Associated Roadways (P) Ltd., Hyderabad V. Dy.CIT, Circle-1(1), Hyderabad

MA 135/HYD/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0558 (ITAT-HYDERABAD)
• Duration Of Justice: 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-06-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 29-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMISHA S GUPT
• Keywords: Reasonable cause

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER MA NO. 135/HYD/2013 IN ITA NO. 63/HYD/2013 ASSESSMENT YEAR 2009-10 M/S. ASSOCIATED ROADWAYS (P) LTD. HYDERABAD PAN: AABCA7122R VS. THE DCIT CIRCLE-2(1) HYDERABAD APPELLANT RESPONDENT APPELLANT BY: SRI K.C. DEVDAS RESPONDENT BY: SMT. AMISHA S. GUPT DATE OF HEARING: 21 .0 6 .2013 DATE OF PRONOUNCEMENT: 21 .0 6 .2013 O R D E R PER CHANDRA POOJARI, AM: THIS MISCELLANEOUS APPLICATION (MA) BY THE ASSESSE E IS SEEKING RECTIFICATION IN THE ORDER OF THE TRIBUNAL DATED 20.5.2013 IN ITA NO. 63/HYD/2013 FOR A.Y. 2009-10. 2. THE LEARNED AR SUBMITTED THAT THE ASSESSEE RAISED T HE GROUND BEFORE THE TRIBUNAL WITH REGARD TO DISALLOWA NCE OF A SUM OF RS. 3,94,28,546 ON THE GROUND THAT THE ASSESSEE FAILED TO OBTAIN FORM 15-I AND NOT FILED 15-J BEFORE THE CIT. ACCORDING TO THE AR THE ABOVE AMOUNT OF RS. 3,94,28,546 IS COMPR ISING OF THE FOLLOWING: I) FORM 15-I OBTAINED BUT FORM 15-J NOT FILED BEFORE THE CIT - RS. 2,90,02,826 II) FORM 15-I NOT OBTAINED - RS. 87,49,029 III) DEFECTIVE FORM 15-I OBTAINED - RS. 16,76,700 -------------------- TOTAL - RS. 3,94,28,546 ============= MA NO. 135/HYD/2013 M/S. ASSOCIATED ROADWAYS (P) LTD. =========================== 2 3. THE LEARNED AR SUBMITTED THAT THE TRIBUNAL NOT GIVE N ANY FINDING WITH REFERENCE TO FORM 15-I NOT OBTAINED IN RESPECT OF RS. 87,49,029. ACCORDING TO THE AR THIS GROUND WAS OMITTED TO BE ADJUDICATED BY THE TRIBUNAL AND IT MAY BE ADJUDI CATED SO AS TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO FIL E FORM 15-I AS THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE IN O BTAINING THIS FORM. HE PRAYED FOR PROPER DIRECTION IN THIS REGAR D. 4. THE LEARNED DR RELIED ON THE ORDER OF THE TRIBUNAL. 5. WE HAVE HEARD BOTH THE BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE TRIBUNAL CONSIDERED THE EN TIRE FACTS AND CIRCUMSTANCES OF THE CASE AND GIVEN THE FINDING S. THE LEARNED AR NOW WANTED THE TRIBUNAL TO REVIEW ITS EA RLIER ORDER WHICH IS NOT PERMITTED BY LAW. IT IS WELL SETTLED THAT STATUTORY AUTHORITY CANNOT EXERCISE POWER OF REVIEW UNLESS SU CH POWER IS EXPRESSLY CONFERRED. THERE IS NO EXPRESS POWER OF REVIEW CONFERRED ON THIS TRIBUNAL. EVEN OTHERWISE, THE SC OPE OF REVIEW DOES NOT EXTENT TO RE-HEARING OF THE CASE ON MERIT. IT IS HELD IN THE CASE OF CIT VS. PEARL WOOLLEN MILLS (330 ITR 16 4): HELD, THAT THE TRIBUNAL COULD NOT READJUDICATE THE MATTER UNDER SECTION 254(2). IT IS WELL SETTLED TH AT A STATUTORY AUTHORITY CANNOT EXERCISE POWER OF REVIEW UNLESS SUCH POWER IS EXPRESSLY