Gowtham Associates , Bangalore V. Income Tax Officer Ward-2(2)(2), Bangalore

MA 240/BANG/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5953 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-12-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 27-10-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR
• Assessee Lawyers: SRINIVAS BHARATH
• Keywords: Rectification of order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH C BEFORE S HRI SUNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI JASON P BOAZ , ACCOUNTANT MEMBER M.P. NO.240/BANG/2017 (IN I.T . A. NO. 1535 /BANG/20 17) (ASSESSMENT YEAR : 20 14 - 15 ) M/S. GOWTHAMI ASSOCI ATES, NO.445, 13 TH MAIN, 3 RD STAGE, MANJUNATHA NAGAR, RAJAJI NAGAR, BANGALORE. . APPELLANT. VS. THE INCOME TAX OFFICER, WARD 2(2)(2), BANGALORE. .. RESPONDENT. APPELLANT BY : SHRI SRINIVAS BHARATH, C A R E SPONDENT BY : DR. P. V. PRADEEP KUMAR, ADDL. CIT. DATE OF H EARING : 22.12.2017. DATE OF P RONOUNCEMENT : 22 .12 .201 7 . O R D E R PER SHRI JASON P BOAZ, A .M . : THIS MISC. PETITION ( M.P. ) FILED BY THE ASSESSEE ARISES OUT OF THE ORDER OF THIS TRIBUNAL IN ITA NO.1535/BANG/2 017 DT.24.8.2017 FOR ASSESSMENT YEAR 2014 - 15. 2. IN THIS MISC. PETITION THE ASSESSEE HAS SUBMITTED AS UNDER : 2 M.P. NO.240 /BANG/201 7 3 M.P. NO.240 /BANG/201 7 3. WE HAVE HEARD THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEE IN SUPPORT OF THE ISSUES RAISED (SUPRA) AND THE SUBMISSION S MADE. WE HAVE ALSO HEARD THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR REVENUE WHO OPPOSED THE ASSESSEE'S M.P. AND S OUGHT ITS REJECTION ON THE GROUNDS THAT THE TRIBUNAL IN ITS IMPUGNED ORDER DT.24.8.2017 (SUPRA) HAD CONSIDERED THE ASSESSEE'S SUBMISSION AN D ADJUDICATED ALL THE GROUNDS RAISED BY THE ASSESSEE AND WHAT THE ASSESSEE NOW SEEKS IN ITS M.P. IS A REVIEW OF THE TRIBUNAL ORDER WHICH IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT'). 4. ON A PERUSAL OF THE IM PUGNED ORDER, WE FIND THAT GROUND NO.6 HAS BEEN CONSIDERED AND ADJUDICATED ALONG WITH, GROUNDS 2, 3 & 5 AT PARAS 5 TO 5.3.3 OF THE IMPUGNED ORDER. 4. AT PARA 5.3.1 OF THE IMPUGNED ORDER, IT HAS BEEN RECORDED AS UNDER : - 5.3.1 WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD , IN CLUDING THE JUDICIAL PRONOUNCEMENT CITED THEREFORE, IN VIEW OF THE ABOVE, IT IS CLEAR THAT THE JUDICIAL PRONOUNCEMENT CITED BY THE ASSESSEE BEFORE US HAS BEEN DULY PERUS ED AND CONSIDERED WHILE DISPOSING OF F THE ASSESSEE'S APPEAL. IN THIS VIEW OF THE MATTER, WE FIND NO MERIT OR SUBSTANCE IN THIS AVERMENT OF THE ASSESSEE THAT THE JUDICIAL PRONOUNCEMENT CITED BY IT HAS NOT BEEN CONSIDERED BY THE BENCH AND ACCORDINGLY REJEC T THIS CLAIM OF THE ASSESSEE. 4 M.P. NO.240 /BANG/201 7 5. FURTHER , THE ASSESSEE'S CLAIM THAT GROUND NO.6 WAS NOT ADJUDICATED BY THE BENCH I.E. IN RESPECT OF THE JUDICIAL PRONOUNCEMENTS CITED BY ASSESSEE BEFORE CIT (APPEALS) IS FACTUALLY ERRONEOUS. IN PARA 5.3.3, THE BENCH, AF TER DUE CONSIDERATION OF THE GROUND, HAS RECORDED AS UNDER : - 5.3.3 WE AGREE WITH THE VIEW OF THE CIT (APPEALS) AND THE LEARNED DEPARTMENTAL REPRESENTATIVE THAT THE DECISION / JUDICIAL PRONOUNCEMENTS CITED BY THE ASSESSEE WOULD NOT COME TO THE R ESCUE OF THE ASSESSEE IN THE CASE ON HAND AFTER THE INTRODUCTION OF THE POINT OF TAXATION RULES, 2011 W.E.F. 1.4.2011, AS THEY PERTAIN TO THE PERIOD PRIOR TO 1.4.2011 6. IN THE LIGHT OF OUR DISCUSSION AT PARAS 3 TO 5 OF THIS ORDER (SUPRA), WE ARE OF THE CONSIDERED VIEW THAT THROUGH THIS M.P. AND THE CONTENTIONS PUT FORTH THERE I N, THE ASSESSEE IS SEEKING A REVIEW OF THE EARLIER ORDER DT.24.8.2017 PASSED BY THE TRIBUNAL IN THE CASE ON HAND. 7. SECTION 254 OF THE ACT READS AS FOLLOWS : (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN 42 [SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED], WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB - SECTION (1), AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER. THE HON'BLE KARNATAKA HIGH COURT IN CIT VS. MC. DOWELL & CO. LTD. 310 ITR 215 (KAR) AFTER CONSIDERING TH E DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF HONDA SIEL 213 CTR 425 (SC) HAS HELD THAT THE POWER UNDER SECTION 254(2) OF THE ACT CANNOT BE EXERCISED SO AS TO REVIEW ORDER PASSED BY THE TRIBUNAL. THE HON'BLE COURT HELD THAT APPLICATION OF 5 M.P. NO.240 /BANG/201 7 PRINCIP LES LAID DOWN BY THE SUPERIOR COURTS TO THE FACTS OF THE CASE ON ERRONEOUS UNDERSTANDING OF SUCH PRINCIPLES, RECORDING OF AN ERRONEOUS FINDING BY THE TRIBUNAL BASED ON FACTS ON RECORD, FORMATION OF A CONCLUSION ON ERRONEOUS APPLICATION OF PROVISIONS OF LA W TO THE FACTS OF THE CASE, ETC CANNOT BE HELD TO BE A MISTAKE APPARENT FROM THE RECORD WARRANTING RECTIFICATION BY THE TRIBUNAL IN EXERCISE OF ITS POWER UNDER SECTION254(2). BY RECONSIDERING THE APPLICATION OF PRINCIPLES LAID DOWN BY SUPERIOR COURTS TO THE FACTS OF THE CASE OR BY RECONSIDERING ITS FINDINGS RECORDED, OR BY RECONSIDERING THE APPLICATION OF THE RELEVANT PROVISIONS OF LAW TO THE FACTS OF THE CASE, IN A MISCELLANEOUS PETITION UNDER SECTION 254(2), THE TRIBUNAL WOULD BE EXERCISING POWER OF RE VIEW OF ITS EARLIER ORDER ON MERITS BUT NOT RECTIFICATION OF MISTAKE APPARENT FROM THE RECORD AND SUCH REVIEW WOULD CERTAINLY BE BEYOND THE SCOPE OF SECTION 254(2). 8. IN VIEW OF THE AFORESAID DECISION OF THE HON'BLE KARNATAKA HIGH COURT WHICH IS THE JURISDICTIONAL HIGH COURT AND WHICH IS BINDING ON US, WE ARE OF THE VIEW THAT THROUGH THIS MISCELLANEOUS PETITION THE ASSESSEE IS SEEKING A REVIEW OF THE EARLIER ORDER OF THE TRIBUNAL BY RECONSIDERING THE APPLICATION OF PRINCIPLES LAID DOWN BY SUPERIO R COURTS TO THE FACTS OF THE CASE OR BY RECONSIDERING ITS FINDINGS RECORDED, OR BY RECONSIDERING THE APPLICATION OF THE RELEVANT PROVISIONS OF LAW TO THE FACTS OF THE CASE. SUCH A COURSE IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE ACT, AS HELD BY THE H ON'BLE KARNATAKA HIGH COURT. IN THIS FACTUAL AND LEGAL MATRIX OF THE CASE, WE DISMISS THIS M P FILED BY THE ASSESSEE IN THE CASE ON HAND. 6 M.P. NO.240 /BANG/201 7 9. IN THE RESULT, THE ASSESSEE'S M P FOR ASSESSMENT YEAR 2014 - 15 IS DISMISSED. ORDER PRONOUNCED IN TH E OPEN COURT ON 22 ND DEC., 201 7 . SD/ - ( SUNIL KUMAR YADAV ) ACCOUNTANT MEMBER SD/ - ( JASON P BOAZ ) JUDICIAL MEMBER BANGALORE, DT. 22 .12.2017. *REDDY GP COPY TO : 1 APPELLANT 4 CIT(A) 2 RESPONDENT 5 DR. ITAT, BANGALORE 3 CIT 6 GUARD FILE SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL BANGALORE.