The Income-tax Officer, Ferozepur V. Sh Hari Singh, Ex-MLA, Zira

MA 13/ASR/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0365 (ITAT-AMRITSAR)
• Duration Of Justice: 4 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-09-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 15-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P N ARORA
• Keywords: Rectification of order; Audi alteram partem; Capital Gains
• Section: 143(3); 54F; 254(2); 147; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR BEFORE SH. SANJAY ARORA, ACCOUNTANT MEMBER AND SH.N.K.CHOUDHRY, JUDICIAL MEMBER M. A. NO. 13/ASR/2019 (ARISING OUT OF M.A. NO.76/ASR/2014) ASSESSMENT YEAR: 2007-08 INCOME TAX OFFICER, WARD 3(5), ZIRA, FEROZEPUR (APPLICANT) HARI SINGH, EX.-MLA, MAKHU ROAD, ZIRA. [PAN: AYOPS 9612C] (RESPONDENT) APPLICANT BY : SH. CHARAN DAS, SR. DR RESPONDENT BY : SH. P. N. ARORA, ADV. DATE OF HEARING : 14.06.2019 DATE OF PRONOUNCEMENT : 06.09.2019 ORDER PER SANJAY ARORA, AM THIS IS A MISCELLANEOUS PETITION BY THE REVENUE ARI SING OUT OF AN ORDER UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 ( THE ACT HEREINAFTER) BY THE TRIBUNAL (IN MA NO. 76/ASR/2014, DATED 05/11/2018). THE SAID ORDER WAS ITSELF IN DISPOSAL OF THE ASSESSES APPLICATION U/S. 254(2) ( IN MA NO. 09/ASR/2013, DISPOSED VIDE ORDER U/S. 254(2) DATED U/S. 15/4/2014), MADE IN PURSUANCE OF THE ORDER U/S. 254(1) DATED 31/10/2013 (IN ITA NO. 394/ASR/2013). THE BACKGROUND FACTS 2. IT WOULD BE RELEVANT TO ENLIST THE BACKGROUND FA CTS OF THE CASE AS WELL AS THE EVENTS AS TRANSPIRED, LEADING TO THE REVENUES INST ANT APPLICATION. THE ASSESSEES MA NO.13/ASR/2019 (AY: 2007-08) (ARISING OUT OF MA NO. 76/ASR/2014) ITO V . HARI SINGH 2 APPEAL WAS IN RESPECT OF THE ASSESSMENT OF THE LONG -TERM CAPITAL GAIN (LTCG) OF RS. 291.50 LACS ASSESSED BY THE ASSESSING OFFICER ( AO) VIDE ORDER U/S. 143(3) R/W S. 147 OF THE ACT DATED 30/12/2010. THE SAME WAS UP ON ALLOWING AN EXEMPTION OF RS. 66 LACS U/S. 54F, CLAIMED AS INVESTED IN A RESI DENTIAL HOUSE, I.E., FROM THE SAID CAPITAL GAIN. THE SAME WAS CONFIRMED IN APPEAL BY T HE COMMISSIONER (APPEALS), BHATINDA (CIT(A) FOR SHORT) VIDE HIS ORDER U/S. 2 50(6) DATED 07/3/2013. THE LTCG, AS ASSESSED, WAS FURTHER ENHANCED BY HIM TO R S. 357.50 LACS BY WITHDRAWING THE SAID EXEMPTION U/S. 54F. THE APPELL ATE ORDER, CARRIED IN APPEAL, WAS CONFIRMED BY THE TRIBUNAL PER ITS ORDER U/S. 2 54(1), DATED 31/10/2013. WHILE AGITATING THE ASSESSMENT OF CAPITAL GAINS VIDE GROU ND 1, THE ASSESSEE ALSO RAISED THE ISSUE OF WITHDRAWAL OF DEDUCTION U/S. 54F BY THE LD . CIT(A) BEFORE THE TRIBUNAL VIDE GDS. 2 & 3 OF HIS APPEAL (WHICH FINDS REPRODUC TION AT PAGES 2 & 3 OF THE TRIBUNALS ORDER DATED 31/10/2013). APART FROM ON M ERITS, CONSIDERED BY THE LD. CIT(A), THE ISSUE OF NON-COMPLIANCE OF S. 251(2), I .E., WITHOUT GIVING A NOTICE OF ENHANCEMENT, SO THAT NO EFFECTIVE OPPORTUNITY WAS A LLOWED TO THE ASSESSEE, WAS ALSO RAISED BEFORE THE TRIBUNAL PER THE SAID GROUND S. THE PRINCIPAL ISSUE (GD. 1) WAS FOUND BY THE TRIBUNAL TO BE COVERED, I.E., ON MERIT S, BY ITS EARLIER ORDERS IN CHARANJIT S. ATWAL & ORS . AND SATNAM S. KAINTH & ORS ., BY THE CHANDIGARH AND AMRITSAR BENCHES OF THE TRIBUNAL RESPECTIVELY. IT I S THESE ORDERS THAT FIND REPRODUCTION AT PAGES 5-105 OF THE TRIBUNALS ORDER . THE SAME WAS ACCORDINGLY CONFIRMED, HOLDING, VIDE PARA 6 (AT PGS. 105-106) O F THE ORDER, AS UNDER: 6. IN VIEW OF THE ABOVE DISCUSSION, WE ARE OF THE VIEW THAT THE FACTS IN THE GROUNDS TAKEN IN THE PRESENT APPEAL, I.E., IN ITA NO. 394/ASR/2013, ARE IDENTICAL TO THE FACTS IN THE CASE OF SH. CHARANJIT SINGH ATWAL V. ITO & ORS. (SUPRA) AND IN THE CASE OF SATNAM SINGH KAINTH V. ITO & ORS. (SUPRA), WHERE DETAILED ORDERS HAVE BEEN PAS SED IN THE SAID CASES. SINCE THE FACTS IN THE PRESENT CASE ARE IDENTICAL TO THE FACTS OF THE CASE IN THE CASE OF SH. CHARANJIT SINGH ATWAL V. ITO & ORS. (SUPRA) AND IN THE CASE OF SATNAM SIN GH KAINTH V. ITO & ORS. (SUPRA), THEREFORE, OUR ORDER IN THE CASE OF SATNAM SINGH KAINTH V. ITO & ORS. (SUPRA) IS IDENTI CALLY APPLICABLE TO THE FACTS OF THE PRESENT APPEAL, WHIC H HAVE BEEN DISCUSSED IN DETAIL IN OUR ORDER MA NO.13/ASR/2019 (AY: 2007-08) (ARISING OUT OF MA NO. 76/ASR/2014) ITO V . HARI SINGH 3 IN THE CASE OF SH. SATNAM SINGH KAINTH V. ITO (SUPR A). THEREFORE, IN THE FACTS AND CIRCUMSTANCES, ALL THE GROUNDS OF THE ASSESSEE ARE DISMISSED . THE ISSUE OF DISALLOWANCE OF EXEMPTION U/S. 54F WAS AGAIN CONSIDERED BY THE TRIBUNAL ON MERITS, FINDING ITSELF IN AGREEMENT WITH THE VIEW EXPRESSED BY THE LD. CIT(A), REPRODUCING THE SAME AT PARAS 7 & 7.1 O F ITS ORDER DATED 31/10/2013 (WHICH STANDS REPRODUCED AT PARA 2 (PGS. 2,3) OF TH E TRIBUNALS ORDER DATED 05/11/2018, I.E., THE IMPUGNED ORDER, AND IN CONJUNCTION WITH WHICH ORDER THIS ORDER IS TO BE READ ). THE ASSESSEE MOVED THE TRIBUNAL U/S. 254(2) (VIDE M A NO. 09/ASR/2013, DATED 13/11/2013/COPY ON RECORD) ON 17/12/2013, CLA IMING THAT THE ISSUE OF NON- COMPLIANCE OF S. 251(2), WHICH READS AS UNDER, ALSO RAISED PER GDS. 2 & 3 BEFORE THE TRIBUNAL, HAD NOT BEEN ADDRESSED WHILE DECIDING HIS APPEAL ON THE ISSUE OF (DISALLOWANCE OF) DEDUCTION U/S. 54F BY IT, WHICH W AS ONLY ON MERITS: POWERS OF THE COMMISSIONER (APPEALS) 251. (1) IN DISPOSING OF AN APPEAL, THE COMMISSIONER (A PPEALS) SHALL HAVE THE FOLLOWING POWERS .. (2) THE COMMISSIONER (APPEALS) SHALL NOT ENHANCE AN ASSESSMENT OR A PENALTY OR REDUCE THE AMOUNT OF REFUND UNLESS THE APPELLANT HAS HAD A REA SONABLE OPPORTUNITY OF SHOWING CAUSE AGAINST SUCH ENHANCEMENT OR REDUCTION. EXPLANATION IN DISPOSING OF AN APPEAL, THE COMMISSIONER (APP EALS) MAY CONSIDER OR DECIDE ANY MATTER ARISING OUT OF THE PROCEEDINGS IN WHICH THE ORDER APPEALED AGAINST WAS PASSED, NOTWITHSTANDING THAT SUCH MATTER WAS NOT RA ISED BEFORE THE COMMISSIONER (APPEALS) BY THE APPELLANT. AND, THEREFORE, TO THAT EXTENT GDS. 2 & 3 OF THE AS SESSEES APPEAL REMAIN UNDISPOSED. THE ASSESSEES MISCELLANEOUS APPLICATIO N (MA) WAS DISPOSED BY THE TRIBUNAL, AFTER HEARING THE PARTIES, VIDE PARA 4 OF ITS ORDER U/S. 254(2) DATED 15/4/2014, AS UNDER (WHICH STANDS REPRODUCED AT PAR A 4 (PG. 2) OF ITS SUBSEQUENT ORDER U/S. 254(2) DATED 05/11/2018, THE IMPUGNED OR DER IO): 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE ISSUE RAISED IN THE MISC. APPLICATION BY THE ASSESSEE, HAS ALREA DY BEEN DEALT WITH IN OUR ORDER DATED MA NO.13/ASR/2019 (AY: 2007-08) (ARISING OUT OF MA NO. 76/ASR/2014) ITO V . HARI SINGH 4 31.10.2013 AND NOW THE ISSUE RAISED BY THE LD. COUN SEL FOR THE ASSESSEE TANTAMOUNT TO REVIEW OF OUR ORDER, WHICH IS NOT PERMISSIBLE UNDER THE LAW. THEREFORE, THE MISC. APPLICATION FILED BY THE ASSESSEE IS DISMISSED. THE ASSESSEE MOVED A SECOND APPLICATION U/S. 254(2) ON 19/5/2014 (MA NO. 76/ASR/2014), CLAIMING THAT WHILE PASSING THE ORDER IN MA NO. 9/ASR/2013 ON 15/4/2014, THE TRIBUNAL DID NOT CONSIDER THE ASPECT OF POSITIVE REQUIREMENT OF LAW PER S. 251(2). THE DOCTRINE OF MERGER OF THE ORDER BY THE LD. CIT(A) IN THE TRIBUNALS ORDER (DATED 31/10/2013), AND THE IMPERM ISSIBILITY OF REVIEW, ON WHICH BASIS THE TRIBUNAL HAD OUSTED THE ASSESSEES FIRST APPLICATION DATED 13/11/2013, DOES NOT ARISE AT ALL, I.E., AS REGARDS THE ISSUE OF COM PLIANCE OF THE CONDITION OF S. 251(2) BY THE LD. CIT(A) WHILE WITHDRAWING THE DEDUCTION U /S. 54F. THE SAID MA WAS DISPOSED BY THE TRIBUNAL VIDE THE I MPUGNED ORDER, ACCEPTING THE ASSESSEES APPLICATION. THE MATTER, F OR COMPLIANCE OF S. 251(2), WAS ACCORDINGLY RESTORED TO THE FILE OF THE LD. CIT(A); THE RELEVANT PART OF ITS ORDER READING AS: 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 3.1 MUCH LESS IN THE ORDER BY THE FIRST APPELLATE A UTHORITY, WE DO NOT FIND MENTION OF ANY ARGUMENT BY THE ASSESSEE EVEN BEFORE THE TRIBUNAL W HICH SHOULD HAVE, AT ANY RATE, REQUIRED THE ASSESSEE TO STATE HIS CASE, MEETING THE PRINCIP LE OF AUDI ALTERAM PARTEM , WHICH IS WHAT THE NOTICE OF ENHANCEMENT BY THE FIRST APPELLATE AUTHOR ITY SEEKS TO SATISFY. WE ARE THUS INCLINED TO AGREE WITH THE ASSESSEE THAT THERE HAS BEEN, TO THA T EXTENT, A MISTAKE BY THE TRIBUNAL IN-AS- MUCH AS WHICH (IT) HAS FAILED TO ADDRESS THE GRIEVA NCE OF THE ASSESSEE PER GDS. 2 & 3 OF HIS APPEAL IN-SO-FAR AS IT RELATES TO THE NON-GRANT OF THE OPPORTUNITY BY THE FIRST APPELLATE AUTHORITY BEFORE EFFECTING THE ENHANCEMENT IMPUGNED PER THE SAID GDS . THE ADJUDICATION ON MERITS BY THE LD. CIT(A), WHICH STANDS UPHELD BY TH E TRIBUNAL, AND WHICH IS WHAT WITHOUT DOUBT THE MATTER IN SUBSTANCE IS, COULD FOLLOW ONLY AFTER HEARING THE PARTIES, EVEN AS THE ASSESSEE ADMITTEDLY HAS NOT BEEN ALLOWED OPPORTUNIT Y TO DO SO AT ANY STAGE. 3.2 WE, IN VIEW OF THE FOREGOING, ONLY CONSIDER IT PROPER THAT, ADMITTING THE MISTAKE BY THE TRIBUNAL, I.E., AS HIGHLIGHTED BY THE LD. COUNS EL, THE APPEAL IS RESTORED BACK TO THE FILE OF THE FIRST APPELLATE AUTHORITY FOR PROVIDING AN OPPO RTUNITY TO THE ASSESSEE TO STATE HIS CASE QUA EACH OF THE SEVERAL OBJECTIONS TO THE DEDUCTION U/S . 54F AS RAISED BY THE SAID AUTHORITY, ALSO CONSIDERING EVIDENCE, IF ANY, THAT MAY BE LED BY TH E ASSESSEE IN THIS REGARD, AND DECIDE IN ACCORDANCE WITH LAW PER A SPEAKING ORDER. WHILE ORD INARILY WE WOULD FIRST RESTORE THE APPEAL FOR BEING DECIDED BY THE TRIBUNAL, THIS MAY NOT BE NECESSARY IN THE INSTANT CASE AS OUR ORDER IS MA NO.13/ASR/2019 (AY: 2007-08) (ARISING OUT OF MA NO. 76/ASR/2014) ITO V . HARI SINGH 5 ITSELF BASED ON THE FINDING OF THE SAID GROUNDS, TO THE EXTENT THEY RAISE THE ISSUE OF NON-ISSUE OF ENHANCEMENT NOTICE BY THE FIRST APPELLATE AUTHOR ITY, I.E., QUA THE WITHDRAWAL OF THE SAID DEDUCTION, AS VALID. WHERE NOT VALID, IT MAY BE APP RECIATED, THE RESTORATION OF APPEAL (IN THE RELEVANT GROUNDS), EVEN IF UNDISPOSED, WOULD BE OF NO RELEVANCE OR CONSEQUENCE. NO USEFUL PURPOSE WOULD THEREFORE, I.E., GIVEN THIS FINDING, BE SERVED IN RESTORING THE APPEAL FIRST BEFORE THE TRIBUNAL, THE RECTIFICATION OF WHICH WOULD NECE SSARILY ENTAIL, EVEN AS ARGUED BY THE LD. COUNSEL FOR THE ASSESSEE, RESTORATION BACK TO THE F ILE OF THE FIRST APPELLATE AUTHORITY FOR COMPLYING WITH THE PROCEDURAL LAW IN THE MATTER. TH E FIRST APPELLATE AUTHORITY SHALL PROVIDE DUE OPPORTUNITY TO THE ASSESSEE TO STATE HIS CASE QUA EACH OF THE SEVERAL OBJECTIONS TO THE DEDUCTION U/S. 54F AS RAISED BY THE SAID AUTHORITY, ALSO CONSIDERING EVIDENCE, IF ANY, THAT MAY BE LED BY THE ASSESSEE IN THIS REGARD, AND DECIDE I N ACCORDANCE WITH LAW PER A SPEAKING ORDER . THE REMAINING PART OF THE ORDER, I.E., PARA 3.3, DI SCUSSES THE VARIOUS ASPECTS OF THE MATTER, RAISED PER LEGAL ARGUMENTS BEFORE IT, BEING PRINCIPALLY AS TO WHY THE REVENUES CONTENTION OF AN APPLICATION U/S. 254(2) BEING NOT MAINTAINABLE IN RESPECT OF AN ORDER U/S. 254(2), WOULD NOT APPLY IN THE FACTS OF THE INSTANT CASE, OR OTHERWISE ARISING FOR CONSIDERATION IN THIS REGARD. 3. THE REVENUE HAS NOW MOVED AN APPLICATION DATED 2 8/2/2019, IMPUGNING THE SAID ORDER U/S. 254(2) DATED 05/11/2018 ON THE FOLL OWING GROUNDS: A). THAT THE IMPUGNED ORDER IS BARRED BY TIME AS I T STANDS PASSED BEYOND THE SIX MONTH TIME LIMIT OF THE ORDER DATED 15/4/2014, AS P RESCRIBED U/S. 254(2) SINCE, I.E., BY FINANCE ACT, 2016, W.E.F. 01/6/2016, SO THAT THE IMPUGNED ORDER COULD NOT HAVE BEEN PASSED AFTER 31/10/2014. B). THAT THE SAME TANTAMOUNTS TO A REVIEW, IMPERMIS SIBLE US/. 254(2), AND THAT AN APPLICATION U/S. 254(2) COULD NOT HAVE BEEN ENTERTA INED IN RESPECT OF AN ORDER U/S. 254(2), MUCH LESS ON THE SAME ISSUE, I.E., DENIAL O F DEDUCTION U/S. 54F WITHOUT FOLLOWING THE REQUIREMENT OF S. 251(2). THE ASSESSEE, WHILE RELYING ON PARAS 3.2 AND 3.3 OF THE IO, RELIED ON THE PROPOSITION THAT NO APPLICATION U/S. 254(2) LIES AGAINST AN ORD ER U/S. 254(2), SO THAT THE ONLY RECOURSE WITH THE REVENUE AGAINST THE IMPUGNED ORDE R, WAS TO MOVE THE HONBLE HIGH COURT IN APPROPRIATE PROCEEDINGS, RELYING ON T HE FOLLOWING DECISIONS TOWARD THE SAME: MA NO.13/ASR/2019 (AY: 2007-08) (ARISING OUT OF MA NO. 76/ASR/2014) ITO V . HARI SINGH 6 - CIT V. PEARL WOOLLEN MILLS [2011] 330 ITR 164 (P&H) - CIT V. AISWARYA TRADING CO. [2011] 331 ITR 521 (KER) - CIT V. PRESIDENT, INCOME TAX APPELLATE TRIBUNAL [1992] 196 ITR 838 (ORI) - PADAM PRAKASH (HUF) V. ITO [2011] 8 ITR (T) 135 (DEL)(SB) - ITO V. IRAISAA HOTELS (P.) LTD. (MA NO. 29/MUM/2017, DATED 10/9/2018) 4. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. 4.1 WE SHALL CONSIDER THE OBJECTIONS RAISED IN SERI ATIM. AT THE OUTSET IT MAY THOUGH BE CLARIFIED THAT THERE IS NO CONTENTION BY THE REVENUE TOWARD THERE BEING IN FACT A COMPLIANCE BY THE LD. CIT(A) OF S. 251(2) OF THE ACT, THE PRINCIPAL ISSUE RAISED BY THE ASSESSEE PER GDS. 2 & 3 OF HIS APPEAL BEFORE THE TRIBUNAL, OR OF ANY FINDING IN ITS RESPECT BY THE TRIBUNAL, EITHER PER ITS ORDER U/S. 254(1) DATED 31/10/2013 OR U/S. 254(2) DATED 15/4/2014. IN FACT, THE LD. SR. DR, SH. CHARAN DAS, WAS SPECIFICALLY QUERIED IN THIS RESPECT DURING HEA RING, TO AN ANSWER IN THE NEGATIVE. THIS IS CLARIFIED AT THIS STAGE AS THIS F ORMS THE FACTUAL BASIS OF THE TRIBUNALS ORDER U/S. 254(2) DATED 05/11/2018, THE IO. 4.2 THE REVENUES CLAIM OF THE IO BEING TIME BARRED IS WITHOUT ANY BASIS IN LAW. THOUGH THE ORDER IS PASSED BEYOND FOUR YEARS OF THE ASSESSES APPLICATION ON 19/5/2014, AND THUS OUTSIDE THE TIME LIMIT PRESCRIB ED FOR THE PASSING OF AN ORDER U/S. 254(2), THE APEX COURT IN SREE AYYANAR SPG. & WVG. MILLS LTD. V. CIT [2008] 171 TAXMAN 498 (SC) CLARIFIED THAT THE SAID TIME LI MIT SHALL APPLY TO THE FILING OF THE APPLICATION U/S. 254(2) INASMUCH AS THE APPLICA NT, HAVING APPLIED IN TIME, CANNOT BE PREJUDICED BY THE TRIBUNAL BY NOT PASSING THE ORDER WITHIN THE STIPULATED TIME PERIOD. THE APPLICATION IN THE INSTANT CASE WA S FILED BY THE ASSESSEE ON 19/5/2014, I.E., WITHIN FIVE WEEKS OF THE ORDER DAT ED 15/4/2014, SO THAT IT IS WITHIN THE REVISED TIME LIMIT OF SIX MONTHS, EVEN AS THE S AME, AS ADMITTED PER PARA 3.1(I) OF THE APPLICATION, WOULD APPLY ONLY TO ORDERS PASS ED ON OR AFTER 01/6/2016. THE MA NO.13/ASR/2019 (AY: 2007-08) (ARISING OUT OF MA NO. 76/ASR/2014) ITO V . HARI SINGH 7 ASSESSEES STATING IN REPLY THAT ITS MA (NO. 76/AS R/2014) DID NOT ARISE OUT OF THE ORDER U/S. 254(2) DATED 15/4/2014, BUT OF THE ORDER DATED 31/10/2013, IS WITHOUT BASIS ON FACTS AS APPARENT FROM THE RECORD, INCLUDI NG THE SAID APPLICATION ITSELF AS WELL AS THE ORDER DATED 05/11/2018, THE IO, FOR WHI CH REFERENCE BE ALSO MADE TO PARAS 2 & 3.3 OF THE SAID ORDER; THE LATTER BEING R EPRODUCED IN THIS ORDER. RATHER, IF NOT AGAINST THE ORDER DATED 15/4/2014, REFERRED TO IN THE APPLICATION, THE ASSESSEE WOULD NEED TO SHOW, WHICH HE HAS NOT, AS TO HOW THE SUBJECT MATTER OF HIS APPLICATION DATED 19/5/2014, I.E., NON-CONSIDERATIO N BY THE TRIBUNAL OF THE PASSING OF THE ORDER BY THE LD. CIT(A) WITHOUT COMPLYING WI TH THE PROVISION OF S. 251(2), IS DIFFERENT FROM THAT RAISED PER THE FIRST APPLICATIO N FILED ON 17/12/2013. AFTER ALL, IT COULD NOT POSSIBLY, ON THE REJECTION OF THE FIRST, FILE ANOTHER APPLICATION AGAINST THE ORIGINAL ORDER ON THE SAME ISSUE. IN FACT, THE SECO ND APPLICATION IS PRIMA FACIE NOT MAINTAINABLE ON THE SAME ISSUE AGAINST THE ORDER DI SPOSING THE FIRST APPLICATION, AND WHICH, AS WE SHALL PRESENTLY SEE, IS ADMITTED ONLY ON THE ASSESSEE SHOWING, AS A MATTER OF FACT, THAT HIS OBJECTION TO THE NON-ADJUD ICATION OF HIS RELEVANT GROUNDS, I.E., GDS. 2 & 3, OBTAIN EVEN AFTER THE PASSING OF THE ORDER U/S. 254(2), ON WHICH SPECIFIC ISSUE THERE HAD BEEN NO FINDING BY THE TRI BUNAL. THE ASSESSEE BY CLAIMING WHAT HE DOES, DEFEATS HIS OWN CAUSE AS, IN THAT CAS E, THE ORDER U/S. 254(2) DATED 05/11/2018, CANNOT BE GIVEN ANY SANCTITY IN LAW IN VIEW OF THE DECISION IN PEARL WOOLLEN MILLS (SUPRA). 4.3 THE REVENUES OBJECTION QUA THE ABSENCE OF THE POWER OF REVIEW STANDS IN FACT CONSIDERED BY THE TRIBUNAL VIDE PARA 3.3 OF TH E IO, AS UNDER: 3.3 BEFORE PARTING WE MAY, HOWEVER, MEET AN ARGUMEN T VEHEMENTLY RAISED BY THE REVENUE DURING HEARING. THAT IS, THAT THERE CAN BE NO MISCELLANEOUS APPLICATION (MA) AGAINST A MA, SO THAT THE INSTANT MA, BEING THE SECOND PETI TION, IS NOT MAINTAINABLE AT THE THRESHOLD. WE DO NOT THINK THAT ANY SUCH BLANKET PROPOSITION C AN IN LAW BE HELD OUT. A RECTIFICATION ORDER ONLY SEEKS TO ELIMINATE A MISTAKE, APPARENT F ROM RECORD, THAT IS ALLEGED TO INFORM AN ORDER SOUGHT TO BE RECTIFIED. THE SAME, I.E., A REC TIFICATION ORDER, AS U/S. 254(2), HAS NO LOCUS STANDI OF ITS OWN, AND MERGES WITH THE ORDER U/S. 254(1), MODIFYING THE LATTER TO THE EXTENT OF MA NO.13/ASR/2019 (AY: 2007-08) (ARISING OUT OF MA NO. 76/ASR/2014) ITO V . HARI SINGH 8 MISTAKE AS RECTIFIED. IF, THEREFORE, A MISTAKE SUBS ISTS DESPITE AN ORDER U/S. 254(2), I.E., WHICH HAD IMBUED THE ORDER U/S. 254(1), WHAT IN LAW, ONE MAY ASK, PREVENTS THE APPLICANT TO SEEK RECTIFICATION OF THE SAID MISTAKE YET AGAIN BY MOVI NG A FRESH APPLICATION U/S. 254(2)? IN THE INSTANT CASE, THE ONLY MISTAKE THAT IS STATED TO INFLICT THE ORDER U/S. 254(1) IS THAT THE ASSESSEES GRIEVANCE WITH REGARD TO THE REQUIREMENT OF THE ENHANCEMENT NOTICE THERETO BY THE FIRST APPELLATE AUTHORITY U/S. 251(2), BEFORE WITHD RAWING DEDUCTION U/S. 54F, HAD NOT BEEN MET, DENYING IT (HIM) THUS AN OPPORTUNITY TO STATE HIS CASE BEFORE HIM. IF THEREFORE THE SAME SURVIVES THE ORDER U/S. 254(2), PASSED IN PURSUANCE TO THE ASSESSEES APPLICATION SEEKING REDRESSAL OF THE SAID MISTAKE, THE ASSESSEE CAN IN NO WAY BE FAULTED FOR REQUIRING TRIBUNALS CONSIDERATION OF THE SAID MISTAKE AND, WHERE SO, IT S REMOVAL. IT WOULD SURELY BE A DIFFERENT MATTER IF THE TRIBUNAL HAS, WHILE PASSING AN ORDER U/S. 254(2), EXPRESSED A VIEW THAT THE STATED MISTAKE DOES NOT EXIST OR RECTIFIES THE SAME TO THE EXTENT IT FINDS IT TO. AS, FOR EXAMPLE, WITH REFERENCE TO THE FACTS OF THE INSTANT CASE, IF THE FIRST APPELLATE AUTHORITY HAD INDEED MET THE REQUIREMENT OF LAW IN GIVING DUE NOTICE TO THE ASSE SSEE OF HIS INTENTION TO WITHDRAW THE DEDUCTION U/S. 54F. IT WOULD AGAIN BE A DIFFERENT M ATTER IF THE TRIBUNAL HAD EXPRESSED AN OPINION, EITHER WAY, IN THE MATTER, I.E., FOUND THE ASSESSEES GRIEVANCE AS VALID OR NOT SO. IT HAS NOT DONE SO, RESTRICTING ITSELF ONLY TO THE MER ITS OF THE ADJUDICATION BY THE FIRST APPELLATE AUTHORITY. WE HAVE IN FACT GONE AHEAD TO SAY THAT T HE SAME BEING ESSENTIALLY A MATTER OF PROVIDING AN OPPORTUNITY, WE MAY YET HAVE OPINED DI FFERENTLY WHERE SUCH AN OPPORTUNITY HAD BEEN PROVIDED TO THE ASSESSEE BY THE TRIBUNAL, PART ICULARLY CONSIDERING THAT IT HELD THE SAME OPINION, I.E., ON MERITS, AS EXPRESSED BY THE FIRST APPELLATE AUTHORITY. THE TRIBUNAL, HOWEVER, HAS NOT DONE SO IN THE INSTANT CASE. THE SAID MISTA KE IS A MATTER OF FACT, APPARENT FROM RECORD, I.E., THE ORDER BY THE FIRST APPELLATE AUTHORITY AN D THE TRIBUNALS ORDERS U/S. 254(1) AND U/S. 254(2), THE RELEVANT PART OF WHICH STAND REPRODUCED SUPRA. ALL THAT IS MEANT WHEN IT IS SAID THAT THERE COULD BE NO RECTIFICATION APPLICATION IN RESPECT OF A RECTIFICATION ORDER IS THAT THERE COUL D BE NO REVIEW OF SUCH AN ORDER, A PROPOSITION WITH WHICH THERE COULD BE NO QUARREL. WHAT THUS WE HAVE IN SUBSTANCE HELD IS THAT THOUGH THERE COULD BE INDUBITABLY NO REVIEW OF AN ORDER U/ S. 254(2), OR AN ORDER U/S. 254(1) FOR THAT MATTER, A MISTAKE CONTINUING THE INFORM THE ORDER U /S. 254(1) COULD BE SOUGHT TO BE RECTIFIED THROUGH A RECTIFICATION APPLICATION DESPITE THERE B EING AN ORDER U/S. 254(2), WHERE THE SAME IS, AS IN THE INSTANT CASE, SILENT IN THE MATTER. THERE COULD IN FACT ALSO BE A CASE WHERE THE ORDER U/S. 254(2) ITSELF IS IMBUED WITH A MISTAKE, FOR WH ICH THEREFORE THE ONLY