The ACIT, Circle-4, RAJKOT-GUJARAT V. Shri Divyesh R. Majithiya, D.O., LIC of India, RAJKOT-GUJARAT

MA 21/RJT/2011

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5453 (ITAT-RAJKOT)
• Duration Of Justice: 8 year(s) 2 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-08-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 24-01-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 16-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rectification of order; Tax effect
• Section: 143(3); 147; 148

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT [CONDUCTED THROUGH E COURT AT AHMEDABAD] BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER MISC. APPLICATION NO.21/RJT/2011 IN ITA NO.400/AHD/2009 / ASSTT.YEAR : 2006-07 ACIT, CIR CLE - 4 RAJKOT. VS. SHRI DIVYESH R. MAJETHIYA DO.LIC OF INDIA, CBO-1 CA BUCH MARG, RAJKOT PAN : ACJPM 6831 A ( APPLICANT ) ( RESPONENT ) REVENUE BY : SHRI PRAVEEN VERMA, SR.DR ASSESSEE BY : SHRI MEHUL RANPURA, AR / DATE OF HEARING : 19/08/2019 / DATE OF PRONOUNCEMENT: 20/08/2019 .// O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: PRESENT MISC. APPLICATION IS DIRECTED AT THE INSTAN CE OF THE REVENUE POINTING OUT APPARENT ERROR IN THE ORDER OF THE TRI BUNAL DATED 3/12/2010 PASSED IN ITA NO.400/RJT/2009. 2. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, W E HAVE GONE THROUGH THE RECORD CAREFULLY. IT EMERGES OUT FROM THE RECORD T HAT THE AO HAD ISSUED A NOTICE UNDER SECTION 148 ON 18.1.2008 BY OBSERVING THAT THIS CASE HAS BEEN REOPENED UNDER SECTION 147. HE THEREAFTER PASSED A SSESSMENT ORDER ON 15.12.2008 UNDER SECTION 143(3) R.W. SECTION 147. THE ISSUE TRAVELLED TO THE TRIBUNAL IN ITA NO.400/RJT/2009 WHEREBY THE TRIBUNA L HAS QUASHED THE MA NO.21/RJT/2011 2 ASSESSMENT ORDER BY OBSERVING THAT NOTICE UNDER SEC TION 148 OUGHT TO HAVE BEEN NOT ISSUED WHEN THE LIMITATION TO ISSUE NOTICE UNDER SECTION 143(2) FOR MAKING ASSESSMENT UNDER SECTION 143(3) IS AVAILABLE . FOR THIS VIEW, THE TRIBUNAL RELIED UPON THE DECISION OF HONBLE MADRAS HIGH COURT. SUBSEQUENT TO THE ORDER OF THE TRIBUNAL, THE AO PASSED A RECTI FICATION ORDER DATED 23.5.2011 WHEREBY HE HAS OBSERVED THAT NOTICE UNDER SECTION 148 MENTIONED IN THE ASSESSMENT ORDER BE READ AS ISSUED UNDER SEC TION 143(2) AND ASSESSMENT ORDER BE READ AS PASSED UNDER SECTION 143(3) OF THE ACT. ON THE BASIS OF THIS RECTIFICATION THE PRESENT MA IS FILED BY THE REVENU E CONTENDING THEREIN THAT NOW THE ASSESSMENT ORDER IS TO BE READ AS PASSED AF TER ISSUANCE OF NOTICE UNDER SECTION 143(2) AND UNDER SECTION 143(3). THE LD.CO UNSEL FOR THE ASSESSEE, ON THE OTHER HAND SUBMITTED THAT THE ASSESSEE HAS CHAL LENGED RECTIFICATION ORDER DATED 23.5.2011. THIS ORDER WAS VACATED BY THE LD. CIT VIDE ORDER DATED 21.3.2013. DISSATISFIED WITH THIS ACTION OF THE LD .CIT(A), AN APPEAL WAS FILED BEFORE THE TRIBUNAL BEARING ITA NO.265/RJT/2013. T HIS APPEAL HAS BEEN DISMISSED ON ACCOUNT OF LOW TAX EFFECT INVOLVED THE REIN. 3. ON DUE CONSIDERATION OF THE ABOVE FACTS, WE ARE OF THE VIEW THAT THE POWER OF RECTIFICATION UNDER SECTION 254 OF THE INC OME TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE, WHICH IS SOUGHT TO BE RECTIFIED, IS AN OBVIOUS PATENT MISTAKE, WHICH IS APPARENT FROM THE RECORD AND NOT A MISTAKE, WHICH IS REQUIRED TO BE ESTABLISHED BY ARGUMENTS AN D LONG DRAWN PROCESS OF REASONING ON POINTS, ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. 4. IN THE PRESENT CASE, THE AO HAS CATEGORICALLY ME NTIONED IN THE ASSESSMENT ORDER THAT A NOTICE UNDER SECTION 148 WA S ISSUED. THIS FACT HAS ATTAINED FINALITY. THEREFORE, THERE IS NO APPARENT ERROR IN THE ORDER OF THE TRIBUNAL WHICH QUASHED THE ASSESSMENT ORDER BY PUTT ING RELIANCE ON THIS FACT. THAT ASSESSMENT ORDER HAS BEEN PASSED UNDER SECTION 147 R.W. SECTION 143(3) MA NO.21/RJT/2011 3 OF THE ACT. THEREFORE, IN VIEW OF THE ABOVE DISCUS SION, WE DO NOT FIND ANY APPARENT ERROR IN THE ORDER OF THE TRIBUNAL. MISC. APPLICATION OF THE REVENUE IS DISMISSED. 5. IN THE RESULT, MA OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 20 TH AUGUST, 2019 AT AHMEDABAD. S D / - (AMARJIT SINGH) ACCOUNTANT MEMBER S D / - (RAJPAL YADAV) JUDICIAL MEMBER