Asstt.Commissioner of IT,Circle-1(2), RAIPUR (CG) V. Shri Ram Chandra Jaiswal, RAIPUR (CG)

MA 14/BIL/2012

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2642 (ITAT-RAIPUR)
• Duration Of Justice: 2 year(s) 6 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-12-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2007-2008
• Appeal Filed On: 21-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K MEENA
• Assessee Lawyers: P C MALOO JAIN
• Section: 153A

Judgement Text

INCOME TAX APPELLATE TRIBUNAL,BENCH -RAIPUR . .. . . .. . , ,, , ! ! ! !, ,, , . .. . . .. . BEFORE S/SH.H.L.KARWA,PRESIDENT AN D RAJENDRA,ACCOUNTANT MEMBER M.A. NO. 14/BLPR/2012 (ARISING OUT OF IT(SS)A NO.30 /BLPR/2009 ' ' ' ' / // / ASSESSMENT YEAR -2007-08 ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE 1(2), RAIPUR. V/S. SHRI RAM CHANDRA JAISWAL, HEERA ARCADE, RAIPUR PAN: ACIPJ 6801B ( ) / // / APPELLANT ) ( *+) / RESPONDENT ) ASSESSEE BY : SH. P.C. MALOO JAIN, C.A. REVENUE BY : SH. S.K. MEENA, DR - /DATE OF HEARING : 19-12-2014 - /DATE OF PRONOUNCEMENT : 19 -12-2014 / O R D E R PER RAJENDRA,AM 3 33 3 4 4 4 4, ,, , ! ! ! ! : VIDE HIS MISCELLANEOUS APPLICATION,DATED 21.05.2012 ,THE ASSESSING OFFICER (AO) HAS STATED THAT MISTAKES APPARENT ON RECORD IN THE ORDER OF THE TRI BUNAL PASSED ON 19.10.2011 HAVE TO BE RECTIFIED.IT HAS BEEN STATED IN THE APPLICATION THA T THE ASSESSEE HAD FILED RETURN OF INCOME AGAINST NOTICE U/S. 153A OF THE ACT RETURNING INCOME OF RS. 1.48 LACS ON 31.03.2008,THAT THE ASSESSEE HAD FILED HIS RETURN WITH THE ITO 1(3),THAT LATER ON H E FILED THE RETURN WITH ACIT 25.11.2008,THAT THE AO.I.E.ACIT HAD ISSUED 143(2) NOTICE ON 25.11.2008 AND COMPLETED THE ASSESSMENT. AGGRIEVED BY THE ORDER OF THE AO THE ASSESSEE FILED AN APPEAL FOR THE FIRST APPELLATE AUTHORITY (FAA) WHO DISMISSED ALL THE GROUNDS OF APPEAL AND CONFIRMED T HE ORDER OF THE AO, THAT THE FAA TREATED THE NOTICE ISSUED U/S.143(2) BY THE ACIT AS A VALID NOT ICE THOUGH THE ASSESSEE CLAIMED THAT IT WAS ISSUED BEYOND TIME,THAT THE ASSESSEE PREFERRED AN A PPEAL BEFORE THE TRIBUNAL, THAT THE TRIBUNAL TREATED THE NOTICE U/S. 143(2) INVALID AND AB INITIO VOID HOLDING THAT THE SAME WAS NOT SERVED WITHIN SIX MONTHS FROM THE END OF FINANCIAL YEAR IN WHICH THE RETURN WAS FILED, THAT THE TRIBUNAL HAD HELD THAT FILING OF SECOND RETURN WAS OF NO SIG NIFICANCE, THAT THE SAME HAS NEVER BEEN REFERRED IN THE ASSESSMENT ORDER AND WAS NON-EST. 2. BEFORE US, THE DEPARTMENTAL REPRESENTATIVE(DR)REITE RATED THE ARGUMENTS MENTIONED IN THE APPLICATION FILED BY THE AO.NONE APPEARED ON BEHALF OF THE ASSESSEE.WE HAVE PERUSED THE MATERIAL ON RECORD.WE FIND THAT WHILE DECIDING THE APPEAL, THE TRIBUNAL HAD HELD THAT THE ASSESSEE HAD FILED TWO RETURNS,THAT FIRST RETRUN WAS FILED O N 31.03.2008 AND THE SECOND WAS FIELD ON 25.11.2008, THAT THE ACIT 1(2) KNEW ABOUT FILING OF RETURN OF INCOME ON 31.03.2008, THAT THE DUE DATE OF ISSUE OF STATUTORY NOTICE U/S. 143(2) WAS 3 0.09.2008, THAT THE NOTICE ISSUED ON 25.11.2008 WAS BEYOND THE PERIOD OF SIX MONTHS PROVIDED IN THE SAID PROVISO. THERE IS NO DISPUTE THAT THE ASSESSEE HAD FILED THE FIRST RETURN ON 31.03.2008 B EFORE THE ITO 1(3), THAT THE ORDER U/S. 127 OF THE ACT WAS ISSUED AND WAS SERVED ON THE ASSESSEE ON 27 .12.2007. BY THAT ORDER, THE JURISDICTION OVER THE ASSESSEE WAS WITH ACIT-1(2). IF THE ASSESSEE HA D FILED THE RETURN WITH HIS REGULAR AO, IT WAS THE DUTY OF THAT AO TO TRANSFER IT TO THE OFFICER W HO WAS ASSIGNED THE CASE. THE ACIT, WHO HAD JURISDICTION,KNEW ABOUT FILING OF RETURN OF INCOME WITH ITO. AFTER CONSIDERING THE FACTUAL AND LEGAL POSITION, THE TRIBUNAL HAD ARRIVED AT A PARTI CULAR DECISION. IF THE AO HAS GRIEVANCE ABOUT THE DECISION,THE PROPER REMEDY LIES SOMEWHERE ELSE AND THAT IS APPROACHING THE HONBLE HIGH COURT. FILING OF A MISCELLANEOUS APPLICATION IS NOT THE PR OPER COURSE OF ACTION. A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NO T SOMETHING WHICH CAN BE ESTABLISHED BY A LONG-DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTA KE APPARENT ON THE RECORD. 2 MA NO. 14/BLPR/12-ACIT VS. RAMCHANDRA JAISWAL THE ARGUMENTS ADVANCED BY THE AO DO NOT FALL IN THE CATEGORY OF OBVIOUS AND PATENT MISTAKE.IN OUR OPINIOIN,THE AO WANTS US TO REVIEW THE ORDER PA SSED BY THE TRIBUNAL.THE TRIBUNAL HAS TAKEN A VIEW AND THAT VIEW IS ONE OF THE POSSIBLE VIEWS.SUC H ORDERS CANNOT BE RECTIFIED U/S.254(2) OF THE ACT.AS THERE IS NO MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL,DATED 19.10.2011,THEREFORE, WE REJECT THE APPLICATION FILED BY THE AO. AS A RESULT, THE M.A. FILED BY T HE AO STANDS DISMISSED. '7 8 9 : << = 4 : . ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH DECEMBER,2014. - A 19 B , 2014 - . SD/- SD/- (H.L.KARWA/ . .. . . .. . ) ( ! ! ! ! / RAJENDRA) PRESIDENT/ 4 4 4 4 /ACCOUNTANT MEMBER /RAIPUR. B DATE: 19.12.2014 - -- - *'C< *'C< *'C< *'C< D< D< D< D< / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / ) 2. RESPONDENT / *+) 3. THE CONCERNED CIT(A)/ E F , 4. THE CONCERNED CIT / E F 5. DR ITAT,RAIPUR BENCH/ < *'' , . . . , 6. GUARD FILE/ . +< *' //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, RAIPUR