Shri Dharmesh Kishorbhai Sheth, RAJKOT-GUJARAT V. The Assistant Commissioner of Income Tax, Circle - 4, RAJKOT-GUJARAT

MA 22/RJT/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7091 (ITAT-RAJKOT)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-09-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2002-2003
• Appeal Filed On: 04-07-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J C RANPURA
• Assessee Lawyers: MK SINGH
• Keywords: Difference of opinion; Change of opinion
• Section: 143(3); 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) M.A. NO.22/RJT/2011 (ARISING OUT OF I.T.A. NO.822/RJT/2011) (ASSESSMENT YEAR 2002-03) THE ACIT, CIR.4 VS SHRI DHARMESH K SHETH RAJKOT A-22, YOGI AMRUT APARTMENT GURU GOVALKAR MARG NEAR SOJITRA NAGAR RAJKOT PAN : AGBPS6901R (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI MK SINGH RESPONDENT BY: SHRI JC RANPURA DATE OF HEARING : 30-08-2011 DATE OF PRONOUNCEMENT : 09-09-2011 O R D E R PER N.R.S. GANESAN, JM THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS AP PLICATION ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL DATED 30-11-2010. 2. SHRI MK SINGH, THE LD.DR SUBMITTED THAT THE TRIB UNAL SET ASIDE THE ORDER OF THE ASSESSING OFFICER ON THE GROUND THAT THE ASSESS MENT WAS REOPENED BEYOND FOUR YEARS. ACCORDING TO THE LD.REPRESENTATIVE, TH E CASE WAS REOPENED ON THE GROUND THAT THE ASSESSEE HAS CLAIMED EXCESSIVE RELI EF WITH REGARD TO INCENTIVE BONUS AND CONVEYANCE ALLOWANCE. ACCORDING TO THE L D.REPRESENTATIVE, THE CASE WAS REOPENED AFTER GETTING APPROVAL OF THE ADMINIST RATIVE COMMISSIONER; THEREFORE, THE FINDING OF THE ITAT THAT THE CASE WA S REOPENED BEYOND FOUR YEARS, MA NO.22/RJT/2011 2 IS NOT CORRECT. ACCORDING TO THE LD.REPRESENTATIVE , AFTER GETTING THE APPROVAL OF THE CIT, THE CASE CAN BE REOPENED EVEN AFTER FOUR YEARS . 3. WE HAVE HEARD SHRI JC RANPURA, THE LD.REPRESENTA TIVE FOR THE ASSESSEE ALSO. 4. WE HAVE CAREFULLY GONE THROUGH THE PROVISIONS OF SECTIONS 147 AND 148. SECTION 147 PROVIDES FOR REOPENING OF THE ASSESSMEN T FOR ASSESSMENT OF INCOME ESCAPED FROM ASSESSMENT. WHEREVER THE ASSESSMENT W AS MADE U/S 143(3) THE ASSESSMENT CANNOT BE REOPENED BEYOND THE PERIOD OF FOUR YEARS UNLESS THERE IS NEGLIGENCE ON THE PART OF THE ASSESSEE IN DISCLOSIN G FULLY AND TRULY ALL MATERIAL FACTS NEEDED FOR ASSESSMENT. THE TRIBUNAL, AFTER C ONSIDERING THE FACTS OF THE CASE FOUND THAT THE CASE WAS REOPENED AFTER EXPIRY OF FOUR YEARS. THE TRIBUNAL HAS ALSO FOUND THAT THE ASSESSING OFFICER, IN THE O RIGINAL ASSESSMENT ORDER, HAS CONSIDERED ALL THE MATERIAL FACTS WITH REGARD TO IN CENTIVE BONUS AND ADDITIONAL CONVEYANCE ALLOWANCE. IN THE ABSENCE OF ADDITIONAL INFORMATION IN THE HANDS OF THE ASSESSING OFFICER, THE TRIBUNAL FOUND THAT THE CASE WAS REOPENED DUE TO CHANGE OF OPINION. IT IS NOT THE CASE OF THE REVEN UE THAT THE ASSESSEE HAS NOT DISCLOSED ALL THE MATERIAL FACTS NECESSARY FOR COMP LETING THE ASSESSMENT. IT IS ALSO NOT THE CASE OF THE REVENUE THAT THE ASSESSING OFFICER HAS ANY ADDITIONAL INFORMATION AFTER THE COMPLETION OF THE ASSESSMENT FOR REOPENING OF THE SAME U/S 147 OF THE ACT. IN VIEW OF THE ABOVE, WE ARE OF TH E OPINION THAT THE REVENUE IS MAKING AN ATTEMPT TO REVIEW THE ORDER PASSED BY THE TRIBUNAL IN THE APPEAL. MA NO.22/RJT/2011 3 SECTION 254(2) PROVIDES FOR RECTIFICATION OF AN ERR OR WHICH IS APPARENT ON THE FACE OF THE RECORD. UNDER THE GUISE OF RECTIFICATION TH E ORDER OF THE TRIBUNAL CANNOT BE REVISED. BY SAYING SO WE ARE NOT JUSTIFYING THE CO RRECTNESS OF THE ORDER PASSED BY THE TRIBUNAL. WHAT WE ARE TRYING TO SAY IS THE TRIBUNAL HAS LIMITED POWER U/S 254(2) TO RECTIFY AN ERROR WHICH IS APPARENT ON THE FACE OF THE RECORD AND THE CORRECTNESS OF THE ORDER OF TRIBUNAL CANNOT BE READ JUDICATED IN A PROCEEDING U/S 254(2). IN OTHER WORDS, THE CORRECTNESS OF THE TRI BUNAL HAS TO BE NECESSARILY CHALLENGED BEFORE THE APPELLATE FORUM AND NOT IN A PROCEEDINGS U/S 254(2). SINCE NO ERROR, MUCH LESS A PRIMA FACIE ERROR, IS P OINTED OUT IN THE ORDER OF THE TRIBUNAL WE DO NOT FIND ANY MERIT IN THE APPLICATIO N FILED BY THE REVENUE. ACCORDINGLY THE SAME IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09-09-2011. SD/- SD/- (A.L. GEHLOT) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT, DT : 09 TH SEPTEMBER, 2011 PK/- COPY TO: 1. ASSESSEE 2. REVENUE 3. THE CIT(A)-III, RAJKOT 4. THE CIT-II, RAJKOT 5. THE DR, I.T.A.T., RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT