M/s Osho Associates, Gwalior V. A.C.I.T., Cir.-3(1), Gwalior

MA 24/AGR/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8866 (ITAT-AGRA)
• Duration Of Justice: 1 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-09-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 22-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER M.A. NO. 24/AGRA/2012 (IN ITA NO. 272/AGRA/2011) ASSTT. YEAR : 2007-08 M/S. OSHO ASSOCIATES, VS. A.C.I.T., CIRCLE-3, 30, SATYADEV NAGAR, GWALIOR. GANDHI ROAD, GWALIOR. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJENDRA SHARMA, ADVOCATE RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 28.09.2012 DATE OF PRONOUNCEMENT OF ORDER : 28.09.2012 ORDER PER BENCH : THIS MISCELLANEOUS APPLICATION IS FILED BY THE AS SESSEE AGAINST THE ORDER OF THE TRIBUNAL DATED 20.04.2012 PASSED IN DE PARTMENTAL APPEAL IN ITA NO. 272/AGRA/2011 FOR THE ASSESSMENT YEAR 2007-08. 2. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEES GRIEVANCE IN THE M.A. IS ON TWO POINTS, I.E., NOTIC E FOR THE DATE OF HEARING ON 12.04.2012 HAS NOT BEEN RECEIVED TO THE ASSESSEE AN D THEREFORE, PRINCIPLES OF NATURAL JUSTICE HAS BEEN VIOLATED AND FURTHER ON GR OUND NO. 2 OF THE M.A. NO. 24/AGRA/2012 2 DEPARTMENTAL APPEAL, WHEN THE APPEAL OF THE DEPARTM ENT WAS ALLOWED RECORDING A FINDING THAT THE ASSESSEE HAD AGREED TO THE ADDITION BEFORE THE AO, WHEREAS THE ASSESSEE NEVER AGREED TO THE ADDITI ON BEFORE HIM. THEREFORE, THE MISTAKE IS APPARENT FROM THE RECORD AND THE SAME MAY BE CORRECTED. THE LD. DR DEFENDED THE ORDER OF THE TRI BUNAL AND SUBMITTED THAT THERE IS NO MISTAKE APPARENT ON RECORD AND THE ASSE SSEE DELIBERATELY DID NOT APPEAR ON THE DATE OF HEARING BEFORE THE TRIBUNAL A ND DID NOT SHOW CORRECT STATE OF FACTS. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL ON RECORD. REGARDING FIRST GRIEVANCE OF THE LD. COUNSEL FOR TH E ASSESSEE THAT THE NOTICE FOR HEARING ON 12.04.2012 WAS NOT SERVED UPON THE A SSESSEE, WE FIND THAT NOTICE WAS SENT TO THE ASSESSEE THROUGH REGISTERED POST WELL IN ADVANCE, WHICH HAS BEEN RECEIVED BY THE ASSESSEE. A.D. CARD RECEIVED BY THE ASSESSEE IS AVAILABLE ON RECORD. THE LD. COUNSEL WAS CONFRON TED WITH THE AD CARD AND AFTER SEEING THE SAME, THE LD. COUNSEL ADMITTED THA T THE SAME BEARS THE SIGNATURE OF SHRI DINESH GUPTA, PARTNER OF THE FIRM . HE ALSO FOUND THAT THE SIGNATURE ON THE AD CARD TALLY WITH THE SIGNATURE O F PARTNER OF THE ASSESSEE. MR. DINESH GUPTA FILED AFFIDAVIT AFFIRMING THAT THE NOTICE FOR HEARING WAS NOT RECEIVED TO HIM. IT IS A FALSE AFFIDAVIT FILED BY SHRI DINESH GUPTA. ACTION M.A. NO. 24/AGRA/2012 3 COULD HAVE BEEN TAKEN FOR FILING FALSE AFFIDAVIT, B UT THE LD. COUNSEL APOLOGIZED THE SAME. THEREFORE, WE DO NOT TAKE ANY ACTION AGAINST THE ASSESSEE AT THIS STAGE. ON THIS VIEW OF THE MATTER, THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT PRINCIPLE OF NATURAL JUSTICE HAS BEEN VIOLATED IS REJECTED. 4. NOW, CONSIDERING THE ISSUE ON MERIT, WE FIND FRO M THE ASSESSMENT ORDER THAT THE AO WHILE DISALLOWING THE EXPENSES, I SSUED SHOW CAUSE NOTICE TO THE ASSESSEE AS TO WHY IN THE ABSENCE OF VOUCHER S AND SUPPORTING DOCUMENTS, 5% OUT OF THE EXPENSES AND 10% OUT OF MA CHINERY HIRE CHARGES SHOULD NOT BE DISALLOWED. THE LD. COUNSEL FOR THE A SSESSEE ADMITTED THESE FACTS BEFORE THE AO AND AGREED WITH THE PROPOSED SH OW CAUSE NOTICE. ACCORDINGLY, IN THE ABSENCE OF ANY MATERIAL ON RECO RD, THE AO MADE ADDITION. THE LD. CIT(A), HOWEVER, WITHOUT CONSIDER ING THE FINDING OF THE AO ALLOWED PART RELIEF TO THE ASSESSEE. THE TRIBUNA L CONSIDERING THE GROUND NO. 2 OF THE APPEAL OF THE REVENUE IN THE LIGHT OF THE FINDINGS OF THE AO FOUND THAT SINCE THE ASSESSEE AGREED TO THE ADDITIO N BEFORE THE AO, THEREFORE, THE APPEAL WAS NOT MAINTAINABLE EVEN AT THE STAGE O F LD. CIT(A). ACCORDINGLY, ON GROUND NO. 2, WHATEVER RELIEF WAS G RANTED BY THE LD. CIT(A) WAS SET ASIDE AND THE ORDER OF THE AO WAS RE STORED. THE ABOVE FACTS M.A. NO. 24/AGRA/2012 4 WOULD SHOW THAT THE ASSESSEE AGREED TO THE PROPOSED ADDITION BEFORE THE AO IN THE ABSENCE OF ANY RELEVANT MATERIAL AND DOCUMEN TS. THEREFORE, THERE IS NO MISTAKE APPARENT FROM THE RECORD. FURTHER, IT IS WE LL SETTLED LAW THAT THE TRIBUNAL HAS NO POWER TO REVIEW THEIR OWN ORDERS PA SSED ON MERITS. THEREFORE, IF THE MA OF THE ASSESSEE IS ALLOWED, IT WOULD AMOUNT TO REVIEW OF EARLIER ORDER OF TRIBUNAL, WHICH IS NOT PERMISSI BLE IN LAW. HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. ANAMIKA BUILDERS PVT. LTD., 251 ITR 585 HELD THAT THE TRIBUNAL SHOULD NOT CHANGE IT S VIEW ALREADY TAKEN IN THE MATTER. HONBLE ANDHRA PRADESH HIGH COURT IN TH E CASE OF CIT VS. IDEAL ENGINEERS, 251 ITR 743 AND HONBLE M.P. HIGH COURT IN THE CASE OF AGARWAL WAREHOUSING, 257 ITR 235 (MP) HELD THAT THE TRIBUNAL SHOULD NOT REVIEW THE ORDER ALREADY PASSED ON MERITS. HONBLE CALCUTTA HIGH COURT IN THE CASE OF HINDUSTAN LEVER LTD VS. JCIT, 284 ITR 4 2 HELD THAT THE MISTAKE MUST BE SO OBVIOUS THAT IT CAN EASILY BE CORRECTED, TO WIT AN ARITHMETICAL MISTAKE, A WRONG QUOTATION OF SECTION, ETC. , BUT N OT ON DEBATABLE ISSUE. RECENTLY, HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. EARNEST EXPORT LTD., 323 ITR 577 HELD THAT THE ORDER PASSED BY THE TRIBUNAL AFTER CONSIDERING THE MATERIAL AND DECISIONS CITED BEFORE HIM, SHOULD NOT HAVE BEEN RECALLED. SINCE THE DEPARTMENTAL APPEAL HAS BE EN DECIDED ON MERIT, M.A. NO. 24/AGRA/2012 5 THEREFORE, THE REVIEW IS NOT PERMISSIBLE. THE SECON D CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE IS ALSO REJECTED. 5. NO OTHER POINT IS ARGUED OR PRESSED. 6. IN THE RESULT, THE M.A. OF THE ASSESSEE IS DISMI SSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28.09.2012. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY M.A. NO. 24/AGRA/2012 6