ITO, WARD-3(2), JAIPUR V. GIRIRAJKRIPA DEVELOPERS PRIVATE LIMITED, JAIPUR

MA 14/JPR/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3119 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-10-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 13-04-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A S NEHRA
• Assessee Lawyers: S L PODDAR ADV DHK
• Keywords: Right to appeal
• Section: 195; 254(2); 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES A JAIPUR JH LANHI XKSLKBZ ] U;KF;D LNL; ,O A JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI SANDEEP GOSIAN, JM & SHRI VIKRAM SINGH YADAV, AM M.A. NO. 14/JP/2021 (ARISING OUT OF VK;DJ VIHY LA- @ ITA NO. 168/JP/2020 FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 2010-11. I.T.O., WARD-3(2), JAIPUR. CUKE VS. GIRIRAJKRIPA DEVELOPERS PVT. LTD. A 2PSM COMPLEX POWER HOUSE ROAD, BANIPARK, JAIPUR. LFKK;H YS[KK LA -@THVKBZVKJ LA-@ PAN NO. AACCG 8973 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT JKTLO DH VKSJ LS@ REVENUE BY : SHRI A.S. NEHRA (ADDL.CIT-DR) FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI S.L. PODDAR (ADV.) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 17/09/2021 ?KKS 'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 21/10/2021 VKNS'K@ ORDER PER: SANDEEP GOSAIN, J.M. BY WAY OF THIS MISC. APPLICATION, THE REVENUE IS SEEKING RECALLING OF THE ORDER PASSED BY THE TRIBUNAL DATED 11/09/2020 PASSED IN ITA NO. 168/JP/2020. 2. AT THE OUTSET, THE LD DR HAS SUBMITTED BEFORE US THAT ORIGINALLY, THIS BENCH HAS PASSED ORDER IN ITA NO. 168/JP/2020 DATED 11/09/2020 IN ASSESSEES APPEAL AND THE COPY OF WHICH WAS RECEIVED BY THE OFFICE OF PR.CIT- 1, JAIPUR ON 16.12.2020 IN THE CASE OF M/S GIRIRAJKRIPA DEVELOPERS PVT. LTD., A 2PSM, COMPLEX, POWER HOUSE ROAD, BANIPARK, JAIPUR, A.Y 2010-11 AND ON PERUSAL OF THE RECORD, ACCORDINGLY TO THE LD. DR IT WAS OBSERVED THAT THE ITAT 2 MA NO. 14/JP/2021 ITO VS GIRIRAJKRIPA DEVELOPERS P LTD. HAS NOT APPRECIATED THE FACTS REGARDING ISSUANCE AND SERVICE OF THE NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT) AND THE TIME LIMIT PRESCRIBED U/S 149 OF THE ACT IS FOR ISSUANCE OF NOTICE AND NOT THE SERVICE THEREOF. AS PER THE LD. DR, THE ITAT HAS WRONGLY RECORDED A FINDING THAT THE DEPARTMENT HAS FAILED TO BRING ON RECORD THAT THE NOTICE U/S 148 WAS EVER SERVED UPON THE ASSESSEE AS IS APPARENT THAT THE NOTICE WAS ISSUED IN TIME AND DISPATCHED THROUGH SPEED POST ON 31.03.2017 AND THE SAID NOTICE, ACCORDING TO THE LD. DR, WAS ALSO SERVED UPON ONE 'SHRI GOPAL'. THUS, THIS WAY, THE LD. DR SUBMITTED THAT THERE IS ERROR APPARENT IN THE ORDER PASSED BY THE IAT WHICH NEEDS TO BE RECALLED. 