The Income Tax Officer Ward-4(2)(3), Bangalore V. Late Susan Cherian , L/R Mr. Abraham Cherian, Bangalore

MA 17/BANG/2021

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2564 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-06-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 19-03-2021
• Assessment Year: 2006-2007
• Appeal Filed On: 24-12-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: V SRINIVASAN SHRI KANNAN NA
• Keywords: Rectification of order; Period of limitation; Reasonable cause; Time period of passing order
• Section: 54F; 254(2); 22; 54

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI. CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER MP NO.17/BANG/2021 (IN ITA 2818/BANG/2018) ASSESSMENT YEAR : 2006-07 THE INCOME TAX OFFICER, WARD-4(2)(3), BENGALURU. VS. LATE SUSAN CHERIAN, L/R BY MR.ABRAHAM CHERIAN, NO.56,MUNNEKOLALA,MARTHAHALLI, BENGALURU-560 037. PAN BJHPS7835L RESPONDENT APPELLANT A SSESSEE BY : SHRI V. SRINIVASAN, ADVOCATE RE VENUE BY : SHRI KANNAN NARAYAN,JCIT DATE OF HEARING : 19 - 03 - 202 1 DATE OF PRONOUNCEMENT : 22 - 0 6 - 202 1 ORDER PER BEENA PILLAI, JUDICIAL MEMBER PRESENT MISCELLANEOUS PETITION HAS BEEN FIL ED BY REVENUE IS ALLEGING CERTAIN MISTAKES APPARENT ON RECORD IN ORD ER DATED 19/02/2020 PASSED BY THIS TRIBUNAL . 2. AT THE OUTSET IT HAS BEEN SUBMITTED THAT THE PRE SENT MISCELLANEOUS APPLICATION IS FILED BEYOND A PERIOD OF 60 DAYS AS SPECIFIED IN SECTION 254 (2) OF THE ACT. THE LD. CI T DR FILED AN PAGE 2 OF 5 MP NO.17/BANG/2021 AFFIDAVIT DATED 27/01/2021, WHEREIN IT IS STATED TH AT DUE TO LOCKDOWN ENFORCED ON ACCOUNT OF COVID-19 PANDEMIC AND ON ACCOUNT OF VARIOUS GUIDELINES ISSUED BY GOVERNMENT OF INDIA WITH REGARD TO FUNCTIONING OF GOVERNMENT OFFICES, THE MI SCELLANEOUS PETITION COULD NOT BE FILED WITHIN THE PERIOD OF LI MITATION. 3. WE HAVE PERUSED THE SUBMISSIONS ADVANCED BY THE LD. DR IN SUPPORT OF CAN DONATION OF DELAY. HONBLE SUPREME COURT BY ORDER DATED 23/3/2020 EXTENDED THE PERIOD OF LIMITATION T HAT EXPIRED DURING THE LOCKDOWN PERIOD OF COVID 19 PANDEMIC W.E .F 15/3/2020. 4. ADMITTEDLY THE LIMITATION PERIOD TO FILE THE PRE SENT MISCELLANEOUS PETITION EXPIRED DURING THE LOGON PER IOD OF COVID 19 PANDEMIC. ACCORDINGLY WE ARE CONDONING THE DELAY AS THERE WAS REASONABLE CAUSE THAT STOPPED REVENUE FROM FILING T HE PRESENT MISCELLANEOUS PETITION WITHIN THE PERIOD OF LIMITAT ION. 5. ACCORDINGLY WE CONDONED THE DELAY CAUSED IN FILI NG THE PRESENT MISCELLANEOUS PETITION BEFORE THIS TRIBUNAL. 6. THE LD.SR.DR SUBMITTED THAT THIS TRIBUNAL HAS ER RED IN GRANTING EXEMPTION UNDER SECTION 54F OF THE ACT, TO ASSESSEE AS ASSESSEE VIOLATED PROVISIONS OF SECTION 54 (3) OF T HE ACT. THE REVENUE IS THUS ALLEGING TO RECALL THE ORDER DATED 19/02/20 20. 7. ON THE CONTRARY, THE LD.AR SUBMITTED THAT BY THI S PETITION REVENUE IS SEEKING REVIEW OF THE ORDER DATED 19/02/ 2020 WHICH IS OUT OF THE SCOPE OF SECTION 254 (2) OF THE ACT. 8. WE HAVE PERUSED SUBMISSIONS ADVANCED BY BOTH SID ES IN LIGHT OF RECORDS PLACED BEFORE US. PAGE 3 OF 5 MP NO.17/BANG/2021 9. WE NOTE THAT THIS TRIBUNAL DENIED THE EXEMPTION UNDER SECTION 54F BY FOLLOWING DECISION OF HONBLE KARNATAKA HIGH COURT IN CASE OF ANAND BASAPPA REPORTED IN 309 ITR 329 . 10. THE HONBLE KARNATAKA HIGH COURT IN CASE OF CIT VS MCDOWELL AND CO LTD. REPORTED IN (2009) 310 ITR 215 FOLLOWING THE DECISION OF HONBLE SUPREME COURT IN CASE OF HONDA SIEL POWER PRODUCTS LTD. VS CIT REPORTED IN (2007) 295 ITR 466 HAS HELD THAT THE POWER UNDER SECTION 254 (2) OF THE ACT CANNOT BE EXERCISED SO A S TO REVIEW ORDER PASSED BY THE TRIBUNAL . HONBLE COURT HELD THAT APPLICATION OF PRINCIPLES LAID DOWN BY THE SUPERIOR COURTS TO THE FACTS OF THE CASE ON ERRONEOUS UNDERSTANDING OF SUCH PRINCIPLES, RECO RDING OF AN ERRONEOUS FINDING BY THE TRIBUNAL BASED ON FACTS ON RECORD, FORMATION OF A CONCLUSION ON ERRONEOUS APPLICATION OF PROVISION OF LAW TO THE FACTS OF THE CASE, ETC., CANNOT BE HELD TO BE A MISTAKE APPARENT FROM RECORD WARRANTING RECTIFICATION BY TH E TRIBUNAL IN EXERCISE OF ITS POWER UNDER SECTION 254 (2) OF THE ACT. 11. IN VIEW OF THE ABOVE DECISION OF HONBLE KARNATAKA HIGH COURT, WE ARE OF THE VIEW THAT BY RECONSIDERING THE APPLIC ATION OF PRINCIPLES LAID DOWN BY HONBLE SUPREME COURT TO THE FACTS OF THE CASE OR BY RECONSIDERING ITS FINDINGS RECORDED OR BY RECONSIDE RING THE APPLICATION OF THE RELEVANT PROVISIONS OF LAW TO TH E FACTS OF THE CASE IN THE PRESENT PET MISCELLANEOUS PETITION UNDER SEC TION 254(2) THIS TRIBUNAL WOULD BE EXERCISING POWER OF REVIEW OF ITS EARLIER ORDER ON MERITS BUT NOT RECTIFICATION OF MISTAKE APPARENT FR OM RECORD AND SUCH REVIEW WOULD CERTAINLY IS BEYOND THE SCOPE OF SECTION 254(2). PAGE 4 OF 5 MP NO.17/BANG/2021 ACCORDINGLY THIS ISSUE RAISED BY ASSESSEE STANDS DI SMISSED. ORDER PRONOUNCED IN OPEN COURT ON 22 ND JUNE 2021 SD/- SD/- (CHANDRA POOJARI) (BEENA PILLAI) ACCOUNTANT MEMBER JUDICIAL ME MBER BANGALORE, DATED, THE 22 ND JUNE, 2021. /VMS/ COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE