BROTHERS PHARMA P LTD., Jaipur V. ITO, Jaipur

MA 152/JPR/2016

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6621 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 7 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-05-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 13-10-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA
• Assessee Lawyers: MAHENDRA GARGIYA
• Keywords: Principle of natural justice
• Section: 154

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH HKKXPAN] YS[KK L NL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI BHAGCHAND, A M M/A. NO. 152/JP/2016 (ARISING OUT ITA NO. 339/JP/2013) FU/KZKJ.K O'K Z @ ASSESSMENT YEAR : 1988-89 M/S BROTHERS PHARMA PVT. LTD. 869-70, ROAD NO. 14P, V.K.I. AREA, JAIPUR. CUKE VS. THE ITO, WARD NO. 4(3), JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AAACB 8831 H VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI MAHENDRA GARGIYA (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI VARINDER MEHTA (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 04/05/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT: 14/05/2018 VKNS'K@ ORDER PER: VIJAY PAL RAO, J.M. BY WAYS OF THIS MISCELLANEOUS APPLICATION THE ASSES SEE IS SEEKING RECALLING OF THE ORDER OF THIS TRIBUNAL DATED 21.04 .2016. 2. THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT WH ILE DECIDING THE APPEAL OF THE ASSESSEE THE TRIBUNAL HAS NOT CONSIDE RED THE DETAILED FACTUAL SUBMISSIONS AS WELL AS AFFIDAVITS FILED BY THE ASSESSEE IN SUPPORT OF THE CLAIM THAT AN APPLICATION U/S 154 OF THE ACT WAS FILED BY THE M.A. NO.152/JP/2016 M/S BROTHERS PHARMA PVT. LTD. VS. ITO 2 ASSESSEE ON 08.09.2008. HE HAS FURTHER SUBMITTED TH AT THE TRIBUNAL HAS CONFIRMED THE FINDING OF THE LD. CIT(A) ON THE FACT UAL ASPECT OF THE POINT THAT THERE WAS NO ACKNOWLEDGEMENT OF FILING OF THE ALLEGED RECTIFICATION PETITION DATED 08.09.2008. THE LD. AR HAS FURTHER C ONTENDED THAT THE SAID APPLICATION FILED BY THE ASSESSEE DULY BEARS T HE STAMP OF OFFICE OF THE LD. CIT(A)-III, JAIPUR HOWEVER, IT IS A ROUTINE PRACTICE IN THE OFFICE OF TAXING AUTHORITIES THAT NO PROPER RECEIPT IS ISSUED BUT ONLY A STAMP IS PUT ON THE COPY OF THE DOCUMENT/APPLICATION. THEREF ORE, WHEN THE ASSESSEE HAS FILED A COPY OF APPLICATION DULY STAMP OF OFFICE OF THE LD. CIT(A) DATED 08.09.2008 THEN NOT ACCEPTING THE SAID FACT CONSTITUENTS A MISTAKE APPARENT ON RECORD. HE HAS FURTHER POINTED OUT THAT THE ORDER SUFFERS FROM MISTAKE DUE TO THE REASON THAT THE WRI TTEN SUBMISSIONS FILED BY THE ASSESSEE ALONG WITH THE AFFIDAVIT WERE NOT CONSIDERED BY THE TRIBUNAL WHILE PASSING THE IMPUGNED ORDER. IN S UPPORT OF HIS CONTENTION, HE HAS RELIED UPON THE DECISION OF HON BLE SUPREME COURT IN CASE OF CIT VS. DAULAT RAM RAWATMULL 87 ITR 349 AS WELL AS DECISION IN CASE OF CIT VS. BEDI & CO. PVT. LTD. 23 0 ITR 580 . THUS, THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT SOME VERY IMPORTANT CONTENTION HAS BEEN COMPLETELY LOST SITE OF THE TRIBUNAL WHILE M.A. NO.152/JP/2016 M/S BROTHERS PHARMA PVT. LTD. VS. ITO 3 PASSING THE IMPUGNED ORDER AND THEREFORE, THERE IS A MISTAKE IN THE IMPUGNED ORDER OF THE TRIBUNAL WHICH IS REQUIRED TO BE RECTIFIED. 3. ON THE OTHER HAND, LD. DR HAS VEHEMENTLY OPPOSED THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE AN D SUBMITTED THAT THE TRIBUNAL HAS DECIDED THE APPEAL OF THE ASSESSEE ON MERITS AFTER CONSIDERING ALL RELEVANT FACTS AS WELL AS THE CONTE NTIONS OF THE ASSESSEE. THEREFORE, THERE IS NO APPARENT MISTAKE ON RECORD W HICH CAN BE RECTIFIED UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT. THE ASSESSEE IS SEEKING REVIEW OF THE DECISION TAKEN BY THE TRIB UNAL ON MERITS OF THE CASE. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. THE CONTROVERSY IN THE APPEAL F ILED BY THE ASSESSEE WAS REGARDING THE APPLICATION FILED U/S 154 ON 18.0 2.2011 WAS DISMISSED BY THE LD. CIT(A) ON THE GROUND THAT THE SAME WAS BARRED BY LIMITATION BEING FILED AFTER EXPIRY OF 4 YEARS FROM THE DATE OF ORDER DATED 10.09.2004. THE ASSESSEE CONTENDED BEFORE THE TRIBUNAL THAT THE SAID LETTER DATED 18.02.2011 WAS NOT A FRESH APPLIC ATION U/S 154 OF THE ACT BUT IT WAS ONLY A REMINDER FILED BEFORE THE LD. CIT(A) TO DECIDE THE PETITION FILED U/S 154 OF THE ACT ON 08.09.2008. TH US, THE ASSESSEE RAISED THIS ISSUE WHICH IS PURELY FACTUAL IN NATURE AND CAN BE VERIFIED M.A. NO.152/JP/2016 M/S BROTHERS PHARMA PVT. LTD. VS. ITO 4 FROM THE RECORD OF THE LD. CIT(A). THE TRIBUNAL WHI LE DECIDING THIS ISSUE IN ASSESSEES APPEAL HAS DULY REPRODUCE THE ORDERS OF THE LD. CIT(A) DATED 08.10.2004 AS WELL AS DATED 18.01.2013 WHEREB Y THE APPLICATION FILED U/S 154 OF THE ASSESSEE WAS REJECTED BY THE L D. CIT(A) ON THE GROUND OF LIMITATION. THE CONTENTION OF THE LD. AR OF THE ASSESSEE HAS DULY BEEN RECORDED THE IMPUGNED ORDER OF THE TRIBU NAL IN PARA 4 AND 4.1 AS UNDER:- 4. FROM THE SIDE OF THE APPELLANT LEARNED A.R. MR. MAHENDRA GARGIYA APPEARED AND PLEADED THAT THE RECTIFICATION APPLICATION FILED BY THE ASSESSEE ON 08.09.2008 SHOULD NOT HAVE BEEN DOUBTED AND REJECTED. LEARNED A.R. HAS PLEADED THAT THE PETITION FILED ON 18.02.2011, WHICH WAS HELD AS TIME BARRED, WAS NOTHING BUT A REMINDER OF THE SAID PREVIOUS APPLICATION. SI NCE THE PREVIOUS APPLICATION WAS WITHIN THE PRESCRIBED TIME LIMIT, HENCE IT WAS WRONG ON THE PART OF THE LEARNED. CIT( APPEALS) TO HOLD THAT THE CLAIM OF RECTIFICATION OF THE ASSE SSEE WAS TIME BARRED. IN OTHER WORDS, LEARNED A.R. HAS PLACE D STRONG RELIANCE ON THE IMPUGNED RECTIFICATION APPLICATION DATED 18 TH SEPT., 2008. 4.1 ONE MORE FACT HAS ALSO BEEN BROUGHT ON RECORD T HAT AGAINST THE PENALTY ORDER U/S 271(1)(E) LEARNED CIT (APPEALS) IN APPEAL HEARING NO. 184/JPR/2006-07 VIDE ORDER DA TED 113 TH JANUARY, 2011 HAS DELETED THE PENALTY BY ACCEPTING THE FACT THAT THE ADDITION IN QUESTION WAS NOT SUSTAINA BLE IN THE EYES OF LAW. LEARNED A.R. HAS, THEREFORE, PLEADED T HAT IN A SITUATION WHEN ON IDENTICAL FACTS NO PENALTY WAS LE VIED ON THE AMOUNT IN QUESTION, THEREFORE, ON THE SAME LINES TH E LEARNED CIT(APPEALS) SHOULD HAVE RECTIFIED THE MISTAKE, INS TEAD OF M.A. NO.152/JP/2016 M/S BROTHERS PHARMA PVT. LTD. VS. ITO 5 REJECTING AS BARRED BY LIMITATION. IN SUPPORT OF TH IS PLEA HE HAS ALSO REFERRED AN ORDER OF SETTLEMENT COMMISSION AND REQUESTED THAT ON THE GROUND OF NATURAL JUSTICE THE RECTIFICATION IS PERMISSIBLE IN THE EYES OF LAW. THUS, IT IS CLEAR THAT THE CRUX AND SUBSTANCE OF TH E CONTENTIONS AND CASE OF THE ASSESSEE WAS DULY RECORDED BY THE TRIBUNAL I N THE IMPUGNED ORDER. IT IS NOT NECESSARY AND EVEN NOT APPROPRIATE TO RECORD EACH AND EVERY WORD AND SENTENCE OF THE SUBMISSIONS OF THE P ARTIES BUT IF THE PITH AND SUBSTANCE OF THE CONTENTION OF THE PARTIES ARE RECORDED IN THE ORDER THE SAME IS SUFFICIENT TO SHOW THAT THE TRIBU NAL HAS CONSIDERED THE CONTENTION OF THE PARTIES. THE TRIBUNAL HAS DEC IDED THE ISSUE IN PARA 6 AND 6.1 OF THE IMPUGNED ORDER AS UNDER:- 6 I HAVE HEARD BOTH THE SIDES AT SOME LENGTH. I HA VE ALSO PERUSED THE RECORDS AVAILABLE BEFORE ME. FIRST OF A LL I SHALL DEAL WITH THE IMPUGNED RECTIFICATION PETITION ALLEG EDLY DATED 8 TH SEPT., 2008 FILED BEFORE THE LEARNED CIT(APPEALS). ABOUT THE GENUINENESS OF THE IMPUGNED PETITION U/S 154, I N MY OPINION THE LEARNED CIT(APPEALS) WAS THE ONLY AUTHO RITY TO COMMENT ON THE EXISTENCE OF THE PETITION IN HIS OFF ICE RECORDS. 1 HAVE NOTICED THAT THE LEARNED CIT(APPEAL S) HAS INVESTIGATED AND THEREAFTER ON PERUSAL OF RECORD HE HAS NOTICED THAT THE SAID PETITION WAS NOT AVAILABLE ON RECORD. HE HAS FURTHER COMMENTED THAT THE STAMP AFFIXED DID NOT BEAR ANY SIGNATURE OF THE RECEIPT CLERK. LEARNED CIT(APPEALS) HAS ALSO NOTICED THAT THERE WAS NO REC EIPT. NO. M.A. NO.152/JP/2016 M/S BROTHERS PHARMA PVT. LTD. VS. ITO 6 MENTIONED ON THE IMPUGNED RECTIFICATION APPLICATION . LEARNED CIT(APPEALS) HAS SEARCHED THE OFFICE RECORD AND FOUND THAT -NO SUCH RECTIFICATION APPLICATION WAS E VER RECEIVED AS PER THE 'RECEIPT REGISTER' AND 'APPEAL REGISTER' MAINTAINED IN HIS OFFICE. THEREFORE, LEAR NED CIT(APPEALS) HAS ISSUED A SHOW CAUSE NOTICE TO THE ASSESSEE AS TO WHY THE IMPUGNED RECTIFICATION APPLI CATION DATED 18-02-2011 BE DISMISSED AS BARRED BY LIMITATI ON. IN THE LIGHT OF THE FACTUAL MATRIX, IT IS NOT WORTHY O N MY PART TO REJECT THE FINDINGS GIVEN ON FACTS. OBVIOUSLY WHY T HE OFFICER OF COMMISSIONER RANK WOULD NOT ENTERTAIN A RECTIFIC ATION APPLICATION IF IT WAS FOUND IN HIS OFFICE RECORDS. ONLY AFTER THOROUGH SEARCH HE WAS NOT ABLE TO TRACE THE SAID APPLICATION. ON THE OTHER HAND, THE APPLICANT HAS A LSO NOT SATISFACTORILY EXPLAINED THE DEFECTS WHICH WERE POI NTED OUT BY THE LEARNED CIT(APPEALS) THAT WHY THERE WAS NO R ECEIPT NO. ON THE STAMP. HOW AN OFFICE STAMP WAS AFFIXED O N THE SAID RECTIFICATION PETITION IS BEYOND UNDERSTANDING . WITHOUT COMMENTING ANY FURTHER, I HEREBY HOLD THAT THE LEAR NED CIT(APPEALS) IS JUSTIFIED IN NOT ENTERTAINING THE A LLEGED PETITION FILED U/S 154 OF I.T. ACT. THE FINDIN2, ON FACTS STATED BY HIM SHOULD NOT BE DISTURBED, SPECIALLY WH EN NO EVIDENCE FROM OTHER SIDE IS PLACED BEFORE ME. 6.1 AS FAR AS THE QUESTION OF LIMITATION PRESCRIBED UNDER THE ACT, IT IS WORTH MENTIONING THAT SECTION 154(7) PROHIBITS THAT NO RECTIFICATION OR AMENDMENT SHALL BE MADE BY AN OFFICER OF THE REVENUE DEPARTMENT AFTER THE E XPIRY OF FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER SOUGHT TO BE AMENDED WAS PASSED. IN A STA TUTE A LIMIT IS PROVIDED SO THAT THE STEPS SHOULD BE TAKEN BY THE CONCERNED OFFICERS WITHIN A REASONABLE TIME. ONCE A LIMITATION IS PRESCRIBED THEN ON ONE HAND THE OFFIC ER INCHARGE IS EXPECTED TO PASS AN .ORDER WITHIN THE PRESCRIBED TIME AND IF AN ORDER IS NOT PASSED WITHI N THE M.A. NO.152/JP/2016 M/S BROTHERS PHARMA PVT. LTD. VS. ITO 7 PRESCRIBED TIME THEN SUCH AN ORDER IS ALWAYS HELD A S BARRED BY LIMITATION. HENCE NOT SUSTAINABLE IN THE EYES OF LAW. SIDE BY SIDE THE APPLICANT SEEKING A RECTIFICA TION CAN ALSO NOT TAKE THE LIBERTY OF FILING A RECTIFICATION APPLICATION AT ANYTIME. AS PER HIS CONVENIENCE. PARTICULARLY IN THIS CASE THE ORIGINAL ORDER WAS PASSED - BY LEARNED CIT(APPEALS)-III, JAIPUR ON 10-09-2004 AND THE APPLICANT HAS PURSUED THE APPLICATION IN THE YEAR 2013. THERE IS NOTHING ON R ECORD THAT WHY THE APPELLANT HAD PURSUED THE APPLICATION AFTER A LONG GAP OF ABOUT 8 TO 9 YEARS. IT HAS ALSO NOT BEE N EXPLAINED THAT EVEN IF AN ALLEGED RECTIFICATION APP LICATION WAS SUBMITTED ON 8 TH SEPT., 2008 THEN WHY IT WAS NOT PURSUED AT THAT POINT OF TIME AND WHY IT WAS PRESSE D ONLY IN THE YEAR 2011. ALL THESE QUESTIONS REMAINED UNAN SWERED BEFORE ME. THE TRIBUNAL HAS NO JURISDICTION TO COMP EL THE REVENUE OFFICER TO GO OUTSIDE THE LIMITS OF TIME PR ESCRIBED UNDER THE STATUTE. A WRIT MANDAMUS IS THE JURISDICT ION OF THE HON'BLE HIGH COURT BUT BEYOND THE JURISDICTION OF THE APPELLATE TRIBUNAL. BECAUSE OF THE REASONS AS DISCU SSED HEREIN ABOVE I AM NOT INCLINED TO INTERFERE WITH TH E VIEW TAKEN BY LEARNED CIT(APPEALS), THEREFORE, BOTH THE GROUNDS RAISED BEFORE ME ARE HEREBY DISMISSED. THUS, IT IS CLEAR THAT THE TRIBUNAL HAS ELABORATELY DISCUSSED THE FACTUAL MATRIX OF THE ISSUE AND FINALLY COME TO THE CONCLUS ION THAT THE ASSESSEE HAS NOT PRODUCED ANY MATERIAL/EVIDENCE TO ESTABLISH IT BEYOND DOUBT THAT THE ASSESSEE HAS FILED ALLEGED APPLICATION U/S 154 OF THE ACT ON 08.09.2008. EVEN AT THE TIME OF THIS MISCELLANEOUS APPLICATION THE ASSESSEE HAS NOT PRODUCED ANY DOCUMENT OR RECORD TO PROVE THAT THE M.A. NO.152/JP/2016 M/S BROTHERS PHARMA PVT. LTD. VS. ITO 8 ALLEGED APPLICATION U/S 154 OF THE ACT DATED 08.09. 2008 WAS FILED BEFORE THE LD. CIT(A). THEREFORE, THE ASSESSEE IS HARPING ON THE POINT THAT THE TRIBUNAL SHOULD PRESUME THAT SUCH APPLICATION WAS F ILED BY THE ASSESSEE WHEN THE ASSESSEE HAS CLAIMED SO BECAUSE THE STAMP OF THE LD. CIT(A) IS APPEARING ON THE SAID APPLICATION WITHOUT ANY SI GNATURE OR ACKNOWLEDGEMENT. THE LD. CIT(A) HAS VERIFIED ITS RE CORD AT THE TIME OF PASSING THE IMPUGNED ORDER AND FOUND THAT NO SUCH A PPLICATION WAS RECEIVED BY ITS OFFICE. THE CLAIM OF THE ASSESSEE W AS VERIFIED FROM THE LETTER RECEIVED REGISTER AND APPEAL RECEIVED REGIST ER MAINTAINED IN THE OFFICE OF THE LD. CIT(A). THEREFORE, WHEN THE ALLEG ED APPLICATION WAS NOT FOUND TO BE RECEIVED IN THE OFFICE AS PER THE RECOR D MAINTAINED BY THE LD. CIT(A) THEN, IN THE ABSENCE OF ANY EVIDENCE TO ESTABLISH BEYOND THAT THE SAID APPLICATION WAS FILED BY THE ASSESSEE, THE DECISION TAKEN BY THE TRIBUNAL ON THE BASIS OF FACT OF THE CASE CANNOT BE SAID TO HAVE SUFFERED FROM ANY ERROR MERELY ON THE BASIS OF THE CONTENTIO NS AND SUBMISSIONS WHICH IS NOTHING BUT ASSUMPTION OF FACTS. HENCE, IN THE ABSENCE OF ANY FRESH EVIDENCE WHICH CAN HAVE EFFECT OF CHARGING TH E OUTCOME OF THE DECISION ON THE MATTER THE MISCELLANEOUS APPLICATIO N FILED BY THE ASSESSEE IS DEVOID OF ANY MERIT OR SUBSTANCE. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DI SMISSED. M.A. NO.152/JP/2016 M/S BROTHERS PHARMA PVT. LTD. VS. ITO 9 ORDER PRONOUNCED IN THE OPEN COURT ON 14/05/2018 SD/- SD/- HKKXPAN FOT; IKY JKO (BHAGCHAND) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 14/05/2018. * SANTOSH. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S BROTHERS PHARMA PVT. LTD., JAIPU R. 2. IZR;FKHZ@ THE RESPONDENT- ITO, WARD-4(3), JAIPUR. 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 {M.A. NO. 152/JP/2016} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR