RAJENDRA KUMAR SHARDA, Jaipur V. ITO, Kota

MA 118/JPR/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5258 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-01-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 16-10-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J C KULHARI
• Keywords: Revision of order; Rule of consistency; Difference of opinion; Assessment record; Change of opinion; Borrowed satisfaction
• Section: 143(3); 37(1); 143(1); 80P; 263

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM M.A. NO. 118/JP/2018 (ARISING OUT OF ITA NO. 330/JP/2016) FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2012-13 M/S BIJAYNAGAR KRAYA VIKRYA SAHAKARI SAMITI LTD., BIJAYNAGAR CUKE VS. THE ITO, WARD-1, BEAWAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAAAB0505A VIHYKFKHZ@ APPELL ANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MAHENDRA GARGIEYA (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI J. C. KULHARI (JCIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 26/10/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 22/01/2019 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILE D BY THE ASSESSEE AGAINST THE ORDER OF THE CO-ORDINATE BENCH IN ITA NO. 330/JP/2016 DATED 05/02/2018. 2. IT WAS SUBMITTED BY THE LD. AR THAT THE TRIBUNAL HAS DEALT WITH THE CONTENTION OF THE ASSESSEE AS REGARDS THE PAST SETTLED HISTORY AT PAGE 15 PARA 12 AND HAS STATED THAT WE DO NOT FIND ANYTHING ON RECORD TO SUGGEST THAT THE ISSUE HAS BEEN EXAMINED IN THE PAST FROM THE PERSPECTIVE OF SECTION 40A(9). HENCE, THE ABOVE SAI D CONTENTION OF THE M.A. NO. 118/JP/2018 M/S BIJAYNAGAR KRAYA VIKRYA SAHAKARI SAMITI LTD ., BIJAYNAGAR VS. ITO, BEAWAR 2 LD AR REGARDING RULE OF CONSISTENCY CANNOT BE ACCEP TED. IT WAS SUBMITTED BY THE LD AR THAT SUCH FINDING OF FACT BY THE TRIBUNAL IS CONTRARY TO THE FACTS AS SUBMITTED BEFORE THE TRIBU NAL IN THE WRITTEN SUBMISSIONS WHEREIN COPY OF THE REPLY TO THE QUERY IN A.Y 2006-07 WAS SUBMITTED. IT WAS SUBMITTED THAT FROM THE REPLY OF THE ASSESSEE, IT IS EVIDENTLY CLEARLY THAT THE AO DID RAISE RELEVANT QU ERRIES AND SOUGHT REPLY OF THE ASSESSEE W.R.T APPLICABILITY OR OTHERW ISE OF SECTION 40A(9) OF THE ACT. IT WAS SUBMITTED THAT THE TRIBUNAL REFE RRED TO THE ASSESSMENT ORDER FOR AY 2006-07, HOWEVER, THE SAID REPLY HAS ESCAPED ITS ADDITION. IT WAS SUBMITTED THAT IN PARA 14, THE RE WAS A SPECIFIC MENTION OF SEC.40A(9) AND EVEN THE REPLY OF THE ASS ESSEE CONTAINING THE SAME LANGUAGE (AS WAS USED BY THE ASSESSE DURIN G THE COURSE OF THE ASSESSMENT PROCEEDINGS FOR THE SUBJECTED YEAR) WAS MENTIONED. IN THE ASSESSMENT ORDER, OFF COURSE, THE AO DID NOT ME NTION THE SECTION YET HOWEVER, THERE WAS QUERY AND CATEGORICAL REPLY THERETO CITING THE SECTION 40A(9) AND THERE APART, FROM A.Y 2006-07 TO 2011-12, THE ASSESSE WAS CONTINUOUSLY ALLOWED THE DEDUCTION WITH OUT ANY VARIATION. HENCE, IT IS SELF-EVIDENT THAT THE PREDECESSOR AO D ID APPLY HIS MIND BY EXAMINING THE ISSUE IN THE PERSPECTIVE OF SEC. 49A (9). 3. IT WAS FURTHER SUBMITTED THAT THE TRIBUNAL HAS A LSO OBSERVED IN PARA 12 PAGE 15 THAT 'WE FIND THAT THE PR.CIT(A) HA S GIVEN A CLEAR REASONING AND FINDING IN HER ORDER....' AND THEREAF TER HER FINDINGS WERE REPRODUCED. HOWEVER, AS EVIDENTLY CLEAR FROM A BARE READING THAT THE LD. CIT(A) HAS NOWHERE STATED AND/OR DEALT WITH ANY MATERIAL CHANGE IN THE LEGAL FACTUAL POSITION WHICH, MADE HER TO DEPAR T FROM THE SETTLED HISTORY PREVAILED FOR A LONG PERIOD OF 6 YEARS. M.A. NO. 118/JP/2018 M/S BIJAYNAGAR KRAYA VIKRYA SAHAKARI SAMITI LTD ., BIJAYNAGAR VS. ITO, BEAWAR 3 4. IT WAS SUBMITTED BY THE LD AR THAT THE AO HAS TA KEN A POSSIBLE VIEW IN THE LIGHT OF THE SETTLED PAST HISTORY FROM WHICH HE WAS BOUND, MORE PARTICULARLY WHEN ONE OF THE ASSESSMENT WAS FR AMED AFTER SCRUTINY U/S 143(3) AND THE OTHER ASSESSMENT THOUGH COMPLETED U/S 143(1) AND ALL THE ASSESSMENTS HAD A BINDING EVIDEN TIARY VALUE IN ABSENCE OF ANY REVERSAL THEREOF UNDER ANY OF THE PR OVISIONS OF THE ACT AT THE RELEVANT TIME, WHEN THE AO PASSED THE ASSESS MENT ORDER DT. 13.12.2013 SUBJECTED TO IMPUGNED REVISION U/S 263. THEREFORE, VARIOUS OTHER DECISIONS (PARA 2.5 AND 2.7.1) CITED IN THE W RITTEN SUBMISSION THAT THERE CANNOT BE ANY ACTION U/S 263 WHERE THE AO HAS TAKEN A POSSIBLE VIEW, WERE RELEVANT BUT HAS NOT AT ALL BEEN REFERRE D AND /DEALT WITH BY THE TRIBUNAL WHILE PASSING THE SUBJECT ORDER. IT WA S ACCORDINGLY SUBMITTED THAT THE ABOVE MISTAKE IS APPARENT FROM R ECORD WHICH CALL FOR SUITABLE MODIFICATION U/S 254(2) OF THE ACT. 5. THE LD DR IS HEARD WHO HAS SUBMITTED THAT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL WHILE CONFIRMING THE ACTI ON OF THE LD CIT U/S 263 OF THE ACT WHICH CALL FOR ANY RECTIFICATION U/S 254(2) OF THE ACT AND HENCE, THE PRESENT MISC. APPLICATION SHOULD BE DISM ISSED. 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD AR HAS BASICALLY CONTE NDED THAT THE AO HAS TAKEN A POSSIBLE VIEW IN THE LIGHT OF THE SETTLED P AST HISTORY WHERE THE MATTER WAS EXAMINED AND A VIEW FORMED BY THE ASSESS ING OFFICER WHICH CANNOT BE TERMED AS ERRONEOUS BY THE LD CIT WHILE I NVOKING HER JURISDICTION U/S 263 OF THE ACT AND THE TRIBUNAL WH ILE PASSING THE IMPUNGED ORDER HAS NOT APPRECIATED THE SAME IN RIGH T PERSPECTIVE AND THEREFORE, THE MATTER CALLS FOR RECTIFICATION U/S 2 54(2) OF THE ACT. IN THIS M.A. NO. 118/JP/2018 M/S BIJAYNAGAR KRAYA VIKRYA SAHAKARI SAMITI LTD ., BIJAYNAGAR VS. ITO, BEAWAR 4 REGARD, WE REFER TO THE RELEVANT FINDINGS OF THE CO -ORDINATE BENCH WHICH ARE REPRODUCED AS UNDER:- 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE MATERIAL AVAILABLE ON RECORD. FIRSTLY, REGARDING THE CONTEN TION OF THE LD AR THAT THE AO HAS EXAMINED THE MATTER AFTER VARIOUS ENQUIR IES AND INVESTIGATION AND THEREFORE, IT IS A CASE OF CHANGE OF OPINION, WE HAVE GONE THROUGH THE QUERY LETTER ISSUED BY THE AO DATE D 14.10.2013 TO WHICH OUR ATTENTION WAS DRAWN AND AVAILABLE AT APB PG 28-29 AND ALSO THE RESPONSE OF THE ASSESSEE DATED 28.10.2013 AVAIL ABLE AT APB PG 30- 32 AND WE FIND THAT THERE IS NO SPECIFIC QUERY AND CONSEQUENT SUBMISSION REGARDING GENERAL AND EDUCATION RESERVES AS WELL AS PROVISION FOR GRATUITY WHICH HAS BEEN CLAIMED BY TH E ASSESSEE. SECONDLY, OUR ATTENTION WAS DRAWN TO THE ASSESSMENT ORDER PASSED BY THE AO WHEREIN IT IS MENTIONED THAT ON P&L APPROPR IATION ACCOUNT RS. 377,566/- TRANSFERRED TO GENERAL RESERVE AND RS. 15 ,103/- HAS BEEN TRANSFERRED TO EDUCATION RESERVE ACCOUNT AS PER BY LAWS OF SOCIETY ACT. TO OUR MIND, THE AO HAS MERELY REPRODUCED THE ACCOU NTING ENTRIES BY WAY OF TRANSFER TO GENERAL RESERVE AND THE EDUCATIO N RESERVE AS REFLECTED IN THE PROFIT/LOSS APPROPRIATION ACCOUNT. THE SAME CANNOT BE READ AND UNDERSTOOD TO MEAN THAT THE AO HAS EXAMINE D THE ALLOWABILITY OF THESE RESERVE TRANSFERS FROM THE PERSPECTIVE OF ALLOWABILITY FOR TAX PURPOSES. IN CONTRAST, IF WE SEE THE CLAIM OF DEDU CTION UNDER SECTION 80P, THE AO, IN SUBSEQUENT PARAGRAPH, HAS STATED TH AT IN COMPUTATION OF TOTAL INCOME, THE ASSESSEE SOCIETY HAS CLAIMED D EDUCTION U/S 80P OF I.T. ACT AMOUNTING TO RS. 1095909/- UNDER VARIOUS S UB PROVISIONS. VARIOUS CLAIMS RESERVES AND DEDUCTIONS HAVE BEEN TE ST CHECKED. NO. DISCREPANCY HAS BEEN NOTICE. THEREFORE DEDUCTION CL AIMED UNDER CHAPTER VIA TO THE TUNE OF RS. 1095909/- IS THEREFO RE ALLOWABLE FOR THE M.A. NO. 118/JP/2018 M/S BIJAYNAGAR KRAYA VIKRYA SAHAKARI SAMITI LTD ., BIJAYNAGAR VS. ITO, BEAWAR 5 YEAR UNDER CONSIDERATION. THIS SHOWS CLEARLY THAT CLAIM OF DEDUCTION UNDER SECTION 80P HAS BEEN EXAMINED AND THEREAFTER, IT HAS BEEN ALLOWED. WE ARE THEREFORE OF THE VIEW THAT IN ABSE NCE OF ANY SPECIFIC QUERY/DISCUSSION/EXAMINATION BY THE AO AND IN ABSEN CE OF ANY SPECIFIC FINDING IN THE ASSESSMENT ORDER AS HAVING EXAMINED THE CLAIM OF THE ASSESSEE REGARDING GENERAL AND EDUCATION RESERVE AN D THE PROVISION FOR GRATUITY, IT CANNOT BE SAID THAT THERE IS A CHANGE OF OPINION WHEN SUCH AN OPINION HAS NOT BEEN FORMED AT THE FIRST PLACE. THEREFORE, WE ARE UNABLE TO ACCEDE TO THE CONTENTION OF THE LD AR REG ARDING CHANGE IN OPINION. 11. IT IS A CASE WHERE WE FIND THAT THERE IS NO DUE AND PROPER APPLICATION OF MIND BY THE AO. THE AO HAVING REPROD UCED THE ENTRIES OF GENERAL AND EDUCATION RESERVE AS APPEARING IN THE P ROFIT/LOSS APPROPRIATION ACCOUNT, SHOULD HAVE APPLIED HIS MIND TO DETERMINE FIRSTLY, WHETHER THE ENTRIES IN THE PROFIT/LOSS APP ROPRIATION ACCOUNT, WHICH ARE BELOW-THE-LINE ENTRIES IN THE ACCOUNTING PARLANCE, ARE ALLOWABLE AT FIRST PLACE IN THE HANDS OF THE ASSESS EE AND SECONDLY, WHAT IS THE NATURE AND PURPOSE OF THESE RESERVE AND HOW THE SAME ARE ALLOWABLE AND UNDER WHAT PROVISIONS OF THE ACT. THE CONTENTION OF THE LD AR THAT THESE ARE ALLOWABLE ALTERNATIVELY UNDER SEC TION 40A(9) OR UNDER 37(1) OR THE SAME ARE DIVERGENT OF INCOME BY OVERRI DING TITLE ARE PRECISELY THE MATTERS WHICH THE AO SHOULD HAVE ORDI NARILY EXAMINED IN THE REGULAR COURSE OF ASSESSMENT PROCEEDINGS WHICH THE AO HAS FAILED IN THE INSTANT CASE. THE SAME WOULD HAVE BEEN POSS IBLE HAD THE AO EXAMINED THE MATTER AT FIRST PLACE WHICH THE AO HAS FAILED IN THE INSTANT CASE. IT IS CLEARLY A CASE OF NON-EXAMINATION AND NON-APPLICATION OF M.A. NO. 118/JP/2018 M/S BIJAYNAGAR KRAYA VIKRYA SAHAKARI SAMITI LTD ., BIJAYNAGAR VS. ITO, BEAWAR 6 MIND BY THE AO AND THE ORDER OF THE AO IS CLEARLY E RRONEOUS TO THIS EXTENT. 12. NOW COMING TO ANOTHER CONTENTION OF THE LD AR T HAT THE LD. PR CIT HAS NOT SHOWN ANY SPECIAL REASON OR A NEW GROUND OR MATERIAL CHANGE IN THE LEGAL AND FACTUAL POSITION, WHICH PREVAILED FOR A LONG PERIOD OF 6 YEARS WHERE THE ASSESSEE HAS BEEN CLAIMING THESE DE DUCTIONS TOWARDS TRANSFER TO RESERVES SINCE ITS INCEPTION AND THE SA ME HAS BEEN ALLOWED AND REFERENCE WAS DRAWN TO THE ASSESSMENT ORDER PAS SED FOR ASSESSMENT YEAR 2006-07 WHEREIN THE SIMILAR DEDUCTI ON HAS BEEN ALLOWED. IN THIS REGARD, WE FIND THAT THE LD PR CIT HAS GIVEN A CLEAR REASONING AND FINDING IN HER ORDER AS TO WHY THE PR OVISIONS OF SECTION 40A(9) ARE NOT ATTRACTED IN THE INSTANT CASE AND HE R FINDINGS ARE REPRODUCED AS UNDER: THE POINT OF THE ASSESSEE THAT THE RESERVES CREATE D U/S 43 & 48 OF THE RAJASTHAN COOPERATIVE SOCIETIES ACT 2001, QUALIFY F OR DEDUCTION IN THE INCOME TAX ACT, IS NOT TENABLE BECAUSE SECTION 40A( 9) SPECIFIES THE FUNDS CONTRIBUTION TO WHICH BY THE ASSESSEE AS AN E MPLOYER CAN QUALIFY FOR DEDUCTION. AS PER SECTION 40A(9) ANY SOME PAID/ CONTRIBUTED BY A SOCIETY REGISTERED UNDER THE SOCIETY REGISTRATION A CT, 1860 SHALL ONLY BE ALLOWABLE AS A DEDUCTION WHERE SUCH SOME IS SO PAID , FOR THE PURPOSE MENTIONED IN CLAUSE (IV) OR (IVA) OR (V) OF SUB-SEC TION 1 OF SECTION 36 (1) (IV), OR AS REQUIRED BY OR UNDER ANY OTHER LAW FOR THE TIME BEING IN FORCE. SECTION 36(1) (IV), (IVA) & (V) PERTAINS TO CONTRIB UTION TOWARDS RECOGNIZED PROVIDENT FUND OR AN APPROVED SUPERANNUA TION FUND, CONTRIBUTION TOWARDS A PENSION SCHEME AND CONTRIBUT ION TOWARDS AN M.A. NO. 118/JP/2018 M/S BIJAYNAGAR KRAYA VIKRYA SAHAKARI SAMITI LTD ., BIJAYNAGAR VS. ITO, BEAWAR 7 APPROVED GRATUITY FUND RESPECTIVELY. IT DOES NOT AL LOW ANY SOME PAID TOWARDS THE GENERAL RESERVES AND THE EDUCATION RESE RVE. OR AS REQUIRED BY ANY OTHER LAW UNDER FORCE MENTI ONED IN SECTION 40A(9) HAS BEEN MISINTERPRETED BY THE ASSESSEE. ANY OTHER LAW UNDER FORCE MEANS ANY OTHER LAW UNDER FORCE APPLICABLE TO THE ASSESSEE AS AN EMPLOYER WITH RESPECT TO THE SPECIFIC FUNDS (PROVID ENT FUND/SUPERANNUATION FUND; PENSION SCHEME; APPROVED GRATUITY FUND). 13. IT IS THEREFORE NOT A CASE WHERE THE LD PR CIT HAS NOT STATED HER REASONING FOR TAKING A VIEW IN THE SUBJECT MATTER. IT MAY SO HAPPEN THAT SUCH A VIEW MAY BE AT VARIANCE TO THE PAST ASSESSME NT YEARS AS CLAIMED BY THE LD AR. THE QUESTION IS WHETHER THE SAID ISSUE WAS EXAMINED IN THE PAST OR NOT BY THE REVENUE AUTHORIT IES. WHERE THE SAID ISSUE WAS EXAMINED IN THE CONTEXT OF SECTION 4 0A(9) IN THE PAST AND NOW, THERE IS A CHANGE IN THE VIEW, WE AGREE TH AT UNLESS THERE IS CHANGE IN LAW OR MATERIALLY DIFFERENT FACTS, THE VI EW ADOPTED IN THE PAST SHOULD NOT NORMALLY BE DISTURBED. HOWEVER, IN THE INSTANT CASE, WE DONOT FIND ANYTHING ON RECORD TO SUGGEST THAT THE I SSUE HAS BEEN EXAMINED IN THE PAST FROM THE PERSPECTIVE OF SECTIO N 40A(9). HENCE, THE ABOVE SAID CONTENTION OF THE LD AR REGARDING RULE O F CONSISTENCY CANNOT BE ACCEPTED. 14. REGARDING THE CONTENTION OF THE LD AR THAT THE ACTION UNDER SECTION 263 IS NOT PERMISSIBLE MERELY ON AUDIT OBJE CTION, WE REFER TO THE PROVISIONS OF SECTION 263 WHICH PROVIDES THAT THE L D PR CIT MAY CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDINGS UNDER THI S ACT. THE TERM RECORD HAS BEEN DEFINED AS TO INCLUDE AND SHALL B E DEEMED ALWAYS TO HAVE INCLUDED ALL RECORDS RELATING TO ANY PROCEEDIN GS UNDER THIS ACT AVAILABLE AT THE TIME OF EXAMINATION BY THE PR CIT. IN THE INSTANT CASE, M.A. NO. 118/JP/2018 M/S BIJAYNAGAR KRAYA VIKRYA SAHAKARI SAMITI LTD ., BIJAYNAGAR VS. ITO, BEAWAR 8 IT IS NOT DISPUTED THAT THE REVENUE AUDIT MEMO IS P ART OF THE RECORDS. THE PR CIT HAS EXAMINED THE ASSESSMENT RECORDS AS W ELL AS REVENUE AUDIT MEMO AVAILABLE ON RECORD AND AFTER EXAMINING THE SAME AND PROVIDING A DETAILED REASONING IN THE REVISION ORDE R COME TO A CONCLUSION THAT THE ASSESSMENT ORDER PASSED UNDER S ECTION 143(3) IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE RE VENUE. IT IS THEREFORE NOT A QUESTION OF BORROWED SATISFACTION ON THE PART OF THE LD PR CIT WHEREIN MERELY ON ACCOUNT OF REVENUE AUDIT MEMO, SH E HAS INITIATED THE PROCEEDINGS UNDER SECTION 263. RATHER SHE HAS E XAMINED THE RECORDS AND INDEPENDENTLY APPLIED HER MIND AND HAS COME TO A CONCLUSION THAT THE ASSESSMENT ORDER IS ERRONEOUS A ND PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE DECISIONS RELIED UPON BY THE LD AR ARE RENDERED IN THE PECULIAR FACTS OF THE CASE AND ARE DISTINGUISHABLE. 15. REGARDING THE ARGUMENTS OF THE LD AR ON MERIT REGARDING ALLOWABILITY UNDER SECTION 40A(9), SECTION 37(1) AN D DIVERSION BY OVERRIDING TITLE, WE BELIEVE THAT THE SAME CAN BE E XAMINED BY THE AO AND THE ASSESSEE SHALL BE FREE TO RAISE THE SAME BE FORE THE AO. TO THIS EXTENT, WE MODIFY THE DIRECTIONS OF THE LD PR CIT A ND THE SAME SHOULD BE READ TO THE EFFECT THAT CLAIM OF THE ASSESSEE RE GARDING THE CLAIM OF THE DEDUCTION TOWARDS THE TRANSFER TO GENERAL RESER VE, EDUCATION RESERVE AND THE PROVISIONS FOR GRATUITY SHOULD BE E XAMINED AFRESH AS PER LAW AFTER PROVIDING REASONABLE OPPORTUNITY TO T HE ASSESSEE. 7. WE FIND THAT THE CONTENTIONS OF THE LD AR HAVE B EEN DULY CONSIDERED BY THE CO-ORDINATE BENCH WHILE GIVING IT S FINDINGS. FURTHER, WHERE THE CONTENTIONS ADVANCED BY THE LD AR DURING THE COURSE OF HEARING HAVE BEEN DULY ADDRESSED BY THE BENCH, THE CONTENTION RAISED BY THE LD AR THAT WRITTEN SUBMISSION HAVE NOT BEEN CONSIDERED CANNOT M.A. NO. 118/JP/2018 M/S BIJAYNAGAR KRAYA VIKRYA SAHAKARI SAMITI LTD ., BIJAYNAGAR VS. ITO, BEAWAR 9 BE CONSIDERED AS MISTAKE APPARENT FROM THE RECORD. THE TRIBUNAL IS EXPECTED TO GRANT APPROPRIATE OPPORTUNITY TO THE AS SESSEE BEFORE IT PRONOUNCES ITS DECISION AND THEREFORE, WHEN SUCH AN OPPORTUNITY HAS BEEN GRANTED AND IT IS EVEN NOT THE CASE OF THE ASS ESSEE THAT SUCH AN OPPORTUNITY HAS NOT BEEN GRANTED, THEN IN SUCH A SC ENARIO, RAISING A CONTENTION THAT BESIDES VERBAL CONTENTIONS, EVEN WR ITTEN SUBMISSIONS SHOULD ALSO HAVE BEEN CONSIDERED BY THE TRIBUNAL, T O OUR UNDERSTANDING, IS NOT APPROPRIATE. WHERE DURING TH E COURSE OF HEARING, THE ATTENTION OF THE BENCH WAS DRAWN TO THE WRITTEN SUBMISSIONS OR CERTAIN SPECIFIC FACTS STATED THEREIN AND THEN, IN SUCH A SCENARIO, THE TRIBUNAL HAS NOT CONSIDERED THE SAME, IT CAN BE A C ASE WHILE MAY FALL UNDER JURISDICTION OF SECTION 254(2). HOWEVER, WHER E THERE IS NOTHING ON RECORD THAT ATTENTION OF THE BENCH WAS DRAWN TO THE WRITTEN SUBMISSIONS DURING THE COURSE OF HEARING AND WHERE THE TRIBUNAL HAS CONSIDERED THE VERBAL CONTENTIONS SO ADVANCED BY TH E LD AR, IN OUR VIEW, THERE IS NO INTERFERENCE WHICH IS CALLED FOR IN TERMS OF SECTION 254(2) OF THE ACT. IN THE INSTANT CASE, THE ATTENT ION OF THE CO-ORDINATE BENCH WAS DRAWN TO THE DECISION PASSED BY THE AO U/ S 143(3) FOR AY 2006-07 AND IN THE SAID ORDER, THERE IS NO DISCUSSI ON REGARDING THE ISSUES WHICH HAVE COME UP FOR CONSIDERATION BEFORE THE CO-ORDINATE BENCH BEING THE SUBJECT MATTER OF IMPUNGED ORDER U/ S 263, WE DONOT THINK THERE IS ANY MISTAKE WHICH HAS BEEN COMMITTED BY THE CO- ORDINATE BENCH WHERE IT STATES THAT THE CONTENTION REGARDING THE PAST HISTORY AND RULE OF CONSISTENCY DOESNT HELP THE CA SE OF THE ASSESSEE. 8. IN LIGHT OF ABOVE DISCUSSIONS, WE ARE OF THE CON SIDERED VIEW THAT THE CONTENTION OF THE LD AR WHERE ACCEPTED WILL AMO UNT TO A REVIEW OF M.A. NO. 118/JP/2018 M/S BIJAYNAGAR KRAYA VIKRYA SAHAKARI SAMITI LTD ., BIJAYNAGAR VS. ITO, BEAWAR 10 THE ORDER PASSED BY THE CO-ORDINATE BENCH AND WILL FALL OUTSIDE THE JURISDICTION OF THE TRIBUNAL U/S SECTION 254(2) OF THE ACT. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 22/01/2019. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 22/01/2019. * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S BIJAYNAGAR KRAYA VIKRYA SAHAKARI SAMITI LTD., BIJAYNAGAR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD-01, BEAWAR 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 NO. 118/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR