VILLAGE ANTIQUE & ETHINIC, Jaipur V. ITO, Jaipur

MA 115/JPR/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5684 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-01-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 04-08-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: POONAM ROY
• Keywords: Question of law; Reassessment proceedings
• Section: 143(3); 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES (SMC), JAIPUR JH HKKXPAN] YS[KK LNL; ] DS LE{K BEFORE: SHRI BHAGCHAND, ACCOUNTANT MEMBER M.A. NO. 115/JP/2017 (ARISING OUT OF ITA NO. 566/JP/2016) FU/KZKJ.K O'KZ @ ASSESSMENT YEAR: 2008-09 M/S VILLAGE ANTIQUE & EHINIC, B-141, VIDHYUT NAGAR, QUEENS ROAD, JAIPUR. CUKE VS. ITO, WARD 3(1), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO. AACFV 4665 L VIHYKFKHZ @ APPELLANT IZR;FKHZ @ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI AMIT KOTHARI (CA) JKTLO DH VKSJ LS @ REVENUE BY : SMT. POONAM ROY (DCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 12/01/2018 MN?KKS'K.KK DH RKJH[ K @ DATE OF PRONOUNCEMENT: 16/01/2018 VKNS'K @ ORDER PER: BHAGCHAND, A.M. THE ASSESSEE HAS FILED THE PRESENT MISC. APPLICATIO N ON 04/08/2017 AGAINST THE ORDER OF THE ITAT, JAIPUR BENCH, JAIPUR DATED 16/06/2017 PASSED IN ITA NO. 566/JP/2017 FOR THE ASSESSMENT YE AR 2008-09. 2. IN THIS CASE, THE ASSESSEE FILED APPEAL VIDE ITA NO. 566/JP/2017 FOR THE ASSESSMENT YEAR 2008-09 AGAINST THE ORDER OF LE ARNED CIT(A), ALIGARH (CAMP OFFICE AT JAIPUR) DATED 10/03/2016. THIS BENCH OF THE ITAT, JAIPUR M.A. NO. 115/JP/2017 VILLAGE ANTIQUE & EHINIC VS ITO 2 HAS DECIDED THE APPEAL IN ABSENCE OF THE ASSESSEE A ND DISMISSED THE ASSESSEES APPEAL. 3. THE ASSESSEE FILED THIS MISC. APPLICATION AND EXP LAINED THE REASONS AS TO WHY THE HEARING OF APPEAL ON 16/06/2017 COULD NOT BE ATTENDED. THE ASSESSEE HAS SUBMITTED AS UNDER: 1. THE APPEAL IN THE CASE OF ASSESSEE WAS DECIDED I N ITA NO. ITA NO.566/JP/2016 VIDE ORDER DATED 17.6.2017. THE APPE LLANT VIDE LETTER DATED 27.5.2017 PRAYED THAT THE WRITTEN SUBM ISSIONS AND PAPER BOOK FILED MAY KINDLY BE CONSIDERED AND APPEA L MAY KINDLY BE DECIDED ON MERITS. 2. THE APPELLANT HAD TAKEN FOLLOWING GROUND IN THE APPEAL IN THE SAID APPEAL WHICH READS AS UNDER : '1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) IS WRONG, UNJUST AND HAS ERRED IN LAW IN UPH OLDING ACTION OF THE ASSESSING OFFICER IN INITIATION OF RE ASSESSMENT PROCEEDINGS U/S 148 OF THE I.T.ACT, 1961 AND CONSEQ UENT ASSESSMENT MADE ON THE APPELLANT U/S 143(3)/147 OF THE I.T. ACT, 1961, 2. THAT WITHOUT PREJUDICE TO THE GROUND NO.(1) ABOV E ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE OF THE L D. CIT(A) IS WRONG, UNJUST AND HAS ERRED IN LAW IN CONFIRMING FI NDING RECORDED BY THE ASSESSING OFFICER THAT DEDUCTION U/ S 10BA OF THE I.T. ACT, 1961 IS NOT AVAILABLE TO THE APPELLAN T ON DUTY DRAW BACK (DEPB AND DDB) RECEIVED BY IT AND THEREBY CONFIRMING DISALLOWANCE OF DEDUCTION TO THE EXTENT OF RS. 15,88,601/- U/S 10BA OF THE I.T. ACT, 1961. 3. THAT THE APPELLANT CRAVE THE PERMISSION TO ADD, OR TO AMEND TO ANY OF GROUND OF APPEAL OR TO WITHDRAW ANY OF THEM. ' M.A. NO. 115/JP/2017 VILLAGE ANTIQUE & EHINIC VS ITO 3 3. IT IS RESPECTFULLY SUBMITTED THAT THE APPELLANT IN THE WRITTEN SUBMISSIONS AND MADE CERTAIN SUBMISSIONS AND HAD AL SO RELIED UPON CERTAIN DECISIONS WHICH WERE IDENTICAL TO THE ISSUE INVOLVED IN THE APPEAL OF THE ASSESSEE, WHICH APPEARS TO HAVE B EEN NOT CONSIDERED AND THEREFORE THERE IS AN APPARENT ERROR AND IT PRAYED THAT THE SAME MAY KINDLY BE RECALLED AND THE ISSUES NOT CONSIDERED MAY BE DECIDED. 4. IN RELATION TO PROCEEDINGS U/S 148 INITIATED IN THE CASE OF THE ASSESSEE IT WAS SUBMITTED IN PARA 1.4 OF THE SUBMIS SIONS THAT THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE O F LIBERTY INDIA WAS ALREADY AVAILABLE AT THE TIME OF PASSING THE OR IGINAL ASSESSMENT MADE U/S 143(3) ON 19.11.2010, AND THERE INITIATION OF REASSESSMENT PROCEEDINGS ON SUCH BASIS WAS NOT JUST IFIED. THIS ARGUMENT OF THE APPELLANT HAD NOT BEEN CONSIDERED. SIMILARLY THE RELIANCE PLACED BY THE APPELLANT ON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTED REPORTE D IN 67 DTR 185(SC) AND ACG ASSOCIATED CAPSULES PRIVATE LIM ITED REPORTED IN 67 DTR 205 (SC) WHICH HELD THAT SUCH DU TY DRAWBACK IS INCOME U/S 28(IIIB) AND THEREFORE WOULD BE HELD AS PART OF INCOME. ALL CONSEQUENTIAL BENEFIT WOULD BE AVAILABL E. THIS ARGUMENT OF THE ASSESSEE APPEARS TO ALSO NOT BEEN C ONSIDERED INADVERTENTLY. THE APPELLANT HAD ALSO RELIED UPON T HE DIRECT DECISION OF WOODWARD GOVERNOR (INDIA) LTD. V. ACIT IN WHICH IT WAS HELD THAT EVEN ON THE BASIS OF CASE OF LIBERTY INDIA 317 ITR 218 (SC), ASSESSMENT EARLIER COMPLETED U/S 143(3) C ANNOT BE REOPENED AFTER FOUR YEARS AND THIS ARGUMENT OF THE APPELLANT HAD ALSO BEEN OMITTED TO BE CONSIDERED. M.A. NO. 115/JP/2017 VILLAGE ANTIQUE & EHINIC VS ITO 4 5. ON MERITS IN RELATION TO GROUND 2, THE APPELLANT HAD RELIED UPON THE DECISION OF SURAJ EXPORTS INDIA & OTHERS V. ITO IN ITA NO. 336/JU/2011 ORDER DATED 31.1.2013 AND COPY WAS ALSO SUBMITTED IN THE PAPER BOOK AT PAGE 12 TO 42, AND SUBMISSIONS WERE MADE IN PARA 3.4, AND THE ISSUE INVOLVED IN THE PRESENT APP EAL WAS DIRECTLY COVERED IN FAVOUR OF THE ASSESSEE BY THE SAID DECIS ION AND THE SAID JUDGMENT HAD ALSO NOT BEEN CONSIDERED IN THE APPEAL . IN THE SAID DECISION OF THE OF SURAJ EXPORTS AFTER CONSIDERING T HE DECISION OF LIBERTY INDIA (SUPRA) AND FURTHER DECISIONS OF HON' BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORTS (SUPRA) AND ACG ASSOCIATED CAPSULES PRIVATE LIMITED (SUPRA) IT WAS HELD THAT S UCH CLAIM U/S 10BA ON DUTY DRAW BACK WAS ALLOWABLE. THE APPELLANT HAD RELIED UPON VARIOUS OTHER DECISIONS ALSO IN THE WRITTEN SU BMISSIONS WHICH HAD NOT BEEN CONSIDERED, AND THEREFORE IT IS VERY H UMBLY PRAYED THAT THE ORDER MAY KINDLY BE RECALLED AND THESE ISS UES RAISED BY THE APPELLANT MAY KINDLY BE DECIDED. 6. NON CONSIDERATION OF SUCH GROUND BY THE HON'BLE ITAT IS A MISTAKE APPARENT FROM RECORD WHICH NEEDS RECTIFICATION U/S 254(2) AND CONSEQUENTLY, THE IMPUGNED ORDER PASSED BY THE HON' BLE TRIBUNAL DESERVES TO BE RECALLED. IN THIS REGARD YOUR KIND A TTENTION IS INVITED TOWARDS THE FOLLOWING DECISION WHICH SUPPORTS THE C ONTENTION OF THE APPELLANT FOR RECALLING OF THE ORDER: A. CIT V. K.M.SUGAR MILLS P. LTD. (2005) 198 CTR (ALL) 72 ALSO IN (2005) 275 ITR 247 (ALL) 'APPEAL (TRIBUNAL) - RECTIFICATION UNDER S. 254(2) - MISTAKE APPARENT - CERTAIN GROUNDS SET OUT IN THE MEMORANDU M OF APPEAL NOT CONSIDERED - FAILURE TO DO SO WAS A MIST AKE APPARENT FROM RECORD - THEREFORE, TRIBUNAL WAS JUST IFIED IN RECALLING ITS ORDER IN EXERCISE OF POWERS UNDER S. 254(2). M.A. NO. 115/JP/2017 VILLAGE ANTIQUE & EHINIC VS ITO 5 B. CIT V. RAMESH CHAND MODI (2000) 163 CTR (RAJ) 42 4 ALSO IN (2001) 249 ITR 323 (RAJ) 'APPEAL (HIGH COURT) - SUBSTANTIAL QUESTION OF LAW - RECTIFICATION UNDER S. 254(2) - TRIBUNAL OMITTED TO DECIDE SOME OF THE GROUNDS OF APPEAL GOING TO THE ROOT OF THE M ATTER - IT ALLOWED THE MISCELLANEOUS APPLICATION OF THE ASSESS EE AND RECALLED ITS ORDER - TRIBUNAL RIGHTLY EXERCISED ITS JURISDICTION UNDER S. 254(2) FOR CORRECTING THE MISTAKE APPARENT FROM RECORD - ONLY CONSEQUENTIAL ORDER OF RECTIFICATION THAT COULD BE PASSED WAS TO RECALL THE EARLIER ORDER AND MAKE A F RESH ORDER DECIDING THE ISSUES WHICH WERE LEFT UNDECIDED, AFTE R HEARING THE PARTIES - RECALLING OF AN ORDER FOR CORRECTING AN APPARENT MISTAKE IN PROCEDURAL ASPECT CANNOT BE EQUATED WITH REVIEW - IN SUCH CASES, ORDINARILY THE COURT OF THE TRIBUNAL ACTS EX DEBITO JUSTITIAE TO PREVENT ABUSE OF PROCESS - NO S UBSTANTIAL QUESTION OF LAW ARISES - APPEAL DISMISSED. 7. THE APPELLANT DRAWS YOUR HONOUR KIND ATTENTION T OWARDS THE FOLLOWING DECISIONS IN SUPPORT OF THE CONTENTION TH AT NON CONSIDERATION OF THE DECISION OF CO-ORDINATE BENCH WOULD CONSTITUTE A MISTAKE RECTIFIABLE UNDER S. 254(2) : HONDA SIEL POWER PRODUCTS LTD. V. CIT (2007) 213 C TR (SC) 425 AND ALSO IN (2007) 295 ITR 466 (SC) APPEAL (TRIBUNAL) - RECTIFICATION UNDER S. 254(2) - OMISSION TO CONSIDER ORDER OF CO-ORDINATE BENCH - PURPOSE BEHIN D ENACTMENT OF S. 254(2) IS BASED ON THE FUNDAMENTAL PRINCIPLE THAT NO PARTY APPEARING BEFORE THE TRIBUNAL SHOULD SUFFER ON ACCO UNT OF ANY MISTAKE COMMITTED BY THE TRIBUNAL - THIS FUNDAMENTA L PRINCIPLE HAS NOTHING TO DO WITH THE INHERENT POWERS OF THE T RIBUNAL - RULE OF PRECEDENT IS AN IMPORTANT ASPECT OF LEGAL C ERTAINTY IN THE RULE OF LAW - THIS PRINCIPLE IS NOT OBLITERATED BY S. 254(2) - THEREFORE, TRIBUNAL WAS JUSTIFIED IN EXERCISING ITS POWERS UNDER S. 254(2) WHEN IT WAS POINTED OUT THAT AN ORDER OF THE CO- ORDINATE BENCH PLACED BEFORE THE TRIBUNAL WAS NOT C ONSIDERED BY IT WHILE PASSING THE ORIGINAL ORDER. M.A. NO. 115/JP/2017 VILLAGE ANTIQUE & EHINIC VS ITO 6 8. THE ABOVE DECISION WAS FOLLOWED BY A FULL BENCH OF THIS COURT IN LAXMAN DAS V. ACIT (2011) 330 ITR 243 (DEL) AND IN THE INTEREST OF THE PARTIES THAT NO PREJUDICE IS BEING CAUSED, T HE ORDER WAS RECALLED. 9. IN VIEW OF ABOVE FACTS AND SUBMISSIONS, IT IS RE SPECTFULLY SUBMITTED THAT THE ORDER PASSED MAY KINDLY BE RECALLED AND OP PORTUNITY OF HEARING MAY KINDLY BE PROVIDED AND ISSUES WHICH HAD REMAINED TO BE DECIDED MAY KINDLY BE ADJUDICATED. 4. ON THE OTHER HAND, THE DR HAS OPPOSED THE PRAYER FOR RECALLING OF THE HONBLE ITAT ORDER AND SUBMITTED THAT THE HONBL E ITAT HAS PASSED A SPEAKING ORDER AND THE M.A. OF THE ASSESSEE HAS NO MERIT AND MAY BE DISMISSED. 5. AFTER HEARING BOTH THE SIDES, THE BENCH IS OF TH E VIEW THAT THERE IS NO MERIT IN THE MISC. APPLICATION FILED BY THE ASSE SSEE AND THE SAME IS HEREBY DISMISSED. 6. IN THE RESULT, THE PRESENT MISC. APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/01/2018. SD/- HKKXPAN (BHAGCHAND) YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ TK;IQJ TK;IQJ TK;IQJ @ @@ @ JAIPUR FNUKAD @ DATED:- 16 TH JANUARY, 2018 M.A. NO. 115/JP/2017 VILLAGE ANTIQUE & EHINIC VS ITO 7 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- M/S VILLAGE ANTIQUE & EHINIC, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE ITO, WARD 3(1), JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDR @ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (M.A. 115/JP/2017) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR