M/s. Gopal Glass Works Ltd., Ahmedabad V. The Income Tax Officer, Ward-4(1), Ahmedabad

MA 127/AHD/2016

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9188 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 4 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-12-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 22-07-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Assessee Lawyers: T P HEMANI
• Keywords: Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH (BEFORE SHRI PRAMOD KUMAR, VICE PRESIDENT & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ) M.A. NO: 127/AHD/2016 (IN ITA NO. 3123/AHD/2010) (ASSESSMENT YEAR: 2006-07) M/S. GOPAL GLASS WORKS LTD., 182, GAGAN VIHAR, KHANPUR, AHMEDABAD- 380001 V/S INCOME TAX OFFICER, WARD- 4 (1), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AAACG 5599H APPELLANT BY : SHRI T. P. HEMANI, AR RESPONDENT BY : SHRI S. K. DEV, SR. D.R. ( )/ ORDER DATE OF HEARING : 05 -10-201 8 DATE OF PRONOUNCEMENT : 17 -12-2018 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E ASSESSEE STATING THAT CERTAIN JUDGMENTS HAVE NOT BEEN CONSIDERED BY THE I TAT IN ITS ORDER. M.A. NO 127 /AHD/2016 . A.Y. 2006-0 7 2 2. WE HAVE DULY CONSIDERED RIVAL CONTENTION AND GONE T HROUGH THE RECORD CAREFULLY. THE POWER OF RECTIFICATION U/S. 254(2) O F THE I.T. ACT CAN BE EXERCISE ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFI ED IS AN OBVIOUS AND PATENT MISTAKE WHICH APPARENT FROM THE RECORDS AND NOT A M ISTAKE WHICH REQUIRES TO BE ESTABLISH BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASONING POINTS ON WHICH THERE MAY CONCEIVABLY THE TWO OPTIONS. 3. THE CONTENTION OF THE LD. A.R. OF THE ASSESSEE IS T HAT WHILE CONFIRMING THE PENALTY TRIBUNAL FAILED TO CONSIDER JUDGMENTS OF HO NBLE HIGH COURT/ ORDERS OF THE CO-ORDINATE BENCH RELIED UPON THE ASSESSEE AND THUS COMMITTED AN APPARENT ERROR. FOR BUTTRESSING THIS CONTENTION, HE RELIED UPON THE DECISION OF APEX COURT IN THE CASE OF HONDA SEIL POWER PRODUCTS LTD. VS. CIT 295 ITR 466 (SC). 4. THERE IS NO DISPUTE WITH REGARD TO THE PREPOSITION THAT IS A DIRECT JUDGMENT ON THE POINT RELIED BY A PARTS HAS NOT BEEN CONSIDERED THEN THAT ACTION OF ITAT WOULD FALL IN THE AMBIT OF APPARENT ERROR BUT THE Q UESTION IS WHETHER IN THE PRESENT CASE THIS ERROR HAS BEEN COMMITTED. LET US TAKE NOTE OF THE CONCLUSION OF THE TRIBUNAL: 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W AS WELL THE DECISIONS RELIED UPON BY BOTH THE PARTIES. THE UNDISPUTED FACTS ARE THAT THE ASSESSEE FILED ITS ORIGINAL RETURN OF INCOME ON 27/12/2006 AND SUBSEQU ENTLY REVISED THE SAME ON 06/03/2007. FINALLY, REVISED RETURN OF INCOME, AFTE R THE SURVEY ACTION WAS CARRIED OUT, ON 22/12/2007. WE FIND THAT THE HON'BLE COORDI NATE BENCH IN ITA NO.2333/AHD/2012 FOR AY 2008-09 IN THE CASE OF SMT. CHANDRIKABEN ARVIND PATEL, DATED 04/10/2013, HAS HELD AS UNDER:- '9. CONSIDERING THE FACT THAT THE CAPITAL GAIN EARNE D BY THE ASSESSEE WAS DISCLOSED ONLY ON BEING CONFRONTED BY THE DEPARTMEN T. THE ASSESSEE HAS NOT BROUGHT ANY CLINCHING MATERIAL IN SUPPORT OF TH E STATEMENT THAT SHE M.A. NO 127 /AHD/2016 . A.Y. 2006-0 7 3 WAS NOT AWARE OF THE DETAILS OF THE RETURN OF INCOM E FILED BY THE POWER OF ATTORNEY HOLDER AND FURTHER IN THE ABSENCE OF ANY E VIDENCE HAS BEEN BROUGHT ON RECORD TO DEMONSTRATE THAT THE RETURN OF INCOME WAS FILED WITHOUT THE KNOWLEDGE OF THE ASSESSEE. WE ARE OF TH E VIEW THAT THE RATIO OF THE AFORESAID DECISION OF THE COORDINATE BENCH O F TRIBUNAL ARE APPLICABLE TO THE FACTS OF THIS CASE. WE THEREFORE ARE OF THE VIEW THAT THE ASSESSING OFFICER WAS FULLY JUSTIFIED LEVIED THE PE NALTY IN THE PRESENT CASE AND THUS THE ORDER OF CIT(A) IS SET ASIDE AND THUS THIS GROUND OF REVENUE IS ALLOWED. ' 5. THE TRIBUNAL HAS CONSIDERED THE DECISION OF THE CO- ORDINATE BENCH IN THE CASE OF JAYANTILAL J. PATEL RELIED UPON BY THE ASSESSEE. 6. IN THIS CASE, AT THE TIME OF HEARING, LD. A.R. SUBM ITTED SEVERAL JUDGMENTS BUT STATED FEW ONE AND THOSE WERE DULY CONSIDERED BEFOR E PASSING ORDER IN ITA NO. 3123/AHD/2010. IN THE MATTER OF VOLKART BROTHER S & OTHERS, THE HONBLE SUPREME COURT HAS HELD THAT A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE E STABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVAB LY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FR OM THE RECORD. 7. AS WE CAN SEE, THERE IS NO APPARENT MISTAKE IN THE ORDER PASSED BY THE ITAT IN ITA NO. 3123/AHD/2010 FOR ASSESSMENT YEAR 2006-07 D ATED 19.12.2013. THUS, MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 17- 12- 2018 SD/- SD/- (PRAMOD KUMAR) (MAHAVIR PRASAD) VICE PRESIDENT TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 17 /12/2018