ACIT, Ernakulam V. M/s. Skyline builders, Ernakulam

MA 140/COCH/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1613 (ITAT-COCHIN)
• Duration Of Justice: 4 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-03-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 14-03-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 27-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K K JOHN
• Assessee Lawyers: A S NARAYANANMOORTHY
• Section: 143(3); 153A; 132

Judgement Text

1 MP NO. 140/COCH/2013 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) M.P. NO.140/COCH/2013 (ARISING OUT OF M.P. NO.59/COCH/20120) (ARISING OUT OF I.T.A NO. 223/COCH/2009) (ASSESSMENT YEAR 2003-04) A.C.I.T., CIR.2(2) VS M/S SKYLINE BUILDERS KOCHI RAJAJI ROD, ERNAKULAM PAN : AAMFS8117N (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI K.K. JOHN RESPONDENT BY : SHRI A.S. NARAYANANMOORTHY DATE OF HEARING : 14-03-2014 DATE OF PRONOUNCEMENT : 28-03-2014 O R D E R PER N.R.S. GANESAN (JM) THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS PE TITION ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER PASSED B Y THE TRIBUNAL IN M.P. NO.59/COCH/2012. 2. ACCORDING TO SHRI K.K. JOHN, THE LD.DR, FOR THE ASSESSMENT YEAR 2002-03, THE FIRST ASSESSMENT WAS COMPLETED ON 29-0 3-2005 AND SEARCH WAS CONDUCTED ON 24-01-2006. FOR THE ASSESSMENT YE AR 2003-04 THE FIRST ASSESSMENT WAS COMPLETED ON 27-02-2006 WHICH FALLS AFTER THE SEARCH 2 MP NO. 140/COCH/2013 DATE. AS PER THE SECOND PROVISO TO SECTION 153A, A NY ASSESSMENT FALLING WITHIN THE PERIOD OF SIX ASSESSMENT YEARS REFERRED TO IN SUB SECTION (1) OF SECTION 153A PENDING ON THE DATE OF INITIATION OF T HE SEARCH UNDER SECTION 132 OR MAKING OF REQUISITION UNDER SECTION 132A, AS THE CASE MAY BE, SHALL ABATE. ACCORDING TO THE LD.DR, THERE IS NO ASSESSM ENT OTHER THAN THE ASSESSMENT COMPLETED U/S 153A FOR THE ASSESSMENT YE AR 2003-04; HENCE, THE ORDER OF THIS TRIBUNAL TO CONSIDER THE PERIOD O F TWO YEARS FROM THE COMPLETION OF THE ORDER U/S 143(3) ON 27-02-2006 IS A MISTAKE. THEREFORE, ACCORDING TO THE LD.DR, THE ORDER OF THIS TRIBUNAL IN M.P. NO.59/COCH/2012 IS TO BE RECTIFIED. 3. HOWEVER, SHRI A.S. NARAYANAMOORTHY, THE LD.REPRE SENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ORDER PASSED BY THIS TR IBUNAL IN M.P. NO.59/COCH/2012 DATED 07-09-2012 MERGED WITH THE OR IGINAL ORDER OF THE TRIBUNAL IN ITA NO.223/COCH/2009. THEREFORE, THE R ECTIFICATION PETITION SHOULD HAVE BEEN FILED IN ITA NO.223/COCH/2009 AND NOT IN M.P. NO.59/COCH/2012. REFERRING TO THE JUDGMENT OF THE KERALA HIGH COURT IN CIT VS AISWARYA TRADING CO (2011) 331 ITR 521 (KER) , THE LD.REPRESENTATIVE SUBMITTED THAT SECOND APPLICATION ON THE VERY SAME ISSUE IS NOT MAINTAINABLE BEFORE THE TRIBUNAL. ACCORDING TO THE LD.REPRESENTATIVE WHEN THE RECTIFICATION APPLICATION FILED BY THE ASS ESSEE IS ALLOWED OR REJECTED BY THE TRIBUNAL, THE VERY SAME ISSUE CANNO T BE AGITATED IN ANOTHER 3 MP NO. 140/COCH/2013 APPLICATION BY THE OPPOSITE PARTY. THEREFORE, ACCO RDING TO THE LD.REPRESENTATIVE, THIS APPLICATION IS NOT MAINTAIN ABLE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTED LY, THE ASSESSEE FILED A MISCELLANEOUS PETITION IN M.P. NO.59/COCH/2012 ON T HE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL. AFTER C ONSIDERING THE APPLICATION OF THE ASSESSEE IN M.P. NO.59/COCH/2012 AND HEARING BO TH PARTIES, THE TRIBUNAL HAS PASSED AN ORDER RECTIFYING THE SO-CALL ED ERROR. NOW THE REVENUE HAS FILED THE APPLICATION ON THE GROUND THA T THERE IS AN ERROR IN THE ORDER PASSED BY THIS TRIBUNAL IN M.P. NO.59/COCH/20 12. ON IDENTICAL CIRCUMSTANCES, THE KERALA HIGH COURT IN THE CASE OF AISWARYA TRADING CO (SUPRA) HAD AN OCCASION TO CONSIDER THE MATTER AND OBSERVED AS FOLLOWS: .. IN OTHER WORDS, EVEN AFTER THE TRIBUNAL RECTI FIES THE APPELLATE ORDER UNDER SECTION 254(2) ON ANY ISSUE R AISED, STILL THE ORIGINAL ORDER CAN BE RECTIFIED ON ANY OTHER IS SUE DECIDED BY THE TRIBUNAL. HOWEVER, IF THE RECTIFICATION APP LICATION FILED BY ONE OF THE PARTIES IS ALLOWED OR REJECTED BY THE TRIBUNAL, THE VERY SAME ISSUE CANNOT BE AGITATED IN ANOTHER RECTI FICATION APPLICATION BY THE OPPOSITE PARTY. IF THIS IS DONE AND ALLOWED TO BE ENTERTAINED BY THE TRIBUNAL, THEN WHAT HAPPEN S IS THAT THE TRIBUNAL GETS AN OPPORTUNITY TO REVIEW ITS OWN ORDER FOR WHICH IT HAS NO POWERS UNDER THE STATUTE. THEREFOR E, ONCE THE 4 MP NO. 140/COCH/2013 RECTIFICATION APPLICATION FILED BY ONE OF THE PARTI ES IS CONSIDERED AND DECIDED BY THE TRIBUNAL RIGHTLY OR W RONGLY, ANOTHER RECTIFICATION APPLICATION ON THE SAME ISSUE IS NOT MAINTAINABLE AGAINST THE ORDER ISSUED BY THE TRIBUN AL UNDER SECTION 254(2) OF THE ACT. 5. IN VIEW OF THE ABOVE JUDGMENT OF THE KERALA HIGH COURT, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE SECOND APPLIC ATION FILED BY THE REVENUE ON THE ISSUE WHICH WAS DECIDED EARLIER IN T HE APPLICATION FILED BY THE ASSESSEE IS NOT MAINTAINABLE. ACCORDINGLY WITH OUT GOING INTO THE MERIT OF THE MATTER, THE MISCELLANEOUS PETITION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH MARCH, 2014. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 28 TH MARCH, 2014 PK/- COPY TO: 1. ACIT, CIR.2(2), KOCHI 2. SKYLINE BUILDERS, RAJAJI ROAD, ERNAKULAM 3. THE COMMISSIONER OF INCOME-TAX (CENTRAL), 5 TH FLOOR, KANDAMKULATHY TOWERS, M.G. ROAD, KOCHI 682 011 4. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH