The ACIT, Panchmahal Circle, Godhra V. M/s. Navjivan Roller Flour & Pulse Mills Pvt. Ltd., Dahod

MA 13/AHD/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3141 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 03-07-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 13-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGH
• Assessee Lawyers: S N SOPARKAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD (BEFORE SHRI SHAILENDRA KR. YADAV, J.M. & SHRI ANIL CHATURVEDI, A.M.) M. A. NOS. 12 & 13/AHD/2015 (IN M.A. NOS. 197 & 198/AHD/2013) (IN ITA NOS. 2698 & 2699/AHD/2009) (ASSESSMENT YEARS: 2006-07 & 2007-08). ACIT, CENTRAL CIRCLE-1, BARODA V/S M/S. NAVJIVAN ROLLER FLOUR & PULSE MILLS PVT. LTD. , KUMBHARWADA OPP. MARKET YARD, DAHOD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI NARENDRA SINGH, SR. D .R. RESPONDENT BY : SHRI S.N. SOPARKAR, A.R. ( )/ ORDER DATE OF HEARING : 03-07-2015 DATE OF PRONOUNCEMENT : 23 -07-2015 PER ANIL CHATURVEDI, ACCOUNTANT MEMBER 1. THESE 2 M.AS. ARE FILED BY THE REVENUE AGAINST THE ORDER OF TRIBUNAL ARISING OUT OF M.A. NO. 197 &198/AHD/2013 DATED 26.09.2014 IN ITA NO. 2698 & 2699/AHD/2009 FOR A.Y. 2006-07 & 2007-08. 2. BEFORE US, LD. D.R REITERATED THE SUBMISSIONS MADE IN M.A. AND FURTHER SUBMITTED THAT M.A. NO. 197 & 198/A/2013 WERE DISMI SSED BY THE CO- ORDINATE BENCH VIDE ORDER DATED 26.09.2014 FOR THE REASON THAT THE SR. D.R. WAS UNABLE TO POINT OUT AS TO WHAT WERE THE ARGUMEN TS OR POINTS WHICH WAS M.A NOS. 12 &13 /AHD/2015 (IN M.A. NOS. 197 & 198/A/13) (IN ITA NOS. 2698 & 2699/A/09) . A.YS. 2006-0 7 & 2007-08 2 ARGUED BEFORE THE TRIBUNAL AT THE TIME OF HEARING O F THE APPEAL AND ON WHICH NO FINDING WAS RECORDED BY THE TRIBUNAL. THE LD. D. R. SUBMITTED THAT THE FACTS WERE VERY MUCH AVAILABLE TO THE TRIBUNAL AS P ER THE PARA-B,C,D & E OF ANNEXURE TO THE SAID M.A. AND FURTHER SUBMITTED THA T EVEN IF SR. D.R. HAD OMITTED TO POINT OUT THE FACTS WHICH WERE MENTIONED IN PARA B,C,D &E OF ANNEXURE TO THE M.A, THE HONBLE TRIBUNAL MAY HAVE HAD TO GO THROUGH THE RECORD IN TERMS OF SAID ANNEXURE AND GIVE A FINDING ON MERIT BASED ON THE FACTS ON RECORD AND THEREFORE TO THAT EXTENT THERE IS MIS-APRECIATION OF THE FACTS ON RECORD AND THE LEGAL CONTENTION WHICH GOES TO THE ROOT OF THE MATTER WHICH HAS REMAINED TO BE CONSIDERED AND THUS THERE IS APPARENT ERROR FROM RECORD IN TERMS OF SECTION 254(2) OF THE ACT AND TH EREFORE THE M.A. FILED BY THE REVENUE BE ALLOWED. 3. LD. A.R. ON THE OTHER HAND SUBMITTED THAT BY ORDER DATED 07.09.2012 THE TRIBUNAL HAD DISMISSED THE APPEAL OF REVENUE (ITA N O. 2698 & 2699/A/2009 DATED 07.09.2012 FOR A.Y. 2006-07 & 20 07-08). AGAINST THE AFORESAID ORDER OF HONBLE TRIBUNAL, REVENUE HAD FI LED M.A. BEARING NO. 197 & 198/AHD/2013 WHICH WAS ALSO DISMISSED BY THE HONBLE TRIBUNAL BY ORDER DATED 26.09.2014. THE LD. A.R. SUBMITTED THAT AGAINST THE DISMISSAL OF THE AFORESAID M.AS, REVENUE HAS AGAIN PREFERRED THE PRESENT M.AS. AND IT IS A SETTLED POSITION THAT NO SECOND M.A. CAN BE PREFE RRED AGAINST THE DISMISSAL OF AN M.A. HE THEREFORE SUBMITTED THAT THE PRESENT M.AS. OF THE REVENUE NEEDS TO BE DISMISSED. M.A NOS. 12 &13 /AHD/2015 (IN M.A. NOS. 197 & 198/A/13) (IN ITA NOS. 2698 & 2699/A/09) . A.YS. 2006-0 7 & 2007-08 3 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT AGAINST THE ORDER OF TRIBUNAL IN ITA NO. 2698 & 2699/AHD/2009 DATED 07.09.2012, REVENUE HAD PREFERRED AN M.A. NO. 197 & 198/AHD/2013 WHICH WAS DISMISSED BY THE CO-ORDINATE BENCH OF TRI BUNAL VIDE ORDER DATED 26.09.2014 HOLDING AS UNDER:- 4.WE HAVE CAREFULLY CONSIDERED RIVAL SUBMISSION AND PERUSED THE ORDER OF THE HONBLE JURISDICTIONAL HIGH COURT DATED 21.10.2013 PASSED I N TAX APPEAL NO. 367 OF 2013 PREFERRED BY THE REVENUE. WE FIND THAT HONBLE HIGH COURT HAS DIRECTED THAT THE REMEDY FOR THE REVENUE IS TO APPROACH THE TRIBUNAL BY WAY OF PROPER APPLICATION AND REQUEST THE TRIBUNAL TO GIVE FINDINGS ON ALL THE POINTS WHICH A RE RAISED AND ARGUED IN THE APPEAL. THE ORDER OF THE HON'BLE JURISDICTIONAL HIGH COURT DATE D 21.10.2013 IS REPRODUCED HEREINBELOW FOR READY REFERENCE: 'THE POINTS WHICH ARE RAISED IN THIS APPEAL THOUGH RAISED IN THE APPEAL BEFORE THE TRIBUNAL, IT SEEMS, ARE NOT DECIDED BY THE TRIBUNAL . THE LEARNED COUNSEL FOR THE APPELLANT SUBMITS THAT THOUGH THE POINTS WERE ARGUED BEFORE T HE TRIBUNAL, IT HAS NOT GIVEN ANY FINDINGS ON THE SAID POINTS. IN OUR VIEW, FOR ENTER TAINING THE APPEAL, IT WILL BE REQUIRED TO HAVE THE FINDINGS OF THE TRIBUNAL. IN THAT VIEW OF THE MATTER, THE REMEDY FOR THE APPELLANT IS TO APPROACH THE TRIBUNAL BY WAY OF APPROPRIATE A PPLICATION AND REQUEST THE TRIBUNAL TO GIVE THE FINDINGS ON ALL THE POINTS WHICH ARE RA ISED AND ARGUED IN THE APPEAL. THE APPELLANT WILL APPROACH THE TRIBUNAL WITHIN FOUR WE EKS FROM TODAY WITH SUCH AN APPLICATION. IF SUCH AN APPLICATION IS FILED, THE T RIBUNAL WILL DECIDE THE SAME WITHIN FOUR THEREAFTER. IF THE APPLICATION IS NOT FILED WITHIN STIPULATED TIME, THE APPELLANT WILL NOT GET THE BENEFIT OF THIS ORDER. IT IS NEEDLESS TO SAY THAT THIS COURT HAS NOT EXAMI NED THE MATTER OR EXPRESSED ANY OPINION ON MERITS. WITH THE ABOVE DIRECTIONS, THIS APPEAL STANDS DISPO SED OF. AT THE TIME OF HEARING OF THE PRESENT M.AS. PREFERR ED BY THE REVENUE AFTER PASSING THE ORDER DATED 21.10.2013 BY THE HON'BLE HIGH COURT, I N REPLY TO A SPECIFIC QUERY FROM THE BENCH, THE LEARNED DR WAS NOT ABLE TO POINT OUT ANY ARGUMENTS OR POINTS WHICH WERE ARGUED BEFORE THE TRIBUNAL AT THE TIME OF HEARING O F THE APPEALS OF THE REVENUE, AND ON WHICH NO FINDING HAVE BEEN RECORDED BY THE TRIBUNAL . THE LEARNED DR SUBMITTED THAT SR. DR WHO HAS ARGUED THE MATTER HAS BEEN TRANSFERRED F ROM HIS POST OF SENIOR DEPARTMENTAL REPRESENTATIVE BEFORE THE TRIBUNAL. WE FIND THAT IN THE M.AS. FILED BY THE REVENUE, NO POINT OR ARGUMENT HAS BEEN MENTIONED, WHICH MAY HAV E BEEN ARGUED ON BEHALF OF THE REVENUE AT THE TIME OF HEARING OF THE APPEALS OF TH E REVENUE, BY THE TRIBUNAL. IN THESE FACTS OF THE CASE, AND IN VIEW OF THE FACT THAT AT THE TIME OF HEARING OF THESE MAS., THE REVENUE COULD NOT POINT OUT ANY ARGUMENT WHICH WAS MADE AT THE TIME OF HEARING OF THESE APPEALS OF THE REVENUE BEFORE THE TRIBUNAL, A ND ON WHICH IT HAS BEEN CLAIMED BY THE REVENUE THAT NO FINDINGS WERE RECORDED BY THE T RIBUNAL. LIKEWISE THERE IS NO MENTION OF ANY ARGUMENTS ON A POINT, WHICH MAY HAVE BEEN AR GUED BEFORE THE TRIBUNAL AT THE TIME OF HEARING OF THE APPEALS IN THE PRESENT M.AS. PREF ERRED BY THE TRIBUNAL. IT IS WELL SETTLED M.A NOS. 12 &13 /AHD/2015 (IN M.A. NOS. 197 & 198/A/13) (IN ITA NOS. 2698 & 2699/A/09) . A.YS. 2006-0 7 & 2007-08 4 THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN OR DER AND IT HAS LIMITED JURISDICTION TO RECTIFY ANY MISTAKE IN THE ORDER OF THE 'TRIBUNAL, WHICH COULD BE SAID TO BE APPARENT FROM THE RECORD. IN THE FACTS OF THE PRESENT CASE, NO MI STAKE COULD BE POINTED OUT IN THE APPELLATE ORDER OF THE TRIBUNAL DATED 7.9.2012 (SUP RA), WHICH COULD BE SAID TO BE A MISTAKE APPARENT FROM RECORD, AND ACCORDINGLY, THE PRESENT MAS. PREFERRED BY THE REVENUE ARE DEVOID OF ANY MERIT, AND ARE ACCORDINGL Y DISMISSED. 5. WE FIND THAT AGAINST THE AFORESAID M.AS. WHICH WAS DISMISSED BY TRIBUNAL, REVENUE HAS AGAIN PREFERRED THE PRESENT M.AS. WHICH ARE ON THE SAME SET OF FACTS AND THROUGH WHICH THE REVENUE WANTS US TO REC ALL THE APPELLATE ORDER ON THE ALLEGED PREMISE, THAT THERE WAS AN ERROR APP ARENT IN THE ORDER. WE FIND THAT WHILE DISPOSING OF THE M.AS. VIDE ORDER D ATED 26.09.2014 IT WAS CONCLUDED BY THE TRIBUNAL THAT THERE WAS NO MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL AND IN SUCH A SITUATION, WE ARE OF THE VIEW THAT IT IS NOT OPEN TO TRIBUNAL TO ENTERTAIN THE SECOND APPLICATION ON THE SAME SET OF FACTS AND FOR WHICH WE ALSO DRAW SUPPORT FROM THE DECISION IN THE CASE OF CIT VS. CHEMICAL AND ALLIED PRODUCTS (2008) 296 ITR 297 (AL LAHABAD) WHERE THE HONBLE HIGH COURT HAS HELD THAT WHEN TRIBUNAL HAVI NG REJECTED THE FIRST APPLICATION FILED UNDER SECTION 254(2) ON THE GROUN D THAT THERE WAS NO MISTAKE APPARENT ON THE FACE OF RECORD IN THE ORDER OF TRIBUNAL, IT WAS NOT OPEN TO THE TRIBUNAL TO ENTERTAIN THE SECOND APPLIC ATION WHICH WAS FILED ON THE SAME SET OF FACTS AND RECALL ITS APPELLATE ORDE R ON THE ALLEGED PREMISE THAT THERE WAS AN ERROR APPARENT IN THE ORDER. THE HONB LE HIGH COURT HAS FURTHER HELD THAT THE ASSESSEE CANNOT BE ALLOWED TO BE PERM ITTED TO REOPEN AND REARGUE THE WHOLE MATTER IN THE GARB OF RECTIFICATI ON UNDER SECTION 254(2). WE FURTHER FIND THAT HONBLE DELHI HIGH COURT IN TH E CASE OF PERFETTI VAN MELLE INDIA (P.) LTD. VS. CIT (2008) 296 ITR 595 (D EL) HAS HELD THAT IN THE GARB OF APPLICATION FOR RECTIFICATION, THE ASSESSEE CANNOT BE ALLOWED TO BE M.A NOS. 12 &13 /AHD/2015 (IN M.A. NOS. 197 & 198/A/13) (IN ITA NOS. 2698 & 2699/A/09) . A.YS. 2006-0 7 & 2007-08 5 PERMITTED TO REOPEN AND REARGUE THE WHOLE MATTER WH ICH IS BEYOND THE SCOPE OF SECTION 254(2). 6. IN VIEW OF THE AFORESAID FACTS AND RELYING ON THE D ECISIONS CITED HEREINABOVE AND IN VIEW OF THE FACT THAT NO APPARENT MISTAKE HA S BEEN POINTED IN THE ORDER PASSED BY US, THE PRESENT M.AS. NEEDS TO BE REJECTE D. WE THUS REJECT THE M.AS. FILED BY THE REVENUE. 7. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIONS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 23 - 07 - 201 5. SD/- SD/- (SHAILENDR KR. YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT, AHMEDABAD