Jealous Vincom Pvt. Ltd., Kolkata V. CIT, KOLKATA-II, Kolkata

MA 134/KOL/2015

• Counselvise Citation: [2016] 123 COUNSELVISE.COM (IT) 5448 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-08-2016
• Appeal Filed By: Assessee
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 29-12-2015
• Court: TRIBUNAL
• Department Lawyers: MD G HYAS UDDIN
• Assessee Lawyers: A K TIBREWAL
• Keywords: Period of limitation; Time period of passing order
• Section: 260A; 147; 263

Judgement Text

1 M.A.134/KOL/2015 A/O ITA NO.1552/KOL/2013-JEALOUS V INCOM PVT.LTD. A.Y.2008-09 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH D KOL KATA [BEFORE HONBLE SHRI P.M.JAGTAP, AM & SHRI N.V.VA SUDEVAN, JM] M.A.NO.134/KOL/2015 A/O ITA NO.1552/KOL/2013 ASSESSMENT YEAR : 2008-09 JEALOUS VINCOM PVT. LTD. -VERSUS- C.I.T.- KOLKATA -II, KOLKATA KOLKATA [PAN : AABCJ 8274 H] (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI A.K.TIBREWAL, FCA FOR THE RESPONDENT: MD.GHYAS UDDIN, JCIT, SR.DR DATE OF HEARING : 29.07.2016. DATE OF PRONOUNCEMENT : 03.08.2016. ORDER PER N.V.VASUDEVAN, JM: THIS IS A MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE U/S 254(2) OF THE INCOME TAX ACT, 1961 (ACT) PRAYING FOR AN ORDER REC ALLING THE ORDER DATED 30.10.2015 PASSED BY THIS TRIBUNAL IN ITA NO.1552/KOL/2013 AND PASSED FRESH ORDER AFTER ALLOWING PROPER OPPORTUNITY OF HEARING TO THE ASSES SEE. 2. THE ABOVE APPEAL WAS FILED BY THE ASSESSEE CH ALLENGING THE ORDER OF THE CIT, KOLKATA-II, KOLKATA, PASSED U/S.263 OF THE ACT. IT HAS BEEN STATED IN THE MISCELLANEOUS APPLICATION THAT THE ASSESSEE FILED AN APPLICATION FOR ADMISSION OF THE FOLLOWING TWO ADDITIONAL GROUNDS IN THE AFORESAID APPEAL :- (I) FOR THAT THE ORDER PASSED U/S 263 BY THE LD. C IT IS BARRED BY LIMITATION, AS SUCH, THE ORDER PASSED U/S 263 IS LIABLE TO BE QUASHED. (II)FOR THAT THE ORDER PASSED U/S 263 BY THE LD. CI T IS LIABLE TO BE QUASHED IN THE ABSENCE OF PROPER SERVICE OF NOTICE TO THE ASSESSEE . 3. IN THE ORDER DATED 30.10.2015 PASSED BY THE T RIBUNAL IN THE AFORESAID APPEAL THE AFORESAID ADDITIONAL GROUND WAS ADMITTED FOR ADJUDI CATION. HOWEVER, ON THE MERITS OF THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE THE T RIBUNAL HELD AS FOLLOWS :- 2 M.A.134/KOL/2015 A/O ITA NO.1552/KOL/2013-JEALOUS V INCOM PVT.LTD. A.Y.2008-09 6. INSOFAR AS THE MERITS OF THE ABOVE ADDITION AL GROUNDS ARE CONCERNED, THE LD. AR WAS FAIR ENOUGH TO CONCEDE THAT SIMILAR GROUNDS HAV E BEEN DECIDED BY THE TRIBUNAL AGAINST THE ASSESSEE IN ITS LEAD ORDER PASSED IN SU BHLAKSHMI VANIJYA PVT. LTD. (INFRA). IN FACT, NO SEPARATE ARGUMENTS WERE ADVANCED IN SUPPOR T OF SUCH GROUNDS BY CONTENDING THAT THE FACTS ARE SIMILAR TO THOSE ALREADY CONSIDE RED AND DECIDED BY THE TRIBUNAL IN THE ABOVE REFERRED CASE AND HE WAS RAISING THESE GROUND S FOR KEEPING THE MATTER ALIVE BEFORE THE HONBLE HIGH COURT. IN VIEW OF THE ABOV E SUBMISSIONS, WE DISMISS THESE ADDITIONAL GROUNDS OF APPEAL. 4. IN THIS MISCELLANEOUS APPLICATION IT HAS BEE N SUBMITTED ON BEHALF OF THE ASSESSEE THAT AS PER THE PROVISION OF SECTION 263(2) OF THE ACT THE TIME LIMIT FOR PASSING AN ORDER U/S 263 OF THE ACT IS TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER SOUGHT TO BE REVISED WAS PASSED. ORDER OF ASS ESSMENT WHICH WAS SOUGHT TO BE REVISED IN THE PROCEEDINGS U/S 263 OF THE ACT, IN T HE PRESENT CASE WAS THE ORDER OF AO PASSED U/S 147 R.W.S.143(3) OF THE ACT DATED 30.10. 2009. THE PERIOD OF TWO YEARS MENTIONED IN SECTION 263(2) OF THE ACT WOULD THUS BE 31.03.2012 WHEREAS THE ORDER PASSED U/S 263 OF THE ACT MENTIONED IN THE APPEAL W AS 30.03.2013 WHICH WAS BEYOND THE PERIOD OF LIMITATION PRESCRIBED U/S 263(2) OF T HE ACT. IT HAS BEEN FURTHER CONTENDED THAT THE OBSERVATIONS OF THE TRIBUNAL IN PARA-6 OF ITS ORDER DATED 30.10.2015 THAT THE LD. COUNSEL FOR THE ASSESSEE CONCEDED THAT SIMILAR GROU NDS HAVE BEEN DECIDED BY THE TRIBUNAL AGAINST THE ASSESSEE IN ITS ORDER PASSED I N SUBHLAKSHMI VANIJYA PVT. LTD. VS CIT IS FACTUALLY NOT CORRECT. IN THIS REGARD IT HAS BEEN POINTED OUT IN THE MISCELLANEOUS APPLICATION THAT THE ASSESSEE AT THE TIME OF HEARIN G FILED WRITTEN SUBMISSIONS ON THE ISSUES BEFORE THE TRIBUNAL AND IN THIS WRITTEN SUBM ISSION LIST OF DATES HAVE BEEN GIVEN AND IT HAS BEEN HIGHLIGHTED AS TO HOW THE ORDER PAS SED U/S 263 OF THE ACT BY THE CIT IN THE PRESENT CASE WAS BARRED BY TIME. IT HAS FURTHER BEEN SUBMITTED THAT THE PARTY TO THE PROCEEDINGS CANNOT BY CONSENT EXTEND THE PERIOD OF LIMITATION PRESCRIBED FOR PERFORMING QUASI JUDICIAL FUNCTIONS UNDER A STATUTE . IN THIS REGARD REFERENCE WAS MADE TO THE FOLLOWING DECISIONS :- NEDUNURI KAMESWARAMMA VS SAMPATHI SUBBA RAO (1963) 2 SCR 208 V.S.BAJWA AND ANOTHER VS STATE OF PUNJAB & ORS. (19 98) 2 SCR 523. 5. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE STAND OF THE ASSESSEE AS SET OUT IN THE MISCELLANEOUS APPLICATION. THE LD. DR SUBMITTED THAT THE MISTAKE, IF AT ALL, POINTED 3 M.A.134/KOL/2015 A/O ITA NO.1552/KOL/2013-JEALOUS V INCOM PVT.LTD. A.Y.2008-09 OUT IN THE ORDER OF THE TRIBUNAL, CANNOT BE SAID TO BE A MISTAKE APPARENT IN THE FACE OF THE RECORD. AT BEST IT MAY BE SAID TO BE AN ERROR O F JUDGMENT WHICH CANNOT BE RECTIFIED IN PROCEEDINGS U/S 254(2) OF THE ACT, ACCORDING TO HIM THE ONLY REMEDY FOR THE ASSESSEE IS TO APPROACH THE HONBLE HIGH COURT U/S 260A OF THE ACT. 6. WE HAVE GIVEN A VERY CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS. A PERUSAL OF THE RECORD SHOWS THAT THE ASSESSEE HAD FILED A PAPE R BOOK AT THE TIME OF HEARING OF THE APPEAL AND IN PAGE 1 OF THE PAPER BOOK THE FOLLOWIN G TABLE HAS BEEN GIVEN BY THE ASSESSEE :- JEALOUS VINCOM PVT. LTD. A.Y.2008-2009 LIST OF DATES S.NO. DATE EVENT PAGE NO. (A) 30.12.2009 ORDER U/S 147 PASSED BY THE A.O. (B) 30.03.2013 ORDER U/S 263 PASSED BY THE CIT (C) 31.03.2012 EXPIRY OF LIMITATION U/S 263, BEING 2 YRS. FROM THE END OF THE FINANCIAL YEAR IN WHICH ORDER U/S 147 WAS PASSED. 7. IN PARA 27.F OF THE ORDER OF THE TRIBUNAL IN SU BHLAKSHMI VANIJIYA (SUPRA), THE TRIBUNAL HAS OBSERVED AS FOLLOWS: WE HAVE GIVEN A VERY CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS. THE PERIOD OF LIMITATION FOR PASSING AN ORDER U/S.263 O F THE ACT IN TERMS OF SEC.263(2) OF THE ACT IS : TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER SOUGHT TO BE REVISED WAS PASSED . THE ORDERS SOUGHT TO BE REVISED BY THE LD.CIT IN THE PRESENT SET OF CASES ARE THE ORDE RS U/S.147. NOW, IF WE GO BY THE DATES OF INTIMATIONS, THEN THE ORDERS U/S.263 A RE BARRED BY LIMITATION, BUT IF WE GO BY THE DATES OF THE ORDERS U/S.147, THEN ALL THE ORDERS PASSED U/S.263 OF THE ACT ARE ADMITTEDLY WITHIN THE LIMITATION PERIOD . 8. THE LIST OF DATES FILED BY THE ASSESSEE BEFORE THE TRIBUNAL IN THE COURSE OF HEARING ON ADDITIONAL GROUND NO.1, IF THEY ARE READ IN CONJ UNCTION WITH THE OBSERVATIONS OF THE TRIBUNAL IN THE CASE OF SUBHLAKSHMI VANIJYA PVT. LT D. (SUPRA) IN ITA NO.1104/KOL/2014 DATED 30.07.2015 PARA 27 F., WOULD SHOW THAT THE CONCLUSIONS DRAWN BY THE TRIBUNAL IN PARA-6 OF ITS ORDER DATED 30.10.2015 IN ITA NO.1552/KOL/2013 THAT THE FACTS OF THE ASSESSEES C ASE IS SIMILAR TO THE FACTS OF THE 4 M.A.134/KOL/2015 A/O ITA NO.1552/KOL/2013-JEALOUS V INCOM PVT.LTD. A.Y.2008-09 CASE CONSIDERED AND DECIDED BY THE TRIBUNAL IN THE CASE OF SUBHLAKSHMI VANIJYA PVT. LTD. (SUPRA) IS FACTUALLY INCORRECT. TO BE MORE SPE CIFIC THE ASSESSEE HAS NOT COMPUTED PERIOD OF LIMITATION WITH REFERENCE TO ORDER/INTIMA TION U/S.143(1) OF THE ACT IN THE PRESENT CASE. THEREFORE THE ORDER OF THE TRIBUNAL SUFFERS FROM AN ERROR ON THE FACE OF THE RECORD. WE THEREFORE DEEM IT FIT AND PROPER TO RECALL THE ORDER OF THE TRIBUNAL, IN SO FAR AS IT RELATES TO THE ADDITIONAL GROUND NO.1 WHI CH WAS ADMITTED BY THE TRIBUNAL FOR ADJUDICATION. THE APPEAL IS DIRECTED TO BE FIXED FO R HEARING AFRESH IN THE REGULAR COURSE FOR THE LIMITED PURPOSE OF ADJUDICATING THE ADDITIO NAL GROUND NO.1 RAISED BY THE ASSESSEE, WHICH WAS ADMITTED FOR ADJUDICATION FOR T HE TRIBUNAL. 9. IN THE RESULT THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. O RDER PRONOUNCED IN THE OPEN COURT ON 03.08.2016. SD/- SD/- [P.M.JAGTAP ] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 03.08.2016. [RG PS] COPY OF THE ORDER FORWARDED TO: 1.JEALOUS VINCOM PVT. LTD., 574, MARSHAL HOUSE, 25, STRAND ROAD, KOLKATA-700007. 2.C.I.T., II, KOLKATA. 3. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER, ASST. REGISTRAR, ITAT, KOLKATA BENCHES