Smt. Andal Arumugam, CHENNAI V. ACIT, CHENNAI

MA 218/CHNY/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9808 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-01-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 18-01-2013
• Assessment Year: 1997-1998
• Appeal Filed On: 15-11-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: N DEVANATHAN
• Keywords: Rectification of order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI BEFORE DR. O.K.NARAYANAN, VICE-PRESIDENT AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER M.P. NO.218/MDS/2012 (IN ITA NO.741/MDS/2010) (ASSESSME NT YEAR : 1997-98) DR.(MRS.) ANDAL ARUMUGAM NO.101/52, CHAMIERS ROAD, R.A.PURAM, CHENNAI-28. PAN:AAEPA4528P VS. ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE-V(4), MAIN BUILDING, 4 TH LFOOR, CHENNAI-600 034. (APPLICANT) (RESPONDENT) APPLICANT BY : MR. N.DEVANATHAN, ADVOCATE RESPONDENT BY : MR. GUR U BASHYAM, JCIT DATE OF HEARING : 18 TH JANUARY, 2013 DATE OF PRONOUNCEMENT : 18 TH JANUARY, 2013 O R D E R PER VIKAS AWASTHY, JM : THE MISCELLANEOUS PETITION HAS BEEN FILED BY THE ASSESSEE UNDER SECTION 254 OF THE INCOME TAX ACT F OR RECALLING OF THE ORDER PASSED BY THE TRIBUNAL ON 24 TH JULY, 2012, WHEREBY THE APPEAL OF THE REVENUE HAS BEEN P ARTLY ALLOWED AND THE CROSS OBJECTIONS OF THE ASSESSEE W ERE DISMISSED. 2. SHRI N.DEVANATHAN APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE TRIBUNAL HAS REVERSED T HE WELL M.P.NO. 218/MD S/2012 2 FOUNDED FINDINGS OF THE CIT(A) ON JURISDICTION AS W ELL ON MERITS. ON A SPECIFIC QUERY ABOUT ANY DEFECT/MISTA KE IN THE ORDER WHICH CAN BE RECTIFIED UNDER SECTION 254(2) OF THE ACT, THE COUNSEL COULD NOT POINT OUT ANY SUCH ERROR/DEFE CT IN THE ORDER DATED 24 TH JULY, 2012. 3. WHILE DEALING WITH THE SIMILAR ISSUE I.E. RECTIF ICATION OF MISTAKE UNDER SECTION 254(2), THE HONBLE MADRAS HI GH COURT IN THE CASE OF EXPRESS NEWSPAPERS LTD. VS. DCIT IN W.P.NO.3919 OF 2001 DECIDED ON 17.11.2009 HAS HELD AS UNDER:- .. WHAT CAN BE RECTIFIED UNDER SECTION 254(2) IS A MISTAKE WHICH IS APPARENT AND PATENT. THE MISTAKE HAS TO BE SUCH FOR WHICH NO ELABORATE REASONS OR ENQUIRY IS NECESSARY. WHERE TWO OPINIONS ARE POSSIBLE THEN IT CANNOT BE SAID TO BE A MISTAKE APPARENT ON RECORD. RECTIFICATION CAN BE MADE ONLY WHEN A GLARING MISTAKE OF FACT OR LAW COMMITTED BY THE OFFICER PASSING THE ORDER BECOMES APPARENT FROM THE RECORD. THE RECTIFICATION IS NOT POSSIBLE IF TH E QUESTION IS DEBATABLE. WHERE WITHOUT ANY ELABORATE ARGUMENT ONE COULD POINT TO THE ERROR AND SAY HERE IS A M.P.NO. 218/MD S/2012 3 SUBSTANTIAL POINT OF LAW WHICH STARES ONE IN THE FACE, AND THERE COULD REASONABLY BE NO TWO OPINIONS ENTERTAINED ABOUT IT, IS A CLEAR CASE OF ERROR APPARENT ON THE FACE OF THE RECORD. IN OUR CONSIDERED OPINION, IN THE GARB OF PRESENT MISCELLANEOUS PETITION FOR RECTIFICATION OF MISTAKE , THE ASSESSEE HAS SOUGHT RE-APPRECIATION OF THE FACTS OF THE CASE WHICH IS NOT PERMISSIBLE UNDER THE ACT. THE TRIBUNA L HAS ONLY GOT A LIMITED POWER OF RECTIFYING A MISTAKE WHICH I S APPARENT FROM THE RECORD. AN ERROR OF JUDGEMENT, IF ANY, IS OUTSIDE THE PURVIEW OF SECTION 254(2) OF THE ACT. 4. IT WOULD BE RELEVANT TO MENTION HERE THAT IN TH E ORIGINAL APPEAL THE ASSESSEE WAS REPRESENTED BY MR. R.MEENAKSHISUNDARAM. HOWEVER, THE PRESENT MISCELLAN EOUS PETITION FOR RECTIFICATION OF ORDER HAS BEEN FILED BY MR. N.DEVANATHAN. NEITHER MR. DEVANATHAN HAS FILED POWE R OF ATTORNEY AFTER OBTAINING NO OBJECTION FROM THE EARL IER A.R. NOR THE APPEAL WAS ARGUED BY MR. DEVANATHAN. WE DO NOT APPRECIATE THIS PRACTICE OF FILING MISCELLANEOUS PE TITION BY A M.P.NO. 218/MD S/2012 4 COUNSEL WHO IS NOT ON RECORD, OR WHO HAS NOT REPRE SENTED THE ASSESSEE IN THE MAIN APPEAL. THIS PRACTICE OF CHANG ING ADVOCATES FOR FILING REVIEW PETITION HAS BEEN DEPRE CATED BY THE HONBLE SUPREME COURT OF INDIA IN THE CASE OF T AMIL NADU ELECTRICITY BOARD VS. N.RAJU REDDIAR & ANR REPORTED AS 1997 (9) SCC 736 : AIR 1997 SC (1005). THE HONBLE APEX COURT OBSERVED AS UNDER:- IT IS SALUTARY TO NOTE THAT COURT SPENDS VALUABLE TIME IN DECIDING A CASE. REVIEW PETITION IS NOT, AND SHOULD NOT BE, AN ATTEMPT FOR HEARING THE MATTER AGAIN ON MERITS. UNFORTUNATELY, IT HAS BECOME, IN RECENT TIME, A PRACTICE TO FILE SUCH REVIEW PETITIONS AS A ROUTINE, THAT TOO, WITH CHANGE OF COUNSEL, WITHOUT OBTAINING CONSENT OF THE ADVOCATE ON RECORD AT EARLIER STAGE. THIS IS NOT CONDUCIVE TO HEALTHY PRACTICE OF THE BAR WHICH HAS THE RESPONSIBILITY TO MAINTAIN THE SALUTARY PRACTICE OF PROFESSION. HERE WE WOULD LIKE TO CLARIFY THAT THE APPELLANT IS AT LIBERTY TO CHANGE HIS COUNSEL, IF HE FEELS THAT THE RETAINED A DVOCATE OR AUTHORIZED REPRESENTATIVE CANNOT OR WILL NOT BE ABL E TO PLEAD HIS CASE EFFICIENTLY AND EFFECTIVELY OR FOR ANY OTH ER REASON BUT THE SAME HAS TO BE DONE DURING THE PENDENCY OF THE MAIN CASE NOT AT THE TIME OF FILING MISCELLANEOUS/REVIEW PETITION. M.P.NO. 218/MD S/2012 5 5. BE THAT AS IT MAY, SINCE THE COUNSEL APPEARING ON BEHALF OF THE ASSESSEE COULD NOT POINT OUT ANY DEFE CT IN THE ORDER DATED 24.07.2012 OF THE TRIBUNAL, WHICH COULD BE RECTIFIED UNDER THE PROVISIONS OF SECTION 254 OF TH E ACT, WE DISMISS THE MISCELLANEOUS PETITION. 6. THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON FRIDAY, THE 18 TH DAY OF JANUARY, 2013 AT CHENNAI. SD/- SD/- ( DR. O.K.NARAYANAN) ( VIKAS AWASTHY ) VICE-PRESIDENT JUDICIAL MEMBER CHENNAI, DATED THE 18 TH JANUARY, 2013. SOMU COPY TO: (1) APPELLANT (4) CIT( A) (2) RESPONDENT (5) D.R. (3) CIT (6) G.F.