RECOURSE LEFT OPEN FOR THE APPLICANT IS TO MAKE A FRESH APPLICATION U/S. 2 54(2), STATING THE MISTAKE AS WELL AS THE REASON/S FOR THE SAID APPLICATION, I.E., WHY AND HO W THE SAID MISTAKE IS CONSIDERED TO SUBSIST, OR A FRESH MISTAKE HAD OCCURRED WHILE PASSING THE R ECTIFICATION ORDER U/S. 254(2). WE ARE THUS UNABLE TO UPHOLD AN ABSOLUTE PROPOSITION TO THE EFF ECT THAT NO RECTIFICATION APPLICATION IS MAINTAINABLE PURSUANT TO A RECTIFICATION ORDER. THE INSTANT APPLICATION BY THE ASSESSEE IS MAINTAINABLE . THE ABSENCE OF THE POWER OF REVIEW, AS WOULD BE APP ARENT, IS WELL ACCEPTED, NAY, ADMITTED BY THE TRIBUNAL PER THE IO. IT CLARIFIES T HAT WHERE THERE INDEED HAD BEEN A FINDING BY THE TRIBUNAL OF THE ASSESSEE HAVING BEEN ALLOWED OPPORTUNITY BY THE LD. MA NO.13/ASR/2019 (AY: 2007-08) (ARISING OUT OF MA NO. 76/ASR/2014) ITO V . HARI SINGH 9 CIT(A) WHILE DECIDING THE ISSUE OF DEDUCTION U/S. 5 4F, THERE IS NO QUESTION OF THE SAME BEING EXAMINED UNDER RECTIFICATION PROCEEDINGS , WHICH ARE LIMITED ONLY TO MISTAKES WHICH COULD BE OF LAW OR OF FACT, APPARE NT FROM THE RECORD. THE TRIBUNALS ENTIRE ORDER (DATED 05/11/2018) IS BASED ON A FINDING, ON A PERUSAL OF THE RECORD, OF THE ABSENCE OF ANY FINDING BY THE TRIBUN AL, AT ANY STAGE, QUA THE ASSESSEE PLEA, RAISED PER GDS. 2 & 3 OF HIS APPEAL BEFORE IT , OF HAVING NOT BEEN ALLOWED ANY OPPORTUNITY BY THE LD. CIT(A) WHILE PROCEEDING TO W ITHDRAW THE DEDUCTION U/S. 54F ALLOWED IN ASSESSMENT, ENHANCING THUS HIS INCOME TH EREBY, AND WHICH HE WAS BOUND TO PROVIDE U/S. 251(2). IN OTHER WORDS, THE ONLY FINDING BY THE TRIBUNAL IS THAT THE ASSESSEES GDS. 2 & 3 REMAIN UNDISPOSED. THAT BEING THE CASE, THERE I S NO QUESTION OF ANY MERGER. AGAIN, THE QUESTION OF REVIEW, IN THE ABSENCE OF AN Y FINDING AS TO ADJUDICATION BY THE TRIBUNAL, DOES NOT ARISE. TRUE, THE TRIBUNAL PE R ITS EARLIER ORDER U/S. 254(2) DATED 15/4/2014, DOES STATE, VIDE PARA 4 THEREOF, THAT TH E ISSUE RAISED BY THE ASSESSEE PER ITS MA HAS BEEN DEALT WITH VIDE ORDER DATED 31/10/2 013. IT IS HOWEVER APPARENT FROM THE READING OF THE SAID ORDER, AS WELL AS THE ORDER DATED 31/10/2013, THE RELEVANT PARTS OF BOTH OF WHICH ARE REPRODUCED IN T HE IO, THAT THE ISSUE REFERRED TO IS THE DEDUCTION U/S. 54F ON MERITS. THERE IS NO RE FERENCE EITHER IN THE ORDER DATED 07/3/2013 BY THE LD. CIT(A), OR THE ORDER U/S. 254( 1) DATED 31/10/2013, BOTH OF WHICH CONCERN THE ISSUE OF THE SAID DEDUCTION ON ME RITS, TO EITHER S. 251(2) OR, ALTERNATIVELY, TO THE GRANT OF OPPORTUNITY TO THE A SSESSEE BY THE FIRST APPELLATE AUTHORITY BEFORE DECIDING THE ISSUE OF DEDUCTION U/ S. 54F. IN FACT, THERE IS NO REFERENCE, AGAIN, EITHER TO S. 251(2) OR TO THE GRA NT OF OPPORTUNITY BY THE LD. CIT(A), IN THE TRIBUNALS ORDER U/S. 254(2) DATED 15/4/2014 , INDICATING OF IT BEING COGNIZANT OF THE MATTER BEING RAISED. HOW COULD, THEN, IT BE SAID ASPECT WAS CONSIDERED O R ADJUDICATED BY THE TRIBUNAL. OR, THAT GDS. 2 & 3 OF THE ASSESSEES APPEAL BEFORE THE TRIBUNAL STAND DISPOSED BY IT ? IT IS IN FACT THIS THAT LED TO THE FILING OF THE MA NO.13/ASR/2019 (AY: 2007-08) (ARISING OUT OF MA NO. 76/ASR/2014) ITO V . HARI SINGH 10 SECOND APPLICATION BY THE ASSESSEE, WHICH, OTHERWIS E, AS AFORE-STATED, IS NOT MAINTAINABLE. IT IS BASED ON THIS FINDING THAT THE ASSESSEES THIS LIMITED PRAYER, I.E., THE NON-GRANT OF OPPORTUNITY BY THE LD. CIT(A) AND, THUS, NON-COMPLIANCE, IN FACT, OF THE PROVISION OF S. 251(2) BY HIM, STANDS ACCEPT ED BY THE TRIBUNAL PER THE IO. THERE HAS BEEN NO EXAMINATION, MUCH LESS REVIEW, OF THE ISSUE ON MERITS. IT WOULD BE, EVEN AS CLARIFIED PER THE IO, A DIFFERENT MATTE R IF THE TRIBUNAL, PER ITS ORDER DATED 15/4/2014 HAD HELD THAT THERE IS NO NON-COMPLIANCE OF S. 251(2), IN WHICH CASE THIS FINDING WOULD PRECLUDE ENTERTAINING ANOTHER MA IN T HE MATTER. THERE HAS BEEN THUS NO TRANSGRESSION OF THE DECISION IN PEARL WOOLLEN MILLS (SUPRA). IN THE FACTS OF THAT CASE, THE TRIBUNAL, PER ITS ORDER DATED 31/7/1979, REVIEWED THE MATTER AFRESH. IT IS THIS RE-ADJUDICATION BY THE TRIBUNAL THAT WAS DISAP PROVED BY THE HONBLE JURISDICTIONAL HIGH COURT. THERE IS, AT THE COST OF REPETITION, ABSENCE OF ANY ADJUDICATION BY THE TRIBUNAL QUA THE ASSESSEES GRIEVANCE WITH REFERENCE TO S. 251(2), WHICH IS A MISTAKE, HELD VIDE THE IO, TO IN FORM ITS ORDER DATED 31/10/2013 AND, FURTHER, SURVIVE ITS ORDER U/S. 254(2) DATED 15/4/2014 INASMUCH AS THERE IS AGAIN NO REFERENCE THERETO IN THE LATTER ORDER. THE ONLY LIMITED ISSUE, THUS, THAT STANDS DECIDED BY THE TRIBUNAL WAS WHETHER INDEED T HERE WAS IN FACT ANY ADJUDICATION BY THE TRIBUNAL OF ITS GRIEVANCE QUA NON-COMPLIANCE OF S. 251(2) BY THE LD. CIT(A) AND, IF SO, WHETHER THE SAME CONSTIT UTES A MISTAKE APPARENT FROM RECORD. THE SAID DECISION, IN OUR HUMBLE OPINION, W OULD NOT APPLY IN THE FACTS OF THE CASE. CONTINUING FURTHER, HOWEVER, HAVING ISSUED A FINDIN G PER THE IO, ON A PERUSAL OF THE MATERIAL ON RECORD, THAT THERE HAD INDEED BE EN A DENIAL OF OPPORTUNITY TO THE ASSESSEE, AS WARRANTED U/S. 251(2), AND WHICH ASPEC T OF THE MATTER, RAISED PER GD. 2 & 3 OF THE ASSESSEES APPEAL BEFORE THE TRIBUNAL, R EMAIN UN-ADRESSED BY IT DESPITE HAVING BEEN RAISED IN MISCELLANEOUS PETITION, VISIT ING THIS FINDING AGAIN WOULD AMOUNT TO A REVIEW, IMPERMISSIBLE IN LAW, AND WHICH IS THE PURPORT OF THE SEVERAL MA NO.13/ASR/2019 (AY: 2007-08) (ARISING OUT OF MA NO. 76/ASR/2014) ITO V . HARI SINGH 11 DECISIONS CITED BY THE ASSESSEE BEFORE US, RELIANCE ON WHICH IS THEREFORE APPOSITE. THE LAW, WITHOUT DOUBT, CANNOT OPERATE DIFFERENTLY DEPENDING UPON WHO STANDS TO SUCCEED, THE ASSESSE OR THE REVENUE. AS HAS BEEN SO UGHT TO BE EMPHASIZED AT LENGTH IN THE EARLIER PART OF THIS ORDER, THERE HAS BEEN NO REVIEW BY THE TRIBUNAL WHILE PASSING THE IO INASMUCH AS THERE WAS NO FINDI NG BY THE TRIBUNAL QUA THE ASPECT OF NON-COMPLIANCE OF S. 251(2) OF THE ACT BY THE TRIBUNAL PER ITS EARLIER ORDERS. 4.4 IN VIEW OF THE FOREGOING, THERE HAS BEEN NO EXC ESS OF JURISDICTION PER THE IMPUGNED ORDER, SO AS TO RECALL OR OTHERWISE WARRAN T ANY INTERFERENCE WITH THE SAID ORDER. WE DECIDE ACCORDINGLY. 5. IN THE RESULT, THE INSTANT APPLICATION BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON SEPTEMBER 06, 2019 SD/- SD/- (N.K.CHOUDHRY) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 06/09/2019 COPY OF THE ORDER FORWARDED TO: (1) INCOME TAX OFFICER, WARD 3(5), ZIRA, FEROZEPUR (2) SH. HARI SINGH, EX.-MLA, MAKHU ROAD, ZIRA (3) THE CIT CONCERNED (4) THE CIT (APPEALS), BATHINDA (5) THE SR DR, I.T.A.T. TRUE COPY BY ORDER