I.T.O Wd - 9(4),Kol., Kolkata V. Nathmall Giridharilal Steels Ltd, Kolkata

MA 20/KOL/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0595 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-06-2013
• Appeal Filed By: Department
• Bench Allotted: SMC
• Assessment Year: 2005-2006
• Appeal Filed On: 12-03-2013
• Court: TRIBUNAL
• Department Lawyers: K N JANA
• Assessee Lawyers: V N PUROHIT
• Keywords: Tax effect
• Section: 154

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH C , KOLKATA [ () . .. . . .. . , ,, , , ! ' #!' ' #!' ' #!' ' #!', ,, , ] ]] ] [BEFORE HONBLE SRI N.S.SAINI AM & HONBLE SRI M AHAVIR SINGH, JM] M.A.20/KOL/2013 !% !% !% !% /A/O ITA NO.1705/KOL/2012 #& '(/ ASSESSMENT YEAR : 2005-06 (*+ / APPELLANT ) - - ( -.*+ /RESPONDENT) I.T.O., WARD-9(4), . NATHMALL GIRIDHARILAL STEEL LTD. KOLKATA -VERSUS- KOLKATA (PAN:AAACN 8237 F) *+ / 0 / FOR THE APPELLANT: SHRI K.N.JANA, JCIT, SR.DR -.*+ / 0 / FOR THE RESPONDENT: SHRI V.N.PUROHIT, FCA 1 2 / 3 /DATE OF HEARING : 07.06.2013 4' / 3 /DATE OF PRONOUNCEMENT : 07.06.2013. 5 / ORDER PER SHRI N.S.SAINI, AM BY THIS APPLICATION U/S 254(2) OF THE I.T.ACT, 1961 , THE REVENUE SEEKS RECTIFICATION/RECALL OF THE ORDER OF THIS TRIBUNAL DATED 18.12.2012 IN ITA NO.1705/KOL/2012 FOR A.YR. 2005-06, ON THE GROUND T HAT CERTAIN MISTAKE APPARENT ON RECORD HAS CREPT INTO THE SAME. 2. BY THE ORDER DATED 18.12.2012, THE TRIBUNAL HAS DISMISSED THE APPEAL OF THE REVENUE IN LIMINE, BASED ON ITS FINDING THAT THE TA X EFFECT INVOLVED IN THE APPEAL OF THE REVENUE WAS LESS THAN RS. 3 LAKHS, AND CONSEQUENTLY , IN VIEW OF THE INSTRUCTION NO.3 OF 2011 [F.NO.279/MISC.142/2007-ITJ] DATED 9 TH FEBRUARY, 2011 ISSUED BY CBDT, THE APPEAL OF THE REVENUE WAS NOT MAINTAINABLE. BY THE AVERMENTS OF THE REVENUE MADE IN THE PRESENT APPLICATION, DISCUSSING THAT THE ADD ITION OF RS.2,11,810/- WAS MADE IN THE PROCEEDINGS U/S 154 IN FOLLOWING UP OF THE AUDI T OBJECTION ACCEPTED BY THE DEPARTMENT AND THAT THE CASE WAS FALLING UNDER THE EXCEPTIONAL CATEGORY MENTIONED IN PARA 8C OF THE CBDTS INSTRUCTION NO.3/2011 DATED 0 9.02.2011, THE REVENUE SUBMITS M.A.20/K/2013 A/O ITA NO.1705/KO L/2012 I.T.O., WARD-9(4), KOLKATA VS NATHMALL GIRIDHARILAL STEEL L TD. A.YR.2005-06 2 THAT THE APPEAL OF THE REVENUE WAS COVERED UNDER TH E EXCEPTIONAL CLAUSE AND THEREFORE THE TRIBUNAL WAS IN ERROR IN DISMISSING THE APPEAL OF THE REVENUE BY APPLYING THE CBDT INSTRUCTION NO.3 OF 2011. REITERATING THE AVER MENTS MADE IN THE PRESENT APPLICATION, THE LD. DR SUBMITTED THAT THERE IS MIS TAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL DATED 18.12.2012 AND AS SUCH IT IS LIABLE TO BE RECALLED FOR BEING DISPOSED OF ON MERITS OF THE ISSUES INVOLVED. 3. THE LD. COUNSEL FOR THE ASSESSEE, WHILE OPPOSING THE CONTENTION OF THE REVENUE, SUBMITTED THAT THERE IS NO MISTAKE APPAREN T FROM RECORD, IN AS MUCH AS THE TAX EFFECT INVOLVED IN THE REVENUES APPEAL IS LESS THAN RS.3 LAKHS, AND AS SUCH THE SAME WAS CORRECTLY DISMISSED BY THE TRIBUNAL IN LIM INE AS NOT MAINTAINABLE. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE LIGHT OF THE AVERMENTS MADE BY THE APPLICANT IN THE PRESENT APPLICATION, WE FIND THAT THE TRIBUNAL HAS RENDERED ITS DECISION , AFTER HEARING BOTH THE PARTIES AND THE DECISION TO DISMISS THE APPEAL OF THE REVENUE, TREATED THE SAME AS NOT MAINTAINABLE ON THE GROUND THAT THE TAX EFFECT WAS LESS THAN RS.3 LAKHS, WAS DULY PRONOUNCED IN THE OPEN COURT AT THE CONCLUSION OF T HE HEARING. THE FINDING OF THE TRIBUNAL WAS THAT THE TAX EFFECT WAS LESS THAN RS.3 LAKHS WAS A FINDING OF FACT AND THE SAME WAS NOT DISPUTED BY THE LD. DR, WHEN THE DECIS ION WAS PRONOUNCED IN THE OPEN COURT AT THE CONCLUSION OF THE HEARING. THE DEPARTM ENT HAVING NOT RAISED ANY CONTENTIONS, TO DISPUTE THE SAID FINDING OF THE TRI BUNAL, AS TO THE TAX EFFECT INVOLVED, AND BY ADDUCING NECESSARY EVIDENCE TO SUBSTANTIATE THE SAID CONTENTIONS, AT THAT STAGE, IT CANNOT BE SAID THAT THERE WAS ANY MISTAKE APPARE NT FROM RECORD IN THE ORDER OF THE TRIBUNAL DATED 18.12.2012. EVEN IN THESE PROCEEDING S U/S 254(2) OF THE ACT, THE REVENUE HAS NOT SPECIFICALLY DRAWN OUR ATTENTION TO ANY MATERIAL AVAILABLE ON RECORD AT THE STAGE OF THE APPEAL, BASED ON WHICH IT CAN BE S AID THAT THE TRIBUNALS FINDING THAT THE TAX EFFECT WAS LESS THAN RS.3 LAKHS WAS ERRONEO US. MORE SO WHEN THE FINDINGS OF THE TRIBUNAL IN RELATION TO THE TAX EFFECT, WAS NOT DISPUTED BY THE DR, WHEN IT WAS PRONOUNCED IN THE OPEN COURT AT THE CONCLUSION OF T HE HEARING ON THE APPEAL. 5. THE CONTENTIONS OF THE REVENUE NOW RAISED, ARE T OO LATE IN THE DAY AND THEY CANNOT SUBSTANTIATE ANY MISTAKE APPARENT FROM RECOR D IN THE ORDER OF THE TRIBUNAL. M.A.20/K/2013 A/O ITA NO.1705/KO L/2012 I.T.O., WARD-9(4), KOLKATA VS NATHMALL GIRIDHARILAL STEEL L TD. A.YR.2005-06 3 THE SUBMISSION OF THE LD. COUNSEL MADE IN THIS REGA RD ALSO REMAINS UNCONTROVERTED. IN THESE CIRCUMSTANCES, IT CANNOT BE SAID THAT THERE W AS ANY MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL DATED 18.12.2012. WE A RE SUPPORTED ON THIS ISSUE BY THE DECISION OF THE HONBLE ANDHRA PRADESH HIGH