Sh. Jagjeet Singh, Chandigarh V. ACIT, Chandigarh

MA 12/CHANDI/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8596 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-07-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 08-06-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 01-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S K MUKHI
• Keywords: Principle of natural justice
• Section: 45(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH B CHANDIGARH BEFORE MS.SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER MA NO. 12/CHD/2012 IN ITA NO. 864/CHD/2009 ASSESSMENT YEAR: 2006-07 SHRI JAGJEET SINGH, V ACIT, C-5(1), CHANDIGARH. CHANDIGARH. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.K.MUKHI RESPONDENT BY : SHRI AKHILESH GUPTA DATE OF HEARING : 08.06.2012 DATE OF PRONOUNCEMENT : 12.07.2012 ORDER PER MEHAR SINGH, AM THE IMPUGNED MISC.APPLICATION HAS BEEN FILED BY THE ASSESSEE ARISING OUT OF ITA NO. 864/CHD/2009, ASSES SMENT YEAR 2006-07. 2. THE MISC. APPLICATION DATED 01.02.2012 FILED BY THE ASSESSEE IS REPRODUCED HEREUNDER : 1. THAT THE ABOVE MENTIONED APPEAL WAS FILED BY THE RE VENUE AND WAS PENDING BEFORE THIS HON'BLE BENCH AND WAS F IXED FOR HEARING ON 27.09.2011. 2. THAT SINCE THE ARGUING COUNSEL FOR ASSESSEE MR. S.K. MUKHI SUBMITTED APPLICATION PRAYING FOR ADJOURNMEN T IN THE CASE SINCE HE HAS GOT SPRAIN IN FOOT AND WAS ADVISED COM PLETE REST SO HE WAS UNABLE TO ADDRESS THE HON'BLE BENCH, COPY OF MEDICAL CERTIFICATE WAS ALSO ENCLOSED WITH THE ADJO URNMENT APPLICATION WHICH IS ON RECORD. HOWEVER, COPY OF THE ADJOURNMENT APPLICATION IS AT ANNEXURE A WHEREIN MS JYOTI APPEARED BEFORE THE HON'BLE BENCH PRAYING FOR ADJOU RNMENT. 2 3. THAT THIS HON'BLE BENCH REJECTED THE APPLICATION FOR ADJOURNMENT AND PASSED ORDER DAT ED 27.09.2011 WHICH WAS BASED ON SUBMISSIONS OF REVENUE IN ITS AP PEAL AND NEITHER THE ASSESSEE WAS HEARD NOR THE DOCUMENTS ON RECORD BY WAY OF PAPER BOOK WERE CONSIDERED. MOREOVER, EVEN T HE FACT THAT THE COUNSEL PRAYED FOR ADJOURNMENT ON MEDICAL GROUN DS WAS NOT INCORPORATED IN THE ORDER. 4. THAT IT IS PERTINENT TO SUBMIT THAT THERE WAS ONLY ONE EFFECTIVE GROUND IN THE APPEAL REGARDI NG ADDITION OF RS. 42,90,OOO/- WHEREIN THE AMOUNT WAS RECEIVED BY APPELLANT JAGJEET SINGH FROM HIS FATHER AND WIFE AND PAID TO THE COMPANY. UNDER THESE CIRCUMSTANCES, THIS HON'BLE TR IBUNAL HAS ACCEPTED THE LOAN GIVEN BY WIFE BUT REJECTED THE LOAN GIVEN BY FATHER. 5. IT IS THEREFORE PRAYED THAT THE ORDER DATED 27.09.2 011 MAY BE RECALLED AND THE ASSESSEE/APPLICANT MA Y BE GIVEN OPPORTUNITY TO ADDRESS THIS HON'BLE BENCH SINCE THE ORDER DATED 27.09.2011 PASSED BY THIS HON'BLE BENCH IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE AS THAT OF 'NO ON E SHOULD BE CONDEMNED UNHEARD' SO THAT SO THIS APPLICATION OF R ECALLING DESERVES KIND CONSIDERATION IN THE INTEREST OF JUST ICE. 3. IN THE COURSE OF RECTIFICATORY PROCEEDINGS U/S 2 45(2) OF THE INCOME-TAX ACT,1961 (IN SHORT 'THE ACT'), IT WA S POINTED OUT BY THE BENCH THAT THE CASE WAS ADJOURNED A NUMB ER OF TIMES, AT THE REQUEST OF THE ASSESSEE. IT IS MENTI ONED THAT CASE WAS FIXED FOR HEARING ON 02.05.2011 AND AT THE REQUEST OF THE COUNSEL, THE CASE WAS ADJOURNED TO 16.06.201 1. AGAIN, AT THE REQUEST OF THE ASSESSEES COUNSEL, TH E CASE WHICH WAS RE-FIXED FOR HEARING, ON 22.09.2011. ON 27.09.2011, REQUEST FOR ADJOURNMENT WAS MADE. HOWE VER, THE CASE WAS PLEADED BY MS. JYOTI, ON BEHALF OF THE ASSESSEE. THEREFORE, THE CONTENTION OF THE ASSESSEE THAT CASE WAS DECIDED EX-PARTE, IS NOT BORNE OUT OF FACTS. 3 4. IN THE COURSE OF PRESENT APPELLATE PROCEEDINGS, ASSESSEE HAS FAILED TO POINT OUT EVEN A SINGLE MIST AKE APPARENT FROM RECORD, WITHIN THE MEANING OF SECTION 254(2) OF THE ACT, IN THE ORDER PASSED BY THE BENCH, IN IT A NO. 864/CHD/2009, ASSESSMENT YEAR 2006-07, DATED 30.09.2011. THE IMPUGNED ORDER HAS BEEN PASSED ON THE BASIS OF AVAILABLE MATERIAL AND RIVAL SUBMISSIONS A ND FACTS OF THE CASE. THE CASE HAS BEEN ADJUDICATED ON MERI TS. THEREFORE, THE CASE ADJUDICATED ON MERIT, CANNOT BE CONSTRUED AS MISTAKE APPARENT FROM RECORD U/S 254(2 ) OF THE ACT. THERE IS NO POWER OF REVIEW VESTED IN THE BEN CH. IN THIS CASE, ASSESSEE INTENDS THAT THE CASE SHOULD BE RE-HEARD AND THE FINDINGS GIVEN ON MERIT, SHOULD BE REVISED AND REVERSED. SUCH CONTENTIONS OF THE ASSESSEE ARE BE YOND THE PURVIEW OF THE PROVISIONS OF SECTION 254(2) OF THE ACT. POWERS CONFERRED U/S 254(2) ARE VERY LIMITED. THE ISSUES ADJUDICATED ON MERIT CANNOT BE REHEARD AND RE-ADJUD ICATED, AS THERE IS NO POWER TO REVIEW SUCH ORDERS U/S 254( 2) OF THE ACT. THE ASSESSEE PLACED RELIANCE ON CERTAIN DECISI ONS, AS REPRODUCED HEREUNDER : 1. CWP NO. 17476 OF 2011 (O&M) M/S MEGH RAJ BANSAL V CUSTOM EXCISE & SERVICE TAX APPELLATE TRIBUNAL & ANOTHER 2. 52 STC 333 P&H SURINDER CYCLE STORE V THE STATE OF PUNJAB 3. 20 DTR (GUJ) 1532 CIT V NIRANJAN ZAVERI 5. WE HAVE CONSIDERED THE DECISIONS CITED BY THE AS SESSEE AND FOUND THAT FACTS OF THE PRESENT CASE ARE MATERI ALLY 4 DIFFERENT AND DISTINGUISHABLE AND, HENCE, THE RATIO LAID DOWN IN SUCH CASES, IS NOT APPLICABLE TO THE FACTS OF TH E PRESENT CASE. 6. IN THE PRESENT CASE, THE ISSUE OF UNEXPLAINED LO ANS AMOUNTING TO RS.42,90,000/-, RECEIVED BY THE ASSESS EE APPELLANT FROM TWO PERSONS, NAMELY MS. SUKHWINDER K AUR, W/O SHRI JAGJEET SINGH AND SHRI CHARAN SINGH S/O SH RI SOHAN SINGH, BOTH RESIDENTS OF HOUSE NO. 1127 SECTO R 44B, CHANDIGARH HAS BEEN ADJUDICATED BY THE BENCH ON MER IT IN FAVOUR OF THE REVENUE, ON APPRECIATION OF FACTUAL M ATRIX OF THE CASE AND BY APPLYING THE DECISIONS OF HON'BLE S UPREME COURT IN THE CASE OF SRILEKHA BANERJEE V CIT 49 ITR 112, CIT V DURGA PRASAD MORE 82 ITR 540 AND SUMATI DAYAL V C IT 214 ITR 801. IN SUCH A SITUATION, THE PROVISIONS O F SECTION 254(2) CANNOT BE INVOKED. THE PROVISION OF THIS SE CTION CONTEMPLATE TO RECTIFY ANY MISTAKE APPARENT FROM RE CORD, WHICH IS NOT DEBATABLE AND SUCH MISTAKE MUST BE OBV IOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH, THERE CONCEIVABLY BE TWO OPINIONS. A LOO K AT THE RECORD MUST SHOW THAT THERE HAS BEEN AN ERROR AND E RROR MAY BE RECTIFIED WITHIN THE MEANING OF SECTION 254( 2) OF THE ACT. SIMILARLY, WHERE TWO OPINIONS ARE POSSIBLE, S UCH A SITUATION DO NOT FALL UNDER THE PROVISION OF SECTIO N 254(2) OF THE ACT, AS HELD BY THE HON'BLE PUNJAB & HARYANA HI GH COURT IN THE CASE OF CIT V VARDHMAN SPINNING MILLS 226 ITR 296 (P&H). THUS, IT IS CLEAR THAT THE POWER SO CON FERRED U/S 254(2) OF THE ACT DOES NOT CONTEMPLATE RE-HEARING, WHICH 5 WOULD HAVE THE EFFECT OF RE-WRITING OF ORDER, AFFEC TING THE MERITS OF THE CASE, AS SOUGHT BY THE ASSESSEE, IN T HE PRESENT CASE. THERE IS A DIFFERENCE BETWEEN A POWER TO REV IEW AND A POWER TO RECTIFY A MISTAKE APPARENT FROM RECORD. IN VIEW OF ABOVE LEGAL AND FACTUAL DISCUSSIONS, THE M.A. FILED BY THE ASSESSEE FALLS BEYOND THE SCOPE OF POWERS CONFERRED U/S 254(2) OF THE ACT, ON THE TRIBUNAL. THEREFORE, THE IMPUGNED M.A. FILED BY THE ASSESSEE IS DISMISSED. 6. IN THE RESULT, THE MISC.APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH JULY,2012. SD/- SD/- (SUSHMA CHOWLA) (MEHAR SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 12 TH JULY,2012. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT,DR ASSISTANT REGISTRAR, ITAT CHANDIGARH