Lopamudra Misra, Cuttack V. ACIT, Circle-2(2), Cuttack, Cuttack

MA 20/CTK/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2774 (ITAT-CUTTACK)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-03-2015
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2001-2002
• Appeal Filed On: 28-11-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S VENKATRAMANI
• Assessee Lawyers: BASANT KUMAR MISRA
• Keywords: Source of fund
• Section: 244A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH, CUTTACK BEFORE SHRI P.K. BANSAL, HONBLE ACCOUNTANT MEMBER AND SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER MA NO. 20/CTK/2014 (OUT OF ITA NO. 233/CTK/2013) : (A.Y : 2001 - 02) LOPAMUDRA MISRA D/O BASANTA KUMAR MISRA HOUSE NO. 33, BHAWANI BUILDINGS, SECTOR - 6, C.D.A, CUTTACK 753 014. PAN : AGSPM8462C (APPLICANT) VS ASST. COMMISSIONER OF INCOME TAX, CIRCLE - 2(2), CUTTACK (RESPONDENT) APPLICANT BY : BASANT KUMAR MISRA RESPONDENT BY : S. VENKATRAMANI , DR DATE OF HEARING : 30/01/2015 DATE OF PRONOUNCEMENT : 10 /03/2015 O R D E R PER P.K. BANSAL : 1. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL DT. 22.10.2014 CONSISTING OF 16 PAGES IN WHICH AT PARA 1 TO 8 THE ASSESSEE STATED THE FACTS HOW THE MATTER HAS BEEN DISPOSED OFF BY THE CIT(A) AND IN PARA 9 THE ASSESSEE STATED THAT HE FILED THE APPEAL BEFORE THE TRIBUNAL AND CLAIMED THE FOLLOWING RELIEFS : (A) TO CALCULATE INTEREST @ 12% PER ANNUM AS A SSURED BY THE ASST. COMMISSIONER OF INCOME TAX, VIDE THE NOTICE DATED 16/01/2001. (B) TO PAY INTEREST ON INTEREST, AS HON'BLE SUPREME COURT, DECIDED IN THE MATTER OF COMMISSIONER OF INCOME TAX VRS. NARENDRA DOSHI. (C) TO, CALCULATE INTEREST @ 1% PER MONTH, AS STATED IN THE ACT, WHEN THE AMOUNT OF RS. 7,55,500/ - WAS FORCIBLY COLLECTED AS ADVANCE TAX, WITHOUT ANY AUTHORITY OF LAW. 2 MA NO. 20/CTK/2014 (A.Y 2001 - 02) (D) TO, INTEREST ACCRUED TO THE PRINCIPAL AMOUNT OF RS. 7,55,500/ - ARE TO BE ADDED WITH THE PRINCIPAL AMOUNT, AS THE INTEREST ACCRUED PARTAKES THE COLOUR AND CHARACTER OF THE AMOUNT DUE FOR REFUND, AS HON'BLE SUPREME COURT DECIDED IN THE MATTER OF C.I.T, BHOPAL VRS. H.E.G. LTD. (E) TO COMPENSATE, THE LOSS INCURRED TO THE ASSESSEE, FOR UNNECESSA RY HARASSMENT CAUSED TO HER. AND IN RESPECT OF THESE RELIEFS , THE ASSESSEE HAS TAKEN 8 GROUNDS WHICH WERE PRODUCED AT PG. 6 AND 7 OF ITS PETITION AND SUBSEQUENTLY NARRATED THE HISTORY HOW THE MATTER WAS TAKEN BY THE BENCH AND HOW THE SUBMISSIONS WERE MAD E BY THE ASSESSEE AS WELL AS THE DR AND HOW THE TRIBUNAL HAS DISPOSED OFF THE APPEAL. THE GLARING MISTAKE POINTED OUT BY HIM READS AS UNDER : 13. THE GLARING MISTAKES APPARENT FROM THE RECORDS OF THE TRIBUNAL ARE , I. THE TRIBUNAL HAS NOT DECIDED, WHAT IS THE MEANING OF THE LANGUAGE IN THE HIGH COURT ORDER DATED, 18/05/2011, THAT IS ' THE ASSESSEE IS ENTITLED TO GET REFUND OF THE ENTIRE ADVANCE TAX OF RS.7,55,500/ - ALONG WITH INTEREST AS PROVIDED UNDER THE ACT, AND WE ACCORDINGLY DIRECT THE ASST. COM MISSIONER OF INCOME TAX, CIRCLE - 2(2) CUTTACK TO DO SO' THAT IS, WHETHER, THE MEANING OF ' INTEREST AS PROVIDED IN THE ACT' DOES NOT MEAN, AS THE SECTION - 240 AND 244A OF THE ACT, ARE CONSTRUED BY HON'BLE SUPREME COURT ARE ALREADY TOOK POSITION IN THE IT ACT. AND, THE TRIBUNAL IS SILENT ON THIS