ARISTO REALTY DEVELOPERS LTD, MUMBAI V. ITO 6(1)(2), MUMBAI

MA 205/MUM/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5833 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-10-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 20-03-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SATISH CHANDRA RAJORE
• Assessee Lawyers: D V LAKHANI
• Keywords: Opportunity of being heard
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A MUMBAI BEFORE SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) M.A. NO. 205/MUM/2019 ( ARISING OUT OF M.A. NO. 620/MUM/2018) ASSESSMENT YEAR: 2011 - 12 M/S ARISTO REALITY DEVELOPMENT LTD. 601, SYMPHONEHY NEHRU ROAD, VILE PARLE (EAST), MUMBAI - 400057. VS. INCOME TAX OFFICER - 6(1)(2), R. NO. 508, 5 TH FLOOR, AAYAKARBHAVAN, M.K. ROAD, MUMBAI - 400020. PAN NO. AAACL0596J APPELLANT RESPONDENT ASSESSEE BY : MR. D.V. LAKHANI, AR REVENUE BY : M R. SATISH CHANDRA RAJORE , DR DATE OF HEARING : 19/07 /2019 DATE OF PRONOUNCEMENT : 14/10/2019 ORDER PER N.K. PRADHAN, AM BY MEANS OF THIS MISCELLANEOUS APPLICATION (MA), THE APPLICANT SEEKS CANCELLATION OF THE MA ORDER DATED 22.01.2019 PASSED BY THE ITAT A BENCH MUMBAI FOR THE ASSESSMENT YEAR (AY) 2011 - 12. 2. THE LD. COUNSEL FOR THE APPLICANT REITERATES THE WRITTEN SUBMIS SION FILED. IT IS STATED THAT THE HONBLE JUDICIAL MEMBER HAS ANNOUNCED IN THE OPEN COURT THAT THE ORDER PASSED IN APPEAL NO. 4669/MUM/2016 WILL BE RECALLED. FURTHER, IT IS STATED THAT THE MANAGING DIRECTOR MR. RAVI AGARWAL, WHO WAS PRESENT AT THE TIME OF HEARING ALSO CONFIRMS THROUGH M/S ARISTO REALITY MA NO. 205/MUM/2019 2 FILING THE AFFIDAVIT THAT AT THE TIME OF HEARING THE HONBLE JUDICIAL MEMBER HAD ANNOUNCED IN THE OPEN COURT THAT THE ORDER PASSED WILL BE RECALLED. THEREFORE, IT IS STATED THAT THE PRESENT MA BE ADMITTED AND ORDER MAY BE PA SSED CANCELLING THE MA ORDER DATED 22.01.2019 AND THE ORDER PASSED IN APPEAL NO. 4669/MUM/2016 BE RECALLED. 2.1 RELYING ON THE CASE LAWS, THE LD. COUNSEL SUBMITS THAT THOUGH THE ULTIMATE SIGNED ORDER IS THE FINAL ORDER BUT WHEN THE HONBLE JUDGES WANT TO DEFER FROM THE ORAL JUDGMENT THEN ONE MORE OPPORTUNITY SHOULD BE GIVEN TO THE APPLICANT TO PRESENT HIS CASE EFFECTIVELY. THUS IT IS SUBMITTED BY THE APPLICANT THAT THE ORDER IN MA DATED 22.01.2019 BE CANCELLED . 3. PER CONTRA , THE LD. DEPARTMENTAL REPRESENT ATIVE (DR) SUBMITS THAT THERE IS NO PROVISION IN THE INCOME TAX ACT , 1961 FOR DECIDING AN MA AGAINST AN MA AND THEREFORE, THE PRESENT MA FILED BY THE APPLICANT BE DISMISSED IN LIMINE . 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. THE REASONS FOR OUR DECISIONS ARE GIVEN BELOW. THE ORDER IN ITA NO. 4669/MUM/2016 FOR THE IMPUGNED ASSESSMENT YEAR WAS PASSED BY THE TRIBUNAL ON 18.04.2018, PARTLY ALLOWING THE APPEAL. THEREAFTER, THE APPLICANT FILED AN MA SEEKING RECALL OF THE ABOVE ORDER. AN ORDER DATED 22.01.2019 WAS PASSED BY THE TRIBUNAL DISMISSING THE MA. THE REASONS FOR DISMISSING MA HAS BEEN GIVEN IN DETAILS AT PARA 4 OF THE SAID ORDER. THERE IS NO ORA L JUDGMENT IN M/S ARISTO REALITY MA NO. 205/MUM/2019 3 THIS CASE. NOW THE APPLICANT HAS FILED ANOTHER MA FOR CANCELLING THE MA DATED 22.01.2019. 4.1 IN SHRI PADAM PRAKASH HUF V. ITO IN MA NO. 57/DEL/2009, THE SPECIAL BENCH OF THE TRIBUNAL HAS RULED AS UNDER : 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS IN THE LIGHT OF MATERIAL PLACED BEFORE US. IT IS TRUE THAT SUB - SECTION (2) OF SECTION 254 CAN BE INVOKED ONLY IN A SITUATION IF THERE IS A MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL UNDER SUB - SECTION (1) OF SECTION 254. THE IMPUGNED MIS CELLANEOUS APPLICATION FILED BY THE ASSESSEE IS AGAINST THE ORDER PASSED ON 27.11.2009 WHICH IS AN ORDER PASSED U/S 254(2). THEREFORE, PRINCIPALLY, THE APPLICATION FILED BY THE ASSESSEE HAS TO BE REJECTED ON THIS GROUND ALONE AND FOR THIS PURPOSE, RELIANCE CAN BE PLACED ON THE FOLLOWING DECISIONS: - (I) CIT VS. PRESIDENT, INCOME TAX APPELLATE TRIBUNAL 196 ITR 838 (ORISSA) WHEREIN IT HAS BEEN HELD THAT TO ATTRACT APPLICABILITY OF SECTION 254(2), A MISTAKE WHICH IS SOUGHT TO BE RECTIFIED MUST BE APPARENT FRO M RECORD AND THE SAME MUST BE IN ANY ORDER PASSED UNDER SUB - SECTION (1) OF SECTION 254. THE ORDER REFERRED TO IN SECTION 254(1) IS ONE RELATING TO AN APPEAL FILED EITHER BY THE ASSESSEE OR BY THE REVENUE. THE APPEAL REFERRED TO IN THE PROVISION IS ONE FI LED U/S 253. THEREFORE, THE ORDER WHICH CAN BE RECTIFIED MUST BE ONE WHICH HAS BEEN PASSED BY THE TRIBUNAL IN AN APPEAL FILED U/S 253. AN ORDER REJECTING AN APPLICATION FOR RECTIFICATION U/S 254(2) CANNOT BE RECTIFIED U/S 254(2). THE SAME MAY RELATE TO AN APPEAL BUT IS NOT AN ORDER PASSED BY THE TRIBUNAL UNDER SUB - SECTION (1) OF SECTION 254 AND THUS, IT WAS HELD THAT SUBSEQUENT APPLICATION FILED BY THE ASSESSEE WAS RIGHTLY REJECTED BY THE TRIBUNAL. M/S ARISTO REALITY MA NO. 205/MUM/2019 4 (II) IN THE CASE OF MENTHA& ALLIED PRODUCTS CO.LTD. VS. ITA T 244 ITR 470 (DEL), AFTER REFERRING TO THE PROVISIONS OF SECTION 254(1) AND (2), IT WAS HELD AS UNDER: - 7. THE RELEVANT PROVISIONS OF S. 254 READ AS UNDER: 254. ORDERS OF APPELLATE TRIBUNAL. (1) THE TRIBUNAL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THEREON AS IT THINKS FIT. (2) THE TRIBUNAL MAY, AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER, WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT U NDER SUB - S. (1) AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE AO;. THE AFORENOTED PROVISIONS OF LAW ARE CLEAR AND UNAMBIGUOUS. A BARE READING WHEREOF LEAVES NO DOUBT IN OUR MIND THAT THE TRIBUNAL IS COMPETE NT TO RECTIFY A MISTAKE APPARENT FROM THE RECORD AND AMEND ANY ORDER WHICH HAS BEEN PASSED UNDER SUB - S.(1). ADMITTEDLY, BY THE IMPUGNED ORDER, THE TRIBUNAL HAS SOUGHT TO RECTIFY THE ORDER PASSED BY IT UNDER S. 256(1) OF THE ACT AND NOT AN ORDER PASSED UNDE R S. 254(1). WE HAVE NO HESITATION IN HOLDING THAT THE TRIBUNAL IS NOT CLOTHED WITH AN INHERENT POWER TO RECTIFY/RECALL AN ORDER PASSED UNDER S. 256(1) OF THE ACT BY TAKING RECOURSE TO S. 254(2) OF THE ACT AND, THEREFORE, THE IMPUGNED ORDER IS ILLEGAL AND INVALID. THE VIEW TAKEN BY US FINDS SUPPORT FROM A DECISION OF THIS COURT IN CIT VS. KABIR DAS INVESTMENT LTD. (1995) 124 CTR (DEL) 259 : (1994) 210 ITR 898 (DEL) : TC 55R.777. 10. IN THE CASE OF CIT VS. AISWARYA TRADING CO. 196 TAXMAN 385 (KER.), IT WA S HELD THAT THE TRIBUNAL WAS JUSTIFIED IN REFUSING TO ENTERTAIN AN APPLICATION FILED BY THE REVENUE UNDER SECTION 254(2) TO RECTIFY THE ORDER ISSUED BY THE TRIBUNAL IN AN EARLIER RECTIFICATION APPLICATION FILED BY THE M/S ARISTO REALITY MA NO. 205/MUM/2019 5 ASSESSEE, AS THE SECOND APPLICATION ON THE VERY SAME ISSUE IS NOT MAINTAINABLE BEFORE THE TRIBUNAL. 11. IN THE CASE OF DR.S.PANNEERSELVAM VS. ACIT 319 ITR 135, IT WASHELD THAT THE TRIBUNAL HAVING ALLOWED FIRST RECTIFICATION PETITION, SECONDPETITION WAS NOT MAINTAINABLE; REMEDY BY WAY OF APP EAL WAS THE ONLYCOURSE OPEN. 12. IF THE APPLICATION FILED BY THE ASSESSEE IS VIEWED IN THE LIGHT OFAFOREMENTIONED JUDICIAL PRONOUNCEMENTS, THEN IT WILL BECOME CLEAR THATTHE RELIEF WHICH IS BEING SOUGHT BY THE ASSESSEE BY WAY OF IMPUGNEDRECTIFICATION APPLIC ATION IS NOT LEGALLY TENABLE FOR THE REASON THAT THETRIBUNAL HAS NO POWER TO ADJUDICATE UPON SUBSEQUENT APPLICATION FILEDU/S 254(2). HERE, IT MAY BE THE CASE OF THE ASSESSEE THAT EARLIER ORDERAGAINST WHICH IMPUGNED RECTIFICATION APPLICATION IS FILED IS ALS O AN ORDERPASSED ON SUBSEQUENT APPLICATION, THEN THE ONLY COURSE PERMISSIBLE TOTHE ASSESSEE IS TO FILE AN APPEAL AGAINST THAT ORDER AND NOT TO APPROACHTHE TRIBUNAL TO CONTEND THAT THE SAID ORDER WAS AN INVALID ORDER,THEREFORE IT SHOULD BE RECALLED. 4.2 IN VIEW OF THE ABOVE POSITION OF LAW CLARIFIED BY THE SPECIAL BENCH OF THE TRIBUNAL , THE PRESENT MA FILED BY THE APPLICANT IS NOT LEGALLY TENABLE FOR THE REASON THAT THE TRIBUNAL HAS NO POWER TO ADJUDICATE UPON THE SUBSEQUENT APPLICATION FILED U/S 254(2) OF THE ACT. 5. IN THE RESULT, THE MA IS DISMISSED. ORDER PRONOUNCED IN THE OPEN CO URT ON 14/10/2019. SD/ - SD/ - (MAHAVIR SINGH) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 14/10/2019 M/S ARISTO REALITY MA NO. 205/MUM/2019 6 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR ) ITAT, MUMBAI