3. ON THE CONTRARY, THE LD. AR APPEARING ON BEHALF OF THE ASSESSEE HAS SUBMITTED THAT THE PRESENT MISC. APPLICATION FILED BY THE REVENUE IS WITHOUT ANY BASIS AND IT IS AN ABUSE OF PROCESS OF LAW. IT WAS SUBMITTED BY THE LD AR THAT THERE IS NO ERROR APPARENT FROM THE RECORD AND THE ORDER PASSED BY THE ITAT IS A WELL REASONED ORDER AFTER APPRECIATING THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE AND THE ITAT HAS DEALT WITH IN DETAIL EVERY ASPECT OF THE CASE AND THEREFORE, THE PRESENT APPLICATION FILED BY THE REVENUE IS NOT MAINTAINABLE. THE LD. AR HAS FURTHER SUBMITTED THAT THE ITAT HAS NO POWER TO REVIEW ITS OWN ORDER WHICH IS ADJUDICATED ON MERITS. 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND HAVE PERUSED THE MATERIAL PLACED ON RECORD. WE HAVE ALSO PERUSED THE ORDER 3 MA NO. 14/JP/2021 ITO VS GIRIRAJKRIPA DEVELOPERS P LTD. PASSED BY THE TRIBUNAL AND ALSO THE JUDGMENT CITED BY THE RESPECTIVE PARTIES. FROM THE RECORD, WE NOTICED THAT THROUGH THE PRESENT MISC. APPLICATION, THE REVENUE HAS CHALLENGED THE ORDER OF THE ITAT ON THE GROUND THAT THE BENCH HAD NOT APPRECIATED THE FACTS REGARDING ISSUANCE AND SERVICE OF NOTICE U/S 148 OF THE ACT AND TIME LIMIT PRESCRIBED U/S 149 OF THE ACT. IT WAS ARGUED BY THE LD. DR THAT THE NOTICE WAS ISSUED AND DISPATCHED THROUGH SPEED POST ON 30/03/2017 AND THUS WHENEVER THE CONDITION AS IS PRESCRIBED U/S 148 OF THE ACT AND IT WAS ALSO SUBMITTED THAT THE SAID NOTICE WAS ALSO SERVED UPON ONE SHRI GOPAL BUT SAID FACTS HAVE NOT BEEN CORRECTLY APPRECIATED BY THE BENCH WHILE DECIDING THE MAIN APPEAL ON MERITS, THEREFORE, ACCORDING TO THE LD. DR, THERE IS APPARENT ERROR IN THE ORDER PASSED BY THE ITAT. AS FAR AS THE ABOVE ARGUMENTS AS RAISED BY THE LD. DR WHILE SUPPORTING HIS MISC. APPLICATION IS CONCERNED, IN THIS REGARD, AFTER EVALUATING THE RECORDS, WE FOUND THAT THE ASPECT WITH REGARD TO ISSUANCE OF NOTICE AND SERVICE THEREOF HAS BEEN METICULOUSLY DEALT WITH BY THE TRIBUNAL IN ITS ORDER AND THE OPERATIVE PORTION OF THE SAID ORDER STARTS FROM PARA NO. 7 TO 14 OF THE ORDER. IN THE SAID ORDER, THE ISSUE, NOW RAISED BY THE REVENUE HAS ALREADY BEEN DISCUSSED IN DETAILED AND AFTER CONSIDERING ALL THE RIVAL JUDGMENTS AND WRITTEN SUBMISSIONS, ARGUMENTS RAISED BY THE RESPECTIVE PARTIES, THE MATTER WAS DECIDED ON MERITS AND EVERY ASPECT HAS BEEN DEALT IN DETAIL AND AFTER TAKING INTO CONSIDERATION THE FACTUAL AND LEGAL POSITION, A DETAILED FINDING HAS BEEN RECORDED AND THUS, IN OUR VIEW, THERE IS NO NEED TO RECALL THE ORDER PASSED BY THE TRIBUNAL ON THE 4 MA NO. 14/JP/2021 ITO VS GIRIRAJKRIPA DEVELOPERS P LTD. MERITS. IN CASE, THE ARGUMENTS OF THE DR ARE ACCEPTED THEN IN THAT EVENTUALITY, IT AMOUNTS TO REVIEW OF THE ORDER PASSED BY THE TRIBUNAL ON MERITS. 5. EVEN OTHERWISE, THE RIGHT TO REVIEW IS A CREATURE OF STATUTE AS IS RIGHT OF APPEAL. THE ENTIRE INCOME TAX ACT DOES NOT CONFER ANY POWER ON THE APPELLATE AUTHORITY/TRIBUNAL TO REVIEW ITS OWN ORDERS. A REVIEW IS NOT A SUBSTITUTE FOR AN APPEAL, AS HELD BY THE RAJASTHAN HIGH COURT IN JAIPUR FINANCE & DAIRY PRODUCT (P) LTD. V. CIT (1980) 18 CTR (RAJ) 324; (1980) 125 ITR 404 (RAJ). THE RAJASTHAN HIGH COURT IN CIT V. GLOBE TRANSPORT CORPORATION (1991) 93 CTR (RAJ) 121; (1992) 195 ITR 311 (RAJ) OBSERVED THAT THE POWER OF REVIEW IS NOT INHERENT IN A COURT OR TRIBUNAL, IT IS A CREATURE OF THE STATUTE, THUS A COURT OR TRIBUNAL CANNOT REVIEW ITS OWN DECISION UNLESS IT IS PERMITTED TO DO SO BY STATUTE. THE COURTS OR TRIBUNALS OF LIMITED JURISDICTION CREATED UNDER SPECIAL STATUTES HAVE NOT INHERENT POWER OF REVIEW. IN THE PRESENT CASE, THE REVENUE SOUGHT TO REVIEW THE ORDER OF THE TRIBUNAL PASSED ON MERIT. THUS, ITS SUBJECT MATTER IS NOT COVERED BY THE PROVISIONS OF THE SECTION 254(2) OF THE ACT. 6. THE MAIN ISSUE NOW RAISED BY THE REVENUE IN THE IMPUGNED MISC. APPLICATION HAS ALREADY BEEN DEALT WITH AFTER APPRECIATION OF LEGAL AND FACTUAL POSITION OF CASE AND ADJUDICATED UPON MERITS, THEREFORE, THIS GROUND MENTIONED IN THE MISC. APPLICATION DO NOT FALL UNDER THE PURVIEW OF PROVISIONS 5 MA NO. 14/JP/2021 ITO VS GIRIRAJKRIPA DEVELOPERS P LTD. OF SECTION 254(2) OF THE ACT. THE PROVISIONS OF SECTION CONTEMPLATE TO RECTIFY ANY MISTAKE APPARENT FROM RECORD AND NON-CONSIDERATION OF ANY ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT AND THE SAME CANNOT BE RECTIFIED U/S. 254(2) OF THE ACT, AS HELD BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. RAMESH ELECTRIC & TRADING CO. (1993) 203 ITR 497,502 (BOM ). IN THE PRESENT CASE, THE REVENUE HAS RAISED AN ISSUE OF ISSUANCE AND SERVICE OF NOTICE U/S 148 OF THE ACT. THE SAID ISSUE HAS ALREADY BEEN DEALT IN DETAIL AND IN VIEW OF THE JUDGMENTS CITED BY THE RESPECTIVE PARTIES, SUCH ISSUE WAS DECIDED ON MERITS. NOW THE ONLY REASON LEFT WITH THE REVENUE IS THAT THE TRIBUNAL HAS NEGATED THE STAND TAKEN BY THE REVENUE WHILE ALLOWING THE APPEAL OF THE ASSESSEE BUT THAT WILL NOT BE A GROUND FOR MOVING AN APPLICATION U/S 254(2) OF THE ACT, UNLESS IT CAN BE SAID THAT THERE IS A MISTAKE APPARENT FROM THE RECORD AS HELD BY THE HONBLE DELHI HIGH COURT IN THE CASE OF GAY WAYS PUBLICITY PVT LTD. VS. CIT (1995) 211 ITR 506 (DEL ). IN THE PRESENT CASE, THERE DOESNT EXIST ANY LEGAL OR FACTUAL MISTAKE, APPARENT FROM RECORD AND THE ASSESSEE HAS MERELY SOUGHT TO RECTIFY THE IMPUGNED TRIBUNALS ORDER, ON THE BASIS OF DIFFERENT VIEW CONCEIVED BY THE ASSESSEE, IN RESPECT OF THE ISSUE IN QUESTION RAISED IN THE MISCELLANEOUS APPLICATION. IT IS FURTHER ADDED THAT THIS ISSUE RAISED BY THE REVENUE THROUGH THE IMPUGNED MISCELLANEOUS APPLICATION IS DEBATABLE QUESTION, NOT MISTAKE APPARENT FROM RECORD AND HENCE, IS NOT AMENABLE TO RECTIFICATION JURISDICTION 6 MA NO. 14/JP/2021 ITO VS GIRIRAJKRIPA DEVELOPERS P LTD. CONFERRED ON THE TRIBUNAL U/S. 254(2) OF THE ACT. IT IS A SETTLED LEGAL PROPOSITION THAT IN THE GARB OF MISCELLANEOUS APPLICATION FOR RECTIFICATION, THE ASSESSEE CANNOT BE ALLOWED TO RE-OPEN THE WHOLE MATTER, WHICH IS BEYOND THE SCOPE OF SECTION 254(2) OF THE ACT, IN THE ABSENCE OF ANY MANIFEST ERROR, WHICH IS OBVIOUS, CLEAR AND SELF EVIDENT. THUS, THE TRIBUNAL IS NOT COMPETENT TO RECALL ITS PREVIOUS ORDER