Shri Bansilal Lakhimal Kanjani, Ahmedabad V. The ACIT, Circle-3, Ahmedabad

MA 200/AHD/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1747 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-05-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 02-05-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 21-11-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA
• Assessee Lawyers: A C SHAH
• Keywords: Question of law
• Section: 260A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, A HMEDABAD (BEFORE SHRI MUKUL KR. SHRAWAT, J.M. & SHRI ANIL C HATURVEDI, A.M.) M. A. NO. 200/AHD/2013 (IN ITA NO. 2647 /AHD/2011) (ASSESSMENT YE AR: 2008-09) BANSILAL LAKHIMAL KANJANI PROP. OF M/S. GERMAN CHEMICALS, PLOT NO. 139, PHASE-II, GIDC, NARODA, AHMEDABAD V/S THE ACIT, CIRCLE-3, AHMEDABAD (APPELLANT) (RESPONDENT) PAN: ACYPK 5537 C APPELLANT BY : SHRI A.C. SHAH RESPONDENT BY : SHRI O.P. BATHEJA, SR. D.R. ( )/ ORDER DATE OF HEARING : 02-05-2014 DATE OF PRONOUNCEMENT : 30 -05-2014 PER SHRI ANIL CHATURVEDI,A.M. 1. THIS MA IS ARISING OUT OF ITA NO 2647/AHD/2011 FOR AY 2008-09 ORDER DATED 20.9.2013. 2. BY THIS MISCELLANEOUS APPLICATION, ASSESSEE HAS REQ UESTED FOR RECALLING OF THE ORDER DATED 20.9.2013 PASSED BY THE ITAT AHM EDABAD BENCH-D IN ITA.NO.2647/AHD/2011 FOR THE ASSESSMENT YEAR 2008-0 9. M.A NO 200/A/13 (IN ITA N O. 2647/A/11) . A.Y. 2008- 09 2 3. IN THE MISCELLANEOUS APPLICATION WHICH IS RUNNING I NTO 13 PAGES, THE ASSESSEE HAS INTERALIA SUBMITTED THAT THE TRIBUNAL HAS NOT CONSIDERED AND NOT DEALT WITH THE SUBMISSIONS OF THE ASSESSEE, TRI BUNAL HAS NOT GIVEN A FINDING AS TO WHETHER AO'S FINDING IS PROPER, TRIBU NAL HAS NOT CONSIDERED THE CASE LAWS RELIED UPON BY AR, TRIBUNAL HAS NOT D ISCUSSED AND CONSIDERED THE DECISIONS CITED BY AR AND THEREFORE THERE IS APPARENT MISTAKE IN THE ORDER OF TRIBUNAL AND THEREFORE THE ORDER OF THE TRIBUNAL BE RECALLED. 4. BEFORE US, LEARNED AR, REITERATED THE SUBMISSIONS M ADE IN THE APPLICATION AND FURTHER SUBMITTED THAT AGAINST THE ORDER OF TRI BUNAL, ASSESSEE HAD PREFERRED APPEAL BEFORE HON'BLE HC AND HON'BLE HC H AS VIDE TAX APPEAL NO 116 OF 2014 (ORDER DATED 24.2.2014), ADMITTED TH E APPEAL CONSIDERING THE QUESTION TO BE SUBSTANTIAL QUESTION OF LAW. HE THEREFORE SUBMITTED THAT IN VIEW OF THE AFORESAID, THERE IS MISTAKE APPARENT FROM RECORD IN TERMS OF PROVISIONS OF S. 254(2) AND THEREFORE THE ORDER BE RECALLED. THE LD. D.R. ON THE OTHER HAND OBJECTED TO THE SUBMISSIONS OF TH E ID. AR. HE SUBMITTED THAT THE HON'BLE BENCH AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE CASE LAWS RELIED BY AR DECIDED THE ISSUE AND THEREFORE THERE WAS NO APPARENT MISTAKE IN THE ORDER OF THE T RIBUNAL. HE FURTHER SUBMITTED THAT AGAINST THE ORDER OF TRIBUNAL, SINCE THE HON'BLE HIGH COURT HAS ADMITTED THE APPEAL HOLDING THE ISSUE TO BE A S UBSTANTIAL QUESTION OF LAW, THE PRAYER OF THE LD AR CANNOT BE CONSIDERED I N VIEW OF THE DECISION OF HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS MUNI SEVA ASHRAM (2013) 38 TAXMANN.COM 110 (GUJ). HE ALSO PLA CED ON RECORD THE COPY OF THE AFORESAID DECISION. HE THUS OBJECTED TO THE PRAYER OF ID AR AND SUBMITTED THAT THE M/A OF THE ASSESSEE NEEDS TO BE DISMISSED. M.A NO 200/A/13 (IN ITA N O. 2647/A/11) . A.Y. 2008- 09 3 5. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND, PERUSED THE MATERIAL ON RECORD. WE HAVE ALSO GONE THROUGH THE M ISCELLANEOUS APPLICATION. THE MAIN GRIEVANCE OF THE ASSESSEE IS THAT THE VARIOUS CASE LAWS CITED BY THE LD AR HAVE NOT BEEN DEALT WITH AN D THE TRIBUNAL HAS NOT CONSIDERED HIS VARIOUS SUBMISSIONS. IN THE IMPU GNED ORDER, WE FIND THAT FROM PARAS 20 TO 26, THE TRIBUNAL HAS DISTINGU ISHED THE VARIOUS DECISIONS RELIED BY THE LD. AR. THE TRIBUNAL AFTER CONSIDERING THE SUBMISSIONS OF ASSESSEE DECIDED THE ISSUE. WE ARE T HUS OF THE VIEW THAT THE SUBMISSIONS OF THE ASSESSEE WERE CONSIDERED WHI LE DISPOSING THE APPEAL. IF THE PRESENT PRAYER MADE BY THE ASSESSEE IN ITS MISCELLANEOUS APPLICATION IS ACCEPTED, IT WILL AMOUNT TO REVIEW O F OUR ORDER. THE LAW IS SETTLED THAT WE HAVE NO POWER OF REVIEW FOR WHICH W E FIND SUPPORT BY THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CAS E OF PERFETTI VAN MELLE INDIA (P) LTD. VS. CIT (2008) 296 ITR 595 (DE L) WHERE THE HON'BLE HIGH COURT HAS CONCLUDED THAT ASSESSEE CANNOT BE AL LOWED TO REOPEN AND REARGUE THE WHOLE MATTER IN THE GARB OF RECTIFICATI ON UNDER S. 254(2). IT HAS HELD AS UNDER: 'IT IS WELL SETTLED THAT AN OVERSIGHT OF A FACT CAN NOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER S. 254(2). SIMILARLY, FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION, IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE MERE FACT THAT THE TRIBUNAL HAS NOT ALLOWED A DEDUCTION, EVEN IF THE CONCLUSION IS WRONG, THAT WILL BE NO GROUND FOR MOV ING AN APPLICATION UNDER S. 254(2). FURTHER, IN GARB OF APPLICATION FOR RECTIFICATION, THE ASSESSEE CANNOT BE ALLOWED TO BE PERMITTED TO REOPEN AND REARGUE THE WHOLE MATTER, WHICH IS BEYOND THE SCOPE OF THIS SECTION. 6. THE HON'BLE APEX COURT IN THE CASE OF CIT VS KARAM CHAND THAPAR & BROS (P) LTD (1989) 176 ITR 535 (SC) HAS NOTED US U NDER: '7 IT IS EQUALLY SETTLED THAT THE DECISION OF THE TRIBUNAL HAS NOT TO BE SCRUTINISED SENTENCE BY SENTENCE MERELY TO FIND OUT WHETHER ALL FACTS HAVE BEEN SET OUT IN DETAIL BY THE TRIBUNAL OR WHETHER SOME INCIDENTAL FACT WHICH APPEARS ON RECORD HAS NO T BEEN NOTICED BY THE TRIBUNAL IN IS JUDGEMENT. IF THE COURT, ON A FAIR READING OF THE JUDGMENT OF THE TRIBUNAL, FINDS THAT IT HAS TAKEN INTO ACCOUNT M.A NO 200/A/13 (IN ITA N O. 2647/A/11) . A.Y. 2008- 09 4 ALL RELEVANT MATERIAL AND HAS NOT TAKEN INTO ACCOUN T ANY IRRELEVANT MATERIAL IN BASING THE CONCLUSIONS, THE DECISION OF THE TRIBUNAL IS NOT LI ABLE TO BE INTERFERED WITH....' 7. IN THE CASE OF CIT VS MARUTI INSURANCE DISTRIBUTIO N SERVICES LTD. (W.P.(C) 106/2012 DEL HIGH COURT ORDER DATED 04.09. 2012) THE HON'BLE HIGH COURT HAS HELD AS UNDER: 'SECTION 254(2) OF THE ACT MAKES IT AMPLY CLEAR THA T A 'MISTAKE APPARENT FROM THE RECORD' IS RECTIFIABLE. TO ATTRACT THE JURISDICTION UNDER SECT ION 254(2), A MISTAKE SHOULD EXIST AND MUST BE APPARENT FROM THE RECORD. THE POWER TO RECTIFY THE MISTAKE, HOWEVER, DOES NOT COVER CASES WHERE A REVISION OR REVIEW OF THE ORDER IS INTENDED. 'MISTA KE' MEANS TO UNDERSTAND WRONGLY OR INACCURATELY; IT IS AN ERROR; A FAULT, A MISUNDERST ANDING, A MISCONCEPTION. 'APPARENT' IMPLIES SOMETHING THAT CAN BE SEEN, OR IS VISIBLE; OBVIOUS; PLAIN. A MISTAKE WHICH CAN BE RECTIFIED UNDER SECTION 254(2) IS ONE WHICH IS PATENT, OBVIOUS AND WHOSE DISCOVERY IS NOT DEPENDENT ON ARGUMENT. THE LANGUAGE USED IN SECTION 254(2) IS PERMISSIBLE WHERE IT IS BROUGHT TO THE NOTICE OF THE TRIBUNAL THAT THERE IS ANY MISTAKE APPARENT FROM TH E RECORD. THE AMENDMENT OF AN ORDER THEREFORE, DOES NOT MEAN OBLITERATION OF THE ORDER ORIGINALLY PASSED AND ITS SUBSTITUTION BY A NEW ORDER WHICH IS NOT PERMISSIBLE, UNDER THE PROVISION S OF SECTION 254(2). FURTHER, WHERE AN ERROR IS FAR FROM SELF-EVIDENT, IT CEASES TO BE AN 'APPARENT ' ERROR. UNDOUBTEDLY, A MISTAKE CAPABLE OF RECTIFICATION UNDER SECTION 254(2) IS NOT CONFINED TO CLERICAL OR ARITHMETICAL MISTAKES. AT THE SAME TIME, IT DOES NOT COVER ANY MISTAKE WHICH MAY BE DI SCOVERED BY A COMPLICATED PROCESS OF INVESTIGATION, ARGUMENT OR PROOF. AS OBSERVED BY TH E SUPREME COURT IN MASTER CONSTRUCTION CO. (P) LTD. V. STATE OF ORISSA (1966) 17 STC 360, AN E RROR WHICH IS APPARENT ON THE FACE OF THE RECORD SHOULD BE ONE WHICH IS NOT AN ERROR WHICH DEPENDS F OR ITS DISCOVERY ON ELABORATE ARGUMENTS ON QUESTIONS OF FACT OR LAW. A SIMILAR VIEW WAS ALSO E XPRESSED IN SATYANARAYAN LAXMINARAYAN HEGDE V. MALLIKARJUN BHAVANAPPA TIRUMALE AIR 1960 SC 137. 8. IN THE CASE OF V.T. SOMASUNDARAM V.LTO [1999] 70 IT D 398 (CHEN), THE CO-ORDINATE BENCH OF TRIBUNAL HAS HELD THAT:- SECTION 254(2) IT IS NOT NECESSARY OR IMPERATIVE ON PART OF TRIBUNAL TO GIVE ADDITIONAL OR SEPARATE REASONS IF TRIBUNAL IS IN AGREEMENT WITH REASONS GI VEN BY LOWER TAX AUTHORITIES WHEN EACH AND EVERY DOCUMENT OR EACH AND EVERY SENT ENCE OR PARAGRAPH FROM DOCUMENTS FILED BY THE ASSESSEE HAD NOT BEEN THREADBARE AND ELABORATEL Y DISCUSSED IN THE APPEAL ORDER DID NOT MEAN THAT THERE HAD BEEN NON-APPLICATION OF MIND OR NON- CONSIDERATION OF THE RELEVANT MATERIAL FOR ARRIVING AT THE DECISION BY THE TRIBUNAL. IT WAS SU FFICIENT IF THE TRIBUNAL STATED THAT THERE HAD BEEN EXAMINATION OF THE FACTS OF THIS CASE AS WELL AS AR GUMENTS PUT FORTH BY THE RIVAL PARTIES. IT WAS FURTHER HELD THAT IT WAS NOT NECESSARY OR IMPERATIV E ON THE PART OF THE APPELLATE AUTHORITY THAT IT SHOULD GIVE ADDITIONAL OR SEPARATE REASONS IF THE T RIBUNAL IS IN AGREEMENT WITH THE REASONS GIVEN BY THE LOWER TAX AUTHORITIES. 9. IN THE CASE OF CIT VS MUNI SEVA ASHRAM REPORTED IN (2013) 38 TAXMANN. COM 110 (GUJ), DECIDED BY THE HON'BLE GUJA RAT HIGH COURT, THE HEAD NOTE READS AS UNDER:- M.A NO 200/A/13 (IN ITA N O. 2647/A/11) . A.Y. 2008- 09 5 SECTION 254 READ WITH SECTION 260A OF THE INCOME TA X ACT 1961 - APPELLATE TRIBUNAL - POWERS OF (POWER TO RECALL) -TRIBUNAL PASSED ORDER - ASSESSEE PREFERRED APPEAL WHICH HAS BEEN ADMITTED BY THE HIGH COURT AND QUESTION OF LAW HAS BEEN FRAMED - IN MEANTIME, TRIBUNAL PASSED ORDER RECALLING ITS OWN ORDER - REVENUE CHALLENGED SAME I N INSTANT APPEALS - WHETHER IN VIEW OF PENDING APPEAL BEFORE HIGH COURT, SUBSEQUENT ORDERS OF TRIB UNAL WAS TO BE SET ASIDE - HELD YES. 10. IN VIEW OF THE ABOVE, AND FOLLOWING THE VARIOUS DEC ISIONS CITED ABOVE, WE ARE OF THE VIEW THAT SINCE THE ASSESSEE HAS FAILED TO POINT OUT ANY MISTAKE APPARENT FROM RECORD IN OUR ORDER, THE MISCELLANEOU S APPLICATION IS HEREBY DISMISSED. 11. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DIS MISSED. ORDER PRONOUNCED IN OPEN COURT ON 30 - 05 - 2014. SD/- SD/- (MUKUL KR. SHRAWAT) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,A HMEDABAD