Mohd. Massihuddin & Sons, Hyderabad V. ITO, Ward 7(2), Hyderabad

MA 197/HYD/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5908 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-12-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 29-09-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K E SUNIL BABU
• Assessee Lawyers: SYED JAMEELUDDIN
• Keywords: Retrospective amendment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI N.R.S.GANESAN AND SHRI AKBER BASHA MISC. APPLICATION NO.197/HYD/2010 (IN ITA NO.215/HYD/2009) : A SSESSMENT YEAR 2004-05 INCOME-TAX OFFICER, WARD-7(2), HYDERABAD V/S M/S. MOHD. MASIHUDDIN & SONS, HYDERABAD. ( PAN- AADFM 4803 A ) (APPLICANT) (RESPONDENT) AND MISC. APPLICATION NO.212/HYD/2010 (IN ITA NO.214/HYD/2009) : A SSESSMENT YEAR 2003-04 M/S. MOHD. MASIHUDDIN & SONS, HYDERABAD. ( PAN- AADFM 4803 A ) V/S INCOME-TAX OFFICER, WARD-7(2), HYDERABAD (APPLICANT) (RESPONDENT) ASSESSEE BY : SHRI SYED JAMEELUDDIN REVENUE BY : SHRI K.E.SUNIL BABU O R D E R PER AKBER BASHA, ACCOUNTANT MEMBER BY THESE APPLICATIONS UNDER S.254(2) OF THE INCOME-TA X ACT, 1961, REVENUE AS WELL AS THE ASSESSEE SEEK RECTIFICATI ON/RECALL OF THE CONSOLIDATED ORDER OF THIS TRIBUNAL DATED 19TH JUN E, 2009 INSOFAR AS THEY RELATE TO THE APPEALS OF THE ASSESSEE, VIZ. ITA N OS.214 AND 215/HYD/2009 FOR THE ASSESSMENT YEARS 2003-04 AND 2004-05 , ON THE GROUND THAT CERTAIN MISTAKES APPARENT FROM RECORD HAVE CREPT INTO THE SAME. M.A.NO.197& 212/HYD/2010(IN ITA NO.215 & 214/HYD/2009) M/S. MOHD. MASIHUDDIN & SONS, HYD. 2 2. IN THE MISCELLANEOUS APPLICATION OF THE REVENUE, W HICH IS DIRECTED AGAINST THE TRIBUNAL ORDER INSOFAR AS IT REL ATES TO ITA NO.215/HYD/2009 FOR ASSESSMENT YEAR 2004-05, THE PLEA OF THE REVENUE IS IN RELATION TO PARA-18 OF THE TRIBUNAL'S O RDER, AND MORE SPECIFICALLY THE DISINCLINATION OF THE TRIBUNAL TO GO I NTO THE OTHER GROUNDS ON MERITS IN THE ABSENCE OF ANY ADDITION IN REL ATION TO THE REASON FOR WHICH THE EARLIER ASSESSMENT WAS RE-OPENED. IT IS THE CONTENTION OF THE LEARNED DEPARTMENTAL REPRESENTATI VE THAT IN VIEW OF CLARIFICATORY AMENDMENT IN RESPECT OF RE-ASSESSMENT PROCEE DINGS UNDER S.147 MADE BY THE FINANCE (NO.2) ACT, 2009 WIT H RETROSPECTIVE EFFECT FROM 1.4.1989, THE TRIBUNAL WAS NOT CORRECT IN NOT ADJUDICATING UPON THE OTHER ISSUES, AND AS SUCH THE ORDER OF THE TRIBU NAL SHOULD ADJUDICATE UPON OTHER ISSUES/ADDITIONS INVOLVED, INSTEAD OF CONFINING ITSELF ONLY TO THE GROUND ON WHICH THE ORIGINAL ASSESSME NT WAS REOPENED AND ACCORDINGLY DECIDING THE LEGALITY AND VAL IDITY OF THE REOPENING OF THE ASSESSMENT BY THE ASSESSING OFFICER, WITHOU T GOING INTO THE OTHER ISSUES BASED ON WHICH RE-ASSESSMENT WAS COMPLET ED. 3. IN THE MISCELLANEOUS APPLICATION OF THE ASSESSEE(MISC. APPLICATION NO.212/HYD/2010), WHICH IS DIRECTED AGAINST T HE TRIBUNAL ORDER INSOFAR AS IT RELATES TO ITA NO.214/HYD/2009 FOR ASSESSMENT YEAR 2003-04. THOUGH THE M.A. IS PURPORTED TO BE IN THE CONTEXT OF THE ORDER OF THE TRIBUNAL IN THE CONTEXT OF APPEAL ITA N O.214/HYD/2009, THE PLEA OF THE ASSESSEE IS THAT THE THERE IS AN ERROR IN THE ORDER OF THE TRIBUNAL INSOFAR AS IT DISMISSED THE CROSS-OBJECTIONS O F THE ASSESSEE, HOLDING THE SAME TO BE INFRUCTUOUS. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE ORDER OF THE TRIBUNAL DATED 19TH JUNE, 2009 IN THE LIGHT OF THE M.A.NO.197& 212/HYD/2010(IN ITA NO.215 & 214/HYD/2009) M/S. MOHD. MASIHUDDIN & SONS, HYD. 3 CONTENTIONS OF THE PARTIES IN THE PRESENT MISCELLANEOUS AP PLICATIONS, AND OTHER MATERIAL ON RECORD. ON A CAREFUL CONSIDERATI ON, WE FIND THAT THE PRESENT MISCELLANEOUS APPLICATIONS, HAVING NOT POINTE D OUT ANY OBVIOUS OR PATENT ERROR IN THE ORDER OF THE TRIBUNAL , ARE DEVOID OF MERIT AND THEY ARE LIABLE TO BE REJECTED. BY DISPUTING THE FINDINGS AND CONCLUSIONS OF THE TRIBUNAL IN ITS ORDER DATED 19TH JUNE , 2009, THROUGH THEIR ELABORATE CONTENTIONS, ALL THAT THE REVENUE IN THE CONTEXT OF DECISION IN ITA NO.215/HYD/2009; AND THE REVENUE IN TH E CONTEXT OF DECISION IN ITA NO.214/HYD/2009 AND CROSS-OBJECTION NO.4 /HYD/2009, IS A MERE REVIEW OF OUR ORDER DATED 19TH JUNE,2009, BY REAPPRISING THE CONTENTIONS OF THE PARTIES IN THE LIGHT OF VARIOUS ISSUES INVOLVED IN THE APPEAL. SINCE SUCH A REVIEW IS BEYOND THE SCOPE OF THE PROVISIONS OF S.254(2), WHICH IS CONFINED TO MERE RECTIFICATION OF OB VIOUS AND PATENT MISTAKES APPARENT FROM RECORD, WE FIND NO MERIT IN THE PRESENT MISCELLANEOUS APPLICATIONS OF THE REVENUE AS WELL AS THE A SSESSEE. BOTH THE APPLICATIONS ARE ACCORDINGLY REJECTED. 5. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIONS ARE REJECTED. ORDER PRONOUNCED IN THE COURT ON 10TH DECEMBER, 2010 SD/- SD/- (N.R.S.GANESAN) (AKBER BASHA) JUDICIAL MEMBER. ACCOUNTANT MEMBER. DT/- 10TH DECEMBER, 2010 COPY FORWARDED TO: 1. M/S. MOHD. MASIHUDDIN & SONS, C/O. SHRI SYED JAMEE LUDDIN, I.T.CONSULTANT, 16-7-302, EENADU COTTAGE, AZAMURA, HYDERABAD. M.A.NO.197& 212/HYD/2010(IN ITA NO.215 & 214/HYD/2009) M/S. MOHD. MASIHUDDIN & SONS, HYD. 4 2. INCOME-TAX OFFICER, WARD-7(2), HYDERABAD 3. CIT(A) VIJAYAWADA 4. COMMISSIONER OF INCOME-TAX-VI, HYDERABAD. 5. THE D.R., ITAT, HYDERABAD. B.V.S.