AND RE-WRITE THE SAME AGAIN AND REVERSE THE EARLIER DECISION TAKEN ON MERIT WHAT CAN BE RECTIFIED UNDER THE SAID SECTION IS A MISTAKE APPARENT FROM RECORD AND NOT THE MISTAKE WHICH NEEDS ELABORATE REASON OR INQUIRY TO ESTABLISH THE SAME. SIMILARLY, WHERE TWO OPINIONS ARE POSSIBLE, SUCH A SITUATION DO NOT FALL UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT, AS HELD BY THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. VARDHMAN SPINNINGS 226 ITR 296 (P&H) . THUS, IT IS CLEAR THAT THE POWER SO CONFERRED DOES NOT CONTEMPLATE A RE-HEARING WHICH WOULD HAVE THE EFFECT OF RE-WRITING AN ORDER, AFFECTING THE MERITS OF THE CASE, AS SOUGHT BY THE REVENUE IN THE PRESENT CASE. THERE IS E DIFFERENCE BETWEEN A POWER TO REVIEW AND A POWER TO RECTIFY A MISTAKE APPARENT FROM RECORD. IN A NUT-SHELL THE SCOPE OF SUCH POWER OF RECTIFICATION, IN EXERCISE OF JURISDICTION U/S 254(2) OF THE ACT, CLEARLY CONTEMPLATES WHAT CAN BE CORRECTED IS AN APPARENT MISTAKE FROM RECORD AND NOT TO DEAL WITH MERITS OF THE CASE AND TO RECALL THE ORDER, ON THE BASIS OF TAKING A SECOND OPINION, ON THE MERIT, WHICH IS NOT THE SCOPE OF SUCH RECTIFICATION. THE SCOPE OF SECTION 254(2) IS VERY LIMITED AND IT IS ONLY THE APPARENT ERROR, WHICH CAN BE RECTIFIED AND THE TRIBUNAL CAN BE HELD TO BE 7 MA NO. 14/JP/2021 ITO VS GIRIRAJKRIPA DEVELOPERS P LTD. JUSTIFIED IN REJECTING THE APPLICATION FOR RECTIFICATION RAISING A MATTER RELATING TO THE MERIT OF THE CASE AND NOT INVOLVING AN APPARENT MISTAKE TO BE RECTIFIED AS HELD IN THE CASE OF PRAKSH CHAND MEHTA VS. CIT, 220 1TR 277 (M.P) . IT IS FURTHER ADDED THAT SECTION 254(2) OF THE ACT VESTS A DISCRETIONARY POWER ON THE TRIBUNAL AND DOES NOT CONFER A RIGHT ON THE REVENUE AND FURTHER THERE IS NO INHERENT POWER CONFERRED ON THE TRIBUNAL OF REVIEWING ITS OWN DECISION TAKEN ON MERITS, AS HELD BY THE SUPREME COURT IN THE CASE PATEL NARESHI THAKERSHE VS. PRADYUM SINGHJI ARJUN SINGHJI (AIR 970 SC 1273) . THE INCOME TAX ACT HAS NOT CONFERRED JURISDICTION ON THE TRIBUNAL TO REVIEW AND REVISE ITS ORDER, AS THE TRIBUNAL IS NOT A COURT AND IT HAS NO POWER TO REVIEW ITS OWN ORDERS ADJUDICATED ON MERITS. IN VIEW OF THE ABOVE LEGAL AND FACTUAL DISCUSSIONS, THE GROUND/ISSUE RAISED BY THE REVENUE IN THE IMPUGNED MISCELLANEOUS APPLICATION IS DISMISSED WITH NO ORDER AS TO COSTS. 7. IN THE RESULT, THIS MISC. APPLICATION OF THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21/10/2021. SD/- SD/- FOE FLAG ;KNO LANHI XKSLKBZ (VIKRAM SINGH YADAV) (SANDEEP GOSIAN) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 21/10/2021. *RANJAN VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- THE ITO, WARD 3(2), JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- GIRIRAJKRIPA DEVELOPERS PVT. LTD., JAIPUR. 8 MA NO. 14/JP/2021 ITO VS GIRIRAJKRIPA DEVELOPERS P LTD. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE {MA NO. 14/JP/2021} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR