Asst. Comm. of Income-tax, Pune V. Shramjivi Nagari Sahkari Pat Sanstha Maryadit, Pune

MA 120/PUN/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7427 (ITAT-PUNE)
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-12-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 14-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARESHWAR SHARMA
• Keywords: Recovery proceedings; Principle of natural justice; Bonafide belief

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI I.C. SUDHIR JUDICIAL MEMBER AND SHRI G.S. PANNU ACCOUNTANT MEMBER M.A. NO. 120/PN/2011 (ARISING OUT OF ITA NO. 477/PN/2010) (ASSTT. YEAR : 2006-07) ASST.COMMISSIONER OF INCOM E TAX ... APP LICA NT CIRCLE 6, INCOME-TAX OFFICE, 3 RD FLOOR, C WING, PMT COMMERCIAL COMPLEX, SWARGATE, PUNE V. SHRAMJIVI NAGARI SAHKARI PAT SANSTHA MARYADIT RESPONDENT MAIN ROAD, VIJAYNAGAR, KALEWADI, PIMPRI, PUNE 411 017 PAN : NOT AVAILABLE APPLICANT BY : SHRI HARESHWAR SHARMA RESPONDENT BY : SHRI SUNIL GANOO DATE OF HEARING : 14.10.2011 DATE OF PRONOUNCEMENT : 13 .12.2011 ORDER PER I.C. SUDHIR, JM THE REVENUE HAS SOUGHT RECTIFICATION U/S. 254(2) I N THE ORDER DATED 8.6.2011 OF THE TRIBUNAL IN THE APPEAL ON THE BASIS THAT THE RE IS MISTAKE APPARENT FROM RECORD IN THE ORDER AS THE TRIBUNAL HAS FAILED TO CONSIDER FOLLOWING ASPECTS OF THE MATTER : I) THE HONBLE ITAT, WHILE ADJUDICATING THE GROUND NO. 3, HAS NOT CONSIDERED THE FACT THAT NO COERCIVE ACTION IN RESP ECT OF RECOVERY WAS TAKEN DURING THE PERIOD PROVIDED BY THE STATUTE TO GO IN APPEAL AS HAS BEEN HELD IN THE CASE OF KEC INTERNATIONAL LTD. VS. B.R. BALKRIS HNA 251 ITR 158 AND THE ACTION WAS TAKEN ONLY AFTER THE DECISION OF THE CIT (A) WHO HAD CONFIRMED THE DEMAND. II) THE HONBLE ITAT HAS NOT CONSIDERED THE FACT THAT T HE A.O. WAS NOT AWARE OF THE FACT THAT THE ASSESSEE HAD NOT RECEIVE D THE FIRST APPELLATE ORDER DATED 3 RD FEBRUARY AND THAT THE ASSESSEE HAS BEEN SERVED THE FIRST APPELLATE ORDER ONLY ON 31/03/2010 WHEREAS THE A.O. WAS ALREA DY IN RECEIPT OF THE SAME. MA . NO 120/PN/2011 SHRAMJIVI NAGARI SAHAKARI PAT SANSTHA, A.Y.2006-07 PAGE OF 4 2 III) THE HONBLE ITAT HAS NOT CONSIDERED THE FACT THAT THE AUTHORITIES BELOW WERE NOT BIASED WITH THE ASSESSEE NOR THEY WE RE HAVING ANY INTENTION TO CAUSE PREJUDICE TO IT. THE AO HAD ACTED IN ACCO RDANCE WITH THE PROVISIONS OF THE INCOME TAX ACT. IV) THE HONBLE ITAT HAS ALSO NOT CONSIDERED THE FACT T HAT AFTER STAYING THE RECOVERY PROCEEDINGS, THE ATTACHMENTS WERE LIFT ED IMMEDIATELY I.E. ON THE DAY OF ANNOUNCEMENT OF ITS JUDGMENT DATED 12/04/201 0 EXCEPT THE ACCOUNTS MENTIONED IN THE SUBMISSIONS AT SR. NO. 3 TO 5 MADE BY THE ASSESSEE. V) THE HONBLE ITAT HAS ALSO NOT CONSIDERED THE FACT T HAT IN PARA 6 OF ITS ORDER DATED 12/04/2010, IT HAS DIRECTED FOR MAINTAI NING THE STATUS QUO IN RESPECT OF THE ACCOUNTS MENTIONED IN THE CHART AT S R. NO. 3 TO 5 KEEPING IN MIND THAT IT WOULD WORK AS SURETY WITH THE DEPARTME NT TILL THE FINAL ORDER IN THE APPEAL. VI) THE HONBLE ITAT, WHILE ADJUDICATING THE GROUND NO. 3, ALLOWED APPEAL OF THE ASSESSEE WITHOUT OBTAINING SUCCESSFUL REBUTT AL BY THE REVENUE. HENCE THE PRINCIPLES OF NATURAL JUSTICE IN ALLOWING THE R EVENUE TO PRESENT ITS VERSION WERE DENIED. 2. THE LD. D.R. WHILE REITERATING THE CONTENTS OF T HE APPLICATION CONTENDED THAT A.O. WAS HAVING NOT MALLAFIDE INTENTION WHILE PROC EEDING IN THE ASSESSEES CASE AND HE HAD ACTED IN ACCORDANCE WITH THE PROVISIONS OF T HE INCOME TAX ACT 1961. THERE WAS NO INTENTION OF CAUSING ANY HARASSMENT TO THE A SSESSEE AND THE ACTION WAS TAKEN IN NORMAL COURSE OF PERFORMANCE OF HIS DUTY. 3. THE LD. A.R., ON THE OTHER HAND, OPPOSED THE APP LICATION WITH THIS SUBMISSION THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN T HE ORDER OF THE TRIBUNAL AS THE TRIBUNAL HAS ADJUDICATED UPON GROUND NO. 3 OF THE A PPEAL RESULTING INTO AWARDING OF THE COST IN QUESTION AFTER CONSIDERING ORDERS OF TH E AUTHORITIES BELOW, MATERIAL ON RECORD AND THE ARGUMENTS ADVANCED BY THE PARTIES. UNDER THESE CIRCUMSTANCES, IF THE PRESENT APPLICATION IS ALLOWED, IT WOULD BE AMO UNTING TO REVIEW OF ITS ORDER BY THE TRIBUNAL WHICH IS NOT PERMITTED UNDER THE PROVI SIONS OF SECTIONS 254(2) OF THE ACT. HE SUBMITTED FURTHER THAT PRESENT APPLICATI ON IS NOT MAINTAINABLE ON ITS MA . NO 120/PN/2011 SHRAMJIVI NAGARI SAHAKARI PAT SANSTHA, A.Y.2006-07 PAGE OF 4 3 MERITS, HENCE WHILE REJECTING THE SAME, A FURTHER C OST MAY BE AWARDED FOR PREFERRING THE PRESENT APPLICATION BY THE REVENUE. 4. CONSIDERING THE ABOVE SUBMISSION, WE FIND THAT O RDER DATED 11.6.2010 HAS BEEN PASSED AFTER CONSIDERING THE SUBMISSIONS OF T HE PARTY ON THE ISSUE RAISED IN GROUND NO. 3. DURING THE COURSE OF HEARING, ON GRO UND NO.3 OF THE APPEAL BEFORE THE TRIBUNAL, THE LD. D.R. HAD ADVANCED SIMILAR TYP E OF ARGUMENT THAT NO INFERENCE CAN BE DRAWN FROM THE ACTIONS OF THE AUTHORITY THA T THEY WERE BIAS WITH THE APPELLANT AND THEY WERE HAVING ANY INTENTION TO CA USE PREJUDICE TO THE ASSESSEE. THE LD. D.R. HAD ALSO SUBMITTED THAT WHILE PRESSING FOR THE RECOVERY OF THE DEMAND, THE A.O WAS NOT AWARE THAT THE ASSESSEE HAS NOT BEE N SUPPLIED WITH THE FIRST APPELLATE ORDER ON THE BASIS OF WHICH RECOVERY ACTI ON WAS TAKEN. IT WAS ALSO SUBMITTED THAT ACTIONS OF THE AUTHORITY BELOW WERE UNDER THEIR BONAFIDE BELIEF AND THERE WAS NO MALLAFIDE ON THE PART OF THE AUTHORITY BELOW IN TAKING ACTION AGAINST THE APPELLANT AS THEIR ACTION WAS WELL WITHIN THE P ROVISIONS OF LAW. WE THUS FIND THAT THE ISSUE OF AWARDING OF COST RAISED IN GROUND NO. 3 OF THE APPEAL PREFERRED BY THE ASSESSEE HAS BEEN ADJUDICATED UPON BY THE TRIB UNAL CONSIDERING ALL THE RELEVANT FACTS AND THE ARGUMENTS ADVANCED BY THE PA RTIES. WE THUS DO NOT FIND SUBSTANCE IN THE CONTENTION OF THE LD. D.R. THAT AN Y RELEVANT FACTS OR SUBMISSIONS MADE BY THE PARTIES HAS REMAINED TO BE CONSIDERED B Y THE TRIBUNAL WHILE ADJUDICATING THE ISSUE RAISED IN GROUND NO. 3 VIDE ORDER DATED 11.6.2010 OF THE TRIBUNAL RESULTING INTO MISTAKE APPARENT FROM RECOR D IN THE SAID ORDER OF THE TRIBUNAL. THE PROVISIONS LAID DOWN U/S. 254(2) PE RMITTING RECTIFICATION OF ONLY THOSE MISTAKES WHICH ARE APPARENT FROM RECORD IN THE ORDE R. IN ABSENCE OF SUCH MISTAKE, WE DO NOT FIND REASON TO INTERFERE WITH THE ORDER D ATED 11.6.2010 OF THE TRIBUNAL. THE APPLICATION IS ACCORDINGLY REJECTED. MA . NO 120/PN/2011 SHRAMJIVI NAGARI SAHAKARI PAT SANSTHA, A.Y.2006-07 PAGE OF 4 4 THE ORDER PRONOUNCED IN THE OPEN COURT ON 13TH DE CEMBER, 2011 SD/- SD/- ( G.S. PANNU ) ACCOUNTANT MEMBER ( I.C. SUDHIR ) JUDICIAL MEMBER PUNE, DATED THE 13TH DECEMBER, 2011 US COPY OF THE ORDER IS FORWARDED TO : 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT-III, PUNE 4. THE CIT(A)- III, PUNE 5. THE D.R. ITAT B BENCH, PUNE 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE