Sh. Mithlesh Kumar Gupta, Farrukhabad V. D.C.I.T., Circle-1, Farrukhabad

MA 20/AGR/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9193 (ITAT-AGRA)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-10-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 12-10-2012
• Assessment Year: 1996-1997
• Appeal Filed On: 20-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Assessee Lawyers: MITHLESH KUMAR GUPTA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER M.A. NO. 19 & 20/AGRA/2012 (IN M.A. NO. 16 & 17/ AGRA/2011) ASSTT. YEAR : 1995-96 & 1997-98 SHRI MITHLESH KUMAR GUPTA, VS. D.C.I.T., CIRCLE -1, PROP. M/S. R.K. TRADING CO., FARRUKHABAD. LINDSEYGANJ, FARRUKHABAD. (PAN : ACHPP 7790 A) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI MITHLESH KUMAR GUPTA, ASSESSEE RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 12.10.2012 DATE OF PRONOUNCEMENT OF ORDER : 12.10.2012 ORDER PER BENCH: THE ASSESSEE IS HEARD IN PERSON AS WELL AS PROVIDE D HELP OF AMICUS CURIE OF SHRI RAJENDRA SHARMA, ADVOCATE AND SHRI PANKAJ GARG H, ADVOCATE. WE HAVE ALSO HEARD THE LD. DR AND PERUSED THE EARLIER ORDERS OF THE TRIBUNAL AND THE RECORD. 2. THE RECORD REVEALS THAT THE ASSESSEE HAS A HISTO RY OF FILING THE FRIVOLOUS MISCELLANEOUS APPLICATIONS AGAINST THE PROVISIONS O F LAW. LASTLY, THE TRIBUNAL HAD DECIDED M.A. NO. 16 & 17/AGRA/2011 FILED BY THE ASS ESSEE, VIDE ORDER DATED 01.06.2012. IT IS NECESSARY TO REPRODUCE THE ENTIRE ORDER, WHICH READS AS UNDER : M.A. NOS.19 & 20/AGRA/2012. 2 BOTH THESE MISCELLANEOUS APPLICATIONS BY THE ASSES SEE ARE DIRECTED AGAINST THE ORDER OF THE TRIBUNAL DATED 04 .02.2011 DISMISSING THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE IN M.A. NOS. 64 & 65/AGRA/2006. 2. THE RECORD REVEALS THAT THE ASSESSEE FILED APPEA LS IN ITA NOS. 124/AGRA/2000 AND 139/AGRA/2003. ITA NO. 124/AGRA/2 000 WAS DISMISSED IN LIMINE ON 08.07.2004 AND ITA NO. 139/A GRA/2003 WAS DISMISSED IN LIMINE VIDE ORDER DATED 15.07.2004. TH E ASSESSEE PREFERRED M.A. NOS. 77 & 78/AGRA/2004 AGAINST THESE ORDERS OF THE TRIBUNAL. M.A. NOS. 77 & 78/AGRA/2004 WERE ALLOWED AND THE EARLIER ORDERS PASSED EXPARTE DATED 08.07.2004 AND 15.07.20 04 WERE RECALLED AND THE APPEALS OF THE ASSESSEE WERE FIXED FOR HEAR ING. THE RECORD FURTHER REVEALS THAT THE ASSESSEE, EXCEPT SEEKING A DJOURNMENTS, WAS NOT PROSECUTING THE APPEALS. THEREFORE, AGAIN, BOTH THE APPEALS OF THE ASSESSEE IN ITA NO. 124/AGRA/2000 AND 139/AGRA/2003 WERE DISMISSED VIDE ORDER DATED 16.10.2006. THE ASSESSEE PREFERRED M.A. NO. 64 & 65/AGRA/2006 AGAINST THE ORDER OF THE TRIB UNAL DATED 16.10.2006, BUT AGAIN THE ATTITUDE OF THE ASSESSEE REMAINED SAME AND THE ASSESSEE DID NOT PROSECUTE ITS MISCELLANEOUS AP PLICATIONS. THEREFORE, VIDE ORDER DATED 04.02.2011, THE ASSESSE ES M.A. NOS. 64 & 65/AGRA/2006 WERE DISMISSED IN LIMINE. THE ASSESS EE HAS NOW PREFERRED THE PRESENT M.A. NOS. 16 & 17/AGRA/2011 F OR RECALLING OF THE ORDER DATED 04.02.2011 PASSED IN M.A. NOS. 64 & 65/AGRA/2006. 3. NONE APPEARED ON BEHALF OF THE ASSESSEE DESPITE SERVICE OF NOTICE. THE MISCELLANEOUS APPLICATIONS WERE TAKEN U P FOR HEARING ON 18.05.2012 AND ON THE REQUEST OF ASSESSEE, THE MISC ELLANEOUS APPLICATIONS WERE ADJOURNED TO 01.06.2012. THE RECO RD REVEALS THAT THE ASSESSEE DESPITE PENDENCY OF HIS TWO APPEALS AN D MISCELLANEOUS APPLICATIONS, NEVER PROSECUTED THE SAME AND EXCEPT SEEKING ADJOURNMENTS, NOTHING HAS BEEN DONE. EVEN TODAY, NE ITHER THE ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE IS PRESE NT. THEREFORE, BOTH THE MISCELLANEOUS APPLICATIONS ARE DECIDED ON THE B ASIS OF MATERIAL AVAILABLE ON RECORD. 4. AFTER HEARING THE LD. DR AND PERUSING THE MATERI AL ON RECORD, WE DO NOT FIND ANY MISTAKE APPARENT ON RECORD OF TH E TRIBUNAL. THE M.A. NOS.19 & 20/AGRA/2012. 3 ASSESSEE THROUGH THESE M.AS. HAS SOUGHT TO RECALL T HE EARLIER ORDER OF THE TRIBUNAL DATED 04.02.2011, AGAINST WHICH MA NOS . 64 & 65/AGRA/2006 WERE DISMISSED. THERE IS NO LAW TO PRO VIDE ANY REMEDY TO THE ASSESSEE FOR RECALLING THE ORDER PASSED U/S. 254(2) OF THE IT ACT. HONBLE ORISSA HIGH COURT IN THE CASE OF CIT VS. IT AT, 196 ITR 838 HELD SECTION 254(2) OF THE INCOME-TAX ACT, 1961, EMPOWE RS THE TRIBUNAL TO AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1) WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER. THEREFORE, TO ATTRACT THE APPLICABILITY OF SECTION 254(2), THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED MUST BE APP ARENT FROM THE RECORD, AND THE SAME MUST BE IN ANY ORDER PASSE D UNDER SUB-SECTION (1) OF SECTION 254. AN ORDER REJECTING AN APPLICATION FOR RECTIFICATION UNDER SECTION 254(2) IS NOT AN ORDER PASSED UNDER SECTION 254(1) AND IT CANNOT BE RECTIFIED UNDER SECTION 254(2). SINCE THE MISCELLANEOUS APPLICATIONS OF THE ASSESSE E ARE NOT MAINTAINABLE IN THE PRESENT FORM AND FURTHER, THE L AST ORDER OF THE TRIBUNAL DATED 16.10.2006 HAS BECOME FINAL AND FURT HER FOUR YEARS HAVE ELAPSED DURING WHICH THE APPLICATIONS U/S. 254 COULD HAVE BEEN MOVED, IT WOULD PROVE THAT THE RELIEF CLAIMED BY TH E ASSESSEE CANNOT BE GRANTED TO THE ASSESSEE. THEREFORE, WE HOLD THAT THE MISCELLANEOUS APPLICATIONS OF THE ASSESSEE ARE NOT MAINTAINABLE. THE SAME ARE ACCORDINGLY DISMISSED. 5. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIO NS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 01.06.2012. 3. THE ASSESSEE FILED THE PRESENT MISCELLANEOUS APP LICATIONS AGAINST THE ORDER PASSED ON 01.06.2012 DECIDING THE M.A. NOS. 16 & 17 /AGRA/2011 ABOVE. IT IS STATED IN THE APPLICATION THAT ON 18.05.2012, THE A SSESSEE SENT ADJOURNMENT APPLICATION AND THEREAFTER HE RECEIVED THE ORDER DI SMISSING THE MISCELLANEOUS APPLICATIONS. THE RECORD OF THE MAS ABOVE, REVEALS THAT THE ASSESSEE FILED M.A. NOS.19 & 20/AGRA/2012. 4 ADJOURNMENT APPLICATION FOR 18.05.2012 AND ON THE R EQUEST OF THE ASSESSEE M.A. NOS. 16 & 17/AGRA/2011 WERE ADJOURNED TO 01.06.2012 . ON THE DATE OF HEARING FIXED ON 01.06.2012, AGAIN THE ASSESSEE DID NOT APP EAR AS USUAL HE WAS NEVER RESPONDING TO THE NOTICES IN THE EARLIER PROCEEDING S. IN PARA 4 OF THE ORDER OF THE TRIBUNAL DATED 01.06.2012, QUOTED ABOVE, IT WAS ALS O HELD THAT THERE IS NO PROVISION IN LAW TO PROVIDE ANY REMEDY TO THE ASSESSEE FOR RE CALLING THE ORDER PASSED U/S. 254(2) OF THE IT ACT. WE ARE FORTIFIED IN OUR VIEW BY THE DECISION OF HONBLE ORISSA HIGH COURT IN THE CASE OF CIT VS. ITAT, 196 ITR 838. THE PRESENT M.A. NOS. 19 & 20/AGRA/2012 ARE AGAIN FILED AGAINST THE ORDER PASSED IN M.A. NO.16 & 17/AGRA/2011. THUS, BOTH THE MISCELLANEOUS APPLICAT IONS OF THE ASSESSEE ARE NOT MAINTAINABLE. FURTHER NO REASONS HAVE BEEN EXPLAINE D AS TO WHY THE ASSESSEE DID NOT ATTEND THE HEARING ON 01.06.2012 WHEN EARLIER M .A. NOS. 16 & 17/AGRA/2011 WERE DECIDED AND DISPOSED OF. RECORD FURTHER REVEAL S THAT THE ASSESSEE IS HABITUAL FOR MOVING FRIVOLOUS MISCELLANEOUS APPLICATIONS, DE SPITE NO REMEDY IS AVAILABLE IN THE PRESENT FORM. BOTH THE MISCELLANEOUS APPLICATIO NS OF THE ASSESSEE, ARE ACCORDINGLY, NOT MAINTAINABLE AND ARE DISMISSED. CO NSIDERING THE ABOVE FACTS, WE WARN THE ASSESSEE TO BE CAREFUL IN FUTURE, OTHERWIS E, HEAVY COST SHALL BE IMPOSED AGAINST THE ASSESSEE FOR WASTING JUDICIAL TIME. ACC ORDINGLY, BOTH THE MISCELLANEOUS APPLICATIONS OF THE ASSESSEE ARE DISMISSED. M.A. NOS.19 & 20/AGRA/2012. 5 4. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIO NS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12.10.2012. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY