The Deputy Commissioner of Income Tax Central Circle-1(4), Bangalore V. Shri. Harshavardhan , Bangalore

MA 146/BANG/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2566 (ITAT-BANGALORE)
• Duration Of Justice: 8 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-06-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 26-03-2021
• Assessment Year: 2009-2010
• Appeal Filed On: 05-10-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ILAVARASI R
• Assessee Lawyers: C RAMESH
• Keywords: Rectification of order
• Section: 271(1)(c); 254(2); 271B; 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI. B.R BASKARAN, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER MP NO.146 TO 157/BANG/2020 (IN ITA 404 TO 412 & 414 TO 416/BANG/2019) ASSESSMENT YEAR : 2009-10 TO 2014 -15 DY. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-1(4), BENGALURU. VS. SRI. HARSHVARDHAN, #168/B, GROUND FLOOR, 6 TH B CROSS, 1 ST BLOCK, NEAR SAGAR FAST FOOD,RAJAJINAGAR, BENGALURU-560 010. PAN AJHPM 1729 J APPELLANT RESPONDENT A SSESSEE BY : SHRI C . RAMESH , CA RE VENUE BY : S MT ILAVARASI.R , ADDL.CIT (DR) DATE OF HEARING : 26 - 03 - 202 1 DATE OF PRONOUNCEMENT : 22 - 0 6 - 202 1 ORDER PER BEENA PILLAI, JUDICIAL MEMBER THE PRESENT MISCELLANEOUS PETITIONS HAVE BEE N FILED BY REVENUE IS ALLEGING THAT IN THE ORDER PASSED BY THIS TRIBUNAL DATED PAGE 2 OF 5 MP NO.146 TO 157/BANG/2020 29/01/2020, MISTAKE APPARENT ON RECORD HAS CREPT IN ON FOLLOWING ISSUES: 1. REVENUE ALLEGES THAT THIS TRIBUNAL HAS WRONGLY D ELETED PENALTY UNDER SECTION 271(1)(C). 2. THE REVENUE ALSO ALLEGES THAT THIS TRIBUNAL HAS WRONGLY DELETED PENALTY UNDER SECTION 271B OF THE I T ACT. 2. THE LD.SR.DR SUBMITTED THAT THIS TRIBUNAL HAS WRONGLY RELIED ON DECISION OF HONBLE KARNATAKA HIGH COURT IN CASE OF MANJUNATHA COTTON AND GINNING MILLS AND DELETED THE PENALTY LEVIED UNDER SECTION 271(1)(C) OF THE ACT. IT IS ALSO BEEN SUBMI TTED BY THE LD.SR.DR THAT THIS TRIBUNAL FOLLOWING THE DECISION OF HONBLE KARNATAKA HIGH COURT IN CASE OF CIT VS BABU READY REPORTED IN 38 DTR 147 HAS DELETED THE PENALTY UNDER SECTION 271B OF THE ACT BY HOLDING THAT PENALTY UNDER SECTION 271A IS NOT JUST IFIABLE. 3. THE LD.SR.DR SUBMITTED THAT THE DECISION OF THIS TRIBUNAL HAS BEEN RENDERED ON WRONG UNDERSTANDING OF PRINCIPLES GOVERNING THE ISSUE AND HENCE IT IS A MISTAKE APPARENT ON RECORD. 4. ON THE CONTRARY THE LD.AR SUBMITTED THAT, THE PR ESENT MISCELLANEOUS PETITIONS RAISED BY REVENUE WOULD LEA D TO REVIEW OF THE ORDER PASSED BY THE TRIBUNAL DATED 29/01/2020 AND THE SAME IS NOT PERMITTED UNDER SECTION 254 (2) OF THE ACT. 5. WE HAVE PERUSED SUBMISSIONS ADVANCED BY BOTH SID ES IN LIGHT OF RECORDS PLACED BEFORE US. 6. THE HONBLE KARNATAKA HIGH COURT IN CASE OF CIT VS MCDOWELL AND CO LTD. REPORTED IN (2009) 310 ITR 215 FOLLOWING THE DECISION OF HONBLE SUPREME COURT IN CASE OF HONDA SIEL POWER PRODUCTS LTD. VS PAGE 3 OF 5 MP NO.146 TO 157/BANG/2020 CIT REPORTED IN (2007) 295 ITR 466 HAS HELD THAT THE POWER UNDER SECTION 254 (2) OF THE ACT CANNOT BE EXERCISED SO A S TO REVIEW ORDER PASSED BY THE TRIBUNAL . HONBLE COURT HELD THAT APPLICATION OF PRINCIPLES LAID DOWN BY THE SUPERIOR COURTS TO THE FACTS OF THE CASE ON ERRONEOUS UNDERSTANDING OF SUCH PRINCIPLES, RECO RDING OF AN ERRONEOUS FINDING BY THE TRIBUNAL BASED ON FACTS ON RECORD, FORMATION OF A CONCLUSION ON ERRONEOUS APPLICATION OF PROVISION OF LAW TO THE FACTS OF THE CASE, ETC., CANNOT BE HELD TO BE A MISTAKE APPARENT FROM RECORD WARRANTING RECTIFICATION BY TH E TRIBUNAL IN EXERCISE OF ITS POWER UNDER SECTION 254 (2) OF THE ACT. 7. IN VIEW OF THE ABOVE DECISION OF HONBLE KARNATAKA HIGH COURT, WE ARE OF THE VIEW THAT BY RECONSIDERING THE APPLIC ATION OF PRINCIPLES LAID DOWN BY HONBLE SUPREME COURT TO THE FACTS OF THE CASE OR BY RECONSIDERING ITS FINDINGS RECORDED OR BY RECONSIDE RING THE APPLICATION OF THE RELEVANT PROVISIONS OF LAW TO TH E FACTS OF THE CASE IN THE PRESENT PET MISCELLANEOUS PETITION UNDER SEC TION 254(2) THIS TRIBUNAL WOULD BE EXERCISING POWER OF REVIEW OF ITS EARLIER ORDER ON MERITS BUT NOT RECTIFICATION OF MISTAKE APPARENT FR OM RECORD AND SUCH REVIEW WOULD CERTAINLY IS BEYOND THE SCOPE OF SECTION 254(2). ACCORDINGLY WE DISMISS THE MISCELLANEOUS PETITION I S FILED BY REVENUE. ORDER PRONOUNCED IN OPEN COURT ON 22 ND JUNE 2021. SD/- SD/- (B.R BASKARAN) (BEENA PILLAI) ACCOUNTANT MEMBER JUDICIAL MEM BER BANGALORE, DATED, THE 22 ND JUNE, 2021. PAGE 4 OF 5 MP NO.146 TO 157/BANG/2020 /VMS/ COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE PAGE 5 OF 5 MP NO.146 TO 157/BANG/2020 DATE INITIAL 1. DRAFT DICTATED ON ON DRAGON SR.PS 2. DRAFT PLACED BEFORE AUTHOR -6-2021 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER -6-2021 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. -6-2021 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS -6-2021 SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON -6-2021 SR.PS 7. DATE OF UPLOADING THE ORDER ON WEBSITE -6-2021 SR.PS 8. IF NOT UPLOADED, FURNISH THE REASON -- SR.PS 9. FILE SENT TO THE BENCH CLERK -6-2021 SR.PS 10. DATE ON WHICH FILE GOES TO THE AR 11. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 12. DATE OF DISPATCH OF ORDER. 13. DRAFT DICTATION SHEETS ARE ATTACHED NO SR.PS