COURT I N THE CASE OF CIT AND ANOTHER VS ITAT AND ANOTHER 206 ITR 126 WHEREIN IT WAS HELD THAT THE APPELLATE TRIBUNAL, BEING A CREATURE OF THE ST ATUTE, HAS TO CONFINE ITSELF IN THE EXERCISE OF ITS JURISDICTION TO THE ENABLING OR EMP OWERING TERMS OF THE STATUTE. IT HAS NO INHERENT POWER. EVEN OTHERWISE, IN CASES WHERE SPEC IFIC PROVISION DELINEATES THE POWERS OF THE COURT OR TRIBUNAL, IT CANNOT DRAW UPON ITS A SSUMED INHERENT JURISDICTION AND PASS ORDERS AS IT PLEASES. THE POWER OF RECTIFICATION WH ICH IS SPECIFICALLY CONFERRED ON THE TRIBUNAL HAS TO BE EXERCISED IN TERMS OF THAT PROVI SION. IT CANNOT BE ENLARGED ON ANY ASSUMPTION THAT THE TRIBUNAL HAS GOT AN INHERENT PO WER OF RECTIFICATION OR REVIEW OR REVISION. IT IS AXIOMATIC THAT SUCH POWER OF REVIEW OR REVISION HAS TO BE SPECIFICALLY CONFERRED; IT CANNOT BE INFERRED. UNLESS THERE IS A MISTAKE APPARENT FORM THE RECORD IN THE SENSE OF PATENT, OBVIOUS AND CLEAR ERROR MISTAK E, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER. IF THE ERROR OR MISTAKE IS ONE WHI CH COULD BE ESTABLISHED ONLY BY LONG- DRAWN ARGUMENTS OR BY A PROCESS OF INVESTIGATION AN D RESEARCH, IT IS NOT A MISTAKE APPARENT FROM THE RECORD. IF TWO VIEWS ARE POSSIBLE ON A POINT OF LAW, AND ONE OF THE ALTERNATIVES IS ACCEPTED IN ITS PREVIOUS ORDER, IT CANNOT BE HELD THAT THE MISTAKE IS APPARENT FROM THE RECORD. UNLESS THERE ARE MANIFEST ERRORS WHICH ARE OBVIOUS, CLEAR AND SELF-EVIDENT, THE TRIBUNAL CANNOT RECALL ITS PR EVIOUS ORDER IN AN ATTEMPT TO REWRITE ITS ORDER. 6. IN VIEW OF THE FOREGOING DISCUSSION, WE FIND NO MISTAKE APPARENT FROM RECORD, WITHIN THE MEANING OF SECTION 254(2) OF THE ACT, TH E SCOPE OF WHICH IS CONFINED TO MERE RECTIFICATION OF THE MISTAKES APPARENT FORM RE CORD. WE ACCORDINGLY REJECT THE PRESENT APPLICATION OF THE REVENUE WHICH IS DEVOID OF MERIT. 6. IN THE RESULT THE MISCELLANEOUS APPLICATION FILE D BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 07.06.2013. SD/- SD/- [ .' #!' , ] [ .., ,, , ] [MAHAVIR SINGH ] [N.S.SAINI] JUDICIAL MEMBER ACCOUNTANT MEMBER ( (( (3 3 3 3) )) ) DATE: 07.06.2013. R.G.(.P.S.) M.A.20/K/2013 A/O ITA NO.1705/KO L/2012 I.T.O., WARD-9(4), KOLKATA VS NATHMALL GIRIDHARILAL STEEL L TD. A.YR.2005-06 4 5 / -##6 76'8- COPY OF THE ORDER FORWARDED TO: 1. NATHMALL GIRIDHARILAL STEEL LTD., P-3, NEW C.I.T. R OAD, KOLKATA-700073. 2 I,.T.O., WARD-9(4), KOLKATA 3 . CIT-III, KOLKATA 4. CIT (A)-VIII, KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. .6 -#/ TRUE COPY, 51/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES