JAYANT D SANGHVI, V. ITO WD 9(3)(1),

MA 247/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1129 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-11-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 08-11-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 08-07-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S C TIWARI
• Keywords: Rectification of order; Condonation of delay
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI J BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI P. M. JAGTAP, AM & SHRI VIJAY PAL RAO, JM MISCELLANEOUS APPLICATION NO. 247/MUM/2013 ( ARISING FROM ITA NO. 6407/MUM/2008 A. Y - 2003-04 ) SHRI JAYANT D. SANGHVI, SANGHVI VILLA, 13 TH CROSS ROAD, JUHU SCHEME, MUMBAI-400049 VS THE INCOME TAX OFFICER, WARD 8(3)(1), AAYAKAR BHAVAN, M. K. ROAD, MUMBAI-400020 (APPLICANT) (RESPONDENT) PAN NO. AJXPS7692G ASSESSEE BY SHRI S. C. TIWARI REVENUE BY SHRI SANJEEV JAIN DATE OF HEARING 1 ST NOVEMBER 2013 DATE OF PRONOUNCEMENT 14 TH NOVEMBER 2013 ORDER PER VIJAY PAL RAO, JM BY WAY OF THIS MISCELLANEOUS APPLICATION THE ASSESS EE IS SEEKING RECALL OF ORDER DATED 7.5.2010 OF THIS TRIBUNAL WHE REBY THE APPEAL OF THE ASSESSEE WAS DISMISSED AS WITHDRAWN. 2. WE HAVE HEARD THE LD. A.R AS WELL AS LD. D.R AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE LD. A.R OF THE ASS ESSEE HAS SUBMITTED THAT THE APPEAL IN QUESTION WAS FILED BY THE ASSESS EE AGAINST THE ORDER OF CIT PASSED U/S 263. IN THE MEAN TIME THE ASSESSING OFFICER HAD ALREADY PASSED ASSESSMENT IN PURSUANT TO THE REVISION ORDER U/S 263 AND THE ASSESSEE PREFERRED AN APPEAL WHICH WAS PENDING BEFO RE THE CIT(A). THE LD. COUNSEL HAS PLEADED THAT THE ASSESSEE WAS ADVIS ED BY HIS COUNSEL THAT IN VIEW OF THE ASSESSING OFFICER HAS ALREADY G IVING EFFECT TO THE IMPUGNED ORDER PASSED U/S 263 IT WAS BETTER TO AGIT ATE THE MATTER IN THE MA 247/M/2013 SHRI JAYANT D. SANGHVI 2 PROCEEDINGS AGAINST THE FRESH ASSESSMENT ORDER PASS ED U/S 143 R.W.S 253 RATHER THAN PURSUANT THIS MATTER AGAINST THE ORDER PASSED U/S 263 ITSELF. ACCORDINGLY, THE ASSESSEE AGREED WITH THE ADVICE OF THE AUTHORISED REPRESENTATIVE AND REQUESTED FOR WITHDRAWAL OF APPE AL. THE LD. A.R HAS SUBMITTED THAT THE ASSESSEE HAS NOW LEARNT THAT HE WAS GIVEN WRONG ADVICE AND THE FACT OF MATTER IS THAT ON WITHDRAWAL OF APPEAL NOT ONLY ORDER OF COMMISSIONER PASSED U/S 263 BECAME FINAL B UT IT ALSO AS THE EFFECT OF FINALITY TO THE CONSEQUENTIAL ORDER PASSE D BY THE A.O. THUS, THE LD. A.R HAS SUBMITTED THAT THE ASSESSEE SHOULD NOT SUFFER FROM THE ERRORS AND MISTAKE COMMITTED BY ITS COUNSEL AND THE ORDER DATED 7.5.2010 MAY BE RECALLED. THE LD. A.R HAS RELIED UPON THE DECISI ON OF HONBLE SUPREME COURT DATED 9.6.2010 IN CASE OF IMPROVEMENT TRUST, LUDHIANA VS UJAGAR SINGH & ORS. IN CIVIL APPEAL NO. 2395/2008 AND SUBM ITTED THAT THE HONBLE SUPREME COURT HAS HELD THAT AFTER ALL JUSTICE CAN B E DONE ONLY WHEN THE MATTER IS FOUGHT ON MERITS AND IN ACCORDANCE WITH T HE LAW RATHER THAN TO DISPOSE OF IT ON SUCH TECHNICALITIES AND THAT TOO A T THRESHOLD. ON THE OTHER HAND, THE LD. D.R HAS SUBMITTED THAT WHEN THE ASSES SEE HIMSELF HAS WITHDRAWN THE APPEAL BY FILING LETTER DATED 23.4.20 10 WHICH WAS ACCEPTED BY THE TRIBUNAL THEN THERE IS NO PRIMA FACIE MISTAK E OR ERROR IN THE ORDER OF THE TRIBUNAL TO BE RECTIFIED U/S 254(2). 3. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND CARE FULLY PERUSAL OF RECORD WE NOTE THAT THE ASSESSEE FILED A LETTER DAT ED 23.4.2010 SEEKING WITHDRAWAL OF APPEAL IN ITA NO. 6407/2008. THE CONT ENTS OF THE LETTER ARE REPRODUCED FOR THE SAKE OF CONVENIENCE AS UNDER: MA 247/M/2013 SHRI JAYANT D. SANGHVI 3 JAYANT D. SANGHVI SANGHVI VILLA, 13 TH CROSS ROAD, JUHU SCH EME, MUMBA I-400049 23.4.2010 THE REGISTRAR, THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI DEAR SIR, SUB: ASSESSMENT YEAR 2003-04 ITA NO. 6407/M/08 THE AFORESAID APPEAL IS FIXED FOR HEARING TODAY BE FORE HONBLE I.T.A.T J BENCH. 2. I DESIRE TO WITHDRAW THE AFORESAID APPEAL AND, T HEREFORE, CRAVE INDULGENCE OF THE HONBLE MEMBERS TO ALLOW ME TO WI THDRAW THE APPEAL. 3. THIS SUBMISSION MAY PLEASE BE PLACED BEFORE THE HONBLE MEMBERS FOR FAVOUR OF ORDER. THANKING YOU, YOURS FAITHFULLY, SD/- (JAYANT D. SANGHVI) 4. THE ABOVE REQUEST OF THE ASSESSEE WAS ALLOWED BY THE TRIBUNAL AND ACCORDINGLY THE ORDER DATED 7.5.2010 WAS PASSED BY THE TRIBUNAL WHEREBY THE APPEAL OF THE ASSESSEE WAS DISMISSED AS WITHDRA WN. IT IS CLEAR FROM THE RECORD THAT THERE IS NO APPARENT ERROR OR MISTA KE IN THE IMPUGNED ORDER OF THE TRIBUNAL BY ACCEPTING THE REQUEST OF T HE ASSESSEE FOR WITHDRAWAL OF THE APPEAL. EVEN THERE IS NOTHING IN THE REQUEST LETTER TO INDICATE THAT THE ASSESSEE HAS WITHDRAWN THE APPEAL BECAUSE OF THE ADVICE OF HIS COUNSEL AND FOR PERUSING THE MATTER A RISING FROM THE FRESH ASSESSMENT ORDER. THE JURISDICTION OF THE TRIBUNAL U/S 254(2) IS VERY LIMITED AND CIRCUMSCRIBE. FOR EXERCISING THE JURISD ICTION U/S 254(2) IT IS MANDATORY CONDITION THAT SUCH MISTAKE SHOULD VIDE A PPARENT, MANIFEST MA 247/M/2013 SHRI JAYANT D. SANGHVI 4 AND PATENT AND NOT SOMETHING WHICH COULD BE INVOLVE D SERIOUS QUESTION OF FACT OR LAW. IT IS SETTLED PROPOSITION THAT SECTION 254(2) DOES NOT CONFER POWER ON THE TRIBUNAL TO REVIEW ITS EARLIER ORDER. WHEN THE TRIBUNAL HAS PROCEEDED ON THE REQUEST OF THE ASSESSEE AND THE AS SESSEE HAS ALSO FAILED TO POINT OUT ANY APPARENT MISTAKE IN THE IMPUGNED O RDER THEN IN THE GARB OF RECTIFICATION OF MISTAKE U/S 254(2) IT IS NOT PE RMITTED TO THE ASSESSEE TO CHANGE STAND CONSCIOUS TAKEN. THE DECISION RELIED U PON BY THE LD. A.R IS ON THE POINT OF CONDONATION OF DELAY THEREFORE THE SAME IS NOT APPLICABLE IN THE FACTS OF THIS CASE. IT IS PERTINENT TO NOTE THAT THE ASSESSEE HAS FILED THE PRESENT APPLICATION AFTER LAPSE OF A CONSIDERAB LE PERIOD OF ABOUT THREE YEARS. THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE MISCELLANEOUS APPLICATION OF THE ASSESSEE DOES NOT INSPIRE THE CONFIDENCE. ACCORDINGLY, WE DO NOT FIND ANY MERIT IN THE MISCEL LANEOUS APPLICATION. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 14 TH DAY OF NOVEMBER 2013 SD/- SD/- (P. M. JAGTAP) ACCOUNTANT MEMBER (VIJAY PAL RAO) JUDICIAL MEMBER PLACE: MUMBAI: DATED: 14 TH NOVEMBER 2013 SUBODH. COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI