The DCIT, Central Circle-3(3), Ahmedabad V. Shri Mehul Lavjibhai Mehta, Bhuj

MA 204/AHD/2018

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3129 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 1 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-08-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 16-06-2022
• Assessment Year: 2006-2007
• Appeal Filed On: 15-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHIMANYU SINGH YADAV
• Keywords: Set aside
• Section: 132; 143(3); 208; 254(2); 22; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “B” BENCH BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMEBR & SHRI WASEEM AHMED, ACCOUNTANT MEMEBR M.A. Nos: 203 & 204/AHD/2018 (in IT(SS)A Nos. 674 & 675/Ahd/2010) (Assessment Year: 2005-06 & 2006-07) Dy. Commissioner of Income-Tax, Central Circle-3(3), Ahmedabad V/S Shri Mehul Lavjibhai Mehta Jyoti Chambers, Station Road, Bhuj (Kutchchh) (Appellant) (Respondent) PAN: AEKPM6707L Revenue by : Shri Abhimanyu Singh Yadav, Sr.DR Assessee by : Shri Bandish Soparkar, A.R. ( आदेश)/ORDER Date of hearing : 17 -06-2022 Date of Pronouncement : 24-08-2022 PER WASEEM AHMED, ACCOUTANT MEMBER: The Revenue by way of these miscellaneous applications is seeking to recall the order passed by the ITAT in IT(SS) No. 674 & 675/Ahd/2010 & CO No. 293 & 294/Ahd/2010 vide order dated 22-09-2017 on the reasoning that there is a mistake apparent from record within the provisions of section 254(2) of the Act. 2 2. The brief history of the case on hand is like this that the ITAT in its order dated 22 September 2017, after obtaining the concession from the learner DR, has quashed the assessment under section 143(3) read with section 153C of the Act by holding that the action of the AO is not sustainable as there was no satisfaction note recorded by the AO of the search person indicating the fact that materials seized in the course of the search under section 132 of the Act were found belonging to the assessee. 3. Against the finding of the ITAT, the revenue has preferred an appeal to the Hon’ble jurisdictional High Court. The revenue before the Hon’ble High Court produced the satisfaction note recorded by the AO of the search person indicating that materials belonging to the assessee were found in the course of the search. The Hon’ble jurisdictional High Court has set aside the issue to the file of the ITAT vide order dated 18 June 2018 in R/Tax appeal No. 208 of 2018 to 211 of 2018 by observing as under: “[4.0] Having heard the learned advocates appearing on behalf of the respective parties, we are of the opinion that whether there was a satisfaction recorded or not and thereafter proceedings under Section. 1530 of the Income Tax were initiated or not and whether the learned Tribunal and the departmental representative proceeded further erroneously and /or on erroneous facts, it may firmly be brought to the notice of the learned Tribunal by way of rectification application so that the learned Tribunal may consider the file and the material on record and consider the same whether the learned Tribunal has proceeded on erroneous facts and /or what was considered by it was even submitted by the Deputy Commissioner is borne out from the material on record /file or not, we are not further entering into the merits of the case at this stage and we relegate the department to submit appropriate rectification application /applications before the learned Tribunal pointing out what is stated in the present Tax Appeals with supporting material and if such application/applications are preferred within the period of four weeks from today, we direct the learned Tribunal to decide the same in accordance with law and on its own merits. As we have relegated the Department to first approach the learned Tribunal, the question with respect to limitation may not come I in the way of the Department provided such rectification I application /applications are preferred within a period of four weeks from today.” 3 4. In our humble understanding, two points are arising for our consideration out of the direction of the Hon’ble High Court as discussed above. Firstly, that the revenue will move an application to the ITAT for rectification of its order dated 22 September 2017 which will be decided on merit of the case and secondly, the revenue will move such application within the period of 4 weeks from the date of passing the order. 5. The 1 st hurdle before the revenue was to move an application for rectification under section 254(2) of the Act within the period of 4 weeks from the date of the passing of the order of the Hon’ble Gujarat High Court. Now 1 st we have to see whether the MA filed by the revenue was within the time prescribed by the Hon’ble Gujarat High Court. Admittedly, a week contain 7 days, meaning thereby the period of 4 weeks will contain 28 days only. In other words the miscellaneous application was to be filed by the revenue within the period of 28 days from the date of the passing of the order. A calculation of 28 days reflects that the time for filing the MA is expiring on 15 th of July 2018 which is happened to be holiday being Sunday. Thus, the question arises whether the MA can be filed on the next day being 16 th of July 2018 as the time limit was expiring for filing the MA was 15 th of July which is Sunday and all the government offices remains closed on that day. Accordingly, the office of the tribunal was also closed on 15 th of July being Sunday. Accordingly, the revenue has filed the MA on 16 th July being Monday. Thus the 1 st hurdle that arises for us to cross whether the assessee will be given liberty of the extension of one day on account of the holiday being Sunday. This controversy has been resolved by the Hon’ble Allahabad High Court in case of Sheo Prasad Vinod Kumar vs. Union of India reported in 248 ITR 619 where it was held as under: Moreover, the last day of filing the application under section 256(1) was 31-7- 1987. This day was not a holiday. If 31-7-1987 had been a holiday, the petitioner would have been entitled to extension of time as provided under section 4 of the Limitation Act. 4 6. In this regard we further draw support and guidance from the judgment of Allahabad ITAT in case of Wealth tax Officer vs. C.P. Dalmia reported in 18 TTJ 330 wherein it was held as under: Where last date for filing estimate happened to be holiday, estimate filed on next day could be treated as estimate filed in time. 7. Thus, from the above it is inferred that time limit for filing the MA given to the revenue will expire on 16 th day of July 2018 according to our humble understanding. Admittedly, the revenue has filed the MA on 16 th day of July which is within the time allotted by the Hon’ble Gujarat High Court. Thus we are not convinced with the argument that there was a delay in filing the MA by the revenue. As such there was no delay and there was due compliance of the direction of the Hon’ble Gujarat High Court. Thus we admit the MA filed by the revenue and proceed to adjudicate the same. 8. At this juncture, we find important to note that at the time of hearing the MA filed by the Revenue, we were under the impression that there is a delay in filing the MA and accordingly a message was conveyed to both the parties that the MA preferred by the Revenue is not sustainable. However, at the time of dictation, we find that there was no delay in filing the miscellaneous application by the revenue for the reasons as discussed above. 9. On merit of the case, there is no dispute to the fact that the satisfaction note was not available before the ITAT at the time of hearing the matter and this fact was also admitted by the learned DR appearing on behalf of the revenue. Thus such documents i.e. satisfaction note is being additional document was not available at the time of hearing before the Tribunal. Thus the controversy arises whether the additional document can be accepted at the stage of the MA filed by the revenue. The answer stands in negative. In holding so we draw support and 5 guidance from the judgment of CIT Vs. Suman Tea & Plywood Industries (P.) Ltd. reported in 94 taxman 305 wherein it was held as under: “If a document is not taken into consideration by the lower authorities and is not produced before the Tribunal, when it considered the matter and passed the order, it cannot be said that the order of the Tribunal contains a mistake since it does not discuss such document. Similarly, if a plea founded on a document is not at all raised before the Tribunal, it cannot be said that the order of the Tribunal contains an error apparent on the record The Tribunal cannot discuss a plea which was not raised before it or before the lower authorities.” 9.1 From the above judgment, we note that Tribunal cannot accept additional document in the miscellaneous application filed under section 254(2) of the Act in order to decide whether there is a mistake in the order of the ITAT which is apparent from record. Admittedly, the revenue in the case on hand has filed additional document which was not available at the time of hearing and based on that revenue is pleading that there is a mistake in the order of the ITAT. In view of the above discussion, we hold that there is no mistake in the order of the ITAT within the meaning of the provisions of section 254(2) of the Act. Accordingly, we dismiss the miscellaneous application filed by the revenue. 10. In the result, the MA filed by the Revenue is hereby dismissed. 11. Coming to the MA bearing No. 204/Ahd/2018 by the Revenue. 12. At the outset we note that the issues raised by the Revenue in its MA for the AY 2006-07 are identical to the issues raised by the Revenue in MA No. 203 /AHD/2018 (in IT(SS)A No. 674/AHD/2010) for the assessment year 2005-06. Therefore, the findings given in MA No. 203/AHD/2018 shall also be applicable for the year under consideration i.e. AY 2006-07. The MA of the Revenue for the assessment 2005-06 has already been decided by us vide paragraph no. 9 of this order against the Revenue. The learned AR and the DR also agreed that whatever 6 will be the findings for the assessment year 2005-06 shall also be applied for the year under consideration i.e. AY 2006-07. Hence, the MA filed by the Revenue is dismissed. 13. In the result, the MA filed by the Revenue is hereby dismissed. 14. In the combined result, both the MA’s filed by the Revenue are hereby dismissed. Order pronounced in Open Court on 24 - 08- 2022 Sd/- Sd/- (MAHAVIR PRASAD) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad: Dated 24.08.2022 True Copy S. K. Sinha 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, Ahmedabad