Shri Vevek Kapse, Indore V. The ACIT 5(1), Indore

MA 120/IND/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0287 (ITAT-INDORE)
• Duration Of Justice: 7 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-04-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 22-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Assessee Lawyers: P M CHOUDHARY
• Keywords: Opportunity of being heard

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER M.A. NO. 120/IND/2012 (ARISING OUT OF ITA NO. 356/IND/2012) A.Y. 2008-09 VIVEK KAPSE, INDORE PAN AKDPK 1056 B :: APPLICANT VS ACIT-5(1), INDORE :: RESPONDENT ASSESSEE BY SHRI P.M. CHOUDHARY REVENUE BY SHRI R.A. VERMA DATE OF HEARING 12 .4.2013 DATE OF PRONOUNCEMENT 1 5 .4.2013 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THIS MISCELLANEOUS APPLICATION U/S 254(2) OF THE A CT IS PREFERRED BY THE ASSESSEE ON THE GROUND THAT THE TR IBUNAL VIDE ORDER DATED 7.5.2012 DECIDED THE APPEAL OF THE REVE NUE BY 2 REMANDING THE SAME TO THE FILE OF THE ASSESSING OFF ICER WITH A DIRECTION TO EXAMINE THE CLAIM OF THE REVENUE. 2. DURING HEARING OF THIS MISCELLANEOUS APPLICATION , THE CRUX OF THE ARGUMENTS ON BEHALF OF THE ASSESSEE IS THAT DUR ING HEARING OF THE MAIN APPEAL, THE ASSESSEE SUPPORTED THE ORDER O F THE LD. CIT(A) BY FILING A DETAILED SUBMISSION ALONG WITH THE PLEA OF CONTRACTUAL RELATIONSHIP AND RELIED UPON CERTAIN JUDICIAL DECIS IONS WHICH HAVE NOT BEEN CONSIDERED. ON THE OTHER HAND, THE LD. SR. DR SHRI R.A. VERMA CONTENDED THAT FIRSTLY, THERE IS NO MISTAKE I N THE ORDER OF THE TRIBUNAL AND SECONDLY, THE ASSESSEE IS TRYING TO GE T THE ORDER REVIEWED WHICH IS NOT PERMISSIBLE. 3. WE HAVE PERUSED THE RECORD AND CONSIDERED THE AR GUMENTS ADVANCED BY THE LEARNED RESPECTIVE COUNSEL. IF THE TOTALITY OF FACTS AND THE CONCLUSION DRAWN BY THE TRIBUNAL ARE KEPT I N JUXTAPOSITION WITH THE ARGUMENTS OF THE LD. REPRESENTATIVE FROM B OTH SIDES, WE FIND THAT WHILE DISPOSING OF THE APPEAL OF THE REVE NUE, THE TRIBUNAL HAS DULY CONSIDERED THE FACTS NARRATED IN THE MISCE LLANEOUS APPLICATION INCLUDING DELAYED SUBMISSION OF FORM 15 -I BEFORE THE PRESCRIBED AUTHORITY AND THEN REMANDED THE APPEAL T O THE FILE OF THE 3 ASSESSING OFFICER TO EXAMINE THE CLAIM OF THE ASSES SEE AND TO PROVIDE AN OPPORTUNITY OF BEING HEARD WITH FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF HIS CLAIM, THEREFOR E, THE ASSESSEE IS NOT EXPECTED TO BE AGGRIEVED IN ANY MANNER. HOWEVER , THE ASSESSING OFFICER IS DIRECTED TO CONSIDER THE CASE-LAWS, IF A NY, RELIED UPON BEFORE HIM. 4. EVEN OTHERWISE, THE TRIBUNAL HAS LIMITED POWERS U/S 254(2) OF THE ACT AND ONLY MISTAKE OF ARITHMETICAL/CLERICAL N ATURE CAN BE RECTIFIED. THE POWERS OF REVIEW MUST BE CONFERRED B Y THE STATUTE. REVIEW OF AN ORDER MEANS RE-EXAMINATION OR TO GIVE A SECOND VIEW OF THE MATTER FOR THE PURPOSES OF ALTERATION OR REVERS AL OF THE VIEW ALREADY TAKEN AFTER CHANGING THE EARLIER OPINION OR VIEW. THE ORDER PASSED BY THE TRIBUNAL U/S 254(1) IS THE EFFECTIVE ORDER SO FAR AS THE APPEAL IS CONCERNED. ANY ORDER PASSED U/S 254(2) EI THER ALLOWING AMENDMENT OR REFUSING TO AMEND GETS MERGED WITH THE ORIGINAL ORDER PASSED. THAT IS THE FINAL ORDER OF THE APPEAL . RECALLING OF ORDER IS NOT PERMISSIBLE U/S 254(2) AS RECALLING AUTOMATI CALLY NECESSITATES REHEARING AND RE-ADJUDICATION OF THE APPEAL. OUR VI EW IS SUPPORTED BY THE RATIO LAID DOWN IN THE FOLLOWING DECISIONS: 4 CIT VS. B.P. AGRAWAL (90 TAXMAN 283) (CAL), KARAN & CO. (253 ITR 131) (DEL), NIRANJAN & CO. LTD. VS. ITAT (122 ITR 519) (CAL), CIT VS. ITAT (196 ITR 640) (ORI), CIT VS. ITAT (155 TAXMAN 378) (DEL), EXPRESS NEWS PAPERS LTD. VS. DCIT, 186 TAXMAN 111 ( MAD), CIT VS. SUMAN TEA & PLYWOOD INDUSTRIES P. LTD., 226 ITR 34 (CAL), CIT VS. ANAMIKA BUILDERS P. LTD., 117 TAXMAN 356 (C AL). 5. THE ASSESSEE HAS NEITHER PINPOINTED ANY SPECIFIC MISTAKE IN THE ORDER OF THE TRIBUNAL NOR IT IS A CASE OF CLERI CAL OR ARITHMETICAL MISTAKE RATHER THROUGH THIS MISCELLANEOUS APPLICATI ON, THE ASSESSEE IS TRYING TO GET THE ORDER REVIEWED WHICH POWERS AR E NOT VESTED WITH THE TRIBUNAL. IN VIEW OF THESE FACTS AND THE JUDICI AL PRONOUNCEMENTS, NO CASE IS MADE OUT BY THE ASSESSEE THROUGH HIS MISCELLANEOUS PETITION, THEREFORE, SAME IS DISMISSE D AND IS DISPOSED IN TERMS AS INDICATED HEREINABOVE. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT ON 1 5.4.2013. SD/. SD/. (R.C.SHARMA) (JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 15.4.2013 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE !VYS!