DCIT, Kollam V. Sri.Jacob C.Luke, Kottarakkara

MA 18/COCH/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7705 (ITAT-COCHIN)
• Duration Of Justice: 11 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-02-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 03-02-2012
• Assessment Year: 1994-1995
• Appeal Filed On: 11-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAYAPRABHA
• Keywords: Tax effect
• Section: 80HHC

Judgement Text

1 MA NO.17 & 18/COCH/2011 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKARA N(AM) M.A. NO.17 &18/COCH/2011 (ARISING OUT OF ITA NOS180 & 290/COCH/2000) (ASSESSMENT YEAR 1994-95) DY.CIT, CIR.1 VS SRI JACOB C LUKE KOLLAM PROP NOBLE CASHEW INDUSTRIES KOTTARAKKARA PAN : NOT AVAILABLE (APPLICANT) (RESPONDENT) APPLICANT BY : SMT. VIJAYAPRABHA RESPONDENT BY : NONE (WRITTEN SUBMISSION) DATE OF HEARING : 10-02-2012 DATE OF PRONOUNCEMENT : 17-02-2012 O R D E R PER N.R.S. GANESAN (JM) THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS AP PLICATION ON THE BASIS OF THE LIBERTY GRANTED BY THE HIGH COURT BY JUDGMEN T DATED 05-08-2008. 2. SMT. VIJAYAPRABHA, THE LD.DR FOR THE REVENUE SUB MITTED THAT THIS TRIBUNAL BY AN ORDER DATED 25-08-2003 HAS DECIDED THE ISSUE O F DEDUCTION U/S 80HHC IN FAVOUR OF THE ASSESSEE. ON APPEALS BY THE REVENUE BEFORE THE HIGH COURT, THE HIGH COURT DISMISSED THE APPEALS OF THE REVENUE; HO WEVER, GRANTED LIBERTY TO THE REVENUE TO MAKE AN APPROPRIATE APPLICATION / REVIEW PETITIONS FOR APPROPRIATE 2 MA NO.17 & 18/COCH/2011 ORDERS. THE LD.DR SUBMITTED THAT NOW THE LATEST JU DGMENT OF THE APEX COURT IN CIT VS K. RAVINDRAN NAIR (2007) 292 ITR 228 (SC) IS IN FAVOUR OF THE DEPARTMENT WHICH IS BINDING ON THIS TRIBUNAL. IN VIEW OF THE JUDGMENT OF THE APEX COURT IN THE CASE OF SHRI K RAVINDRAN NAIR (SUPRA), ACCORDING TO THE LD.DR, THE ORDER OF THE TRIBUNAL NEEDS TO BE RECTIFIED. ON A QUERY FROM TH E BENCH AS TO HOW THE APPLICATIONS ARE MAINTAINABLE BEYOND THE PERIOD OF FOUR YEARS FROM THE DATE OF THE ORDER, THE LD.DR SUBMITTED THAT THE ISSUE IS RE CURRING ONE AND HEAVY TAX EFFECT IS INVOLVED. THEREFORE, THIS TRIBUNAL CAN ENTERTAI N THE APPLICATIONS EVEN THOUGH THEY ARE FILED BEYOND THE PERIOD OF FOUR YEARS FROM THE DATE OF THE ORDER OF THE TRIBUNAL. 3. NO ONE APPEARED FOR THE ASSESSEE WHEN THE MISCEL LANEOUS APPLICATION WAS TAKEN UP FOR HEARING. HOWEVER, THE REGISTRY HAS PLA CED ON RECORD COPY OF THE WRITTEN SUBMISSION FILED BY THE ASSESSEE THROUGH HI S REPRESENTATIVE. IN THE REPRESENTATION, THE ASSESSEE CLAIMED THAT ON IDENTI CAL CIRCUMSTANCES, THIS BENCH OF THE TRIBUNAL HAD AN OCCASION TO CONSIDER THE MIS CELLANEOUS APPLICATION IN ASSIST.COMMISSIONER OF INCOME-TAX VS SMT. PREETHA S NAIR IN M.A. NO.95/COCH/2008 AND THIS TRIBUNAL BY AN ORDER DATED 23-09-2009 HAS DISMISSED A SIMILAR APPLICATION FILED BY THE REVENUE. THEREFOR E, THE ASSESSEE PRAYED FOR DISMISSAL OF THE APPLICATIONS FILED BY THE ASSESSEE THROUGH THE WRITTEN SUBMISSION. 4. WE HAVE CONSIDERED THE SUBMISSION OF THE LD.DR A ND THE WRITTEN SUBMISSION FILED BY THE ASSESSEE. ADMITTEDLY, BOTH THE APPEALS OF THE REVENUE WERE DISMISSED BY THE HIGH COURT GIVING LIBERTY TO THE REVENUE TO FILE APPROPRIATE APPLICATIONS BEFORE THIS TRIBUNAL. TAKING ADVANTAGE OF THE LIBERTY GRANTED BY THE HIGH COURT, THE REVENUE HAS FILED THE PRESENT APPLI CATIONS BEFORE THIS TRIBUNAL. 3 MA NO.17 & 18/COCH/2011 THE QUESTION ARISES FOR CONSIDERATION IS WHETHER TH E TRIBUNAL CAN ENTERTAIN AN APPLICATION U/S 254(2) AFTER EXPIRY OF FOUR YEARS F ROM THE DATE OF THE ORDER OF THE TRIBUNAL. 5. WE HAVE CAREFULLY GONE THROUGH THE PROVISIONS OF SECTION 254(2) WHICH CLEARLY STATES THAT THE APPELLATE TRIBUNAL AT ANY T IME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER SHALL MAKE SUCH AMENDMENT IF THE M ISTAKE IS BROUGHT TO THE NOTICE OF THE TRIBUNAL BY THE ASSESSEE OR THE ASSES SING OFFICER. THEREFORE, IT IS AN OBLIGATION OF THE TRIBUNAL TO RECTIFY / AMEND THE M ISTAKE, IF ANY, BROUGHT TO THE NOTICE OF THE TRIBUNAL EITHER BY THE ASSESSEE OR TH E DEPARTMENT. THE LEGISLATURE HAS NOT CONFERRED ON THE TRIBUNAL ANY POWER TO COND ONE THE DELAY IN FILING AN APPLICATION U/S 254(2) OF THE ACT. THE LEGISLATURE FOR THE REASONS BEST KNOWN TO THEM INTENTIONALLY OMITTED TO CONFER JURISDICTION O N THE TRIBUNAL TO CONDONE THE DELAY IN FILING THE APPLICATION U/S 254(2) OF THE A CT. THEREFORE, THE APPLICATION, IF ANY, EITHER BY THE ASSESSING OFFICER OR BY THE ASSE SSEE HAS TO BE MADE WITHIN FOUR YEARS FROM THE DATE OF PASSING THE ORDER. THIS TRI BUNAL HAS NO JURISDICTION TO ENTERTAIN ANY APPLICATION U/S 254(2) OF THE ACT AFT ER EXPIRY OF FOUR YEARS FROM THE DATE OF THE ORDER. WE HAVE ALSO CAREFULLY GONE THR OUGH THE JUDGMENTS OF THE HIGH COURT DATED 05-08-2008 AND 29-07-2008. FOR THE PU RPOSE OF CONVENIENCE, WE ARE REPRODUCING THE OBSERVATIONS OF THE HIGH COU RT. WHILE DISMISSING ITA NO.40 OF 2008 ARISING OUT OF ITA NO.280/COCH/2000 T HE HIGH COURT HAS OBSERVED AS FOLLOWS: HOWEVER, WE RESERVE LIBERTY TO THE REVENUE, IF THE Y SO DESIRE TO FILE A REVIEW PETITION BEFORE THE TRIBUNAL, IF THEY ARE OF THE VIEW THAT DECISION RENDERED BY THEM FOLLOWING THE DECISION OF THIS COURT IS NO MORE A GOOD LAW IN VIEW OF THE RECENT DECISION OF T HE APEX COURT. WITH THESE OBSERVATIONS, WE DISPOSE OF THIS APPEAL. 4 MA NO.17 & 18/COCH/2011 6. IN ITA NO.55 OF 2008, ARISING OUT OF ITA NO.290/ COCH/2000 THE HIGH COURT HAS OBSERVED AS FOLLOWS: 6. THE TRIBUNAL HAD DISMISSED THE REVENUES APPEA L BY AN ORDER PASSED IN THE MONTH OF AUGUST, 2003. NEAR LY AFTER FIVE YEARS FROM THE DATE OF THE ORDER, IF WE HAVE TO ISS UE NOTICE TO THE RESPONDENT ONLY BECAUSE, THE REVENUE WAS NOT DILIGE NT IN PROSECUTING THE APPEAL FILED IN THE YEAR 2004, IN O UR VIEW, IT COULD CAUSE GREAT PREJUDICE AND INJUSTICE TO THE ASSESSEE / RESPONDENT. 7. IN THAT VIEW OF THE MATTER, WE DECLINE TO ENTER TAIN THIS APPEAL. ACCORDINGLY, THE APPEAL IS DISPOSED OF. H OWEVER, WE GRANT LIBERTY TO THE REVENUE TO MAKE AN APPROPRIATE APPLIC ATION / REVIEW PETITION BEFORE THE TRIBUNAL FOR APPROPRIATE ORDERS . 7. FROM THE ABOVE OBSERVATIONS OF THE KERALA HIGH CO URT IT IS OBVIOUS THAT THE LIBERTY WAS GIVEN TO THE REVENUE TO FILE APPLICATIO N BEFORE THIS TRIBUNAL FOR APPROPRIATE ORDERS. THE HIGH COURT HAS NOT IN ANY WAY EXTENDED THE TIME LIMIT PRESCRIBED U/S 254(2) FOR FILING THE RECTIFICATION APPLICATION. HAD THE HIGH COURT EXTENDED / CONDONED THE DELAY IN FILING THE APPLICA TION, BEFORE THIS TRIBUNAL, THE MATTER WOULD STAND ON DIFFERENT FOOTING. THERE IS NO DIRECTION FROM THE HIGH COURT WITH REGARD TO DELAY IN FILING THE APPLICATIO N BEYOND THE PERIOD PRESCRIBED U/S 254(2) OF THE ACT. THEREFORE, THIS TRIBUNAL CA NNOT TRAVEL BEYOND THE LEGISLATIVE PRESCRIPTION AS PROVIDED IN SECTION 254 (2) OF THE ACT. IN OTHER WORDS, THE APPLICATIONS OF THE REVENUE WHICH WERE MADE BEY OND FOUR YEARS FROM THE DATE OF THE ORDER OF THE TRIBUNAL CANNOT BE ENTERTA INED AT THIS STAGE. THE CONTENTION OF THE DEPARTMENT BEFORE THIS TRIBUNAL I S THAT THE ISSUE ARISES FOR CONSIDERATION IS RECURRING IN NATURE AND HEAVY TAX EFFECT IS INVOLVED, THEREFORE, THE APPLICATIONS HAVE TO BE ENTERTAINED, HAS NO MER IT AT ALL. MERELY BECAUSE RECURRING ISSUE IS INVOLVED OR HEAVY TAX EFFECT IS INVOLVED, THAT ALONE WILL NOT GIVE JURISDICTION TO THE TRIBUNAL BEYOND FOUR YEARS FROM THE DATE OF THE ORDER. UNLESS 5 MA NO.17 & 18/COCH/2011 AND UNTIL THE MISCELLANEOUS APPLICATIONS WERE FILED WITHIN FOUR YEARS, THE APPLICATIONS OF THE REVENUE CANNOT BE ENTERTAINED M ERELY BECAUSE THERE WAS A HEAVY TAX EFFECT OR RECURRING ISSUES ARE INVOLVED. THIS TRIBUNAL IS OF THE OPINION THAT THE APPLICATIONS FILED BEYOND FOUR YEARS FROM THE DATE OF THE ORDER CANNOT BE ENTERTAINED AND THIS TRIBUNAL HAS NO POWER TO CO NDONE THE DELAY IN FILING THE APPLICATION U/S 254(2) OF THE ACT. A SIMILAR VIEW WAS TAKEN BY THIS TRIBUNAL IN THE CASE OF SMT. PREETHA S NAIR (SUPRA). IN THE CASE O F SMT. PREETHA S NAIR (SUPRA) ALSO A SIMILAR LIBERTY WAS GIVEN TO THE REVENUE FOR FILING THE APPLICATION BEFORE THIS TRIBUNAL FOR APPROPRIATE ORDERS. THIS TRIBUNAL, AF TER ELABORATING THE FACTS OF THE CASE AND THE PROVISIONS OF SECTION 254(2) OF THE AC T FOUND THAT THE RECTIFICATION APPLICATION FILED BY THE REVENUE IS BARRED BY LIMIT ATION. IN VIEW OF THE ABOVE DISCUSSION, WE ARE UNABLE TO ENTERTAIN THE APPLICAT IONS FILED BY THE REVENUE AFTER EXPIRY OF FOUR YEARS FROM THE DATE OF THE ORDER. A CCORDINGLY, BOTH THE MISCELLANEOUS APPLICATIONS OF THE REVENUE ARE DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 17 TH DAY OF FEBRUARY, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 17 TH FEBRUARY, 2012 PK/- COPY TO: 1. DY.CIT, CIR.1, KOLLAM 2. SHRI JACOB C LUKE, PROP OF NOBLE CASHEW INDSUSTRIES, KOTTARAKKARA 3. CIT(A), TRIVANDRUM 4. CIT, TRIVANDRUM 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH