Indo-american Hybrid Seeds I, Bangalore V. Deputy Commisioner of Income Tax, Bangalore

MA 154/BANG/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5325 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-03-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 16-12-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A SHANKAR
• Assessee Lawyers: M K BIJU J
• Section: 27; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, B E NGAL U R U BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO , ACCOUNTANT MEMBER MISC.PETN.NO.154/BANG/2016 (IN ITA NO. 1283/ BANG/20 14 ) ASSESSMENT YEAR: 2009 - 10) AND MISC.PETN.NO.155/BANG /2016 (IN CO NO.142/BANG/2015 ) (ASSESSMENT YEAR: 2009 - 10 ) DEPUTY COMMISSIONER OF INCOME - TAX, CIRCLE 11(4), BANGALORE. VS. PETITIONER M/S.INDO AMERICAN HYBRID SEEDS INDIA PVT.LTD. PB NO.7099, 7 TH KM, BANASHANKARI - KENGERI LI NK ROAD,CHANNASANDRA VILLAGE, SUBRAMANYAPURA PO, BANGALORE - 560001. PA NO. AAACI 4027 J RESPONDENT PETITIONER BY : SHRI M.K.BIJU, JCIT(DR). RESPONDENT BY : SHRI A.SHANKAR, ADVOCATE. DATE OF HEARING : 13/01/2017 DATE OF PRONOUNCEMENT : 13 /03 /2017 O R D E R PER I NTURI RAMA RAO, AM : THESE MISC.PETITIONS (MPS) ARE FILED BY THE ASSESSEE SEEKING RECTIFICATION OF THE ORDER OF THIS TRIBUNAL IN ITA NO.1283/BANG/2014 AND C.O.NO.142/BANG/2015 DATED 11/08/2016 FOR THE ASSESSMENT YEAR 2009 - 10. MP NO S . 154 & 155 /BANG/201 6 PAGE 2 OF 3 2 . IT IS THE CONTENTION OF THE ASSESSEE THAT THERE WAS NO MATERIAL BROUGHT ON RECORD BY THE REVENUE TO SHOW THAT NOTICE U/S 143(2) OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT] WAS ISSUED BY THE ASSESSING OFFICER (AO). THIS TR IBUNAL HAS PASSED DETAILED ORDER VIDE PARAS.8 AND 9 WHEREIN THE TRIBUNAL FELT THAT IN ABSENCE OF ANY MATERIAL CONTRARY TO THE FINDINGS GIVEN BY THE AO IN THE ASSESSMENT ORDER, THE CIT(A) OUGHT NOT TO HAVE HELD THAT THERE WAS NO SERVICE OF NOTICE U/S 143(2) OF THE ACT. WHEN THE AO HAD GIVEN A FINDING IN THE ASSESSMENT ORDER, IT IS PRESUMED, UNLESS AND UNTIL IT IS PROVED CONTRARY THAT THE FINDINGS ARE CORRECT AND THE AO ACTED BONA FIDE. BASED ON THIS SALUTARY PRINCIPLE, THE TRIBUNAL HAD COME TO THE CONCLUSIO N THAT THERE IS VALID ISSUE AND SERVICE OF NOTICE U/S 143(2). THE TRIBUNAL ALSO RELIED ON SEVERAL DECISIONS AND ALSO SECTION 27 OF THE GENERAL CLAUSES ACT TO COME TO THE ABOVE CONCLUSION. IT IS SETTLED PRINCIPLE OF LAW THAT UNDER THE GARB OF RECTIFICATIO N OF MISTAKE, IT IS NOT POSSIBLE FOR A PARTY TO TAKE FURTHER CHANCE OF RE - ARGUING THE APPEAL ALREADY DECIDED. FROM THE ORDER OF THE TRIBUNAL, IT IS CLEAR THAT IN RESPECT OF ALL THE ISSUES RAISED IN THE M ISC P ETITION , THE TRIBUNAL CONSIDERED / DISCUSSED ALL T HE CONTENTIONS RAISED AND ARGUED BY THE PARTIES AND ULTI MATELY RECORDED ITS FINDING AND CLEAR ADJUDICATION HA D BEEN MADE. THE TRIBUNAL HA D GIVEN ITS OWN REASONING TO COME TO THE CONCLUSION. THE ISSUES HAVE ALREADY BEEN DISCUSSED AND DECIDED ON MERITS. THE ORDER OF THE TRIBUNAL MAY BE ERRONEOUS MP NO S . 154 & 155 /BANG/201 6 PAGE 3 OF 3 WHICH CAN ONLY BE MODIFIED, RECTIFIED AND SET ASIDE IN THE PROCEDURE KNOWN TO LAW BUT NOT IN THE PETITION U/S 254(2) OF THE ACT. THUS, THE ASSESSEE HAD FAILED TO MAKE OUT A CASE CAPABLE OF BEING RECTIFIED UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT. HOWEVER, WE MAKE IT CLEAR THAT WHEN THE CIT(A) HAS ALLOWED THE APPEAL ON THE PRELIMINARY GROUND OF JURISDICTION THAT THERE WAS NO SERVICE OF NOTICE U/S 143(2) OF THE ACT, NOW IT IS OPEN FOR THE CIT(A) TO ADJUDI CATE THE APPEAL ON THE ME RITS OF ADDITION. 3. THUS THE MISC. PETITION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 13 TH MARCH , 201 7 S D/ - SD/ - (VIJAY PAL RAO) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE : B EN GAL URU D A T E D : 13 /0 3 /2017 SRINIVASULU, SPS COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) - 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE TRIBUNAL BANGALORE