Shri Mithlesh Kumar Gupta, Haldwani V. D.C.I.T., Circle-1, Farrukhabad

MA 17/AGR/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8454 (ITAT-AGRA)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-06-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 01-06-2012
• Assessment Year: 1996-1997
• Appeal Filed On: 30-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ATESHAN ANSARI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER M.A. NO. 16 & 17/AGRA/2011 (IN M.A. NO. 64 & 65/AGR/2006 R/W ITA NO.139/AGRA/2 003 & 124/AGRA/2000) ASSTT. YEAR : 1995-96 & 1996-97 SHRI MITHLESH KUMAR GUPTA, VS. D.C.I.T., CIRCLE -1, PROP. M/S. R.K. TRADING CO., FARRUKHABAD. LINDSEYGANJ, FARRUKHABAD. (PAN : ACHPP 7790 A) (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI ATESHAN ANSARI, JR. D.R. DATE OF HEARING : 01.06.2012 DATE OF PRONOUNCEMENT OF ORDER : 01.06.2012 ORDER PER BENCH: BOTH THESE MISCELLANEOUS APPLICATIONS BY THE ASSES SEE ARE DIRECTED AGAINST THE ORDER OF THE TRIBUNAL DATED 04.02.2011 DISMISSI NG THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE IN M.A. NOS. 64 & 65/AGRA/2006. 2. THE RECORD REVEALS THAT THE ASSESSEE FILED APPEA LS IN ITA NOS. 124/AGRA/2000 AND 139/AGRA/2003. ITA NO. 124/AGRA/2 000 WAS DISMISSED IN LIMINE ON 08.07.2004 AND ITA NO. 139/AGRA/2003 WAS DISMISSED IN LIMINE VIDE ORDER DATED 15.07.2004. THE ASSESSEE PREFERRED M.A. NOS. 77 & 78/AGRA/2004 M.A. NO. 16 & 17/AGRA/2011 2 AGAINST THESE ORDERS OF THE TRIBUNAL. M.A. NOS. 77 & 78/AGRA/2004 WERE ALLOWED AND THE EARLIER ORDERS PASSED EXPARTE DATED 08.07.2 004 AND 15.07.2004 WERE RECALLED AND THE APPEALS OF THE ASSESSEE WERE FIXED FOR HEARING. THE RECORD FURTHER REVEALS THAT THE ASSESSEE, EXCEPT SEEKING ADJOURNME NTS, WAS NOT PROSECUTING THE APPEALS. THEREFORE, AGAIN, BOTH THE APPEALS OF THE ASSESSEE IN ITA NO. 124/AGRA/2000 AND 139/AGRA/2003 WERE DISMISSED VIDE ORDER DATED 16.10.2006. THE ASSESSEE PREFERRED M.A. NO. 64 & 65/AGRA/2006 A GAINST THE ORDER OF THE TRIBUNAL DATED 16.10.2006, BUT AGAIN THE ATTITUDE O F THE ASSESSEE REMAINED SAME AND THE ASSESSEE DID NOT PROSECUTE ITS MISCELLANEOU S APPLICATIONS. THEREFORE, VIDE ORDER DATED 04.02.2011, THE ASSESSEES M.A. NOS. 64 & 65/AGRA/2006 WERE DISMISSED IN LIMINE. THE ASSESSEE HAS NOW PREFERRED THE PRESENT M.A. NOS. 16 & 17/AGRA/2011 FOR RECALLING OF THE ORDER DATED 04.02 .2011 PASSED IN M.A. NOS. 64 & 65/AGRA/2006. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTICE. THE MISCELLANEOUS APPLICATIONS WERE TAKEN UP FOR HEARIN G ON 18.05.2012 AND ON THE REQUEST OF ASSESSEE, THE MISCELLANEOUS APPLICATIONS WERE ADJOURNED TO 01.06.2012. THE RECORD REVEALS THAT THE ASSESSEE DESPITE PENDEN CY OF HIS TWO APPEALS AND MISCELLANEOUS APPLICATIONS, NEVER PROSECUTED THE SA ME AND EXCEPT SEEKING ADJOURNMENTS, NOTHING HAS BEEN DONE. EVEN TODAY, NE ITHER THE ASSESSEE NOR HIS M.A. NO. 16 & 17/AGRA/2011 3 AUTHORIZED REPRESENTATIVE IS PRESENT. THEREFORE, BO TH THE MISCELLANEOUS APPLICATIONS ARE DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON R ECORD. 4. AFTER HEARING THE LD. DR AND PERUSING THE MATERI AL ON RECORD, WE DO NOT FIND ANY MISTAKE APPARENT ON RECORD OF THE TRIBUNAL. THE ASSESSEE THROUGH THESE M.AS. HAS SOUGHT TO RECALL THE EARLIER ORDER OF THE TRIBU NAL DATED 04.02.2011, AGAINST WHICH MA NOS. 64 & 65/AGRA/2006 WERE DISMISSED. THE RE IS NO LAW TO PROVIDE ANY REMEDY TO THE ASSESSEE FOR RECALLING THE ORDER PASSED U/S. 254(2) OF THE IT ACT. HONBLE ORISSA HIGH COURT IN THE CASE OF CIT VS. IT AT, 196 ITR 838 HELD SECTION 254(2) OF THE INCOME-TAX ACT, 1961, EMPOWER S THE TRIBUNAL TO AMEND ANY ORDER PASSED BY IT UNDER SUB- SECTION (1) WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RE CORD AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER. THERE FORE, TO ATTRACT THE APPLICABILITY OF SECTION 254(2), THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED MUST BE APPARENT FROM THE RECORD, AND THE SAME MUST BE IN ANY ORDER PASSED UNDER SUB-SECTION (1) OF SECTION 2 54. AN ORDER REJECTING AN APPLICATION FOR RECTIFICATION UNDER SE CTION 254(2) IS NOT AN ORDER PASSED UNDER SECTION 254(1) AND IT CANNOT BE RECTIFIED UNDER SECTION 254(2). SINCE THE MISCELLANEOUS APPLICATIONS OF THE ASSESSE E ARE NOT MAINTAINABLE IN THE PRESENT FORM AND FURTHER, THE LAST ORDER OF THE TRI BUNAL DATED 16.10.2006 HAS BECOME FINAL AND FURTHER FOUR YEARS HAVE ELAPSED DU RING WHICH THE APPLICATIONS U/S. 254 COULD HAVE BEEN MOVED, IT WOULD PROVE THAT THE RELIEF CLAIMED BY THE ASSESSEE CANNOT BE GRANTED TO THE ASSESSEE. THEREFORE, WE HO LD THAT THE MISCELLANEOUS M.A. NO. 16 & 17/AGRA/2011 4 APPLICATIONS OF THE ASSESSEE ARE NOT MAINTAINABLE. THE SAME ARE ACCORDINGLY DISMISSED. 5. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIO NS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 01.06.2012. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY