Shri Subir Kumar Sinha., Durgapur V. Addl CIT,Range - 2,Durgapur., Durgapur

MA 164/KOL/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1278 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-12-2013
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 10-12-2012
• Court: TRIBUNAL
• Department Lawyers: RANU BISWAS LD
• Assessee Lawyers: D B THAKURI FCA LD

Judgement Text

, B, , INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA [ , ! , '# [BEFORE HONBLE SHRI MAHAVIR SINGH, JM & HONBLE S HRI ABRAHAM P. GEORGE, AM $$ '% & /M.A. NO. 164/KOL/2012 [A/O MA NO. 39/KOL/2012 IN I.T A NO. 292/KOL/2012 A.Y 2008-09] SRI SUBIR KR. SINHA VS. ADDL. C.I.T, RANGE-2, DURGAPUR PAN: AJWPS 2288R [' /APPLICANT ] [)*+,/ RESPONDENT ] ' /APPLICANT BY : SHRI D.B.THAKURI, FCA, LD. AR )*+, / RESPONDENT BY : SMT. RANU BISWAS, LD. J CIT, SR.DR .%/ 0 1# /DATE OF HEARING : 20-12-2013 23 0 1# /DATE OF PRONOUNCEMENT: 20-12-2013 '4 /ORDER , SHRI MAHAVIR SINGH,, JUDICIAL MEMBER BY WAY OF THIS MISCELLANEOUS APPLICATION I.E THE SECOND MISCELLANEOUS APPLICATION ON THE ORDER OF THE TRIBUNAL IN ITA NO. 292/KOL/2012 30-03-2012 THE ASSESSEE WANTS TO RECALL THE ORDER OF THE TRIBUNAL 3. AT THE OUT SET THE LEARNED COUNSEL FOR THE ASSE SSEE HAS STATED THAT EARLIER MISC. APPLICATION I..E MA NO.39/KOL/2012 THE TRIBUNAL DISMISSED THE SAME AS WITHDRAWN. IT IS SEEN FROM THE TRIBUNAL ORDER THAT ASSESSEES LD. COUNSEL HAS WRITTEN A LETTER DATED 1-6-12 REQUESTING FOR WITHDRAWAL OF THE PETITION AND THE S AME WAS ACCEPTED. THE MISC.. APPLICATION WAS DISMISSED. 4. THE MISC. APPLICATION COMES U/S. 254(2) OF THE A CT. THE RELEVANT PROVISIONS OF SECTION 254(2) READS AS UNDER:- (2) THE APPELLATE TRIBUNAL, AT ANY TIME WITHIN FOU R YEARS FROM THE DATE OF THE ORDER, WITH A VIEW TO RECTIFYING ANY MISTAKE APPARE NT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1), AND S HALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSE SSEE OR THE [ASSESSING] OFFICER : PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCING AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INCREA SING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB-SEC TION UNLESS THE APPELLATE TRIBUNAL HAS GIVEN NOTICE TO THE ASSESSEE OR ITS INTENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPPORT UNITY OF BEING HEARD: [M.A NO.164/KOL/12-B-MVS 2 PROVIDED FURTHER THAT ANY APPLICATION FILED BY THE ASSESSEE IN THIS SUB- SECTION ON OR AFTER THE 1 ST DAY OF OCTOBER, 1998, SHALL BE ACCOMPANIED BY A FEE OF FIFTY RUPEES.] 5. NOW, IT IS SEEN THAT THE PROVISIONS OF SECTION 254(2) CLEARLY SHOWS THE ORDER CAN ONLY BE RECTIFIED, WHICH IS PASSED U/S. 254(1) OF T HE ACT AND NOT PASSED U/S. 254(2) OF THE ACT. IN THE PRESENT CASE, THE ORDER HAS BEEN ALREA DY PASSED U/S. 254(2) OF THE ACT VIDE DATED 1-6-12 IN MA NO.39/KOL/2012. MISC. APPLICATION ON MISC. APPLICATION I.E. THE ORDER PASSED U/S. 254(2) OF THE ACT CANNOT BE RECTIFIED A GAIN U/S. 254(2). THIS VIEW OF OUR IS FULLY SUPPORTED BY THE DECISION OF THE HONBLE ORI SSA HIGH COURT IN THE CASE OF CIT VS. INCOME-TAX APPELLATE TRIBUNAL REPORTED IN (1992) 196 ITR 0783, WHEREIN IT IS MENTIONED THAT THERE IS NO SCOPE FOR A REFERENCE IN RESPECT OF AN ORDER U/S. 254(2). THE GRANTING OF THE APPLICATION FOR RECTIFICATION AND CORRECTING T HE ERROR IN THE ORDER IS NEITHER AN ORDER WITHIN SECTION 254(1), NOR ONE IN RESPECT OF WHICH SECTION 256(1) ENABLES A CASE TO BE STATED. THE HONBLE ORISSA HIGH COURT HAS FURTHER HELD :- (FROM HEAD NOTES) THAT, IN THE INSTANT CASE, THE ASSESSEE HAD TAKEN A SPECIFIC GROUND THAT SECTION 176(3A) HAD NO APPLICATION TO ITS CASE, BEC AUSE THE PARTNERSHIP HAD BEEN DISSOLVED PRIOR TO THE DATE WHEN THE SAID SUB SECTION CAME INTO EFFECT. THE TRIBUNAL DEALT WITH THIS ASPECT AND HELD THAT T HERE WAS NOTHING ON RECORD TO SHOW WHETHER THE FIRM WAS DISSOLVED ON MAY 25, 1970. MERELY BECAUSE A REFERENCE HAD NOT BEEN MADE TO SECTION 176(3A), I T DID NOT MEAN THAT THE TRIBUNAL DID NOT ADDRESS ITSELF TO THE FACTUAL ASPE CT ON WHICH THE APPLICABILITY OF SECTION 176(3A) WAS DEPENDENT. THEREFORE, THE CO NCLUSION OF THE TRIBUNAL THAT, IN THE ORDER, NO DECISION WAS GIVEN BY THE TR IBUNAL ON THIS ASPECT WAS CLEARLY ERRONEOUS. THE TRIBUNAL DID NOT HAVE POWE R TO RECALL ITS ORDER UNDER SECTION 254(2). NO REFERENCE LIES FROM AN ORDER U NDER SECTION 254(2). HENCE, THERE WAS NO ALTERNATE REMEDY AND A WRIT WOULD IS SUE TO QUASH THE ORDER OF THE TRIBUNAL RELCALLING ITS EARLIER ORDER. IN VIEW OF THE ABOVE DECISION OF THE HONBLE ORISSA HIGH COURT IN THE CASE OF (SUPRA), WE DISMISS THIS MISC. PETITION OF THE ASSE SSEE. 6. IN THE RESULT, THE MISC. APPLICATION FILED BY T HE ASSESSEEE STANDS DISMISSED AS STATED ABOVE. '4 #.' 5 .% 6 7 ORDER PRONOUNCED IN THE OPEN COURT ON 20-12-2013 SD/- SD/- [ ! , '# ] [ , '# ] [ ABRAHAM P. GEORGE, ACCOUNTANT MEMBER ] [ MAHAVIR SINGH, JUDICIAL MEMBER] 1# / DATED 20-12-2013 [M.A NO.164/KOL/12-B-MVS 3 '4 0 )$ 8'$3/ COPY OF THE ORDER FORWARDED TO: 1 . ' /APPLICANT : SHRI SUBIR KUMAR SINHA BEHIND AMAR VILLA, G.T ROA D, OLD COURT, DURGAPUR-713 203. 2 )*+, / RESPONDENT : ADDL. CIT, RANGE-2, DURGAPUR 3 . 4% / CIT, 4 . 4% ( )/ CIT(A), 5 . A6 )% / DR, KOLKATA BENCHES, KOLKATA **PP/SPS [*$ )/ TRUE COPY] '4%./ BY ORDER, /ASSTT REGISTRAR.