The ITO, Ward-1(3)(5), Ahmedabad V. State Bank of India Employees Co.Op. Credit & Supply Society Ltd., Ahmedabad

MA 142/AHD/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6827 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-07-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 09-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Assessee Lawyers: S N DIVETIA
• Keywords: Question of law

Judgement Text

M.A. NOS.139, 140, 141, 142 & 143/AHD/2017 (IN ITA NOS.1201, 1202, 1203, 1204 & 1205/AHD/2015) ITO VS. SBI EMPLOYEES CO-OP. CREDIT &SUPPLY SOCIET Y LTD. ASSESSMENT YEARS: 2007-08, 08-09, 09-10, 10-11 & 1 1-12 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, AHMEDABAD SMC BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR AM] M.A. NOS.139, 140, 141, 142 & 143/AHD/2017 (IN ITA NOS.1201, 1202, 1203, 1204 & 1205/AHD/2015) ASSESSMENT YEARS: 2007-08, 2008-09, 2009-10, 2010- 11 & 2011-12 INCOME TAX OFFICER, WARD 1(3)(5), AHMEDABAD. ..................APPELLANT VS. STATE BANK OF INDIA EMPLOYEES CO-OP. CREDIT & SUPPLY SOCIETY LIMITED, ...........................RESPONDENT SBI MAIN BRANCH, BHADRA, AHMEDABAD 380 001. [PAN : AAAAS 7450 B] APPEARANCES BY: S.K. DEV FOR THE APPELLANT S.N. DIVETIA FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : 20.07.2018 DATE OF PRONOUNCING THE ORDER : 31.07.2018 O R D E R 1. BY WAY OF THESE MISCELLANEOUS APPLICATIONS THE A PPLICANT ASSESSING OFFICER HAS INVITED MY ATTENTION TO THE FACT THAT ORDER DATED 2 8.07.2016 PASSED BY ME SUFFERS FROM A MISTAKE APPARENT FROM RECORD INASMUCH AS IT OVERLOO KS A DIRECT DECISION DATED 25.04.2016 AGAINST THE ASSESSEE IN ASSESSEES OWN CASE BY HON BLE JURISDICTIONAL HIGH COURT. 2. LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITS THAT THE ISSUE IN APPEAL IS COVERED AGAINST THE ASSESSEE BY HONBLE JURISDICTIONAL HIGH COURTS DECISION IN ASSESSEES OWN CASE BUT THIS FACT WAS NOT BROUGHT TO THE NOTICE OF THE BENCH AND A FAVOURABLE DECISION WAS OBTAINED BY THE ASSESSEE BY SUBMITTING THAT THIS IS SUE IS COVERED IN FAVOUR OF THE ASSESSEE BY A DIVISION BENCH DECISION OF THE TRIBUNAL IN THE CASE OF STATE BANK OF INDIA SUPERVISING OFFICIALS CO-OPERATIVE CREDIT SOCIETY LIMITED VS. ITO (ITA NOS.905 TO 908/AHD/2015; ORDER DATED 10.06.2016). IT IS SUBMITTED THAT A DECISION GIVEN BY THE TRIBUNAL IN COMPLETE DISREGARD TO THE JUDGEMENT OF HONBLE JURISDICTIONA L HIGH COURT IN ASSESSEES OWN CASE IS CLEARLY VITIATED BY MISTAKE APPARENT FROM RECORD AN D IT THEREFORE DESERVES TO BE RECALLED. HE HAS THUS URGED TO RECALL THE IMPUGNED ORDER DATED 2 8.07.2016. 3. LEARNED COUNSEL FOR THE ASSESSEE, HOWEVER, DOES NOT YIELD TO THE SUBMISSIONS MADE BY THE LEARNED DEPARTMENTAL REPRESENTATIVE. HIS CO NTENTION IS THAT THE FACT AS TO WHETHER THE ISSUE IS CORRECTLY DECIDED BY THE HONBLE HIGH COURT AGAINST THE ASSESSEE IS NOT ENTIRELY FREE FROM DOUBT INASMUCH AS AN SLP AGAINST THE SAID DECISION HAS ALREADY BEEN ACCEPTED BY THE HONBLE SUPREME COURT. MY ATTENTION WAS INV ITED TO THE ORDER ADMITTING SLP AGAINST THE HONBLE JURISDICTIONAL HIGH COURTS JUDGEMENT B Y WHICH THE CASE IS SAID TO BE COVERED IN M.A. NOS.139, 140, 141, 142 & 143/AHD/2017 (IN ITA NOS.1201, 1202, 1203, 1204 & 1205/AHD/2015) ITO VS. SBI EMPLOYEES CO-OP. CREDIT &SUPPLY SOCIET Y LTD. ASSESSMENT YEARS: 2007-08, 08-09, 09-10, 10-11 & 1 1-12 PAGE 2 OF 3 FAVOUR OF THE ASSESSEE. LEARNED COUNSEL SUBMITS TH AT IN THESE CIRCUMSTANCES IT CANNOT BE SAID THAT THE VIEW EXPRESSED BY THE HONBLE JURISDI CTIONAL HIGH COURT HAS REACHED FINALITY. THE MATTER IS STILL LIVE AND PENDING BEFORE THE HON BLE SUPREME COURT. UNDER THESE CIRCUMSTANCES, ACCORDING TO THE LEARNED COUNSEL, TH E MATTER CANNOT BE SAID TO BE NOT DEBATABLE IN NATURE AS IS STILL CAPABLE OF TWO VIEW S BEING TAKEN. LEARNED COUNSEL SUBMITTED THAT THE RIGHT COURSE OF ACTION FOR THE INCOME TAX DEPARTMENT IS TO APPROACH THE HONBLE HIGH COURT BUT THEN RATHER THAN FILING APPEAL BEFOR E THE HONBLE HIGH COURT THE INCOME TAX DEPARTMENT IS BYPASSING THE HONBLE HIGH COURT AND APPROACHING THIS TRIBUNAL FOR RECALL OF THE ORDER. THIS COURSE OF ACTION, ACCORDING TO THE LEARNED COUNSEL, IS CONTRARY TO THE SCHEME OF INCOME TAX ACT. IF THERE IS AN INFIRMITY OR INC ORRECTNESS IN THE ORDER OF TRIBUNAL, IT IS OPEN TO THE AGGRIEVED PARTY TO AGITATE THE ISSUE BEFORE THE HONBLE HIGH COURT. HE HAS THUS URGED ME NOT TO ALLOW THIS MISCELLANEOUS APPLICATION BECA USE ALLOWING THIS MISCELLANEOUS APPLICATION IN THE VIEWS OF THE LD. COUNSEL WILL BE CONTRARY TO THE SCHEME OF THE ACT. 4. IN BRIEF REJOINDER, THE LD. DEPARTMENTAL REPRESE NTATIVE SUBMITTED THAT WHAT IS MATERIAL IS THE FACT THAT THE ISSUE IS COVERED AGAINST THE A SSESSEE BY THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT WAS NOT TAKEN INTO ACCOUN T BY THE TRIBUNAL. THERE CANNOT BE A CASE OF MERE, BLATANT AND GLARING MISTAKE APPARENT ON RE CORD. 5. I HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE AP PLICABLE LEGAL POSITION. I AM REALLY PAINED TO NOTE THAT LEARNED COUNSEL FOR THE ASSESSEE APPEARIN G BEFORE ME WHEN THE APPEAL WAS ORIGINALLY HEARD, DID NOT BRING TO MY NOTICE JUDGEM ENT OF HONBLE JURISDICTIONAL HIGH COURT IN HIS OWN CASE WHICH WAS DELIVERED ON 25.04.2016 WHER EAS HEARING OF CASE TOOK PLACE ON 26.07.2016. IT IS REASONABLE TO ASSUME THAT ASSESS EE WAS FULLY AWARE OF THE FACT THAT THE ISSUE WAS COVERED AGAINST HIM BY HONBLE JURISDICTI ONAL HIGH COURTS JUDGMENT. YET, INSTEAD OF FAIRLY BRINGING IT TO MY NOTICE AND THUS DILIGEN TLY PERFORMING THE DUTY OF AN OFFICER OF THIS COURT, LEARNED COUNSEL PREFERRED TO LEAD ME TO BELI EVE THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY A DIVISION BENCH DECISION OF THIS T RIBUNAL. WHOSOEVER IS RESPONSIBLE FOR THIS LAPSE HAS CERTAINLY ACTED IN A MANNER WHICH IS FAR FROM TRANSPARENT, FAIR AND RESPONSIBLE. SUCH CONDUCT MUST BE DEPRECATED. LEARNED COUNSEL, HOWEVER, DOES NOT STOP AT THAT. INSTEAD OF BEING REMORSEFUL ABOUT SUCH CONDUCT ON T HE PART OF LEARNED COUNSEL APPEARING BEFORE ME AT THE STAGE OF ORIGINAL PROCEEDINGS, LEA RNED COUNSEL NOW SEEKS TO JUSTIFY MY DECISION ON HYPER TECHNICAL GROUND WHICH IS DEVOID OF ANY LEGALLY SUSTAINABLE MERITS. THE MERE FACT THAT THE SLP HAS BEEN ADMITTED BY HONBLE SUPREME COURT DOES NOT DILUTE THE BINDING NATURE OF THE JUDGEMENT OF HONBLE HIGH COU RT. ONCE THERE IS A DIRECT DECISION ON THE ISSUE BY HONBLE HIGH COURT, PARTICULARLY IN AS SESSEES OWN CASE, IT CANNOT BE OPEN TO US NOT TO FOLLOW THE SAME. THERE IS NO QUESTION OF AN Y RESERVATIONS ON SUCH JUDICIAL PRECEDENTS IRRESPECTIVE WHETHER OR NOT APPEAL AGAINST THIS JUD ICIAL PRECEDENTS ARE ADMITTED BY HONBLE SUPREME COURT. IT IS ONLY ELEMENTARY THAT NOT FOLL OWING A JUDGEMENT OF HONBLE JURISDICTIONAL HIGH COURT IS A GLARING MISTAKE ON WHICH NO TWO VIE WS ARE POSSIBLE. TO SAY THAT THE CORRECTNESS OF THE HONBLE JURISDICTIONAL HIGH COUR TS JUDGMENT IS FREE FROM DOUBT MERELY BECAUSE HONBLE SUPREME COURT HAS ADMITTED THE SLP IS ABSOLUTELY INCORRECT INASMUCH AS A DECISION OF HONBLE JURISDICTIONAL HIGH COURT IS BI NDING AND SACROSANCT FOR THE TRIBUNAL AND UNLESS SUCH A DECISION IS REVERSED, THIS TRIBUNAL I S DUTY BOUND TO FOLLOW THE SAME IN LETTER AND IN SPIRIT. 6. AS FOR THE PLEA OF THE ASSESSEE THAT THE ASSESSE E SHOULD HAVE GONE TO THE HONBLE HIGH COURT RATHER THAN APPROACHING THIS COURT, I AM UNABLE TO FIND ANY SUBSTANCE IN THE PLEA. IF THERE IS A MISTAKE APPARENT ON RECORD, AS IN MY OPINION, IN THE PRESENT CASE, THE TRIBUNAL M.A. NOS.139, 140, 141, 142 & 143/AHD/2017 (IN ITA NOS.1201, 1202, 1203, 1204 & 1205/AHD/2015) ITO VS. SBI EMPLOYEES CO-OP. CREDIT &SUPPLY SOCIET Y LTD. ASSESSMENT YEARS: 2007-08, 08-09, 09-10, 10-11 & 1 1-12 PAGE 3 OF 3 HAS TO RECTIFY THE SAME AND THE TRIBUNAL CANNOT DEC LINE TO DO SO MERELY ON THE GROUND THAT ASSESSEE HAD AN OPTION TO SEEK REMEDY FROM A HIGHER FORUM. QUITE TO THE CONTRARY OF THE ARGUMENT BY THE LEARNED COUNSEL, IF A RELIEF IS POS SIBLE FROM THE LOWER FORUM THEN HIGHER FORUM SHOULD NOT BE TROUBLED. IN THE PRESENT CASE THERE IS INDEED GLARING ERROR IN MY ORDER DATED 28.07.2016 AND I AM DUTY BOUND TO RECTIFY THE SAME. THAT CONDITION IS CLEARLY SATISFIED INASMUCH AS THERE CAN BE NO DISPUTE OR CONTROVERSY ABOUT THE FUNDAMENTAL LEGAL POSITION THAT THE JUDICIAL PRECEDENTS LAID DOWN BY HONBLE J URISDICTIONAL HIGH COURT BIND US THIS TRIBUNAL, AND THE TRIBUNAL MUST FOLLOW THE SAME. AN Y ORDER PASSED BY THIS TRIBUNAL, WHICH IS NOT IN ACCORDANCE WITH THE LAW LAID DOWN BY A BINDI NG PRECEDENT FROM HONBLE HIGH COURT, IS CLEARLY A MISTAKE APPARENT ON RECORD. THEREFORE, M ERELY BECAUSE THEIR LORDSHIPS HAVE POWER TO ADJUDICATE ON THE SUBSTANTIAL QUESTION OF LAW ARISING OUT OF THE ORDERS OF THIS TRIBUNAL, THE TRIBUNAL IS NOT OUSTED OF ITS JURISDI CTION TO RECTIFY THE MISTAKE APPARENT ON RECORD. AS A MATTER OF FACT EVEN PENDENCY OF APPEA L BEFORE THE HONBLE HIGH COURT ON THE SAME ISSUE DOES NOT OUST THE TRIBUNAL OF ITS DECISI ON TO RECTIFY MISTAKE APPARENT ON RECORD AS HAS BEEN HELD BY RW PROMOTIONS PVT. LTD. VS. ITA T [(2015) 376 ITR 126 (BOM)]. IT IS, THEREFORE, FUTILE TO ARGUE THAT MERELY BECAUSE THE ASSESSEE HAS OPTION TO GO TO HONBLE HIGH COURT IN APPEAL, THE TRIBUNAL IS DENUDED OF ITS POW ERS TO RECTIFY THE MISTAKE APPARENT ON RECORD. AS LONG AS THERE IS A MISTAKE APPARENT ON R ECORD IN THE ORDER OF THE TRIBUNAL, AND THE APPLICATION SATISFIES OTHER PROCEDURAL REQUIREMENTS , I AM DUTY BOUND TO RECTIFY THE SAME. THE PLEA OF THE COUNSEL DOES NOT MAKE ANY SENSE IN LAW. I, THEREFORE, SEE NO MERITS IN THE OBJECTIONS BEING RAISED BY THE LEARNED COUNSEL FOR THE ASSESSEE. IN VIEW OF THESE DISCUSSIONS AS ALSO BEARING IN MIND ENTIRETY OF THE CASE, I AM OF THE CONSIDERED VIEW THAT MY ORDER DATED 28.07.2016 IS INDEED VITIATED BY MISTAK E APPARENT ON RECORD RECTIFIABLE UNDER SECTION 254(2). I, THEREFORE, RECALL THE ORDER OF THE TRIBUNAL DATED 28.07.2016 AND DIRECT THE REGISTRY TO FIX THE MATTER FOR HEARING ON THE LAST WEEK OF AUGUST 2018. 7. IN THE RESULT, ALL THE 5 MISCELLANEOUS APPLICATI ONS ARE ALLOWED. PRONOUNCED IN THE OPEN COURT TODAY ON THE 31 ST JULY, 2018 SD/- PRAMOD KUMAR (ACCOUNTANT M EMBER) AHMEDABAD, THE 31 ST DAY OF JULY, 2018 PBN/* COPIES TO: (1) THE APPELLANT (2) THE RESPONDEN T (3) COMMISSIONER OF INCOME TAX (4) CIT (A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD