.09.2013 which has been passed in exercise of powers under Section 254(2) of the Act is beyond the scope and ambit of the powers of the Appellate Tribunal conferred under Section 254 (2) of the Act. Therefore, the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 is unsustainable, which ought to have been set aside by the High Court. 10. Considering the totality of the facts, the M.A. filed by the assessee is required to be dismissed for the reasons as discussed above and also on account of judicial discipline following the decision of the Hon’ble Supreme Court in the case of Reliance Telecom Ltd., (supra). 11. Accordingly, the miscellaneous application filed by the assessee is dismissed. This Order pronounced on 13/08/2024 Sd/- Sd/- (SUCHITRA KAMBLE) (NARENDRA PRASAD SINHA) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad; Dated 13/08/2024 S. K. SINHA आदेश क琉 灹ितिलिप अ灡ेिषत आदेश क琉 灹ितिलिप अ灡ेिषतआदेश क琉 灹ितिलिप अ灡ेिषत आदेश क琉 灹ितिलिप अ灡ेिषत/Copy of the Order forwarded to : 1. अपीलाथ牸 / The Appellant 2. 灹瀄यथ牸 / The Respondent. 3. संबंिधत आयकर आयु猴 / Concerned CIT 4. आयकर आयु猴(अपील) / The CIT(A)- 5. िवभागीय 灹ितिनिध, आयकर अपीलीय अिधकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड榁 फाईल / Guard file. आदेशानुसार आदेशानुसारआदेशानुसार आदेशानुसार/ BY ORDER, TRUE COPY उप उपउप उप/सहायक पंजीकार सहायक पंजीकारसहायक पंजीकार सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरणआयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण, अहमदाबाद अहमदाबादअहमदाबाद अहमदाबाद / ITAT, Ahmedabad