Shri Nareshbhai Muljibhai Vyas, Baroda V. The Income tax Officer, Ward-2(2), Baroda

MA 16/AHD/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6796 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2002-2003
• Appeal Filed On: 09-02-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Keywords: Depreciation; Rectification of order; Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'C' BEFORE SHRI BHAVNESH SAINI,JM & SHRI A N PAHUJA,AM M A NO.16/AHD/2011 [IN ITA NO.1594/AHD/2006] (ASSESSMENT YEAR:-2002-03) SHRI VYAS NARESHBHAI MULJIBHAI, PLOT NO.3, PARAS KUNJ SOCIETY-1, (OPP. ANAND PARTY PLOT) B/H UMIYA VIJAY SOCIETY, SATELLITE ROAD, AHMEDABAD V/S INCOME-TAX OFFICER, WARD-2(2), BARODA PAN: AAWPV 6809 L [ORIGINAL APPELLANT] [APPLICANT] [ORIGINAL RESPONDENT] [RESPONDENT] APPLICANT BY :- NONE [WRITTEN SUBMISSIONS] REVENUE BY:- SHRI B L YADAV, DR O R D E R A N PAHUJA: THIS IS A MISCELLANEOUS APPLICATION[MA] FILED ON 9.2.2011 BY THE ASSESSEE, SEEKING RECALL OF AN ORDE R DATED 6-7-2010 OF THE ITAT IN ITA NO.1594/AHD/2006 FOR ASSESSMENT YEAR 2002-03. 2. IN THE MISCELLANEOUS APPLICATION, THE ASSESSEE S UBMITTED AS UNDER:- MOST RESPECTFULLY SHEWETH: 1. AT THE OUTSET, WHAT IS REQUESTED IN THE PRESENT APP LICATION UNDER SECTION 254(2) OF THE I.T. ACT, 1961, IS RECTIFICATION OF MISTAKE APPARENT ON RECORD IN ORDER DATED 06-07-2010 (RECEIVE D ON 21-09- 2010) PASSED BY THIS HONBLE TRIBUNAL IN ITA NO.1594/ AHD/2006. 2. PRESENT APPLICANT THE ASSESSEE HAS FILED AN APPEAL BEFORE THIS HONBLE TRIBUNAL AGAINST AN ORDER DATED 10-04-2006 O F THE LD. CIT(A)-II, BARODA, WHICH WAS NUMBERED AS ITA NO.1594/A HD/2006. 3. THIS HON'BLE TRIBUNAL HAS DISMISSED THE SAID APPEAL I N LIMINE, FOLLOWING THE DECISION OF THE HON'BLE DELHI BENCH OF T HE TRIBUNAL IN THE CASE OF MULTIPLAN (INDIA) PVT. LTD. VS. CIT [ 38 I TD 320 ] (DEL) AND THE DECISION OF THE HON'BIE MADHYA PRADESH HIGH CO URT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT [(1996) 2 23 ITR 480 (MP)], ON THE GROUND THAT NONE APPEARED ON BEHA LF OF THE 2 MA NO.16/AHD/2011 ASSESSED WHEN THE APPEAL WAS CALLED FOR HEARING NOR ANY R EQUEST FOR ADJOURNMENT WAS FILED. PRIOR ALSO APPEAL HAD BEEN CONTINUALLY ADJOURNED ON THE BASIS OF REQUEST DATED 16-12-2.009 & 11-2-2010 FILED BY THE ASSESSED, AND THEREFORE, IT APPEARS THAT T HE ASSESSEE IS NOT INTERESTED IN PURSUING THE APPEAL, VIDE ORDER DA TED 6-7-2010. HERETO ANNEXED AND MARKED AS EXHIBIT 'A' IS A SELF ATTE STED COPY OF THE SAID ORDER. HEREINAFTER REFERRED TO AS 'IMPUGNED ORDER'. 4 AT THIS JUNCTURE, APROPOS AND IN FURTHERANCE OF THE AFORESAID, IT DESERVES TO BE MENTIONED THAT, AS A MATTER OF FACT, THE APPELLANT- ASSESSEE SUBMITTED HIS WRITTEN ARGUMENTS, ALONG WITH 6 NOS . DOCUMENTS, ON 19 TH . APRIL 2010, AND COPY WHEREOF HAS BEEN GIVEN TO THE DR ALSO. HERETO ANNEXED AND MARKED AS EXHIBIT ' B' IS A SELF ATTESTED COPY OF THE SAID WRITTEN SUBMISSION. THE APPLI CANT CRAVES LEAVE OF THIS HON'BLE TRIBUNAL TO REFER TO AND RELY UPON THE SAME, IF SO REQUIRED, AT THE TIME OF HEARING OF THE PRESENT A PPLICATION. 5 IN VIEW OF THE ABOVE, THE OBSERVATION MADE BY THE HON'BLE TRIBUNAL, THAT, '.....IT APPEARS THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING THE APPEAL.' ARE MISTAKE APPARENT FROM THE RECORD, AND REQUIRED TO BE RECTIFY. 6 IN VIEW OF THE ABOVE, THE APPLICANT BEGS TO APPROACH THIS HON'BLE TRIBUNAL BY WAY OF THIS APPLICATION, ON THE FOLLOWING AMONGST GROUNDS, INTER ALIA: GROUNDS [A] THAT, IN IMPUGNED ORDER THE OBSERVATION MADE BY THE HON'BLE TRIBUNAL, THAT, '.....IT APPEARS THAT THE ASSE SSEE IS NOT INTERESTED IN PURSUING THE APPEAL' AND DISMISSED THE SAI D APPEAL IN LIMINE, FOLLOWING THE DECISION OF THE HON'B LE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF MULTIPLAN (INDIA ) PVT. LTD. [38 ITD 320] (DEL) AND THE DECISION OF THE HONBLE MA DHYA PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJ IRAO HOLKAR VS. CWT (1996) 223 ITR 480 (MP)], ARE MISTAKE APPARENT FROM THE RECORD, AND REQUIRED TO BE RECTIFY IN VIEW OF SETTLED PROPOSITION OF LAW. [B] THAT, APPARENTLY IT TRANSPIRES FROM THE IMPUGNED ORDER, THAT, AT THE TIME OF PASSING IMPUGNED ORDER, THE HON'BLE TR IBUNAL HAS NOT LOOKED INTO THE WRITTEN ARGUMENTS SUBMITTED BY THE APPELLANT. THUS, IN SUBSTANCE, THE VERY PREMISE OF THE ' IMPUGNED ORDER IS WITHOUT ANY BASIS AND THE FINDINGS RECORDED THEREIN ARE IN CONTRAVENE OF RECORD, AND HENC E, PERVERSE IN NATURE. 7 THE FACTS AND CIRCUMSTANCES OF THE CASE, IN OXTENSOR, UN MISTAKABLY AND CONCLUSIVELY, LEAD TO THE CONSTRUCTION, BEYOND THE P ROVINCE OF 3 MA NO.16/AHD/2011 DOUBT THAT, THERE IS MISTAKE APPARENT FROM THE RECORD I N IMPUGNED ORDER, AND IF THE IMPUGNED ORDER PERMITTED TO HOLD THE FIELD, GRAVE AND SUBSTANTIAL LEGAL INJURY CAUSE TO THE PRESENT APPLICA NT. IT WOULD, THEREFORE, BE IN THE INTEREST OF THE JUSTICE AND FITNE SS OF THINGS TO GRANT AN ORDER FOR RECTIFICATION OF THE IMPUGNED ORDE R. 8 THE APPLICANT CRAVES LEAVE OF THIS HON'BLE TRIBUNAL T O ADD, TO AMEND, TO MODIFY, TO DELETE AND/OR RESCIND ANY OF THE FOREGOING PARAGRAPHS AS AND WHEN NECESSARY. 9 THE APPLICANT SUBMIT THAT HE HAS NO OTHER EFFICACIOUS ALTERNATIVE REMEDY AVAILABLE UNDER LAW, BUT TO APPROACH THIS HO N,BLE TRIBUNAL BY WAY OF PRESENT APPLICATION, AND THEREFORE, THE APP LICANT IS APPROACHING THIS HON'BLE TRIBUNAL WITH THE PRAYERS CONT AINED IN THE APPLICATION, IF GRANTED, WOULD BE FULL AND COMPLETE. 10 THE APPLICANT SUBMITS THAT THERE IS NO DELAY OR LACHE S ON THE PART OF THE APPLICANT IN APPROACHING THIS HON'BLE TRIBUNAL WIT H THE PRESENT APPLICATION. ON THE CONTRARY, THE APPLICANT HAS APPRO ACHED THIS HON'BLE TRIBUNAL WITH UTMOST EXPEDITION. 11 THE APPLICANT SUBMITS THAT THE DOCUMENTS SUBMITTED AL ONG WITH THIS APPLICATION AS ANNEXURES ARE SELF ATTESTED COPY OF THE O RIGINAL DOCUMENTS. 12 THE APPLICANT HAS NOT FILED ANY OTHER APPLICATION / PETITION EITHER IN THIS HONBLE TRIBUNAL OR IN ANY OTHER COURT INCLUDING THE HONBLE HIGH COURT OF GUJARAT AND HONBLE SUPREME COURT OF INDIA, ON THE SUBJECT MATTER, SAVE AND EXCEPT AS STATED HEREINABOVE. 13 IN THE PREMISES AFORESAID, THE APPLICANT PRAYS AS UN DER:- (A) THIS HONBLE TRIBUNAL BE PLEASED TO ISSUE AN ORDER OR DIRECTION TO MAKE RECTIFICATION IN IMPUGNED ORDER CONSIDE RING THE WRITTEN SUBMISSIONS SUBMITTED BY APPELLANT ON 19 TH APRIL, 2010. (B) THAT THIS HONBLE TRIBUNAL BE PLEASED TO PASS SUCH OTHER AND FURTHER ORDERS AS MAY BE DEEMED JUST AND PROPER. AND FOR THIS ACT OF KINDNESS AND JUSTICE, THE APPLICANT SHALL AS IN DUTY BOUND FOR EVER PRAY. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE WHEN THE MA WAS CALLED FOR HEARING ; INSTEAD WRITTEN SUBMISSIONS V IDE LETTER DATED 17- 06-2011 WERE FILED, WHICH READ AS UNDER:- 4 MA NO.16/AHD/2011 RE: MA.NO.16/AHD/LL ARISING OUT OF ITANO.L594/AHD/0 6 FOR A.Y.02-03. SUB: REQUEST FOR CONSIDERING WRITTEN SUBMISSIONS AND TH E FOLLOWING / PERSONAL PRESENCE IS WAIVED. THE HEARING OF THE ABOVE REFERRED MA IS FIXED BEFORE YOUR HONOURS ON 24- 6-201 1 WHICH MAY BE DISPOSED OFF ON MERITS AND KEEPING IN MIND THE FOLLOWING: 1 ON 19-4-10 I HAVE SUBMITTED WRITTEN SUBMISSIONS WHICH ARE PENDING FOR CONSIDERATION BY THE HON. TRIBUNAL IN ABO VE RECALLED MATTER. 2 ON 21-3-11 I HAD FILED FURTHER WRITTEN ARGUMENTS I N ADDITION TO THE ADDITIONAL GROUNDS OF APPEAL RAISED BY ME VIDE MY LET TER DATED 17- 3-11. 3 ONE OF THE ADDITIONAL GROUNDS WAS REGARDING CLAIM O F TELESCOPING THE VARIOUS ADDITIONS SINCE THE VARIOUS ADDITIONS AMOUNT S TO DUPLICATION AND MULTIPLE ADDITIONS WHICH IS AGAINST PRO VISIONS OF INCOME TAX ACT. 4 FOR A.Y.01-02 ON SIMILAR POINTS OF TELESCOPING THE CI T(A) HAVE ALLOWED THE CLAIM OF TELESCOPING AND COPY OF THE SAID O RDER IS ENCLOSED HEREWITH. 5 THE ABOVE ORDER OF LD. CIT(A)-II, BARODA IS ACCEPTE D BY THE INCOME-TAX DEPARTMENT AND APPEAL TO IT AT IS NOT FILE D. I HAVE TO REQUEST YOUR HONOURS TO DISPOSE OFF THE ABOVE M.A. KEEPING IN MIND ABOVE SUBMISSIONS. 4. THE LD. DR ,ON THE OTHER HAND, DID NOT OPPO SE THE MA. 5. AFTER HEARING THE LD. DR AND CONSIDERING THE FAC TS & CIRCUMSTANCES NARRATED IN THE MA AND WRITTEN SUBMIS SIONS DATED 17.6.2011, WE FIND THAT IN HIS WRITTEN SUBMISSIONS , THE ASSESSEE SOUGHT WAIVER OF HIS PERSONAL PRESENCE AND SOUGHT RECALL OF THE ORDER DATED 6.7.2010 ON THE GROUND THAT THEIR WRITT EN SUBMISSIONS FILED ON 19.4.2010 HAVE NOT BEEN CONSIDERED WHILE DISPOSING OF THE APPEAL. WE FIND THAT THE SAID WRITTEN SUBMISSIONS FILED ON 19.4. 2010 WERE NOT BROUGHT TO OUR NOTICE BY THE REGISTRY OR THE LD. DR. IN THESE CIRCUMSTANCES, THE LD. 5 MA NO.16/AHD/2011 DR ALSO COULD NOT BE HEARD ON VARIOUS ISSUES IN THE LIG HT OF SAID WRITTEN SUBMISSIONS. THE PRAYER IN SUCH A SITUATION FOR REHEARING THE AP PEAL IS NOT A PRAYER TO REVIEW ITS EARLIER DECISION, RAT HER IT IS TO SET ASIDE AN EX PARTE ORDER AND FOR CONSIDERING WRITTEN SUBM ISSIONS FILED BY THE ASSESSEE AND AFFORDING AN OPPORTUNITY OF BEING HEARD. THIS POWER IS INHERENT IN THE TRIBUNAL. IN THIS CONNECT ION, HONBLE GAUHATI HIGH COURT IN THE CASE OF RAJENDRA PRASAD B ORAH VS ITAT AND OTHERS,302 ITR 243, RELYING UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS S.CHENNIAPPA MU DALIAR,74 ITR 41 AND THEIR OWN DECISION IN THE ASSAM TRIBUNE VS. CIT,285 ITR 452, HELD THAT APART FROM THE FACT THAT, SECTION 254(EARLIER SECT ION 33)OF THE ACT MAKES IT INCUMBENT ON THE LEARNED TRIBUNAL TO DISPOSE OF THE APPEALS ON MERITS AS HAS BEEN ENUNCIATED BY THE APE X COURT IN CIT VS S.CHENNIAPPA MUDALIAR,74 ITR 41, RULE 24 AS IT S TANDS, PER SE DOES NOT EMPOWER THE LEARNED TRIBUNAL TO DISMISS AN APPEAL FOR DEFAULT IN THE ABSENCE OF THE APPELLANT. THE LEARNE D TRIBUNALS RELIANCE ON THE DECISION OF THE INCOME-TAX APPELLAT E TRIBUNAL, DELHI RENDERED IN CIT VS.MULTIPLAN INDIA(P) LTD.,38 ITD 3 20(DELHI) , IS APPARENTLY MISPLACED IN THE TEETH OF THE DECISION O F THE APEX COURT IN CIT VS S.CHENNIAPPA MUDALIAR,74 ITR 41. 6. IN HONDA SIEL POWER PRODUCTS LTD. VS. CIT (200 7) 213 CTR (SC) 425 : (2007) 12 SCC 596, HONBLE APEX COURT OBSERVE D AS UNDER: '12. AS STATED ABOVE, IN THIS CASE WE ARE CONCERNED WITH THE APPLICATION UNDER S. 254(2) OF THE 1961 ACT. AS STA TED ABOVE, THE EXPRESSION 'RECTIFICATION OF MISTAKE FROM THE RECOR D' OCCURS IN S. 154. IT ALSO FINDS PLACE IN S. 254(2). THE PURPOSE BEHIN D ENACTMENT OF S. 254(2) IS BASED ON THE FUNDAMENTAL PRINCIPLE THAT N O PARTY APPEARING BEFORE THE TRIBUNAL, BE IT AN ASSESSEE OR THE DEPAR TMENT, SHOULD SUFFER ON ACCOUNT OF ANY MISTAKE COMMITTED BY THE T RIBUNAL. THIS FUNDAMENTAL PRINCIPLE HAS NOTHING TO DO WITH THE IN HERENT POWERS OF THE TRIBUNAL. IN THE PRESENT CASE. THE TRIBUNAL IN ITS ORDER DT. 10TH SEPT., 2003 ALLOWING THE RECTIFICATION APPLICATION HAS GIVEN A FINDING THAT SAMTEL COLOR LTD. WAS CITED BEFORE IT BY THE A SSESSEE BUT THROUGH OVERSIGHT IT HAD MISSED OUT THE SAID JUDGME NT WHILE DISMISSING THE APPEAL FILED BY THE ASSESSEE ON THE QUESTION OF ADMISSIBILITY/ALLOWABILITY OF THE CLAIM OF THE ASSE SSEE FOR ENHANCED DEPRECIATION UNDER S. 43A. ONE OF THE IMPORTANT REA SONS FOR GIVING 6 MA NO.16/AHD/2011 THE POWER OF RECTIFICATION TO THE TRIBUNAL IS TO SE E THAT NO PREJUDICE IS CAUSED TO EITHER OF THE PARTIES APPEARING BEFORE IT BY ITS DECISION BASED ON A MISTAKE APPARENT FROM THE RECORD.' 7. SINCE THE WRITTEN SUBMISSIONS FILED ON 19.4.20 10 BY THE ASSESSEE REMAINED TO BE CONSIDERED AND THE REVENUE IS ALSO REQUIRED TO BE HEARD ON THESE WRITTEN SUBMISSIONS B EFORE ADJUDICATION THE ISSUES ON MERITS, IN THE LIGHT OF VIEW TAKEN IN THE AFORESAID DECISION BY THE HONBLE GAUHATI HIGH CO URT AND THE HONBLE APEX COURT WE RECALL THE IMPUGNED ORDER DA TED 6.7.2010 OF THE ITAT AND DIRECT THE REGISTRY TO FIX THE MATTER FOR HEARING IN DUE COURSE. 8. IN THE RESULT, MA IS ALLOWED. ORDER PRONOUNCED IN THE COURT TODAY ON 12 -08-2011 SD/- SD/- ( BHAVNESH SAINI ) JUDICIAL MEMBER ( A N PAHUJA ) ACCOUNTANT MEMBER DATED : 12-08-2011 COPY OF THE ORDER FORWARDED TO: 1. SHRI VYAS NARESHBHAI MULJIBHAI, PLOT NO.3, PARAS KUNJ SOCIETY-1, (OPP. ANAND PARTY PLOT), B/H UMIYA VIJAY SOCIETY, SATELLITE ROAD, AHMEDABAD 2. ITO, WARD-2(2), BARODA 3. CIT CONCERNED 4. CIT(A)-II, BARODA 5. DR, ITAT, AHMEDABAD BENCH-C, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD