M/s. Gemspark Hotels Pvt. Ltd., Tiruvannamalai V. ACIT, Vellore

MA 17/CHNY/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6571 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-06-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 10-06-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 21-02-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: A MAHESH
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL CHENNAI B BENCH, CHENNAI. BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER & SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER M.P. NO. 17/MDS/2011 [IN I.T.A. NO. 1952/MDS/2008] ASSESSMENT YEAR: 2005-06 M/S. GEMSPARK HOTELS P. LTD., 66, PONDY-BANGALORE HIGHWAY, CHENGAM ROAD, TIRUVANNAMALAI. [PAN AABCG8996R] VS. THE ASST. COMMISSIONER OF INCOME TAX, CIRCLE I, VELLORE. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI A MAHESH REVENUE BY : SHRI SHAJI P. JACOB ORDER PER U.B.S. BEDI, J.M. BY MEANS OF THIS UNDATED MISCELLANEOUS PETITION RE CEIVED BY THE REGISTRY ON 21.02.2011, THE ASSESSEE SEEKS TO GET RECTIFIED THE ORDER PASSED BY THE TRIBUNAL IN I.T.A. NO.1952/MDS/2008 DATED 21.08.200 9 FOR THE ASSESSMENT YEAR 2005-06 MAINLY ON THE GROUND THAT THIS BENCH OF THE TRIBUNAL IS NOT JUSTIFIED IN REVERSING THE ORDER OF THE LD. CIT(A), AS ISSUE INV OLVED WAS WITH REGARD TO UNDERSTATEMENT IN THE COST OF CONSTRUCTION OF ASSES SEES HOTEL BUILDING BY MAKING REFERENCE FOR VALUATION WITHOUT REJECTING BOOKS OF ACCOUNT AND BY RELYING UPON THE DECISIONS OF SARGAM CINEMA VS. CIT 328 ITR 513 (SC) , ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. 305 ITR 227 (SC) AND HOND A SIEL POWER PRODUCTS LTD. VS. CIT AND PRAYED TO RECTIFY THE ORDER ALREAD Y PASSED AFTER GIVING PERSONAL OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 2. AT THE TIME OF HEARING OF THE APPLICATION, THE ASSESSEES COUNSEL REITERATED THE CONTENTIONS AS RAISED IN THE APPLICATION AND PL EADED FOR REVERSAL OF THE ORDER M.P. M.P. M.P. M.P. NO. NO. NO. NO.1 11 17 77 7/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 2 PASSED BY THE TRIBUNAL AS THE FINDINGS GIVEN BY THE TRIBUNAL IN ITS ORDER IS NOT LEGALLY CORRECT. 3. THE LD. DR SUBMITTED THAT THE APPLICATION OF TH E ASSESSEE IS NOT MAINTAINABLE AND PLEADED THAT FIRSTLY, THE ASSESSEE FILED APPLICATION TAKING SIMILAR GROUNDS AS TAKEN IN EARLIER APPLICATION, WHICH WAS REGISTERED IN M.P. NO. 306/MDS/2009, WHICH CAME TO BE REJECTED VIDE ORDER DATED 29.01.2010 AND IN THE PRESENT PETITION, THE ASSESSEE HAS NOT BEEN DISCLOS ED THIS FACT OF HAVING MOVED FIRST MP AGAINST THE ORDER OF THE TRIBUNAL, WHICH C AME TO BE REJECTED AND JUST FILED AND ARGUED THE SECOND PETITION. SO, THE CONDUCT OF THE ASSESSEE AND ITS COUNSEL IS NOT PROPER AND MOREOVER, IT IS MP AGAINST THE OR DER PASSED IN MP UNDER SECTION 254(2). SO, IN VIEW OF VARIOUS DECISIONS ON THE POINT BY VARIOUS COURTS INCLUDING HONBLE ORISSA HIGH COURT AND MADRAS HIGH COURT AS REPORTED IN 319 ITR 135, THE MISCELLANEOUS PETITION OF THE ASSESSEE IS LIABLE TO BE DISMISSED, WHICH IS NOT MAINTAINABLE AND SAME SHOULD BE DISMIS SED. 4. THE LD. COUNSEL FOR THE ASSESSEE, IN ORDER TO C OUNTER THE SUBMISSIONS OF THE LD. DR, SUBMITTED THAT SO FAR AS THE FIRST MP I S CONCERNED, THE ISSUE IS NOT SAME, SO IT CANNOT BE SAID THAT THE PRESENT PETITIO N IS AGAINST THE ORDER PASSED UNDER SECTION 254(2) AND RELIANCE WAS PLACED IN THE CASE OF CIT V. AISWARYA TRADING CO. 331 ITR 520 (KER). 5. AFTER HAVING HEARD BOTH THE SIDES AND CONSIDERI NG THE MATERIAL ON RECORD, WE FIND THAT THE ASSESSEE FILED EARLIER MISCELLANEO US APPLICATION AGAINST THE ORDER PASSED BY THE TRIBUNAL, WHICH CAME TO BE REJECTED B Y THIS BENCH BY PASSING A SPEAKING ORDER AND NOW THE ASSESSEE, SINCE SOUGHT R ELIEF ON SAME SET OF FACTS AND RAISING SAME POINT AS RAISED IN THE EARLIER APP LICATION WITH ALMOST IDENTICAL M.P. M.P. M.P. M.P. NO. NO. NO. NO.1 11 17 77 7/MDS/ /MDS/ /MDS/ /MDS/11 1111 11 3 GROUND IN A DIFFERENT LANGUAGE AND THIS FACT WAS DU LY CONFRONTED TO THE ASSESSEES COUNSEL BY SHOWING RELEVANT PARAGRAPHS O F EARLIER APPLICATION AS WELL AS PRESENT APPLICATION, WHICH ARE SAME AND THE ASSE SSEES COUNSEL COULD NOT PROPERLY REPLY TO THIS QUERY OF THE BENCH. OTHERWIS E, THE HONBLE ORISSA HIGH COURT IN THE CASE OF CIT VS. ITAT (1992) 196 ITR 64 0 HAS SPECIFICALLY HELD THAT AS PER SECTION 254(2), THE TRIBUNAL HAS NO POWER TO PA SS ORDER IN MP ON MP AND TAKING SIMILAR VIEW, THE HONBLE JURISDICTIONAL HIG H COURT IN THE CASE OF DR. S. PANNEERSELVAM VS. ACIT [2009] 319 ITR 135 HAS FOLLO WED SAID DECISION AND HEAD-NOTES AT PAGE 135 OF 319 ITR IS REPRODUCED AS UNDER: APPEAL TO APPELLATE TRIBUNAL RECTIFICATION OF M ISTAKE ORDER UNDER SECTION 254(2) MERGES WITH ORIGINAL ORDER S ECOND APPLICATION FOR RECTIFICATION NOT MAINTAINABLE INCOME TAX ACT 1 961, S. 254. 6. IN VIEW OF THE FACTS, CIRCUMSTANCES AND MATERIA L ON RECORD, WE FIND THAT THE ISSUE IS SQUARELY COVERED AGAINST THE ASSESSEE BY T HE HONBLE ORISSA HIGH COURT AND JURISDICTIONAL HIGH COURT HAS ALSO TAKEN SAME V IEW. THEREFORE, FOLLOWING THESE PRECEDENTS, WE HOLD THAT PRESENT MISCELLANEOU S PETITION IS NOT MAINTAINABLE, WHICH IS DISMISSED. 7. IN THE RESULT, THE MISCELLANEOUS PETITION OF TH E ASSESSEE GETS DISMISSED. ORDER PRONOUNCED SOON AFTER THE CONCLUSION OF HEAR ING ON 10.06.2011. SD/- SD/- (ABRAHAM P. GEORGE) ACCOUNTANT MEMBER (U.B.S. BEDI) JUDICIAL MEMBER VM/- DATED : 10.06.2011. COPY TO: THE ASSESSEE//A.O./CIT(A)/CIT/D.R.