M/s. Kirankumar J. Mistry, Ahmedabad V. The Income tax Officer, Ward-6(5), Ahmedabad

MA 208/AHD/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4818 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-08-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2002-2003
• Appeal Filed On: 23-06-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA SRDR
• Assessee Lawyers: A C SHAH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI A.N. PAHUJA, ACCOUNTANT MEMBER M.ANO.208/AHD/2009 (ARISING OUT MA NO.76/AHD/2008) IN CONNECTION WITH ITA NO.1677/AHD/2007 ASSESSMENT YEAR:2002-03 DATE OF HEARING:25.6.10 DRAFTED:28.6. 10 SHRI KIRANKUMAR J MISTRY, E-204, SAUNDRAYAVIHAR FLATS, B/D. GYANAJYOT SCHOOL, GHATLODIA, AHMEDABAD PAN NO.AFRPM1937J V/S . INCOME TAX OFFICER, WARD-6(5), AHMEDABAD (ORIGINAL RESPONDENT) (ORIGINA L APPELLANT) (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI A.C. SHAH, AR RESPONDENT BY:- SHRI C.K. MISHRA, SR-DR O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- BY WAY OF THIS MISCELLANEOUS APPLICATION (MA), THE ASSESSEE HAS REQUESTED FOR RECALLING / AMENDING THE ORDER IN MA NO.76/AHD/2008 DATED 29-05-2009 (ARISING OUT ITA NO.1677/AHD/2007 ORDER DATED 31-01-2008). 2. THE MA OF THE ASSESSEE CLEARLY STATE THAT THE AS SESSEE IS IN RECEIPT OF MA ORDER DATED 29-05-2009 AND IN THIS MA PARA-4 AS REPRODUCED IN THE PETITION, THE ASSESSEE STATES THAT THE FOLLOWING ARE THE MISTAKE IN THE ORDER OF APPEAL AS UNDER:- (A) THE REVENUE DID NOT RAISE THE GROUND REGARDIN G ADOPTION OF GP @ 5.52% ADOPTED BY THE LEARNED CIT(A). THE GROUND RAI SED WAS REGARDING THE DELETION OF ADDITION BY THE LEARNED CIT(A) BUT NOT REGARDING ADOPTION OF GP @ 5.52%. MA NO.208/AAHD/2009 A.Y. 02-03) KIRANKUMAR J MISTRY V. ITO WD-6(5) ABD PAGE 2 (B) PLEASE REFER PARA-3 OF MA IN WHICH IT IS STATED THAT BENCH DID NOT RAISE ANY QUARRY AT THE TIME OF HEARING. PLEASE REFER PARA-3 OF MA IN WHICH IT IS STATED T HAT THE OPPORTUNITY SHOULD HAVE BEEN GIVEN FOR ADOPTING GP @ 15%. IT WAS ALSO REITERATED ORALLY AT THE TIME OF HEARING. (D) PLEASE REFER PARA-4 OF MA IT IS POINTED OUT THA T THE DEDUCTIONS MADE CANNOT BE CONSIDERED FOR THE PURPOSE OF CALCULATING THE GP. (E) PLEASE REFER PARAA-5 OF MA ION WHICH IT IS STAT ED ABOUT THE ACCOUNTING ENTRIES PASSED BY THE ASSESSEE AND THAT THE HONBLE TRIBUNAL FAILED TO APPRECIATE THE SAME. (F) PLEASE REFER PARA-6 OF MA IN WHICH IT IS POINTE D OUT WHAT MAKES THE HONBLE TRIBUNAL TO FOLLOW MISTAKEN APPROACH. THE LD. COUNSEL FOR ASSESSEE HAS DRAWN OUR ATTENTIO N PARA-3 OF THE MA ORDER DATED 29-05-2009, WHEREIN OF PAGE-10 OF LAST LINE REFERRE D WHICH READS AS UNDER:- SO CALLED ANOMALY HAS RESULTED IN MAKING A MISTAKE N APPROACH IN ADOPTING GP @ 15% WE FIND THAT THIS IS ONLY THE CONTENTION OF THE ASS ESSEE RECORDED BY THE TRIBUNAL AND NOT A FINDING. EVEN OTHERWISE, WE ARE OF THE VIEW T HAT THE ASSESSEE CANNOT MOVE MA U/S.254(2) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) AGAINST THE ORDER PASSED BY TRIBUNAL U/S.254(2). AS REFERRE D BY LD. SR-DR, THE DECISION OF HONBLE ORISSA HIGH COURT IN THE CASE OF CIT AND ANOTHER V. INCOME-TAX APPELLATE TRIBUNAL AND OTHERS (1992) 196 ITR 838 (ORISSA), WHEREIN IT IS HELD AS UNDER:- SECTION 254(2) EMPOWERS THE TRIBUNAL TO AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1) WITH A VIEW TO RECTIFY ANY MI STAKE APPARENT FROM THE RECORD AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER. THEREFORE, TO ATTRACT THE APPLICABILITY OF SECTION 254(2), THE MI STAKE WHICH IS SOUGHT TO BE RECTIFIED MUST BE APPARENT FROM THE 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 THE ONE RELATING TO AN APPEAL FIL ED ORDER REFERRED TO IN SECTION 254(1) IS THE ONE RELATING TO AN APPEAL FILED BY EI THER THE ASSESSEE OR THE REVENUE. SECTION 254(1) READS AS FOLLOWS:- THE APPELLATE TRIBUNAL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEAD, PASS SUCH ORDERS THER EON AS IT THINKS FIT. MA NO.208/AAHD/2009 A.Y. 02-03) KIRANKUMAR J MISTRY V. ITO WD-6(5) ABD PAGE 3 THE APPEAL REFERRED TO IN THE PROVISION IS ONE FI LED UNDER SECTION 253. THEREFORE, THE ORDER WHICH CAN BE RECTIFIED MUST BE ONE WHICH HAS BEEN PASSED BY THE TRIBUNAL IN AN APPEAL FILED UNDER SEC TION 253. IN OUR VIEW, AN ORDER REJECTING AN APPLICATION FOR RECTIFICATION UN DER SECTION 254(2) IS NOT AVAILABLE TO BE RECTIFIED UNDER SECTION 254(2). THE SAME MAY RELATE TO AN APPEAL, BUT IT IS NOT AN ORDER PASSED BY THE TRIBUN AL UNDER SUB-SECTION (1) OF SECTION 254. AS INDICATED ABOVE, THE ASSESSEES APP LICATION FOR RECTIFICATION UNDER SECTION 254(2) WAS REJECTED BY THE TRIBUNAL. THE SECOND APPLICATION WAS FOR RECTIFICATION OF SOME ALLEGED MISTAKES IN T HE SAID ORDER OF REJECTION. SECTION 254(2) HAD NO APPLICATION TO SUCH AN ORDER. THE TRIBUNAL WAS NOT JUSTIFIED IN PURPORTING TO ACT UNDER SECTION 254(2) AND PASSING THE IMPUGNED ORDER. IN VIEW OF THIS, WE DO NOT THINK IT NECESSAR Y TO DEAL WITH THE SUBMISSIONS RELATING TO THE DISPUTE WHETHER THERE W AS ANY RECTIFIABLE MISTAKE APPARENT FROM THE RECORD OR NOT. 3. IN VIEW OF THE RATIO LAID DOWN BY THE HONBLE OR ISSA HIGH COURT IN THE CASE OF CIT AND ANOTHER (SUPRA), MA AGAINST THE ORDER OF TRIBUNAL PASSED U /S.254(2) OF THE ACT IS NOT MAINTAINABLE, AS THE PRESENT MA OF THE A SSESSEE IS REPETITION OF EARLIER ONE. ACCORDINGLY, THE MA OF THE ASSESSEE IS DISMI SSED. 4. IN THE RESULT, ASSESSEES MA IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 06/08/2008 SD/- SD/- (A.N. PHAUJA) (MAH AVIR SINGH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, DATED : 06/08/2008 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)-XII, AHMEDABAD 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD MA NO.208/AAHD/2009 A.Y. 02-03) KIRANKUMAR J MISTRY V. ITO WD-6(5) ABD PAGE 4