Rabindra Kumar Mehra L/H of Late Rajni Mehra, Kolkata V. ITO, Ward-37(4), Kolkata, Kolkata

MA 2/KOL/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4076 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-02-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 06-01-2015
• Court: TRIBUNAL
• Section: 142(1); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA [BEFORE SHRI P. M. JAGTAP, AM & SHRI MAHAVIR SINGH , JM] M. A. NO. 02/KOL/2015 IN M.A. NO.06/KOL/2013 IN I.T.A NO. 1578/KOL/2010 ASSESSMENT YEAR: 2003-04 RABINDRA KUMAR MEHRA VS. INCOME-TAX OFFICER, WD -37(4), KOL. (L/R OF LATE RAJNI MEHRA) (PAN: AHSPM6143R) ( APPLICANT ) ( RESPONDENT ) DATE OF HEARING: 18.12.2015 DATE OF PRONOUNCEMENT: 08.02.2016 FOR THE APPLICANT: S/SHRI S.L. KOCHAR & ANIL KOCHA R, ADVOCATES FOR THE RESPONDENT: SHRI P. K. CHAKRABORTY, JCIT, S R. DR ORDER PER MAHAVIR SINGH, JM: BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE HAS REQUESTED FOR RECALLING OF TRIBUNALS ORDER IN ITA NO. 1578/KOL/2010 DATED 26. 11.2010 WHEREIN BEFORE THE BENCH, A SPECIFIC GROUND NO. 2 RAISED FOR JURISDICTION THAT ASSESSMENT FRAMED U/S. 144/147 OF THE ACT IS BAD IN LAW HAS NOT BEEN ADJUDICATED. LD. COUNSE L FOR THE ASSESSEE DREW OUR ATTENTION TO GROUND NO.2, WHICH READS AS UNDER: 2. FOR THAT THE LD. CIT(A) OUGHT TO HAVE ACCEPTED THE CONTENTION OF THE APPELLANT THAT ASSESSMENT FRAMED U/S 144/147 WAS BAD IN LAW. 2. LD. COUNSEL FOR THE ASSESSEE HAS RAISED THE ISSU E THAT NO NOTICE U/S. 142(1) OF THE ACT HAVING BEEN ISSUED AT ALL. HE ARGUED THAT ONCE NO SHOW CAUSE NOTICE FOR FRAMING OF ASSESSMENT IS ISSUED, IN THAT EVENTUALITY, NO ASSES SMENT IN CONTRAVENTION TO PROVISO TO SECTION 144 OF THE ACT CAN BE FRAMED. HE READ OUT THE PROVISO TO SECTION 144 OF THE ACT, WHICH READS AS UNDER: PROVIDED THAT SUCH OPPORTUNITY SHALL BE GIVEN BY THE ASSESSING OFFICER BY SERVING A NOTICE CALLING UPON THE ASSESSEE TO SHOW CAUSE, ON A DATE AND TIME TO BE SPECIFIED IN THE NOTICE, WHY THE ASSESSMENT SHOULD NOT BE COMPLE TED TO THE BEST OF HIS JUDGMENT. 3. LD. COUNSEL FOR THE ASSESSEE STATED THAT DURING THE COURSE OF APPEAL IT HAS BEEN POINTED OUT THAT NOTICE U/S. 142(1) OF THE ACT HAS NOT AT ALL BEEN ISSUED AND THERE WAS NO SHOW CAUSE NOTICE AT ALL, WHICH RESULTED INTO ASSES SMENT FRAMED U/S. 144/147 OF THE ACT BAD IN LAW. ACCORDING TO LD. COUNSEL, THIS GROUND REMAINED UN-ADJUDICATED AND HENCE, THE ORDER OF THE TRIBUNAL HAS TO BE RECALLED. WHEN LD. COUNSEL WAS POINTED OUT THAT THIS IS 2 MA NO.02/K/2015 RABINDRA KUMAR MEHRA A. Y 2003-04 MA ON MA AND MISC. APPLICATION U/S. 254 OF THE ACT CANNOT BE ENTERTAINED. LD. COUNSEL FOR THE ASSESSEE ACCORDINGLY, DREW OUR ATTENTION TO THE JUDGMENT OF HONBLE HIGH COURT IN THE CASE OF SUPREME INDUSTRIES LTD. VS. ADDL. CIT ( 2014) 12 TMI 184, WHEREIN IT HAS BEEN HELD AS UNDER: 12. IT IS A SETTLED POSITION IN LAW THAT EVERY AU THORITY EXERCISING QUASI JUDICIAL POWERS HAS INHERENT/INCIDENTAL POWER IN DISCHARGING OF ITS FUNCTIONS TO ENSURE THAT JUSTICE IS DONE BETWEEN PARTIES I.E. NO PREJUDICE I S CAUSED TO ANY OF THE PARTIES. THIS POWER HAS NOT TO BE TRACED TO ANY PROVISION OF THE ACT BUT INHERES IN EVERY QUASI JUDICIAL AUTHORITY. THIS HAS BEEN SO HELD BY THE S UPREME COURT IN GRINDLAYS BANK LTD. VS. CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL 198 0 SCC 420. THEREFORE, THE AFORESAID PRINCIPLE OF LAW SHOULD HAVE BEEN ADOPTE D BY THE TRIBUNAL. IT IS EXPECTED FROM THE TRIBUNAL TO ADOPT A JUSTICE ORIENTED APPRO ACH AND NOT DEFEAT THE LEGITIMATE RIGHTS ON THE ALTAR OF PROCEDURES AND TECHNICALITIE S. THIS IS PARTICULARLY SO WHEN THERE IS NO SPECIFIC BAR IN THE ACT TO CORRECT AN O RDER PASSED ON RECTIFICATION. 13. IT IS FUNDAMENTAL PRINCIPLE OF LAW THAT NO PART Y SHOULD BE PREJUDICED ON ACCOUNT OF ANY MISTAKE IN THE ORDER OF THE TRIBUNAL. THOUG H NOT NECESSARY FOR THE DISPOSAL OF THIS PETITION, WE EXPRESS OUR DISAPPROVAL OF THE ST AND TAKEN IN THE IMPUGNED ORDER THAT SECTION 254(2) OF THE ACT ARE MEANT ONLY FOR R ECTIFYING THE MISTAKES OF THE TRIBUNAL AND NOT OF THE PARTIES. THE TRIBUNAL AND THE PARTIES ARE NOT ADVERSARIAL TO EACH OTHER. IN FACT, THE TRIBUNAL AND THE PARTIES NORMALLY REPRESENTED BY ADVOCATES/CHARTERED ACCOUNTANTS ARE COMRADES IN ARM S TO ACHIEVE JUSTICE. THEREFORE, A MISTAKE FROM ANY SOURCE BE IT THE PART IES OR THE TRIBUNAL SO LONG AS IT BECOMES A PART OF THE RECORD, WOULD REQUIRE EXAMINA TION BY THE TRIBUNAL UNDER SECTION 254(2) OF THE ACT. IT CANNOT BE DISMISSED AT THE THRESHOLD ON THE ABOVE GROUND. IN VIEW OF THE ABOVE, LD. COUNSEL FOR THE ASSESSEE STATED THAT THE ORDER OF THE TRIBUNAL BE RECALLED QUA GROUND NO. 2 RAISED BY ASSESSEE AND AS REPRODUCED ABOVE. 4. ON THE OTHER HAND, LD. SR. DR OBJECTED FOR RECAL LING OF THE ORDER AND VEHEMENTLY OPPOSED THE PETITION. 5. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FOUND THAT GROUND NO.2 RAISED BY ASSESSEE IS NOT AT ALL ADJUDICATED BY THE TRIBUNAL AND HENCE, QUA THIS GROUND WE RECALL THE O RDER. THE REGISTRY WILL FIX THIS APPEAL IN REGULAR COURSE FOR HEARING GROUND NO.2 ONLY. 4. IN THE RESULT, MISC. APPLICATION OF ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- (P. M. JAGTAP) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 8 TH FEBRUARY, 2016 JD.(SR.P.S.) 3 MA NO.02/K/2015 RABINDRA KUMAR MEHRA A. Y 2003-04 COPY OF THE ORDER FORWARDED TO: 1. APPLICANT: SHRI RABINDRA KUMAR MEHRA, L/R OF LAT E RAJNI MEHRA, C/O S. L. KOCHAR, ADVOCATE, 86, CANNING STREET, KOLKATA-700 0 01. 2 RESPONDENT ITO, WARD-37(4), KOLKATA. 3. THE CIT(A) , KOLKATA 4. ACIT, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, ASSTT. REGISTRAR .