The Agriculture Peoduce Market Committee, Kheda V. The Income tax Officer,Ward-3, Nadiad

MA 187/AHD/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1752 (ITAT-AHMEDABAD)
• Duration Of Justice: 7 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-05-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 02-05-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 11-10-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA
• Assessee Lawyers: S P BHATT
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD (BEFORE SHRI MUKUL KR. SHRAWAT, J.M. & SHRI ANIL C HATURVEDI, A.M.) M. A. NO. 187 /AHD/2013 (IN ITA NO. 11 54/AHD/2008) (ASSESSMENT YEAR: 2004-05) THE AGRICULTURE PRODUCE MARKET COMMITTEE, MATAR DIST. KAIRA. PIN 387530 V/S THE ITO, WARD-3, NADIAD CIRCLE, PIJ ROAD, NADIAD 387002 (APPELLANT) (RESPONDENT) PAN: AAALT0154E APPELLANT BY : SHRI S.P. BHATT RESPONDENT BY : SHRI O.P. BATHEJA, SR. D.R. ( )/ ORDER DATE OF HEARING : 02-05-2014 DATE OF PRONOUNCEMENT : 30 -05-2014 PER SHRI ANIL CHATURVEDI,A.M. 1. BY THIS MA, THE ASSESSEE HAS PRAYED FOR THE RECALLI NG THE ORDER OF TRIBUNAL IN ITA NO. 1154/AHD/2008 ORDER DATED 06.02 .2012. 2. BEFORE US, THE LD. A.R. SUBMITTED THAT THE ORIGINAL ASSESSMENT ORDER PASSED UNDER SECTION 143(3) WAS WITHOUT JURISDICTIO N BECAUSE NO NOTICE UNDER SECTION 143(2) WAS SERVED ON THE ASSESSEE AND THEREFORE THE ASSESSMENT FRAMED WAS NULLITY. HE THEREFORE SUBMITT ED THAT THE ORDER MA NO 187/A/13 (IN I TA NO. 1154/A/08) . A.Y. 2004- 05 2 PASSED UNDER SECTION 143(3) BE DECLARED NULL AND VO ID. HE FURTHER SUBMITTED THAT AGAINST THE ORDER PASSED BY THE HON BLE TRIBUNAL IN ITA NO. 1154/AHD/08, THE ASSESSEE HAD PREFERRED AN M.A EARLIER WHICH WAS DISMISSED BY THE HONBLE TRIBUNAL VIDE ORDER DATED 24.05.2013. HE SUBMITTED THAT THE M.A. WAS WRONGLY DISMISSED AND T HEREFORE THE PRESENT M.A. 3. THE LD. D.R. ON THE OTHER HAND POINTED OUT THAT AGA INST THE ORDER OF HON. TRIBUNAL IN ITA NO. 1154/AHD/08 ORDER DATED 06.02.2 012 FOR A.Y. 04- 05, THE APPEAL OF THE ASSESSEE WAS DISMISSED. THERE AFTER ASSESSEE FILED AN M.A. BEARING NO. 213/AHD/2012. THE SAID M.A. WAS DISMISSED BY THE HONBLE TRIBUNAL BY ORDER DATED 24.05.2013. AGA INST THE AFORESAID DISMISSAL OF THE M.A, ASSESSEE HAS AGAIN PREFERRED THE PRESENT M.A. HE THEREFORE SUBMITTED THAT THE PRESENT M.A. IS THE SE COND M.A. ON THE SAME ORDER. HE FURTHER SUBMITTED THAT ONCE THE M.A. HAS BEEN DISMISSED, NO SECOND M.A. CAN BE PREFERRED AGAINST THE DISMISSAL. HE THUS SUBMITTED THAT THE PRESENT M.A. OF THE ASSESSEE NEEDS TO BE D ISMISSED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT AGAINST THE ORDER OF THE TRIBUNAL IN I TA NO. 1154/AHD/08 ASSESSEE HAD PREFERRED AN M.A. THE AFORESAID M.A. N O. 213/AHD/2012 WAS DISMISSED BY THE TRIBUNAL VIDE ORDER DATED 24.0 5.2013, FOR THE REASON, THAT THE ASSESSEE COULD NOT POINT OUT ANY A PPARENT MISTAKE IN THE ORDER THAT REQUIRED CORRECTION. THE M.A. OF THE AS SESSEE WAS DISMISSED BY HOLDING AS UNDER:- 5. IN THE CASE OF POPULAR ENGINEERING CO. V. INCOME TAX APPELLATE TRIBUNAL (2001) 248 ITR 0577 THE HON. PUNJAB AND HARYANA HIGH COURT AS HELD UNDER:- MA NO 187/A/13 (IN I TA NO. 1154/A/08) . A.Y. 2004- 05 3 A PERUSAL OF SECTION 254 OF THE INCOME-TAX ACT, 196 1 SHOWS THAT UNDER SUB-SECTION(L) OF SECTION 254, THE APPELLATE TRIBUNAL CAN, AFTER HEARING THE PARTI ES TO THE APPEAL, PASS SUCH ORDERS AS IT THINKS FIT SUB-SECTION (2) OF SECTION 254 EMPOWERS THE APPELLA TE TRIBUNAL TO AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1) WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD. IN THE EXERCISE OF POWERS VESTED IN IT UNDER SECTION 254 (2), THE TRIBUNAL CA NNOT REVIEW OR REVISE AN ORDER MADE UNDER SECTION 254(1) THOUGH IT MAY AMEND SUCH ORDER FOR RECTIFYIN G A PATENT MISTAKE WHICH MAY HAVE CREPT IN, IN SUCH ORDER, ON ACCOUNT OF NON CONSIDERATION OF AN I MPORTANT PIECE OF EVIDENCE OR PLEA RAISED BY THE AGGRIEVED PARTY. LIKEWISE, THE POSSIBILITY OF FORMING A DIFFERENT OPINION THAN THE ONE EXPRESSED IN THE ORDER PASSED UNDER SECTION 254(1) CANNOT BE TREATED AS A GROUND FOR ENTERTAINING AN APPLICATION UNDER SECTION 254(2). 6. IN VIEW OF THE AFORESAID FACTS, AND SEEN IN THE LIGHT OF THE DECISIONS OF HON. HIGH COURT'S CITED ABOVE, WE ARE OF THE VIEW THAT SINCE NO APPARENT MI STAKE HAS BEEN POINTED IN THE ORDER PASSED BY US, THE PRESENT M.A. NEEDS TO BE REJECTED. WE THUS REJE CT THE M.A, FILED BY THE ASSESSEE. 7. THUS THE M.A. IS DISMISSED. 5. WE FIND THAT AGAINST THE AFORESAID M.A. WHICH WAS D ISMISSED BY THE TRIBUNAL, ASSESSEE HAS AGAIN PREFERRED AN M.A. WE F IND THAT THE SECOND M.A HAS BEEN PREFERRED ON THE SAME SET OF FACTS AND THROUGH WHICH THE ASSESSEE WANTS US TO RECALL THE APPELLATE ORDER ON THE ALLEGED PREMISE, THAT THERE WAS AN ERROR APPARENT IN THE ORDER. WE FIND THAT WHILE DISPOSING OF THE M.A. ORDER DATED 24.05.2013 IT WAS CONCLUDED BY THE TRIBUNAL THAT THERE WAS NO MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL AND WE ARE THEREFORE OF THE VIEW THAT IT IS NOT OPE N TO TRIBUNAL TO ENTERTAIN THE SECOND APPLICATION ON THE SAME SET OF FACTS. WE ALSO DRAW SUPPORT FROM THE DECISION IN THE CASE OF CIT VS. CH EMICAL AND ALLIED PRODUCTS (2008) 296 ITR 297 (ALLAHABAD) WHERE THE H ONBLE HIGH COURT HAS HELD THAT WHEN TRIBUNAL HAVING REJECTED THE FIR ST APPLICATION FILED UNDER SECTION 254(2) ON THE GROUND THAT THERE WAS N O MISTAKE APPARENT ON THE FACE OF RECORD IN THE ORDER OF TRIBUNAL, IT WAS NOT OPEN TO THE TRIBUNAL TO ENTERTAIN THE SECOND APPLICATION WHICH WAS FILED ON THE SAME SET OF FACTS AND RECALL ITS APPELLATE ORDER ON THE ALLEGED PREMISE THAT THERE WAS AN ERROR APPARENT IN THE ORDER. FURTHER THE ASSESSE E CANNOT BE ALLOWED TO BE PERMITTED TO REOPEN AND REARGUE THE WHOLE MATTER IN THE GARB OF RECTIFICATION UNDER SECTION 254(2). HONBLE DELHI H IGH COURT IN THE CASE MA NO 187/A/13 (IN I TA NO. 1154/A/08) . A.Y. 2004- 05 4 OF PERFETTI VAN MELLE INDIA (P.) LTD. VS. CIT (2008 ) 296 ITR 595 (DEL) HAS HELD THAT IN THE GARB OF APPLICATION FOR RECTIF ICATION, THE ASSESSEE CANNOT BE ALLOWED TO BE PERMITTED TO REOPEN AND REA RGUE THE WHOLE MATTER WHICH IS BEYOND THE SCOPE OF SECTION 254(2). 6. IN VIEW OF THE AFORESAID FACTS AND RELYING ON THE DECISIONS CITED HEREINABOVE AND IN VIEW OF THE FACT THAT SINCE NO A PPARENT MISTAKE HAS BEEN POINTED IN THE ORDER PASSED BY US THE PRESENT M.A. NEEDS TO BE REJECTED. WE THUS REJECT THE M.A. FILED BY THE ASSE SSEE. 7. IN THE RESULT THE M.A. FILED BY THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN OPEN COURT ON 30 - 05 - 2014. SD/- SD/- (MUKUL KR. SHRAWAT) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT ,AHMEDABAD