CONFERRED. THERE WAS NO EXPRESS POWER OF REVIEW CONFERRED ON THE TRIBUNAL. EVEN OTHERWISE, THE SCOPE OF REVIEW DID NOT EXTENT TO REHEARING A CASE ON THE MERITS. NEIT HER BY INVOKING INHERENT POWER NOR THE PRINCIPLE OF MISTAKE OF COURT NOT PREJUDICING A LITIGANT NOR BY INVOLVING DOCTRINE OF INCIDENTAL POWER, COULD THE TRIBUNAL REVERSE A DECISION ON THE MERITS. THE TRIBUNAL WAS NOT JUSTIFIED IN RECALLING ITS PREVIOU S FINDING RESTORING THE ADDITION, MORE SO WHEN AN APPLICATION FOR THE SAME RELIEF HAD BEEN EARLIER DISMISSED. 6. THE SCOPE AND AMBIT OF APPLICATION OF SECTION 254(2 ) IS VERY LIMITED. THE SAME IS RESTRICTED TO RECTIFICAT ION OF MISTAKES MA NO. 135/HYD/2013 M/S. ASSOCIATED ROADWAYS (P) LTD. =========================== 3 APPARENT FROM THE RECORD. WE SHALL FIRST DEAL WITH THE QUESTION OF THE POWER OF THE TRIBUNAL TO RECALL AN ORDER IN ITS ENTIRETY. RECALLING THE ENTIRE ORDER OBVIOUSLY WOULD MEAN PAS SING OF A FRESH ORDER. THAT DOES NOT APPEAR TO BE THE LEGISL ATIVE INTENT. THE ORDER PASSED BY THE TRIBUNAL UNDER S. 254(1) IS THE EFFECTIVE ORDER SO FAR AS THE APPEAL IS CONCERNED. ANY ORDER PASSED UNDER S. 254(2) EITHER ALLOWING THE AMENDMENT OR RE FUSING TO AMEND GETS MERGED WITH THE ORIGINAL ORDER PASSED. THE ORDER AS AMENDED OR REMAINING UN-AMENDED IS THE EFFECTIVE OR DER FOR ALL PRACTICAL PURPOSES. AN ORDER UNDER S. 254(2) DOES NOT HAVE EXISTENCE DE HORS THE ORDER UNDER S. 254(1). RECALLING OF THE ORDER IS NOT PERMISSIBLE UNDER S. 254(2). RECALLIN G OF AN ORDER AUTOMATICALLY NECESSITATES REHEARING AND RE-ADJUDIC ATION OF THE ENTIRE SUBJECT-MATTER OF APPEAL. THE DISPUTE NO LO NGER REMAINS RESTRICTED TO ANY MISTAKE SOUGHT TO BE RECTIFIED. POWER TO RECALL AN ORDER IS PRESCRIBED IN TERMS OF RULE 24 OF THE I TAT RULES, 1963, AND THAT TOO ONLY IN CASE WHERE THE ASSESSEE SHOWS THAT IT HAD A REASONABLE CAUSE FOR BEING ABSENT AT A TIME W HEN THE APPEAL WAS TAKEN UP AND WAS DECIDED EX-PARTE. JUDG ED IN THE ABOVE BACKGROUND THE ORDER PASSED BY THE TRIBUNAL I S INDEFENSIBLE. 7. THE WORDS USED IN S. 254(2) ARE SHALL MAKE SUCH AMENDMENT, IF THE MISTAKE IS BROUGHT TO ITS NOTICE . CLEARLY, IF THERE IS A MISTAKE, THEN AN AMENDMENT IS REQUIRED T O BE CARRIED OUT IN THE ORIGINAL ORDER TO CORRECT THAT PARTICULA R MISTAKE. THE PROVISION DOES NOT INDICATE THAT THE TRIBUNAL CAN R ECALL THE ENTIRE ORDER AND PASS A FRESH DECISION. THAT WOULD AMOUNT TO A REVIEW OF THE ENTIRE ORDER AND THAT IS NOT PERMISSI BLE UNDER THE IT ACT. THE POWER TO RECTIFY A MISTAKE UNDER S. 25 4(2) CANNOT BE USED FOR RECALLING THE ENTIRE ORDER. NO POWER OF R EVIEW HAS BEEN GIVEN TO THE TRIBUNAL UNDER THE IT ACT. THUS, WHAT IT COULD NOT DO DIRECTLY COULD NOT BE ALLOWED TO BE DONE INDIREC TLY. MA NO. 135/HYD/2013 M/S. ASSOCIATED ROADWAYS (P) LTD. =========================== 4 8. IN THE CASE OF CIT VS. HINDUSTAN COCA COLA BEVERAGE S (P) LTD. (2007) 207 CTR (DEL) 119; (2007) 293 ITR 163 ( DEL), THEIR LORDSHIPS WHILE CONSIDERING THE POWERS OF THE TRIBU NAL UNDER S. 254(2) OF THE IT ACT, 1961 OBSERVED AS UNDER: UNDER S. 254(2) OF THE IT ACT, 1961, THE TRIBUNAL HAS THE POWER TO RECTIFY MISTAKES IN ITS ORDER. HOWEVE R, IT IS PLAIN THAT THE POWER TO RECTIFY A MISTAKE IS NOT EQUIVALENT TO A POWER TO REVIEW OR RECALL THE ORDER SOUGHT TO BE RECTIFIED. RECTIFICATION IS A SPECIES OF THE LARGER CONCEPT OF REVIEW. ALTHOUGH IT IS POSSIBLE THAT THE PRE-REQUISITE FOR EXERCISE OF EITHER POWER MAY BE SIMILAR (A MISTAKE APPARENT FROM THE RECORD), BY IT S VERY NATURE THE POWER TO RECTIFY A MISTAKE CANNOT RESULT IN THE RECALL AND REVIEW OF THE ORDER SOUGHT TO BE RECTIFIED. 9. THUS THE SCOPE AND AMBIT OF APPLICATION U/S. 254(2) IS AS FOLLOWS: (A) FIRSTLY, THE SCOPE AND AMBIT OF APPLICATION OF S. 2 54(2) OF IT ACT IS RESTRICTED TO RECTIFICATION OF THE MISTAK ES APPARENT FROM THE RECORD. (B) SECONDLY, THAT NO PARTY APPEARING BEFORE THE TRIBUN AL SHOULD SUFFER ON ACCOUNT OF ANY MISTAKE COMMITTED B Y THE TRIBUNAL AND IF THE PREJUDICE HAS RESULTED TO T HE PARTY, WHICH PREJUDICE IS ATTRIBUTABLE TO THE TRIBU NALS MISTAKE/ERROR OR OMISSION, AND WHICH AN ERROR IS A MANIFEST ERROR, THEN THE TRIBUNAL WOULD BE JUSTIFIE D IN RECTIFYING ITS MISTAKE. THE RULE OF PRECEDENT IS AN IMPORTANT ASPECT OF LEGAL CERTAINTY IN THE RULE OF LAW AND THAT PRINCIPLE IS NOT OBLITERATED BY S. 254(2) OF T HE ACT AND NON-CONSIDERATION OF PRECEDENT BY THE TRIBUNAL CAUS ES A PREJUDICE TO THE ASSESSEE. (C) THIRDLY, POWER TO RECTIFY A MISTAKE IS NOT EQUIVALE NT TO A POWER TO REVIEW OR RECALL THE ORDER SOUGHT TO BE RE CTIFIED. (D) FOURTHLY, UNDER S. 254(2) AN OVERSIGHT OF A FACT CA NNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER TH E SECTION. (E) FIFTHLY, FAILURE ON THE PART OF THE TRIBUNAL TO CON SIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON RECORD, ALTH OUGH IT MAY BE AN ERROR OF JUDGEMENT. MA NO. 135/HYD/2013 M/S. ASSOCIATED ROADWAYS (P) LTD. =========================== 5 (F) SIXTHLY, EVEN IF ON THE BASIS OF A WRONG CONCLUSION THE TRIBUNAL HAS NOT ALLOWED A CLAIM OF THE PARTY IT WI LL NOT BE A GROUND FOR MOVING AN APPLICATION UNDER S. 254(2) OF THE ACT. (G) LASTLY, IN THE GARB OF AN APPLICATION FOR RECTIFICA TION UNDER S. 254(2) THE ASSESSEE CANNOT BE PERMITTED TO REOPE N AND REARGUE THE WHOLE MATTER AS THE SAME IS BEYOND THE SCOPE OF S. 254(2) OF THE IT ACT. 10. CONSIDERING ALL THE ABOVE FACTS, WE FIND NO MERIT I N THE ARGUMENT OF THE ASSESSEE'S COUNSEL. 11. IN THE RESULT, MA FILED BY THE ASSESSEE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST JUNE, 2013. SD/ - (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED 21 ST JUNE, 2013 TPRAO COPY FORWARDED TO: 1. M/S. ASSOCIATED ROADWAYS PVT. LTD., 201, AALTOS A & M TRADE CENTRE, 3-6-561, HIMAYATHNAGAR, HYDERABAD-500 029. 2. THE DCIT, CIRCLE - 1(1), HYDERABAD. 3 . THE CIT(A) - I I, HYDERABAD. 5. THE CIT - I, HYDERABAD 6. THE DR ' B ' BENCH, ITAT, HYDERABAD