Ma Kali Enterprise, Burdwan V. ITO, Ward-1(4), Durgapur, Burdwan

MA 199/KOL/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7105 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-08-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 31-10-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S DASGUPTA
• Assessee Lawyers: U DASGUPTA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENCH KOLKATA BEFORE SHRI S.S.VISWANETHRA RAVI, JM & DR. A.L. SAINI, AM M.A NO.199/KOL/2017 (ARISING OUT OF I.T.A NO.2214/KOL/2016) ( / ASSESSMENT YEAR: 2013-14) MA KALI ENTERPRISE, TALIPARA, ARJUNPUR, DURGAPUR, BURDWAN 713 215. VS. I.T.O, WARD-1(4), DURGAPUR AAYAKAR BHAWAN, 1 ST FLOOR, AAYAKARBITHI, CITY CENTRE, DURGAPUR 713 216. ./ ./PAN/GIR NO. : AANFM 5869 Q (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI U. DASGUPTA, ADVOCATE. RESPONDENT BY : SHRI S. DASGUPTA ADDL. CIT / DATE OF HEARING : 27/07/2018 /DATE OF PRONOUNCEMENT : 24/08/2018 / O R D E R PER DR. ARJUN LAL SAINI, AM: BY WAY OF CAPTIONED APPLICATION, THE ASSESSEE HAS SOUGHT TO POINT OUT THAT A MISTAKE APPARENT FROM RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE INCOME TAX ACT, 1961(IN SHORT THE ACT) HAS CREPT IN THE ORDER OF THE TRIBUNAL DATED 27.07.2017. 2. THE CASE OF THE ASSESSEE IN THIS MISCELLANEOUS APPLICATION IS THAT THE ASSESSEE COULD NOT FILE THE RELEVANT PAPERS AND PAPER BOOK BEFORE THE BENCH AT THE TIME OF HEARING. THEREFORE, THE APPEAL HAS BEEN DISMISSED BY THE HONBLE APPELLATE TRIBUNAL. THE LEARNED COUNSEL FOR THE ASSESSEE NOW REQUESTED THE BENCH STATING THAT THE ASSESSEE HAS NOW PREPARED THE PAPER BOOK AND OTHER DOCUMENTARY EVIDENCE TO SUBSTANTIATE HIS CLAIM, AND PROVE HIS BONA FIDE, THEREFORE, THE ORDER OF THE HON`BLE TRIBUNAL SHOULD BE RECALLED.THE LEARNED COUNSEL SUBMITTED THAT THE ASSESSEE COULD NOT SUBMIT PAPER BOOK BEFORE THE BENCH DUE TO THE CIRCUMSTANCES BEYOND HIS CONTROL AND NOW THE ASSESSEE IS WILLING TO SUBMIT PAPER BOOK TO PROVE HIS BONA FIDE THEREFORE, THE ORDER SHOULD BE RECALLED. MA KALI ENTERPRISE M.A NO.199/KOL/2017 PAGE | 2 3. ON THE OTHER HAND, THE LEARNED DR FOR THE REVENUE VEHEMENTLY SUBMITTED THAT IF THE BENCH CONSIDERS THE PAPER BOOK NOW AND RECALL THE ORDER BASED ON THE FRESH DOCUMENTS AND PAPERS SUBMITTED BY THE ASSESSEE THEN IT WOULD TANTAMOUNT TO REVIEW THE ORDER. THE LD DR POINTED OUT THAT TRIBUNAL IS NOT AUTHORIZED TO REVIEW ITS OWN ORDER. AS PER SECTION 254(2) OF THE ACT ONLY MISTAKE APPARENT FROM THE RECORD CAN BE RECTIFIED BY THE TRIBUNAL. IF THE ASSESSEE HAS FAILED TO FILE THE PAPER BOOK DURING THE COURSE OF HEARING BEFORE THE BENCH, THE SAME COULD NOT BE TREATED AS MISTAKE APPARENT FROM RECORD AND THE ORDER SHOULD NOT BE RECALLED. 4. WE HAVE GIVEN A CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD, WE NOTE THAT THE LEARNED COUNSEL FOR THE ASSESSEE WANTS TO SUBMIT THE PAPER BOOK ABOUT THE ORDER WHICH THE TRIBUNAL HAD PASSED ON DATED 27 TH JULY, 2017. THE COUNSEL STATED THAT THE ASSESSEE COULD NOT FILE THE PAPER BOOK AND THE OTHER DOCUMENTS TO SUBSTANTIATE ITS CLAIM BECAUSE THE CIRCUMSTANCES WAS BEYOND HIS CONTROL AND THEREFORE, NOW THE ASSESSEE WANTS TO SUBMIT THE PAPER BOOK, THEREFORE, THE ORDER SHOULD BE RECALLED. WE NOTE THAT IF WE CONSIDER THE PAPER BOOK AND RECALL THE ORDER, IT WOULD BE TANTAMOUNT TO REVIEW THE ORDER PASSED BY THE TRIBUNAL. THE REVIEW OF ORDER IS NOT PERMITTED, ONLY APPARENT MISTAKE CAN BE CORRECTED AND RECTIFIED AS PER SECTION 254 (2) OF THE ACT. WE NOTE THAT IF THE TRIBUNAL RECALLS ITS ORDER BASED ON THESE CIRCUMSTANCES, THEN THERE WOULD NOT BE ANY FINALITY AND IT WILL BECOME A NEVER ENDING PROCESS, AS THE DEPARTMENT MAY ALSO COME BEFORE THE TRIBUNAL WITH SIMILAR REQUEST TO RECALL THE ORDER IN SIMILAR CIRCUMSTANCES. 5.WE NOTE THAT IT IS NOW WELL SETTLED THAT THE JURISDICTION OF THE ITAT, AS PER SECTION 254 (2) OF THE ACT, TO MAKE AN ORDER OF RECTIFICATION DEPENDS UPON THE EXISTENCE OF A MISTAKE APPARENT ON THE FACT OF THE RECORD. SUCH A MISTAKE MUST BE OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW CANNOT BE A MISTAKE APPARENT FROM THE RECORD. THE FACT THAT THE ASSESSEE FAILED TO FILE THE PAPER BOOK BEFORE TRIBUNAL IS NOT A MISTAKE APPARENT FROM RECORD. IN THE ASSESSEE`S CASE UNDER CONSIDERATION, THE TRIBUNAL HAS MA KALI ENTERPRISE M.A NO.199/KOL/2017 PAGE | 3 ADJUDICATED THE VARIOUS GROUNDS RAISED BY THE ASSESSEE, BASED ON THE MATERIAL SUBMITTED BY THE ASSESSEE AND DEPARTMENT, AND BASED ON THE ARGUMENTS MADE BY THE ASSESSEE AND DEPARTMENT BEFORE THE BENCH. HENCE, THERE IS NO MISTAKE APPARENT FROM RECORD. 6. WE NOTE THAT THE INCOME-TAX APPELLATE TRIBUNAL IS A CREATURE OF THE STATUTE. IT HAS NOT BEEN VESTED WITH THE REVIEW JURISDICTION BY THE STATUTE CREATING IT. THE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN JUDGMENTS OR ORDERS.IT IS TO BE REMEMBERED THAT AN OVERSIGHT OF A FACT CANNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER SECTION 254 (2) OF THE ACT. SIMILARLY, FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION, IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE MERE FACT THAT THE TRIBUNAL HAS NOT ALLOWED A DEDUCTION/CLAIM/REBATE,EVEN IF THE CONCLUSION IS WRONG, WILL BE NO GROUND FOR MOVING AN APPLICATION UNDER SECTION 254(2) OF THE ACT. FURTHER, IN THE GARB OF AN APPLICATION FOR RECTIFICATION, THE ASSESSEE CANNOT BE PERMITTED TO REOPEN AND REARGUE THE WHOLE MATTER, WHICH IS BEYOND THE SCOPE OF SECTION 254 (2) OF THE ACT. FAILED TO FILE THE PAPER BOOK AND OTHER DOCUMENTS DURING THE COURSE OF HEARING, BEFORE THE BENCH, IS NOT A MISTAKE APPARENT FROM RECORD, THEREFORE, WE DISMISS THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 24/08/2018. SD/- (S.S.VISWANETHRA RAVI) SD/- (DR. A.L. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; DATED 24/08/2018 RS, SPS MA KALI ENTERPRISE M.A NO.199/KOL/2017 PAGE | 4 / COPY OF THE ORDER FORWARDED TO : //TRUE COPY// BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/D.D.O, I.T.A.T, KOLKATA BENCHES, KOLKATA . 1. / THE APPELLANT MA KALI ENTERPRISE 2. / THE RESPONDENT-I.T.O, WARD-1(4), DURGAPUR 3. ( ) / THE CIT(A), :KOLKATA. 4. / CIT 5. , , / DR, ITAT, KOLKATA 6. / GUARD FILE.