The ITO, 4(4), Indore V. Shri Ghanshyam L/H of Late Shri Hariram Bhagirath, Barwaha

MA 20/IND/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0862 (ITAT-INDORE)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 10-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G S GAUTAM
• Assessee Lawyers: S S SOLANKI
• Section: 68

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 M.A. NO. 20/IND/2013 (ARISING OUT OF ITA NO.301/IND/2011) A.Y. 2008-09 ITO 4(4), INDORE :: APPLICANT VS LATE HARI RAM BHAGIRATH THROUGH L/H SHRI GHANSHYAM INDORE PAN ADVPH 3674B :: RESPONDENT DEPARTMENT BY SHRI G.S. GAUTAM ASSESSEE BY SHRI S.S. SOLANKI DATE OF HEARING 23.8.2013 DATE OF PRONOUNCEMENT 23.8.2013 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THIS MISCELLANEOUS APPLICATION U/S 254(2) OF THE A CT IS PREFERRED BY THE REVENUE ON THE GROUND THAT THE TRI BUNAL VIDE ORDER DATED 20.7.2012 DISMISSED THE APPEAL OF THE REVENUE IN WHICH THE 2 FINDING OF THE LEARNED CIT(A) DELETING THE ADDITION OF RS. 30 LACS MADE U/S 68 OF THE ACT, HOLDING THAT THERE WAS NO O THER SOURCE OF INCOME OF THE ASSESSEE EXCEPT AGRICULTURAL INCOME, WAS UPHELD. DURING HEARING, THE LEARNED SENIOR DR, SHRI G.S. GA UTAM, CONTENDED THAT A MISTAKE HAS CREPT IN THE ORDER OF THE TRIBUNAL IN UPHOLDING THE FINDING OF THE CIT(A) WHICH REQUIRES RECONSIDERATION/RECTIFICATION. ON THE OTHER HAND, T HE LEARNED COUNSEL FOR THE ASSESSEE, SHRI S.S. SOLANKI, FILED WRITTEN SYNOPSIS RUNNING INTO 7 PAGES IN SUPPORT OF THE ORDER OF THE TRIBUNAL. IT WAS ALSO PLEADED THAT UNDER THE GUISE OF THIS APPLICATI ON, THE REVENUE IS TRYING TO GET THE ORDER OF THE REVIEWED WHICH IS NO T PERMISSIBLE U/S 254(2) OF THE ACT. 2. WE HAVE PERUSED THE RECORD AND CONSIDERED THE AR GUMENTS ADVANCED BY THE LEARNED RESPECTIVE COUNSEL. IF THE TOTALITY OF FACTS AND THE CONCLUSION OF THE TRIBUNAL AS MENTIONED IN THE ORDER ARE ANALYSED AND KEPT IN JUXTAPOSITION WITH THE ARGUMEN T OF BOTH THE SIDES, WE FIND THAT WHILE DISPOSING OF THE APPEAL O F THE REVENUE, THE TRIBUNAL HAS DULY CONSIDERED THE FACTS AVAILABLE ON RECORD INCLUDING THE OBSERVATION MADE IN THE ASSESSMENT ORDER AND TH E 3 CONCLUSION/FINDING DRAWN IN THE IMPUGNED ORDER. TH E LEARNED CIT(A) AT PAGE 4, PARA 4.1 HAS DULY CONSIDERED THE SUBMISSION OF THE ASSESSEE AND IN PARA 4.2 THE FACTS AND THE DECI SION FROM HONBLE APEX COURT. THE CATEGORICAL FINDING CONTA INED IN PARA 4.5 OF THE ORDER OF THE LEARNED CIT(A) AT PAGE 8 WAS NE VER CONTRADICTED BY THE LEARNED COUNSEL FOR THE REVENUE AT THE TIME OF HEARING OF THE MAIN APPEAL. EVEN AT THE TIME OF HEARING OF THIS M ISCELLANEOUS APPLICATION, NEITHER THE FINDING CONTAINED IN PARA 4.5 WAS CONTRADICTED NOR ANY POSITIVE MATERIAL WAS BROUGHT ON RECORD EVIDENCING THAT THERE WAS OTHER SOURCE OF INCOME WI TH THE ASSESSEE EXCEPT AGRICULTURAL INCOME. THE CONCLUSION DRAWN IN THE ORDER OF THE TRIBUNAL WAS ARRIVED AT ON CONSIDERATION OF FAC TS AVAILABLE ON RECORD. AT THIS STAGE, THE REVENUE IS TRYING TO GET THE ORDER OF THE TRIBUNAL REVIEWED WHICH IS NOT PERMISSIBLE U/S 254( 2) OF THE ACT. IN VIEW OF THESE FACTS, THERE IS NO INFIRMITY IN THE O RDER OF THE TRIBUNAL AND ALSO NO JUSTIFICATION IN THE CONTENTION RAISED BY THE REVENUE IN MISCELLANEOUS APPLICATIONS U/S 254(2) OF THE ACT. 3. EVEN OTHERWISE, THE TRIBUNAL HAS LIMITED POWERS U/S 254(2) OF THE ACT AND ONLY MISTAKE OF ARITHMETICAL/CLERICAL N ATURE CAN BE 4 RECTIFIED. THROUGH THIS MISCELLANEOUS APPLICATION, THE REVENUE IS TRYING TO GET THE ORDER REVIEWED, WHICH IS NOT PERM ISSIBLE U/S 254(2) OF THE ACT. THE POWERS OF REVIEW MUST BE CONFERRED BY THE STATUTE. REVIEW OF AN ORDER MEANS RE-EXAMINATION OR TO GIVE A SECOND VIEW OF THE MATTER FOR THE PURPOSES OF ALTERATION OR REVERS AL OF THE VIEW ALREADY TAKEN AFTER CHANGING THE EARLIER OPINION OR VIEW. THE ORDER PASSED BY THE TRIBUNAL U/S 254(1) IS THE EFFECTIVE ORDER SO FAR AS THE APPEAL IS CONCERNED. ANY ORDER PASSED U/S 254(2) EI THER ALLOWING AMENDMENT OR REFUSING TO AMEND GETS MERGED WITH THE ORIGINAL ORDER PASSED. THAT IS THE FINAL ORDER OF THE APPEAL . RECALLING OF ORDER IS NOT PERMISSIBLE U/S 254(2) AS RECALLING AUTOMATI CALLY NECESSITATES REHEARING AND RE-ADJUDICATION OF THE APPEAL. OUR VI EW IS SUPPORTED BY THE RATIO LAID DOWN IN THE FOLLOWING DECISIONS: 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). 4. THE REVENUE HAS NEITHER PINPOINTED ANY SPECIFIC MISTAKE IN THE ORDER OF THE TRIBUNAL NOR IT IS A CASE OF CLERI CAL OR ARITHMETICAL 5 MISTAKE RATHER THROUGH THIS MISCELLANEOUS APPLICATI ON, THE REVENUE IS TRYING TO GET THE ORDER REVIEWED WHICH POWERS AR E NOT VESTED WITH THE TRIBUNAL. IN VIEW OF THESE FACTS AND THE JUDICI AL PRONOUNCEMENTS, NO CASE IS MADE OUT BY THE REVENUE THROUGH ITS MISCELLANEOUS PETITION, THEREFORE, SAME IS DISMISSE D. FINALLY, THE MISCELLANEOUS PETITION OF THE REVENUE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN T HE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCL USION OF THE HEARING ON 23.8.2013. SD SD (R.C.SHARMA) (JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 23.8.2013 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE DN/-