Shri Rohit K. Mehta, RAJKOT-GUJARAT V. The Income Tax Officer, Ward-2(2), RAJKOT-GUJARAT

MA 15/RJT/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0377 (ITAT-RAJKOT)
• Duration Of Justice: 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-05-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 06-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K C MATHEWS DR A I
• Assessee Lawyers: ROHIT K MEHTA A
• Keywords: Difference of opinion

Judgement Text

I \ , IN THE INCOME TAX APPELLATE TRIBU N AL; RAJKOT BENCH, RAJKOT. BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K. SRIVASTAVA, AM M.A.NO. 15 /RJT/2013 ARISING OUT OF IT A NO . 361/RJT / 1999 / ASSESSM ENT YEAR S 1984 - 85 SHRI ROHIT K. MEHTA, 29, KARANPARA, KRISHNA NIVAS RAJKOT PAN: APPPM 6489 M ( / APPELLANT) VS. ITO, WARD - 2(2) RAJKOT R / RESPONDENT A / ASSESSEE BY SHRI ROHIT K MEHTA, ASSESSEE A / R EVENUE BY SHRI K C MATHEWS, DR A I /DATE OF HEARING 27 .0 5 . 2013 A I / DATE OF PRONOUNCEMENT 30 . 0 5 . 2013 / ORDER . . [ , % / T. K. SHARMA, J. M . THIS MISCELLANEOUS APPLICATION DATED 06.05.2013 FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF TRIBUNAL DATED 28.09.2012 IN ITA NO.361/RJT/1999 FOR THE ASSESSMENT YEAR 1984 - 85. THE MISCELLANEOUS APPLICATION READS AS UNDER: - IN ORDER DATED 28.09.2012 OF TAX TRIBUNAL THE BELOW MENTION ERROR IS LEFT OUT. 1 . IN ORDER DT. 28.09.2012 THE BENEFIT AND GAIN FROM SUPREME COURT JUDGMENT IS NOT RECEIVED BY US. 2 . THE REPRESENTATIVE OF THE DEPARTMENT DOES NOT HAVE EVIDENCE ON GROUND 3(III) OR 3(IV) RS.18,00,000/ - AND RS.7,25,000/ - WORTH GOODS. WE HAD PURCHASED AND S OLD. 3 . THE ABOVE MENTION GROUND SUCH GOODS HAS NOT TOUCHED INDIAN LAND FROM WHICH WE OR OTHERS HAVE MADE PROFIT OR SALE OF GOODS. THIS TYPE OF GOODS HAVE BEEN REPORTED OUT OF BOMBAY PORT TRUST. 4 . THERE IS DIFFERENCE OF OPINION ONLY BETWEEN TWO MEMBERS. THE SE TWO MEMBERS HAVE DESCRIBED IN ORDER DT. 28.09.2012 THAT WE SHOULD GET BENEFIT OF THE SUPREME COURT ORDER. BUT DEPARTMENTAL REPRESENTATIVE HAS TAKEN OBJECTION. BECAUSE OF THIS OBJECTION WE HAVE NOT RECEIVED BENEFIT OR GAIN OF SUPREME COURT ORDER. M.A.NO. 15/RAJ/2013 2 5 . AS PE R GROUND NO.3 (III) RS.18,00,000/ - GOODS PURCHASED AND GROUND NO.3 (IV) RS.7,25,000/ - PROFIT BOTH ADDITION TO BE DELETED. THIS IS OUR HUMBLE REQUEST. 2. AT THE TIME OF HEARING MISCELLANEOUS APPLICATION, ON BEHALF OF ASSESSEE, ASSESSEE HIMSELF APPEARED A ND POINTED OUT THAT THERE WAS A DIFFERENCE OF OPINION AMON GST TWO MEMBERS OF THE TRIBUNAL ; T HEREFORE FOLLOWING THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF CIT V. VEGETABLE PRODUCTS LTD. (1973) 88 ITR 192 (SC) , THE VIEW FAVOURABLE TO THE ASSESSEE S HOULD BE ACCEPTED. THE ASSESSEE EXPLAINED THAT THE HONBLE SUPREME COURT IN THE AFORESAID DECISION HELD THAT IF TWO REASONABLE VIEWS ARE POSSIBLE, THE ONE FAVOURABLE TO THE ASSESSEE MUST BE ADOPTED . HE CONTENDED THAT THE LD THIRD MEMBER IGNORED THIS HON BLE SUPREME COURTS JUDGMENT IN HIS ORDER; THEREFORE TRIBUNAL HAS COMMITTED AN ERROR WHILE PASSING THE ORDER U/S 255(4) IN IGNORING THE AFORESAID JUDGMENT OF HONBLE SUPREME COURT. AS AGAINST THIS, THE LD DEPARTMENTAL REPRESENTATIVE POINTED OUT THAT WHIL E PASSING THE ORDER U/S 255(4), THE M EMBERS WHO ORIGINALLY PASSED THE ORDER HAS NO OPTION BUT TO PASS THE ORDER AS PER MAJORITY VIEW . IN THIS CASE, THE TRIBUNAL IN ITS ORDER DATED 28.09.2012 U/S. 255(4), AS PER MAJORITY VIEW ALLOWED APPROPRIATE RELIEF TO THE ASSESSEE ; T HEREFORE THERE IS NO MISTAKE APPARENT FROM THE RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE I.T. ACT, 1961. THEREFORE THE APPLICATION OF THE ASSESSEE IS REJECTED. THE LD DEPARTMENTAL REPRESENTATIVE FURTHER POINTED OUT THAT THE TRIBUN AL U/S 254(2) HAS NO POWER TO REVIEW ITS ORDER. 3. THE RIVAL SUBMISSIONS WERE CONSIDERED. IT IS PERTINENT TO NOTE THAT ON ACCOUNT OF DIFFERENCE OF OPINION BETWEEN THE MEMBERS CONSTITUTED THE R EGULAR B ENCH, THREE QUESTIONS WERE REFERRED FOR CONSIDERATION O F THIRD MEMBER. THE ZONAL VICE - PRESIDENT CONSTITUTING AS THIRD MEMBER VIDE HIS ORDER DATED 05.09.2012 EXPRESSED HIS OPINION AND IN CONFORMITY WITH THE SAME, TRIBUNAL PASSED THE ORDER U/S 255(4) ON 28.09.2012. THIS ORDER WAS IN ACCORDANCE WITH THE MAJOR ITY VIEW. SECTION 255(4) OF THE I.T. ACT READS AS UNDER: - M.A.NO. 15/RAJ/2013 3 255 (4) - IF THE MEMBERS OF A BENCH DIFFER IN OPINION ON ANY POINT, THE POINT SHALL BE DECIDED ACCORDING TO THE OPINION OF THE MAJORITY, IF THERE IS A MAJORITY, BUT IF THE MEMBERS ARE EQUALLY DIV IDED, THEY SHALL STATE THE POINT OR POINTS ON WHICH THEY DIFFER, AND THE CASE SHALL BE REFERRED BY THE PRESIDENT OF THE APPELLATE TRIBUNAL FOR HEARING ON SUCH POINT OR POINTS BY ONE OR MORE OF THE OTHER MEMBERS OF THE APPELLATE TRIBUNAL, AND SUCH POINT OR POINTS SHALL BE DECIDED ACCORDING TO THE OPINION OF THE MAJORITY OF THE MEMBERS OF THE APPELLATE TRIBUNAL WHO HAVE HEARD THE CASE, INCLUDING THOSE WHO FIRST HEARD IT. 3. THE ASSESSEE HAS RELIED UPON THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF CIT V. VEGETABLE PRODUCTS LTD. (SUPRA) IN SUPPORT OF HIS ARGUMENT THAT THE VIEW TAKEN BY THE LD ACCOUNTANT MEMBER WAS FAVOURABLE TO THE ASSESSEE AND THEREFORE IT OUGHT TO HAVE BEEN FOLLOWED WHILE GIVING EFFECT TO THE OPINION OF THE THIRD MEMBER . IN CIT V. VEGETABLE PRODUCTS LTD, THE HONBLE SUPREME COURT HAS HELD AS UNDER: - ON THE OTHER HAND, IF TWO REASONABLE CONSTRUCTIONS OF A TAXING PROVISION ARE POSSIBLE, THAT CONSTRUCTION WHICH FAVOURS THE ASSESSEE MUST BE ADOPTED. THIS IS A WEL L - ACCEPTED RULE OF CONSTRUCTION RECOGNIZED BY THIS COURT IN SEVERAL OF ITS DECISIONS 4. IT IS QUITE APPARENT ON BARE PERUSAL OF THE AFORESAID OBSERVATION MADE BY THE HONBLE SUPREME COURT THAT THE VIEW FAVOURABLE TO THE ASSESSEE IS REQUIRED TO BE TAKEN WHEN TWO REASON ABLE CONSTRUCTIONS OF A TAXING PROVISION ARE POSSIBLE. THE AFORESAID JUDGMENT DOES NOT SAY THAT THE VIEW TAKEN BY ONE MEMBER WHICH IS FAVOURABLE TO THE ASSESSEE SHOULD ALWAYS BE FOLLOWED REGARDLESS OF WHETHER IT HAS BEEN ACCEPTED OR NOT BY THE THIRD MEMBE R. IN THE PRESENT CASE THE ORDER HAS ALREADY BEEN PASSED ACCORDING TO THE OPINIO N OF THE MAJORITY OF THE MEMBERS CONSTITUTING THE B ENCH. IN THIS VIEW OF THE MATTER, THE OPINION EXPRESSED IN THE MINORITY JUDGMENT CANNOT FORM THE BASIS FOR RECTIFICATION. T HE AFORESAID JUDGMENT OF THE HONBLE SUPREME COURT IS HARDLY RELEVANT IN THIS CONTEXT. IN THIS VIEW OF THE MATTER , THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINAB OVE. SD/ - SD/ - ( D. K. SRIVASTAVA ) (T. K. SHARMA) OVE. / ACCOUNTANT MEMBER / JUDICIAL MEMBER / ORDER DATE 30 . 05 .2013 . /RAJKOT BT M.A.NO. 15/RAJ/2013 4 T O O / COPY OF ORDER FORWARDED TO: - 1 . / APPELLANT - SHRI R.K. MEHTA, 29, KARANPARA, KRISHNA NIVAS, RAJKOT 2 . R / RESPONDENT - ITO, WARD - 2(2), RAJKOT 3 . \ / CONCERNED CIT - RAJKOT 4 . - / CIT (A) - VIII, AHMEDABAD 5 . \ , I \ , / DR, ITAT, RAJKOT 6 . / GUARD FILE. / BY ORDER , TRUE COPY PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL, RAJKOT.