Smt. Amita Narang, Jammu V. The Assistant Commissioner of Income tax, Jammu

MA 114/ASR/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1372 (ITAT-AMRITSAR)
• Duration Of Justice: 5 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-01-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 29-08-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER M.A.NO.114(ASR)/2013 (ARISING OUT OF I.T.A. NO.43(ASR)/2013) ASSESSMENT YEAR:2009-10 PAN :AALPN1549E SMT. AMITA NARANG VS. JOINT COMMISSIONER OF INCOM E TAX, JAMMU. RANGE-2, JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.ATUL PURI, CA RESPONDENT BY:SH. MAHAVIR SINGH, DR DATE OF HEARING: 10/01/2014 DATE OF PRONOUNCEMENT:30/01/2014 ORDER PER BENCH ; THIS MISCELLANEOUS APPLICATION OF THE ASSESSEE ARI SES FROM THE ORDER OF THE TRIBUNAL DATED 13.06.2013 PASSED IN ITA NO.4 3(ASR)/2013 FOR THE ASSESSMENT YEAR 2009-10. THE MISC. APPLICATION FILE D BY THE ASSESSEE IS REPRODUCED FOR THE SAKE OF CONVENIENCE, AS UNDER: MA NO.114(ASR)/2013 2 THAT THE CAPTIONED APPEAL, FILED BY THE ASSESSEE S TANDS DISPOSED OFF BY AN ORDER DATED 13 TH JUNE, 2013 AND A COPY THEREOF, HAS BEEN SERVED ON THE APPLICANT ON 21 ST JUNE, 2013. THE APPLICANT RESPECTFULLY SUBMITS THAT WHILE DISPOSING OFF THE AFORESAID APPEAL MISTA KE OF LAW AS WELL AS OF A FACT HAS CREPT IN THE IMPUGNED ORDER. THE ASSE SSEE APPLICANT THUS PRAYS THAT, SUCH MISTAKE, WHICH ARE APPARENT ON REC ORD MAY KINDLY BE RECTIFIED AND THE ORDER MADE BE RECALLED AS SUCH. I T IS SUBMITTED THAT THE MISTAKE APPARENT IS SUCH WHICH GOES TO THE ROOT OF MATTER AND HENCE THE AFORESAID PRAYER IS BEING MADE. 2. AT THE OUTSET, IT IS SUBMITTED THAT THE GROUNDS OF APPEAL RAISED IN THE INSTANT APPEAL AS WOULD BE EVIDENT FROM THE MEM O OF APPEAL RAISED BEFORE THE ITAT ARE AS BELOW: 1. THAT THE LD. CIT(A) HAS MISUNDERSTOOD AND MISINTERPRETED THE FACTS OF THE CASE. 2. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITIONS MADE BY THE A.O. 3. THAT THE LD. CIT(A) HAS FURTHER ERRED IN CONFIRMING THE ADDITION OF RS.6,00,000 ON ACCOUNT OF NOTIONAL RENT OF BUILDING AT MAYAPURI WHICH COULD NOT BE INHABITED. 4. THAT THE LD. CIT(A) HAS FURTHER ERRED IN CONFIRMING THE DISALLOWANCE OF RS.946,100 BEING THE LEASE MONEY P AID TO HSIDC WITHOUT WHICH THE BUILDING COULD NOT BE L ET OUT. 5. THAT THE LD. CIT(A) HAS FURTHER ERRED IN CONFIRMING THE ADDITION ON ACCOUNT OF UNDISCLOSED INVESTMENT IN TH E CONSTRUCTION OF PROPERTY AT RS.3,968,140 IN COMPLET E DISREGARD OF THE FACTS AND DOCUMENTS ON RECORD. 6. ANY OTHER GROUND AT THE TIME OF HEARING. 3. IT IS SUBMITTED THAT IN SUPPORT OF ITS CONTENTIONS WITH RESPECT TO THE AFORESAID GROUNDS OF APPEAL ASSESSEE PLACED ON RECORD A PAPER BOOK COMPRISING OF 137 SHEETS, WHICH PAPER BO OK WAS MA NO.114(ASR)/2013 3 DULY FILED ON 15.01.2013 WITH THE REGISTRY. IT IS F URTHER SUBMITTED THAT DURING THE COURSE OF HEARING ON 10.0 6.2013, HONBLE BENCH POINTED OUT THAT THE SAID PAPER BOOK WAS NOT IN ACCORDANCE WITH RULE 18(3) OF ITAT RULES, 1963 FOR IT IS NOT CERTIFIED THAT THE DOCUMENTS SO SOUGHT TO BE RELIED UPON BY THE COUNSEL OF THE ASSESSEE WERE BEFORE WHICH OF THE AU THORITIES BELOW. IT MAY HOWEVER BE STATED THAT PRIOR TO THE A FORESAID OBJECTION OF THE BENCH AT THE TIME OF HEARING, NO D EFECT MEMO WAS ISSUED BY THE REGISTRY FOR ANY OBJECTION NOR AN Y OBJECTION WAS TAKEN BY THE DEPARTMENTAL REPRESENTATIVE. 3.1. THAT SINCE THE HONBLE BENCH HAD POINTED OUT THE AF ORESAID DEFECT; THE COUNSEL OF THE ASSESSEE UNDERTOOK TO FU RNISH SUCH CERTIFICATE WHICH WAS OMITTED TO BE SO PLACED ALONG WITH THE PAPER BOOK INADVERTENTLY. THE HONBLE BENCH, HOWEVE R, DIRECTED THE COUNSEL OF ASSESSEE TO PROCEED WITH HI S SUBMISSIONS IN SUPPORT OF THE GROUNDS OF APPEAL BASED ON DOCUME NTS PLACED IN THE PAPER BOOK AND DETAILED ARGUMENTS WERE MADE BY THE COUNSEL RELYING ON VARIOUS DOCUMENTS FILED IN THE P APER BOOK. IT MAY NOT BE OUT OF PLACE TO MENTION THAT DOCUMENTS S OUGHT TO BE RELIED BY THE COUNSEL IN THE PAPER BOOK WERE NEITHE R BEING OBJECTED BY LD. DR NOR BY THE HONBLE BENCH DURING THE COURSE OF ARGUMENTS. 3.2. IT IS MOST RESPECTFULLY SUBMITTED THAT THE HONBLE BENCH HEARD THE MATTER ON THE BASIS OF THE PAPER BOOK WHICH WAS HEAVILY RELIED UPON BY THE COUNSEL OF THE ASSESSEE DURING T HE COURSE OF HEARING. HOWEVER, THE HONBLE BENCH DISMISSED THE A PPEAL OF THE ASSESEE VIDE ITS ORDER DATED 13.06.2013 AND HAS HELD AS UNDER: 5.2. THE LD. COUNSEL FOR THE ASSESSEE HAS PLACED O N RECORD THE PAPER BOOK CONTAINING 137 PAGES. IN FACT PAGES 1 TO 26 ARE THE GROUNDS OF APPEAL OF THE ASSESSEE AND THE REVENUE A ND THE ORDER OF THE AO AND THE LD. CIT(A). FROM PAGE 27 TO 137 ARE CERTAIN PAPERS HAVING NO INDEX OR ANY CERTIFICATE W HETHER THESE PAPERS WERE PLACED OR FILED BEFORE THE AUTHORITIES BELOW. IN SUCH FACTS AND CIRCUMSTANCES, THE PAPERS ATTACHED T O THE MEMORANDUM OF APPEAL AT PAGES 27 TO 137 ARE IGNORED MA NO.114(ASR)/2013 4 4. IT IS RESPECTFULLY SUBMITTED THAT THE INDEX TO THE PAPER BOOK IS VERY MUCH THERE AND THE HONBLE TRIBUNAL WHILE DISP OSING OFF THE APPEAL HAS GONE ON HIGHLY TECHNICAL CONSIDERATI ONS BY IGNORING THE CAUSE OF SUBSTANTIAL JUSTICE WHICH NE ED BE PREFERRED OVER TECHNICAL CONSIDERATIONS, AS THE COU NSEL OF THE APPELLANT WAS NEVER PERMITTED TO FILE THE CERTIFICA TE TO THE PAPER BOOK AND IT WAS AT THE INSTANCE OF THE HONBLE BENC H THAT THE WHOLE MATTER WAS PROCEEDED WHEREIN RELIANCE WAS PLA CED ON VARIOUS PAGES OF PAPER BOOK BY THE COUNSEL OF THE A SSESSEE IN SUPPORT OF ITS ARGUMENTS. AN AFFIDAVIT BY THE COUNS EL OF THE ASSESSEE TO THE AFORESAID EFFECT IS PLACED FOR YOUR HONOURS KIND CONSIDERATION. 5. THAT FURTHER, ON PAGE 5 PARA 7 OF THE ORDER, HONBL E BENCH HAS OBSERVED THAT: 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. AS PER ARGUMENTS MADE BY THE LD. COUNSEL FOR THE ASSESSEE, NO DETAILS AS REQUIRED BY THE AO WERE SUBMITTED, AS IS EVIDENT FROM THE ORDER OF THE A.O. NO FURTHER ADDITIONAL EVIDENCE HAS BEEN SUBMITTED BEFORE THE LD. CIT(A) I S ALSO A MATTER OF FACT. IN SUCH FACTS AND CIRCUMSTANCES, TH E ARGUMENTS MADE BY THE LD. COUNSEL BEFORE THE LD. CIT(A) AND B EFORE US IN THE ABSENCE OF ANY DETAILS CANNOT HELP THE ASSESSEE . THEREFORE, THE LD. CIT(A) HAS RIGHTLY CONFIRMED THE ACTION OF THE A.O. FOR CHARGING INCOME ON THE BASIS OF A.L.V. THUS, GROUND NO.3 OF THE ASSESSEE IS DISMISSED. 5.1. IT IS RESPECTFULLY SUBMITTED THAT HAD THE HONBLE B ENCH WHILE DISPOSING OFF THE APPEAL GONE THROUGH THE PAPER BOO K, THE CONCLUSION ARRIVED AT BY IT WOULD NOT HAVE BEEN THE SAME, AS THE APPELLANT FURNISHED THE SUBMISSION FILED BEFORE THE LD. CIT(A) BEFORE THE HONBLE BENCH ALONGWITH THE PAPER BOOK, IN WHICH AT PAGE 28 OF THE PAPER BOOK, WHEREIN, IT WAS CLEAR LY SUBMITTED THAT ALL THE FACTS EXPLAINED AND DOCUMENTS ETC. WERE SUB MITTED TO THE AO DURING THE COURSE OF ASSESSMENT PROCEEDIN GS AND ALL THE SAID DOCUMENTS WERE ENCLOSED WITH THE PAPER BO OK, THUS, THE AFORESAID FINDING OF HONBLE TRIBUNAL IS FACTUA LLY INCORRECT AND CONTRARY TO RECORD. MA NO.114(ASR)/2013 5 6. THE RELIANCE IS PLACED ON JUDGMENT OF HONBLE SUPRE ME COURT IN THE MATTER OF M/S. HONDA SIEL POWER PRODUCTS LTD . VS. CIT REPORTED IN 295 ITR 466, WHEREIN THE HONBLE SC HAS LAID DOWN THE PROPOSITION THAT, WHEN PREJUDICE RESULTS FROM AN ORDER ATTRIBUTABLE TO TRIBUNALS MISTAKE, ERROR OR OMISSION, THEN IT IS DUTY OF TRIBUNAL TO SET IT RIGHT. THE H ONBLE SC HAS FURTHER HELD IN 86 ITR 44 (NAWABGANJ SUGAR MILLS CO . LTD.) THAT THE TRIBUNAL HAS TO ACT JUDICIALLY IN THE SENS E THAT IT HAS TO CONSIDER ALL MATERIAL, FACT AND EVIDENCE IN FAVOUR OF AND AGAINST THE ASSESSEE AND RECORDS ITS FINDING ON ALL THE CONSIDERATIONS RAISED BY THE ASSESSEE AND THE DEP ARTMENT IN THE LIGHT OF THE EVIDENCE AND THE RELEVANT LAW. 7. MOREOVER, SINCE THE COUNSEL FOR THE ASSESSEE WAS CA LLED UPON TO ARGUE THE SAID APPEAL WITH THE AID OF PAPER BOOK TO WHICH NEITHER THE LD. DR NOR THE HONBLE BENCH RAISED ANY OBJECTION, THE DISMISSAL OF ASSESSEES APPEAL IGNORING THE PAP ER BOOKS PLACED BY THE ASSESSEE, IS AGAINST THE PRINCIPLES O F NATURAL JUSTICE. IN FACT, IT HAS BEEN HELD BY THE HONBLE D ELHI HIGH COURT IN THE CASE OF CIT VS. G. SAGAR SURI AND SONS REPORTED AT 185 ITR 484 THAT IF THE WRITTEN ORDER IS AT VARIANC E WITH THE ANNOUNCEMENT, THERE IS A MISTAKE IN THE ORDER WHICH CAN BE RECTIFIED. 8. THE APPLICANT, THEREFORE, IN TERMS OF THE INSTANT A PPLICATION U/S 254(2) OF THE INCOME TAX ACT, 1961 SEEKS RECTIFICAT ION OF THE MISTAKES WHICH IS APPARENT FROM RECORD IN THE LIGHT OF THE AFORESAID JUDICIAL PRONOUNCEMENTS. 9. IN VIEW OF THE ABOVE, IT IS PRAYED THAT THE ORDER D ATED 13 TH JUNE, 2013 MAY KINDLY BE RECALLED AND APPEAL BE DIRECTED TO BE DISPOSED OFF AFTER GRANTING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE-APPELLANT. 2. THE LD. COUNSEL FOR THE ASSESSEE, SH.ATUL PURI, CA ARGUED ON THE SIMILAR LINES, AS SUBMITTED IN THE MISC. APPLICATIO N AND PRAYED TO RECTIFY THE MISTAKE APPARENT FROM RECORD. MA NO.114(ASR)/2013 6 3. THE LD. DR, ON THE OTHER HAND, ARGUED THAT THE ITAT, AMRITSAR BENCH, IN ITS ORDER DATED 13 TH JUNE, 2013 HAS VERY CATEGORICALLY DEALT WITH THE POINTS RAISED BY THE ASSESSEE IN ITS MISC. APPL ICATION FILED AND ACCORDINGLY STATED THAT THERE IS NO MISTAKE APPARE NT FROM RECORD. THE ASSESSEE HAS TRIED TO GET THE ORDER OF THE ITAT, AM RITSAR BENCH REVIEWED UNDER THE GARB OF MISC. APPLICATION FILED U/S 254( 2) OF THE ACT, WHICH IS NOT PERMITTED UNDER THE LAW. ACCORDINGLY, THE LD. DR P RAYED TO REJECT THE MISC. APPLICATION FILED BY THE ASSESSEE. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE MISTAKES AGITATED BY THE ASSESSEE IN ITS MISC. APPLICATION, IN FACT, ARE NOT THE MISTAKES APPARENT FROM RECORD. IN FACT, WE HAVE PASSED AN ORDER ACCORDING TO THE FACTS AND CIRCUMSTANCES OF THE CAS E BEFORE US. THEREFORE, THERE IS NO MISTAKE APPARENT FROM RECORD IN OUR OR DER DATED 13 TH JUNE, 2013 PASSED IN ITA NO.43(ASR)/2013 AND MISC. APPLICATIO N FILED BY THE ASSESSEE, IN FACT, IS OUTSIDE THE SCOPE OF SECTION 254(2) OF THE ACT AND WITH A VIEW TO GET OUR ORDER REVIEWED, WHICH IS NOT PERMITTED UND ER THE LAW. ACCORDINGLY, THE MISC. APPLICATION FILED BY THE ASSESSEE IS DISM ISSED. MA NO.114(ASR)/2013 7 5. IN THE RESULT, THE M.A.NO.114(ASR)/2013 FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30TH JANUARY, 2014. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 30TH JANUARY, 2014 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SMT. AMITA NARANG, JAMMU 2. THE JCIT, R-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