Devaraj & Others, CHENNAI V. ACIT, Coimbatore

MA 175/CHNY/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3184 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-06-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 19-06-2015
• Assessment Year: misc
• Appeal Filed On: 09-12-2014
• Court: TRIBUNAL
• Department Lawyers: K RAMASAMY SR
• Assessee Lawyers: S SRIDHAR
• Section: 260A; 2

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI . . . , . ! , ' # $ [ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ] M.P.NO.175/MDS/2014 IN I.T.(SS)A.NO.82/MDS/2006 BLOCK PERIOD 1.4.1986 TO 13.2.1996 M/S DEVARAJ & OTHERS 688, TRUNK ROAD POONAMALLEE, CHENNAI - 56 VS. THE ASSTT. COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE I COIMBATORE [PAN DRP-601 ] ( PETITIONER ) ( ,-./ /RESPONDENT) PETITIONER BY : SHRI S. SRIDHAR, ADVOCATE RESPONDENT BY : SHRI K. RAMASAMY, SR. STANDING COUNSEL / DATE OF HEARING : 19 - 0 6 - 2015 / DATE OF PRONOUNCEMENT : 19 - 0 6 - 2015 / O R D E R PER N.R.S.GANESAN, JUDICIAL MEMBER THE ASSESSEE FILED THE PRESENT MISCELLANEOUS PETI TION PRAYING FOR RECONSIDERATION OF THE ORDER PASSED BY THIS TRI BUNAL IN M.P.NO.31/MDS/2012, DATED 26.3.2013. M.P NO.175/14 :- 2 -: 2. SHRI S. SRIDHAR, LD. COUNSEL FOR THE ASSESSEE SUBMI TTED THAT THE ASSESSING OFFICER ESTIMATED THE INCOME OF THE ASSESSEE AT 8%. HOWEVER, THIS TRIBUNAL RESTRICTED THE PROFIT AT 5% IN THE APPEAL. SINCE THERE WAS A CONFUSION WITH REGARD TO 5% OF THE PRO FIT DETERMINED BY THIS TRIBUNAL, THE ASSESSEE FILED A MISCELLANEOUS PETITION TO CLARIFY ON WHAT AMOUNT THE 5% HAS TO BE COMPUTED. THE TRIBUNA L CLARIFIED THAT 5% OF THE TOTAL TURNOVER HAS TO BE TAKEN AS PROFIT FOR ASSESSMENT. SUBSEQUENTLY, THE REVENUE FILED A MISCELLANEOUS PET ITION NO.31/MDS/2012. THIS TRIBUNAL FOUND THAT ON AN ERR ONEOUS PRESUMPTION THAT THE INCOME HAS BEEN DETERMINED BY THE ASSESSING OFFICER AT A GROSS PROFIT RATE OF 8%, THE ASSESSING OFFICER HAS ALSO REDUCED THE ORIGINAL INCOME BY ONE-THIRD AND THE R ELIEF WAS GIVEN IN A LUMP SUM AMOUNT. THIS TRIBUNAL FURTHER FOUND THAT THIS CRUCIAL POINT WAS OVERLOOKED WHILE ESTIMATING THE PROFIT AT 5%. ACCORDINGLY, THE TRIBUNAL DIRECTED THE ASSESSING OFFICER TO DETERMI NE THE PROFIT AT 50% OF THE INCOME DETERMINED IN THE ORIGINAL ASSESSMENT . 3. THE LD. COUNSEL FURTHER SUBMITTED THAT THIS TRIBUNA L HAS TAKEN ALTOGETHER A DIFFERENT VIEW BY REVIEWING ITS EARLIER ORDER IN M.P.NO.1/MDS/2012 DATED 9.3.2012. ACCORDING TO THE LD. COUNSEL, THE TRIBUNAL HAS NO POWER TO REVIEW ITS EARLIER ORDER. THEREFORE, THE ORDER PASSED BY THE TRIBUNAL IN M.P.NO.31/MDS/2012 ON 26. 3.2013 MAY BE VACATED. THE LD. COUNSEL PLACED HIS RELIANCE ON THE JUDGMENTS OF M.P NO.175/14 :- 3 -: HON'BLE MADRAS HIGH COURT IN THE CASE OF DR.S. PANN EERSELVAM VS ACIT & ANOTHER [2009] 319 ITR 135, CIT VS PANCHU ARUNACH ALAM, [2010] 323 ITR 31 AND THAT OF HON'BLE SUPREME COURT IN THE CASE OF RAJENDRAN CHINGARAVELU VS ADDL. CIT, [2010]320 ITR 4. 4. WE HEARD SHRI K. RAMASAMY, SENIOR STANDING COUNSEL FOR THE INCOME-TAX DEPARTMENT ALSO. 5. WE HAVE CAREFULLY GONE THROUGH THE CASE LAWS, MORE PARTICULARLY, JUDGMENTS OF THE HON'BLE MADRAS HIGH COURT RELIED UPON BY THE LD. COUNSEL. NO DOUBT, THIS TRIBUNAL HAS NO POWER TO REVIEW ITS EARLIER ORDER. UNDER SEC. 254(2) OF THE ACT, THE J URISDICTION OF THE TRIBUNAL IS RESTRICTED ONLY TO RECTIFY THE ERROR WH ICH IS APPARENT ON THE FACE OF THE RECORD. A CO-ORDINATE BENCH OF THIS TR IBUNAL FOUND THAT WHILE DETERMINING THE PROFIT AT 5%, THE CRUCIAL POI NT WAS OVERLOOKED. ACCORDINGLY, THIS TRIBUNAL DIRECTED THE ASSESSING O FFICER TO ESTIMATE THE GROSS PROFIT AT 50% OF THE INCOME DETERMINED IN THE ORIGINAL ASSESSMENT. THE MEMBERS WHO PASSED THE ORIGINAL OR DER IN M.P.NO.31/MDS/2012 ARE NOT AVAILABLE AT CHENNAI BEN CHES. THE PRESENT COMBINATION OF THE BENCH ALSO HAVE CO-ORDIN ATE JURISDICTION. THEREFORE, THIS BENCH OF THE TRIBUNAL COULD RECTIFY THE ERROR WHICH IS APPARENT ON THE FACE OF THE RECORD. AS RIGHTLY SUB MITTED BY THE LD. COUNSEL, THE TRIBUNAL HAS NO POWER TO REVIEW ITS EA RLIER ORDER. THE M.P NO.175/14 :- 4 -: JURISDICTION OF THE TRIBUNAL IS TO RECTIFY AN ORDER WHICH WAS PASSED EARLIER IN CASE THERE IS AN ERROR APPARENT ON THE F ACE OF THE RECORD. THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE ISSUE RAISED BY THE ASSESSEE HAS TO BE EXAMINED ONLY BY AN APPELLATE CO URT WHILE EXERCISING ITS JURISDICTION U/S 260A OF THE ACT. T HE PRESENT PROCEEDING BEING ONE INITIATED U/S 254 OF THE ACT, SUFFICE TO SAY THAT THERE IS NO ERROR APPARENT ON THE FACE OF THE RECORD. THEREFOR E, THIS TRIBUNAL DO NOT FIND ANY MERIT IN THE APPLICATION OF THE ASSES SEE. ACCORDINGLY, THE SAME IS DISMISSED AS DEVOID OF MERIT. 6. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 19 TH JUNE, 2015, AT CHENNAI. SD/- SD/- ( . ! ) (A. MOHAN ALANKAMONY) ' / ACCOUNTANT MEMBER ( . . . ) ) (N.R.S. GANESAN) / JUDICIAL MEMBER / CHENNAI / DATED: 19 TH JUNE, 2015 RD !' / COPY TO: 1 . PETITIONER 4. # # $ / CIT 2. %#&' / RESPONDENT 5. ()*# +, / DR 3. # # $ (! *) / CIT(A) 6. )./ 0 / GF