ISSUE, WHICH IS THE GIST OF THE APPEAL. I I . THAT, IN RELATION TO STATUTORY INTEREST @ 12% PER ANNUM, THE ASSESSEE CLAIMED, AS PER THE ASSUARENCE/ COMMITMENT OF TH E ASST.COMMISSIONER OF INCOME TAX, IN THE NOTICE DATED, 16/01/2001, SHOULD NOT BE TREATED AS AGREED RATE OF INTEREST. AND, WHY, THE INTERPRETATION BY THE HON'BLE SUPREME COURT, IN THE MATTER OF H.U.D.A VRS. RAJSINGH RANA, WHICH IS ENCLOSED AS ANNEXURE - 3, ( PAGE - 57) IN WRITTEN SUBMISSION OF PLEADING BEFORE THE C.I.T(A), WHICH IS ALSO ENCLOSED IN THE WRITTEN SUBMISSION SUBMITTED BEFORE THE ITAT, BENCH ON 14/10/2014. IN THIS JUDGMENT HON'BLE SUPREME COURT IN PARAGRAPH 10 STATED THAT; THE CONCEPT OF LEVYING O R ALLOWING INTEREST IS AVAILABLE IN ALMOST ALL STATUES INVOLVING FINANCIAL DEALS AND COMMERCIAL TRANSACTIONS, BUT THE PROVISION EMPOWERING COURTS TO ALLOW INTEREST IS CONTAINED IN THE INTEREST ACT, WHICH SUCCEEDED AND REPEALED THE INTEREST ACT, 1839. SECTI ON - OF THE SAID ACT, INTER - ALIA, PROVIDES THAT IN ANY PROCEEDING IN WHICH A CLAIM FOR INTEREST IN RESPECT OF DEBT OR DAMAGES ALREADY PAID IS MADE, THE COURT MAY IF IT THINKS FIT, ALLOW INTEREST TO THE 3 MA NO. 20/CTK/2014 (A.Y 2001 - 02) PERSON ENTITLED TO THE DEBT OR DAMAGES OR TO THE PERSO N MAKING SUCH CLAIM, AS THE CASE MAY BE, AT A RATE NOT EXCEEDING THE CURRENT RATE OF INTEREST, FOR THE WHOLE OR PART OF THE PERIODS INDICATED IN THE SAID SECTION. WHAT IS IMPORTANT IS THE MENTION OF ALLOWING THE INTEREST AT A RATE OT EXCEEDING T HE CURRENT RATE OF INTEREST. SUCH PROVISION IS, HOWEVER, EXCLUDED IN RESPECT OF THE INTEREST PAYABLE BY VIRTUE OF ANY AGREEMENT AS INDICATED IN SUB SECTION (3). IN OTHER WORDS, WHERE THERE IS AN AGREEMENT BETWEEN THE PARTIES TO PAYMENT OF INTEREST AT A CERTAIN STIPUL ATE RATE, THE S AME WILL HAVE THE PRECEDENCE OVER THE PROVISION CONTAINED IN SUB - SECTION( 1 ), WHICH PROVIDES FOR COURTS TO ALLOW INTEREST AT A RATE NOT EXCEEDING THE CURRENT RATE OF INTEREST' AND, IN PARAGRAPH - 16, THE COURT HAS SAID THAT, IT MAY PERHAPS BE EVEN MORE PRAGMATIC IF A CONDITION REGARDING CHARGING INTEREST AT THE PREVAILING BANK RATES WERE INCLUDED IN THE ALLOTMENT LETTERS, HAVING REGARDS TO THE REVISIONS OF THE SUB - SECTION( 3 ) OF THE SECTION 3 OF THE SAID ACT . HENCE, IT MAY BE PERHAPS BE MORE PRAGMATIC IF THE ASST. COMMISSIONER OF INCOME TAX, WOULD HAVE MENTIONED IN THE SAID NOTICE DATED, 16/01/2001, THAT THE EXCESS TAX PAID THAN THE TAX CHARGEABLE WOULD BE REFUNDED ALONG WITH INTEREST AT THE PREVAILING RATES AT THE TIME OF REFUND. THE TRIBUNA L DID A GROSS MISTAKE APPARENT FROM THE RECORDS BY, NOT CONSIDERATIONS THE AFORESAID INTERPRETATION OF THE SUPREME COURT, WHERE AS, ANY THE INTERPRETATION OF HON'BLE SUPREME COURT IS THE LAW OF THE LAND AND BINDING TO ALL COURTS. 14. THAT, THE TRIBUNAL A LSO, DID NOT DECIDE THE FOLLOWING MATTERS, THOSE ARE SUBMITTED BY THE ASSESSEE, THOSE ARE' WHETHER, THE ASSESSEE IS NOT ENTITLED INTEREST ON INTEREST AS DECIDED BY HON'BLE SUPREME COURT, IN THE MATTER OF C.I.T BHOPAL VRS. NARENDRA DOSHI. THE D.R ALSO, SU BMITTED THE AFORE SAID JUDGMENT OF THE SUPREME COURT, IN SUPPORT OF THE ASSESSEE, ON 21/10/2014, BEFORE THE TRIBUNAL LI. THE TRIBUNAL IS COMPLETELY SILENT ON THE GROUND OF APPEAL NO - 4, THAT IS AS INTERPRETED BY HON'BLE SUPREME COURT RELATING SECTION - 240 A ND SECTION - 244A OF THE ACT, IN THE MATTER OF SANDVIK ASIA LTD. VRS. C.I.T PUNE AND OTHERS, C.I.T, BHOPAL VRS H.E.G LTD AND UNION OF INDIA VRS. TATA CHEMICALS LTD. IN THE INTERPRETATION OF THE MEANING OF REF U ND OF ANY AMOUNT DUE TO THE ASSESSEE AS MENTIONED IN THE SECTION - 240 AND 244A OF THE ACT, THE HON'BLE SUPREME COURT HAS SAID THAT, ANY AMOUNT MEANS THE EXCESS TAX BECOMES REFUNDABLE PLUS THE INTEREST ACCRUED BY THE EXCESS TAX, AS THE ACCRUED INTEREST WILL ALSO AKE THE COLOUR AND CHARACTER OF AMOUNT OF EXCESS TAX, BECOMES DUE FOR REFUND TO THE ASSESSEE. 4 MA NO. 20/CTK/2014 (A.Y 2001 - 02) II. THE A.R OF THE ASSESSEE ALSO SUBMITTED, THE ORDER DATED 18/09/2013, OF THE HON'BLE SUPREME COURT, IN THE MATTER OF C.I.T GUJARAT VRS. GUJARAT FLUORA CHEMICALS, WHICH WAS REFERRED BY ONE BE NCH OF THE HON'BLE SUPREME COURT, DOUBTING THE CORRECTNESS OF JUDGMENT OF SNDVIK ASIA LTD, DATED, 27/01/2006. IN THIS ORDER, HON'BLE COURT HAS NOT FOUND ANY WRONG IN THE ORDER DATED 27/01/2006 OF THE COURT, RATHER, IN PARAGRAPH - 8, IN RELATION TO, SECTION - 244A, IT IS SAID THAT, ' WHICH PROVIDES FOR INTEREST ON REFUNDS UNDER VARIOUS CONTINGENCIES' III. THAT IS THE INTEREST ACCRUED BY THE ILLEGALLY RETAINED AMOUNT DUE FOR REFUND, AS DECIDED BY SANDVIK ASIA, H.E.G LTD AND TATA CHEMICALS, INCLUDING NARENDRA D OSHI MATTERS B Y HON'BLE SUPREME COURT IS ONE OF CONTINGENCIES, AS PER THE AFORE STATED ORDER DATED, 18/09/2013 OF SUPREME COURT IN THE MATTER OF GUJARAT FLUORA CASE. THE D.R ALSO, SUBMITTED A COPY OF THIS ORDER ON 21/10/2014, BEFORE THE TRIBUNAL, AS REVENU E'S ARGUMENT, WHICH SUPPORTS THE PLEADING OF THE ASSESSEE. THUS, IT IS ANOTHER MISTAKE APPARENT FROM THE RECORD OF THE RECORDS OF THE TRIBUNAL, AND IT NEEDS TO BE RECTIFIED BY AMENDING THE ORDER DATED, 22/10/2014, THUS THE SAID ORDER CAN BE BROUGHT TO EXI STENCE. 15. THAT, WHILE GOING THROUGH THE ORDER DATED, 22/10/2014 AND THE AND THE CERTIFIED COPY OF THE ORDER SHEET DATED 14/10/2014,, THE A.R OF THE ASSESSEEE IS TO STATE THAT,, THE MEMBERS OF THE BENCH HAD NEVER GONE THROUGH, THE RELIEF CLAIMED IN THE A PPEAL, THE GROUND OF APPEAL AND THE WRITTEN SUBMISSION OF PLEADINGS, SUBMITTED BEFORE THE TRIBUNAL. SO, THE TRIBUNAL HAD PASSED AN ORDER, WHICH IS NOT AT ALL RELEVANT TO THE DOCUMENTS SUBMITTED BEFORE IT. SUCH AS; I. WHATSOEVER STATED IN PARAGRAPH - 2, OF THE AFORESAID ORDER, THAT, THE A.R HAS MENTIONED THAT,' THE ASSESSEE IS ENTITLED FOR REFUND @12% PER ANNUM ON THE REFUND AMOUNT OF THE TAX PAID FROM THE NOTICE DATE OF 16/01/2001 TO 14/10/2014' IS A BLUNTED LIE , BECAUSE IN THE RELIEF CLAIMED BY THE ASSESSEE, IN THE GROUND OF APPEAL AND IN THE WRITTEN SUBMISSION, THE ASSESSEE HAS CLAIMED, STATUTORY INTEREST @ 12% ANNUM FROM 01/03/2001 TO TILL THE FULL REFUND IS MADE OF THE REFUNDABLE AMOUNT, WHICH IS THE ILLEGALLY COLLECTED OF THE ADVANCE TAX AMOUNTI NG RS. 7,55,500/ - PLUS THE INTEREST ACCREUED TO THIS AMOUNT IN THE BANK, ACCORDING TO THE PROVISIONS U/S 119A(B) OF THE ACT AND AS THE LAW CONSTRUED BY HON'BLE SUPREME COURT. AND, IN RELATION TO THE SECOND PART OF SAID PARAGRAPH - 2 OF THE SAID ORDER, THA T,' BENCH HAD REQUESTED SHRI BASANTA KUMAR MISRA TO SUBMIT THE COPY OF RETURN FILED BY THE ASSESSEE SO THAT THE BENCH COULD UNDERSTAND THE METHOD OF CALCULATION OF TAX PAID AND THE TOTAL SOURCES OF INCOME ON WHICH THE TAX WAS PAID AS THE TOTAL INCOME DECLA RE IS NEARLY RS.16 LACS.' HOW IT WAS THAT, THE MEMBERS OF THE BENCH, WHO WERE GOING THROUGH THE JUDGEMENT OF THE HON'BLE HIGH COURT, AND OTHER DOCUMENTS SUBMITTED BEFORE THE BENCH, IN 5 MA NO. 20/CTK/2014 (A.Y 2001 - 02) WHICH, THE HON,BLE HIGH COURT, DIRECTED THE A.O TO REFUND THE ENTIRE ADVANCE TAX PAID BY THE ASSESSEE COULD NOT UNDERSTAND THE RETURN OF INCOME IS NON . ALSO THE A.R SUBMITTED BEFORE THE BENCH THAT, THE APPEAL WAS FILED U/S 240 AND 244A OF THE ACT, EXCLUSIVELY, TO DECIDE WHAT WOULD BE REFUNDABLE AMOUNT AND WHETHER THE ASSESSEE IS ENTITLED TO GET STATUTORY INTEREST @12% PER ANNUM AS ASSURED BY THE REVENUE, THE NEED OF VERIFYING THE RETURN OF INCOME OF THE ASSESSEE, WHICH ALREADY DECLARED NON - EXISTENCE BY HON'BLE HIGH COURT. THE FACT IS THAT, WHEN THE MEMBERS OF THE BENCH, PARTICULARLY THE JUDICIAL MEMBER, PRESSURIZED ON THE D.R TO AGREE TO PAY 12 PERCENT INTEREST, AND, THE D.R REPLIED THAT, THE REVENUE WOULD PAY INTEREST @12% ON THE EXCESS TAX PAID AS PER THE RETURN OF INCOME , SUBMITTED BY THE ASSESSEE, AND, WHEN THE A.R, INFORMED THE BENCH THIS ISSUE WAS ALREADY DECIDED BY THE HON,BLE HIGH COURT, AND WHICH MENTIONED AT PAGE - 9 AND PAGE - 14 OF THE JUDGMENT DATED 18/ 05 /2011, OF THE HON'BLE HIGH COURT, WHICH WERE IN THE HANDS OF T HE MEMBERS. THEN THE ,A.R, WANTED TO KNOW FROM THE BENCH, WHETHER THE TRIBUNAL HAS ANY POWER TO REVIEW THE JUDGMENT OF A HIGH COURT, THE JUDICIAL MEMBER, REPLIED, 'DO NOT TRY TO TEACH WHAT IS THE LIMITATION OF THE TRIBUNAL'. SO, IF THE MEMBERS WERE NOT IN INTENTION TO REVIEW THE HIGH COURT JUDGMENT, THEN, WHY THEY MADE ONE OF THE REASONS THAT, THE A.R HAS NOT SUBMITTED A COPY OF THE RETURN OF INCOME. IN THE ORDER SHEET, DATE, 14 /10/2014. THE TRIBUNAL AGREED IN ITS ORD E R DATED, 22/10/2014 THAT, THE TRIBUNA L VIDE AN ORDER DATED, 30/04/2009, HAD HELD THAT, THE PRIZE MONEY RECEIVED BY THE ASSESSEE FROM THE TELEVISION GAME SHOW, CANNOT BE ASSESSED AS INCOME OF THE ASSESSEE AND ASSESSEE IS ENTITLED TO GET REFUND OF RS.7,50 ,500 / - (THIS IS ANOTHER MISTAKE APPARENT FROM THE RECORDS, BECAUSE THE AMOUNT IS RS.7,55,500/ - NOT RS. 7,50,000/ - ) II. IN REGARDS TO PARAGRAPH - 5 AND 6 OF THE ORDER OF THE TRIBUNAL, THE A.R OF THE ASSEESSEE, AGAIN REPEAT THAT; (A) THE ACIT, CIRCLE - 2, CUTTACK HAD ASSURED TO REFUND THE EXCESS TAX PAID THAN THE AMOUNT ACTUALLY CHARGEABLE TAX WOULD BE REFUNDED ALONG WITH INTEREST @12% PER ANNUM. AND FOR WHICH THE ASSESSEE HAD PAID THE AMOUNT AS ADVANCE TAX. DOSE IT, NOT THAT, THIS AMOUN TS. TO BE AN AGREED RATE OF INTEREST, IN RELATION OF REFUND? (B) IN REGARDS TO THE STATEMENTS MENTIONED IN PARAGRAPH - 6, IT SEEM, THE MEMBERS OF THE SAID BENCH ARE IGNORANT OF THE LAW, THAT IS, WHEN A LAW IS CONSTRUED BY HON'BLE SUPREME COURT, IT TAKES PO SITION IN THE ACT, AND BINDING TO ALL COURTS. SO, IN THE MATTER OF H.U.D.A, VRS. RAJ SING RANA, HON'BLE SUPREME COURT SAID THAT.' IN CASE OF AN Y AGREEMENT IN RELATION RATE OF INTEREST BETWEEN THE PARTIES, THAT WILL TAKE PRECEDENCE. AND, IN THE SAID JUDGE MENT IT IS CLEARLY STATED THAT, 'IT WOULD HAVE BEEN MORE PRAGMATIC IF IT IS MENTIONED THAT, THE INTEREST WOULD BE CHARGED AT THE CURRENT BANK RATES . A LSO , IT SEEMS, THE MEMBERS OF THE TRIBUNAL ARE UNAWARE THAT, BY VIRTUE OF THE JUDGMENT OF THE HIGH COURT, THAT THE ADVANCE TAX WERE COLLECTED WITHOUT ANY AUTHORITY OF LAW, A PERFECT DEBT WAS CREATED ON THE REVENUE, W.E.F 6 MA NO. 20/CTK/2014 (A.Y 2001 - 02) 30/03/2001, SINCE ,THE DAY THE RS.7,55,500/ - WERE PAID, THE APPLICABLE INTEREST IN CASE OF REFUND WOULD BE THE RATE PREVAILING ON TH E DATE THE DEBT WAS CREATED ON THE REVENUE.(REFER PAGE - 20 OF SANDVIK ASIA CASE) (C) REGARDING, THE CALCULATION OF INTEREST PROVIDED BY THE A.R, IN THE LETTER DATED, 16/10/2014,WHICH MENTIONED IN PAGE - 5 OF THE ORDER THAT' A PERUSAL OF THE SAID CALCULATION SHOWS THAT, HE HAS COMPUTED INTEREST AT 9%, PER ANNUM FROM 30.10.2001 TO 31.01.2014. THIS IS NOT THE RATE OF INTEREST AVAILABLE AND INTEREST CANNOT BE CHARGED FOR 13 YEARS AND 9 MONTHS . I. THE TRIBUNAL IS REQUESTED TO PROVIDE A COPY OF SAID LETTER DATED, 16.10.2014, CATEGORICALLY STATING, WHERE THE A.R HAS CALCULATED STATUTORY INTEREST AT A RATE 9% PER ANNUM. THE INTEREST CALCULATED AT THE OF 9%, IS THE AVERAGE RATE OF INTEREST IN THE BANK, THAT WERE ACCRUED BY THE RS. 7,55,500/ - , AND, WHICH PARTAKE THE COLOUR AND CHARACTER OF ADVANCE TAX, ACCORDING TO THE JUDGMENTS OF HON'BLE SUPREME COURT, IN THE MATTER OF SANDIK ASIA AND H.E.G LTD MATTER. AND, IN RELATION TO CLAIMING INTEREST FOR 13 YEARS AND 9 MONTHS. SECTION 244A, OF THE ACT STATES THAT, INTERE ST TO BE CALCULATED FROM THE DATE OF PAYMENT OF THE EXCESS TAX PAID TO THE DATE OF THE AMOUNT IS REFUNDED. SO, THE MEMBERS WHO HAVE PASSED THIS ORDER SHOULD CALCULATE, WHETHER , 30/03/2001 TO 31/12/2014 (THE ANTICIPATED DATE FOR GETTING THE FULL AMOUNT DUE FOR REFUND) ARE 13 YEARS AND 9 MONTHS OR NOT. THIS, PROVES, THE MEMBERS OF THE BENCH HAVE NOT GONE THROUGH THE DOCUMENTS IN THE RECORD AND PASSED THE ORDER. SUCH ACT OF THE MEMBERS OF THE BENCH AMOUNTS TO NOT ONLY ILLEGAL, ALSO, A CORRUPT PRACTICE, TO PAS S AN ORDER WITH MALAFIED INTENTION. THAT, BECAUSE, MEMBERS WERE CLEARLY CAME PREPARED EITHER TO ADJOURN THE APPEAL OR TO DISMISS THE APPEAL, THEY, HAVE NOT GONE DETAILS OF THE LETTER DATED, 16/10/ 2 014 OF THE A.R, SO THEY HAVE MENTIONED FALSE AND UNTRUE TH INGS, IN THE ORDER, WITHOUT GIVING ANY REASONS. WHATSOEVER, THEY HAVE MENTIONED IN PARAGRAPH - 6, THOSE ARE ONLY CREATED BY THEM ONLY TO DISMISS THE APPEAL. ID) IT IS PRAYED TO THE MEMBERS WHO WILL TAKE UP THIS M.A CASE, TO COMPARE THE WORDINGS AND CALCULA TIONS OF INTEREST IN THE LETTER DATED, 16/10/2014, ALONG WITH THE GROUND OF APPEAL AND WRITTEN SUBMISSIONS OF PLEADING, AND, THE ORDER DATED, 22/10/2014, AND TO MENTIONED IN THEIR ORDER, WHATSOEVER MENTIONED IN THE AFORESAID ORDER DATED 22/10/2014, OF THE TRIBUNAL, ARE CORRECT AND, THE MISTAKES ARE NOT DONE DELIBERATELY BY THE MEMBERS. THE TRIBUNAL IS ALSO REQUESTED TO REFER THE MATTER TO HON'BLE HIGH COURT, AS THAT COURT WILL DECIDE, WHAT ACTION SHOULD BE TAKEN AGAINST SUCH MEMBERS PASSED THIS ORDER, AS WE LL AS THE HON,BLE HIGH COURT ALSO DECIDE, THE WHAT ARE THE APPLICABLE LAW IN THIS MATTER. 7 MA NO. 20/CTK/2014 (A.Y 2001 - 02) ULTIMATELY THE LD. AR PRAYED IN THE PETITION AS UNDER : THE PETITIONER OF THIS M.A CASE, PRAYS THE HON'BLE MEMBERS OF THE BENCH OF THE TRIBUNAL, TO RESTORE THE O RDER WHICH BECAME VOID AND NON - EXISTENCE, AS THE ORDER PASSED CONTRAVENING THE CIVIL PROCEDURE CODES AS MENTIONED IN THE PARAGRAPH - 1 OF THIS PETITION AND TO REFER THE MATTER TO THE HON'BLE ORISA HIGH COURT, AS A REFERRAL MATTER ON THE GROUND THAT, THE MEMBERS OF THE TRIBUNAL ARE UNABLE TO UNDERSTAND THE LANGUAGES OF THE PETITION AS WELL AS THE LAW OF THE LAND. AND TO, PASS ANY ORDER DEEMED FIT CONSIDERATION THE AFORE STATED FACTS AND CIRCUM STANCE S. 2. THE CASE WAS FIXED FOR HEARING. AT THE TIME OF THE HEARING, THE LD. AR MADE THE WRITTEN SUBMISSION WHICH READS AS UNDER : WITH REFERENCE TO THE AFORE STATED M.A 20/CTK/ 2014, THE A.R OF THE ASSESSEE - APPELLANT SUBMITS THE FOLLOWING ARGUMENTS. A . IN REGARDS TO THE FACTS THAT, THE ORDER DATED 22/10/2014 OF THE TRIBUNAL, IS NOT SUSTAINABLE AND VOID, BEING THE TRIBUNAL DID NOT FOLLOW THE LAW PRESCRIBED IN THE C.P.C, THE FOLLOWING JUDGMENTS ARE ENCLOSED. 1. SUPREME COURT JUDGMENT DATED, 08/09/1999, IN THE MATTER OF BALRAJ TANEJA & ANR VRS SUNIL MADAN & ANR. (ANNEXURE - 1) 2. SUPREME COURT JUDGMENT DATED,28/10/2013,IN THE MATTER OF M/S MAHAVIR CARBON LTD VRS OM PRAKASH JALAN (FINANCER) (ANNEXURE - 2 3. JUDGMENT OF KERALA HIGH COURT, DATED, 20/10/2003 IN THE MATTER OF SUBHA JAYAN VRS. MEENAKSHY KUMARAN, AND OTHERS (ANNEXURE - 3) 4. JUDGEMENT OF ORISSA HIGH COURT IN THE MATTER OF SMT. BINA DEVI VRS MEENA DEVI PUNCH, AND, OTHERS (ANNEXURE - 4) 5. ALSO XEROX C OPIES OF ORDER XIV, ORDER XX AND ORDER XLI OF THE C.P.C 1908 ARE ENCLOSED AS ANNEXURE - 5,6 AND 7. B. IN REGARDS OF NON - CONSIDERATION THE LAW CONSTRUED BY SUPREME COURT, BY ANY COURT IN INDIA, IS, VIOLATION OF ARTICLE - 141, OF THE CONSTITUTION OF INDIA, THU S IT IS 'MISTAKE APPARENT FROM RECORD', THE FOLLOWING JUDGMENTS ARE ENCLOSED. 8 MA NO. 20/CTK/2014 (A.Y 2001 - 02) 1. JUDGMENT OF SUPREME COURT, IN THE MATTER OF ASSISTANT COMMISSIONER INCOME TAX VS SAURASHTRA KUTCH STOCK EXCHANGE. (ANNEXURE - 8) 2. JUDGMENT OF DELHI HIGH COURT, IN THE MATTER OF THE COMMISSIONER OF INCOME TAX VS SATISH KUMAR AGARWAL. (ANNEXURE - 9) THE A/R OF THE ASSESSEE - PETITIONER PRAYS THE HON'BLE MEMBERS OF THE TRIBUNAL, TO RECTIFY THE MISTAKES APPARENT FROM THE RECORDS OF THE TRI BUNAL, STATED AS IN PARAGRAPH - 13, OF THIS M.A PETITION, THAT IS POSITIONED AT PAGE - 9, AND, TO PASS AN AMENDED ORDER, OF THE APPEAL WITHOUT RECALLING OR REVIEWING THE AFORE SAID ORDER DATED, 22/10/2014. BECAUSE, AS, THE TRIBUNAL HAD PASSED THE ORDER WITHOUT GOING THROUGH THE RELIEFS CLAIMED BY THE APPELLANT, THE GROUND OF APPEAL, SUBMITTED ALONG WITH FORM - 36, IN THE 1TAT, CUTTACK BENCH AND THE WRITTEN SUBMISSIONS OF PLEADINGS, SUBMITTED ON 14/10/2014, IN WHICH SEVERAL JUDGMENTS OF HON SUPREME COURT. THAT, AS ALL THE ARGUMENTS OF THE PETITIONER - ASSESSEE AN D , THE D.R, WHO HAD SUBMITTED THREE NUMBERS OF JUDGMENTS ARE IN THE RECORDS OF THE TRIBUNAL, NO QUESTION OF ANY FURTHER DISCUSSION REQUIRED RELATING THE MERITS OR DEMERITS IN THE APPEAL, EXCEPT TO DISCUSS WHE THERE, THERE ARE GLARING MISTAKES APPARENT, IN ORDER DATED, 22/10/2014 OF TRIBUNAL OR NOT. THE ASSESSEE - PETITIONER WILL BE EVER GRATEFUL, IF NECESSARY AMENDED ORDER SHALL BE PASSED BY HON'BLE TRIBUNAL, DEEMED FIT, TAKING INTO AFORE STATED FACT AND CIRCUMS TANCES, AS PER LAW OF THE LAND. 3 . THE LD. DR ON THE OTHER HAND CONTENDED THAT THERE IS NO MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL. THE TRIBUNAL IN ITS ORDER DT. 22.10.2014 DULY CONSIDERED ALL THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE. IT IS NOT A CASE OF MISTAKE APPARENT ON RECORD. THE POWER S OF THE TRIBUNAL ARE LIMITED TO RECTIFYING THE MISTAKE APPARENT ON RECORD. THE TRIBUNAL CANNOT GO BEYOND THOSE POWERS AS IT IS A CREATURE OF THE LAW AND NOT A CONSTITUTIONAL AUTHORITY. 4 . WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE TRIBUNAL CANNOT REVIEW ITS ORDER. SEC. 254(2) STATES THAT THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN 4 YEARS FROM THE DATE OF THE ORDER, WITH A VIEW TO RECTIFY ANY MISTAKE APPAREN T FROM THE RECORD AMEND ANY ORDER PASSED BY IT UNDER SUB - SECTION (1) AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO THE 9 MA NO. 20/CTK/2014 (A.Y 2001 - 02) NOTICE BY THE ASSESSEE OR BY THE ASSESSING OFFICER. THE WORDING USED IN THE SAID SECTION IS RECTIFYING ANY MISTAKE APPAREN T FROM THE RECORD. THIS IS AN UNDISPUTED FACT THAT IF THERE IS A MISTAKE APPARENT ON THE RECORD AND THE ASSESSEE BRINGS IT TO THE NOTICE OF THE TRIBUNAL, THE TRIBUNAL IS BOUND TO EXERCISE ITS POWERS U/S 254(2). THE TRIBUNAL CANNOT EXERCISE THE POWER OF REVIEWING ITS DECISION. IT IS WELL - SETTLED THAT THE POWER TO REVIEW IS NOT AN INHERENT POWER. IT MUST BE CONFERRED BY LAW EITHER SPECIFICALLY OR BY NECESSARY IMPLICATION. THE QUESTION BEFORE US IS WHAT IS MISTAKE APPARENT FROM RECORD. THIS IS SIMILAR T O THE EXPRESSION ERROR APPARENT ON THE FACE OF THE RECORD. THIS CAME UP FOR CONSIDERATION BEFORE THE HON'BLE SUPREME COURT WHILE EXERCISING CERTIORARI JURISDICTION UNDER ARTICLE 32 & 226 OF THE CONSTITUTION OF INDIA. THE HON'BLE SUPREME COURT IN THE CA SE OF T.S. BALARAM, ITO VS. M/S. VOLKART BROTHERS , 82 ITR 50 (SC) HELD THAT ' ANY MISTAKE APPARENT FROM THE RECORD' IS UNDOUBTEDLY NOT MORE THAN THAT OF THE HIGH COURT TO ENTERTAIN A WRIT PETITION ON THE BASIS OF AN 'ERROR APPARENT ON THE FACE OF THE RECORD '. IT WAS HOWEVER CONCEDED IN ALL THE LEADING CASES THAT IT IS VERY DIFFICULT TO DEFINE ERROR APPARENT ON THE FACE OF THE RECORD PRECISELY, SCIENTIFICALLY AND WITH CERTAINTY. THE HON'BLE SUPREME COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCH ANGE, 305 ITR 228 HELD AS UNDER : AN ERROR CANNOT BE SAID TO BE APPARENT ON THE FACE OF THE RECORD IF ONE HAS TO TRAVEL BEYOND THE RECORD TO SEE WHETHER THE JUDGEMENT IS CORRECT OR NOT. AN ERROR APPARENT ON THE RECORD MEANS AN ERROR WHICH STRIKES ONE ON MERE LOOKING AND DOES NOT NEED A LONG DRAWN OUT PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. SUCH ERROR SHOULD NOT REQUIRE ANY EXTRANEOUS MATTER TO SHOW ITS IN CORRECTNESS. TO PUT IT DIFFERENTLY, IT SHOULD BE SO MANIFEST AND CLEAR THAT NO COURT WOULD PERMIT IT TO REMAIN ON RECORD. IF THE VIEW ACCEPTED BY THE COURT IN THE ORIGINAL JUDGEMENT IS ONE OF POSSIBLE VIEWS, THE CASE CANNOT BE SAID TO BE COVERED BY AN ERROR APPARENT ON THE FACE OF THE RECORD. IN OUR OPINION, THE MISTAKE MAY BE OF TWO TYPES; MISTAKE RELATING TO THE FACTS OF THE CASE OR MISTAKE RELATING TO THE LAW. IN THE CASE OF THE ASSESSEE NO DOUBT THE ASSESSEE HAS TAKEN 7 GROUNDS BEFORE THE TRIBUNAL IN ITS APPEAL. GROUND NOS. 1 10 MA NO. 20/CTK/2014 (A.Y 2001 - 02) AND 3 REFERR ED ONLY TO THE HON'BLE HIGH COURTS JUDGEMENT AS WELL AS THE JUDGEMENT OF THE HON'BLE SUPREME COURT I N THE CASE OF CIT VS. NARENDRA DOSHI , 254 ITR 606 . GROUND NOS. 2, 4 AND 5 RELATES TO COMPUTATION OF INTEREST ON THE REFUND DUE TO THE ASSESSEE. GROUND NO . 7 RELATES TO THE DECISION OF SANDVIK ASIA LTD. THE ONLY ISSUE INVOLVED IN THESE GROUNDS TAKEN BY THE ASSESSEE RELATES TO CALCULATION OF INTEREST. THE TRIBUNAL HAS DULY CONSIDERED IN PARA 6 OF ITS ORDER THE CONTENTION OF THE ASSESSEE REGARDING COMPUTATI ON OF INTEREST AND THE RELEVANT PROVISIONS UNDER THE INCOME TAX ACT U/S 244A. THE TRIBUNAL HAS ALSO CONSIDERED THE DECISION OF THE HON'BLE HIGH COURT DT. 7.9.2011 IN THE CASE OF THE ASSESSEE ON THE BASIS OF WHICH THE ASSESSEE IS ENTITLED FOR THE INTEREST. THE RELEVANT FINDING OF THE HON'BLE HIGH COURT UNDER PARA 21 AND 22 WERE DULY RE - PRODUCED BY THE TRIBUNAL IN ITS ORDER DT. 22.10.2014. THIS TRIBUNAL HAS RELIED ON THE FINDING OF THE HON'BLE SUPREME COURT IN THE CASE OF GUJARAT FLOURO CHEMICALS, 358 ITR 291 IN WHICH THE HON'BLE SUPREME COURT HAS CONSIDERED THE DECISION OF SANDVIK ASIA LTD. AND THE HON'BLE SUPREME COURT IN THIS JUDGEMENT UNDER PARA 8 ULTIMATELY TOOK THE VIEW THAT IT IS ONLY THAT INTEREST PROVIDED UNDER THE STATUTE WHICH MAY BE CLAIMED BY A N ASSESSEE FROM THE REVENUE AND NO OTHER INTEREST ON SUCH STATUTORY INTEREST. THE HON'BLE SUPREME COURT IN THIS DECISION HAS CLARIFIED THAT IN THE CASE OF SANDVIK ASIA LTD. THE COURT HAS DIRECTED THE REVENUE TO PAY COMPENSATION FOR THE INORDINATE DELAY IN REFUND, NOT INTEREST ON INTEREST. THE TRIBUNAL IS A CREATURE OF THE STATUTE AND LATEST DECISION OF THE HON'BLE SUPREME COURT IS BINDING ON THE TRIBUNAL. THIS TRIBUNAL DOES NOT HAVE ANY POWER TO GRANT C OMPENSATION FOR INORDINATE DELAY. T HAT CAN BE ALLOW ED ONLY BY THE HON'BLE HIGH COURTS OR THE HON'BLE SUPREME COURT. 5 . WE DO AGREE WITH THE LD. AR THAT THE TRIBUNAL HAS NOT CONSIDERED THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. NARENDRA DOSHI, 254 ITR 606 ( SUPRA ) AND ALSO GROUND NOS. 6 AND 7 TAKEN BY THE ASSESSEE. IN OUR 11 MA NO. 20/CTK/2014 (A.Y 2001 - 02) OPINION, IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE, 305 ITR 228 ( SUPRA ) THE MISTAKE HAS CREPT INTO THE ORDER OF THE TRIBUNAL BY NOT CONSIDERING THE DE CISION OF THE HON'BLE SUPREME COURT WHICH WAS IN EXISTENCE AS ON THE DATE OF PASSING OF THE ORDER. NON - CONSIDERATION OF THE GROUND OR APPEAL TAKEN BY THE ASSESSEE IS ALSO A MISTAKE APPARENT ON RECORD. WE, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE, 305 ITR 228 ( SUPRA ) RECALL THE ORDER OF THE TRIBUNAL DT. 22.10.2014 FOR DISPOSING OFF GROUND NOS. 3, 6 & 7 TAKEN BY THE ASSESSEE. 6 . IN THE RESULT, THE MISCELLANEOUS APPLI CATION FILED BY THE ASSESSEE IS PARTLY ALLOWED. 7 . ORDER PRONOUNCED IN PURSUANCE OF RULE 34(4) OF ITAT RULES, 1963 BY PUTTING ON NOTICE BOARD OF THE BENCH AT CUTTACK ON 1 0 / 0 3 /2015 . S D / - (D.T.GARASIA) JUDICIAL MEMBER S D / - (P.K. BANSAL) ACCOUNTANT MEMBER PLACE : PANAJI / GOA DATED : 1 0 /03/ 201 5 *SSL* COPY TO : (1) APPLICANT (2) RESPONDENT (3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER ,