THE ITO, Burhanpur V. SMT ASHA DEVI LATH, Burhanpur

MA 2/IND/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7748 (ITAT-INDORE)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 1999-2000
• Appeal Filed On: 06-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARUN DEWAN
• Assessee Lawyers: S S DESH
• Keywords: Reopening of assessment
• Section: 148; 2

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER MISCELLANEOUS PETITION NO.2/IND/2012 (ARISING OUT OF ITA NO. 323/IND/2008) A.Y. 1999-00 ITO, BURHANPUR APPLICANT VS. SMT. ASHADEVI LATH, BURHANPUR PAN ABSPL 4447 P RESPONDENT APPLICANT BY : SHRI ARUN DEWAN, SR. DR RESPONDENT BY : SHRI S.S. DESHPANDE, CA DATE OF HEARING : 26.3.2012 DATE OF PRONOUNCEMENT : 26.3.2012 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THIS MISCELLANEOUS PETITIONS U/S 254(2) OF THE ACT IS FILED BY THE REVENUE SEEKING RECALLING OF THE ORDER OF TRIBUNAL DATED 22.3.2010. 2. DURING HEARING OF THE MISCELLANEOUS PETITION, TH E LD. SR. DR SHRI AURN DEWAN ADVANCED HIS ARGUMENT WHICH IS IDENTICAL TO THE MISCELLANEOUS APPLICATION. OTH, SHRI S.S. DESHPANDE , LD. COUNSEL FOR THE ASSESSEE STRONGLY DEFENDED THE IMPUGNED ORDER B Y SUBMITTING THAT FIRSTLY, A DETAILED ORDER ON MERIT HAS BEEN PASSED BY THE TRIBUNAL AND 2 SECONDLY, THE TRIBUNAL HAS NO POWERS U/S 254(2) OF THE ACT TO REVIEW THE ORDER. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. REPRESENTATIVES OF BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE ALSO PERUSED THE LOG-BOOK AND THE NOTINGS MADE THER EIN ON 18.3.2010 AND FOUND THAT THE ARGUMENTS ADVANCED BY THE LD. RE SPECTIVE COUNSEL HAVE BEEN DULY CONSIDERED. WE FURTHER FIND THAT THE TRIBUNAL DECIDED THE APPEALS OF THE ASSESSEE FOR A.YS. 1998-99 & 199 9-00 AND THE REVENUE HAS PREFERRED MISCELLANEOUS PETITION FOR TH E A.Y. 1999-00 ARISING OUT OF ITA NO.323/IND/2008 AGAINST THE CONS OLIDATED ORDER (RUNNING INTO 27 PAGES) DATED 22.3.2010. THE APPEAL OF THE ASSESSEE HAS BEEN DECIDED ON MERIT AFTER CONSIDERING THE ARG UMENTS PUT FORTH BY BOTH SIDES. THE ASSESSEE CHALLENGED THE CONFIRMA TION OF REOPENING OF ASSESSMENT U/S 148 ALONG WITH ADDITION OF RS.4,4 3,345/- MADE U/S 68 OF THE ACT. THE ASSESSMENT WAS FRAMED WITHIN SIX YEARS BUT BEYOND FOUR YEARS. THE ASSESSMENT WAS REOPENED U/S 147/148 OF THE ACT ONLY ON THE BASIS OF MATERIAL WHICH WAS ALREADY AVAILABL E WITH THE LD. ASSESSING OFFICER AND THE DIRECTION OF THE LD. COMM ISSIONER TO REOPEN THE ASSESSMENT HAD ALREADY BEEN QUASHED BY THE TRIB UNAL. IT WAS FURTHER FOUND BY THE TRIBUNAL THAT THERE WAS NO FRE SH MATERIAL AVAILABLE WITH THE ASSESSING OFFICER TO REOPEN THE ASSESSMENT. THE 3 TRIBUNAL HAS ALREADY CONSIDERED CBDT CIRCULAR NO.54 9 DATED 31.10.1989 (1990) 182 ITR (ST) 1, 29 AND DULY RELIED UPON THE DECISION FROM HONBLE APEX COURT IN KELVINATOR OF INDIA LTD./EICH ER LTD. (2010) 320 ITR 561 (SC) AND FULL BENCH DECISION FROM HONBLE D ELHI HIGH COURT (2002) 256 ITR 1 (FB) (DEL) AND ALLOWED THE APPEAL OF THE ASSESSEE. 4. IF THE TOTALITY OF FACTS AND THE CONCLUSION OF T HE TRIBUNAL AS MENTIONED IN THE ORDER ARE ANALYSED AND KEPT IN JUX TAPOSITION WITH THE ARGUMENT OF THE LD. SR. DR, WE FIND NO INFIRMITY IN THE ORDER OF THE TRIBUNAL AND ALSO NO JUSTIFICATION IN THE CONTENTIO N RAISED BY THE REVENUE IN MISCELLANEOUS APPLICATIONS U/S 254(2) OF THE ACT. EVEN OTHERWISE, THE TRIBUNAL HAS LIMITED POWERS TO REVIE W ITS ORDER. THE POWERS OF VIEW MUST BE CONFERRED BY THE STATUTE. RE VIEW OF AN ORDER MEANS REEXAMINATION OR TO GIVE A SECOND VIEW OF THE MATTER FOR THE PURPOSES OF ALTERATION OR REVERSAL OF THE VIEW ALRE ADY TAKEN AFTER CHANGING THE EARLIER OPINION OR VIEW. THE ORDER PAS SED BY THE TRIBUNAL U/S 254(1) IS THE EFFECTIVE ORDER SO FAR AS THE APP EAL IS CONCERNED. ANY ORDER PASSED U/S 254(2) EITHER ALLOWING AMENDMENT O R REFUSING TO AMEND GETS MERGED WITH THE ORIGINAL ORDER PASSED. T HE ORDER AS AMENDED OR REMAINING UNAMENDED IS THE EFFECTIVE ORD ER FOR ALL PRACTICABLE PURPOSES. THAT IS THE FINAL ORDER OF TH E APPEAL. RECALLING OF ORDER IS NOT PERMISSIBLE U/S 254(2) AS RECALLING AU TOMATICALLY 4 NECESSITATES REHEARING AND READJUDICATION OF THE AP PEAL. OUR VIEW IS SUPPORTED BY THE RATIO LAID DOWN IN THE FOLLOWING D ECISIONS: CIT VS. B.P. AGRAWAL (90 TAXMAN 283) (CAL), KARAN & CO. (253 ITR 131) (DEL), NIRANJAN & CO. LTD. VS. ITAT (122 ITR 519) (CAL), CIT VS. ITAT (196 ITR 640) (ORI), CIT VS. ITAT (155 TAXMAN 378) (DEL), EXPRESS NEWS PAPERS LTD. VS. DCIT, 186 TAXMAN 111 ( MAD), CIT VS. SUMAN TEA & PLYWOOD INDUSTRIES P. LTD., 226 ITR 34 (CAL), CIT VS. ANAMIKA BUILDERS P. LTD., 117 TAXMAN 356 (C AL) 5. THE REVENUE HAS NEITHER PINPOINTED ANY SPECIFIC MISTAKE IN THE ORDER OF THE TRIBUNAL NOR IT IS A CASE OF CLERICAL OR ARITHMETICAL MISTAKE RATHER THROUGH THIS MISCELLANEOUS APPLICATION, THE DEPARTMENT IS TRYING TO GET THE ORDER REVIEWED WHICH POWERS DO NOT VEST WITH THE TRIBUNAL. IN VIEW OF THESE FACTS AND THE JUDICIAL PRONOUNCEME NTS, NO CASE IS MADE OUT BY THE REVENUE THROUGH THEIR MISCELLANEOUS PETITION, THEREFORE, SAME IS DISMISSED. FINALLY, THE MISCELLANEOUS PETITION OF THE REVENUE IS DISMISSED. ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESE NCE OF LEARNED REPRESENTATIVES OF BOTH SIDES AT THE CONCLU SION OF THE HEARING OF THIS MISCELLANEOUS PETITION ON 26.3.2012. SD SD (R.C. SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 26.3.2012 !VYS! COPY TO APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE