DCIT, Circle-1, Nellore V. Sri Lanka Rama Siva Reddy, Nellore

MA 25/HYD/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0240 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-04-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 18-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M H NAIK
• Assessee Lawyers: B VAMSI KRISHNA
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER. M.A.NO.25/HYD/2013 (IN ITA NO.1041/HYD/2012) : ASSESSME NT YEAR 2009-10 DY. COMMISSIONER OF INCOME- TAX CIRCLE 1 NELLORE. V/S SHRI LANKA RAMA SIVA REDDY, NELLORE. (PAN - AABFG 5865 H) (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI M.H.NAIK RESPONDENT BY : SHRI B.VAMSI KRISHNA DATE OF HEARING 22 03.2013 DATE OF PRONOUNCEMENT 19. 0 4.2013 O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER: BY THIS APPLICATION UNDER S.254(2) OF THE INCOME- TAX ACT, 1961, THE REVENUE SEEKS RECTIFICATION/RECALL OF THE ORDER OF THIS TRIBUNAL DATED 17.10.2012 IN ITA NO.1041/HYD/2012 FOR THE A SSESSMENT YEAR 2009-10, ON THE GROUND THAT CERTAIN MISTAKE APPAREN T FROM RECORD HAS CREPT INTO THE SAME. 2. BY THE ORDER DATED 17.10.2012, THE TRIBUNAL HAS DISMISSED THE APPEAL OF THE REVENUE IN LIMINE , BASED ON ITS FINDING THAT THE TAX EFFECT INVOLVED IN THE APPEAL OF THE REVENUE WAS L ESS THAN RS.3 LAKHS, AND CONSEQUENTLY, IN VIEW OF THE INSTRUCTION NO.3 O F 2011 [F. NO. 279/MISC. 142/2007-ITJ], DATED 9 TH FEBRUARY, 2011 ISSUED BY THE CBDT, THE APPEAL OF THE REVENUE WAS NOT MAINTAINABLE. BY THE AVERMENTS MADE IN THE PRESENT APPLICATION, DISCUSSING VARIOUS ISSUES INVOLVED IN THE APPEAL, IN THE LIGHT OF THE ORDER OF THE ASSESSING OFFICER LPASSED FOR GIVING EFFECT TO THE ORDER OF THE CIT(A), THE REVENUE SUBM ITS THAT THE AGGREGATE TAX EFFECT INVOLVED WAS RS.3,19,996, I.E. MORE THAN RS.3 LAKHS, AND AS MA 25/HYD/13 (IN ITA NO.1041/HYD/2012) SHRI LANKA RAMA SIVA REDDY, NELLORE. 2 SUCH, THERE IS AN ERROR ON THE FACE OF THE RECORD I N THE ORDER OF THE TRIBUNAL, INASMUCH AS THE TRIBUNAL HAS PROCEEDED O N THE BASIS THAT THE TAX EFFECT WAS LESS THAN RS.3 LAKHS. REITERATING T HE AVERMENTS MADE IN THE PRESENT APPLICATION, LEARNED DEPARTMENTAL REPRE SENTATIVE SUBMITTED THAT THERE IS MISTAKE APPARENT FROM RECORD IN THE O RDER OF THE TRIBUNAL DATED 17.10.2012, AND AS SUCH IT IS LIABLE TO BE RE CALLED FOR BEING DISPOSED OF ON THE MERITS OF THE ISSUES INVOLVED. 3. LEARNED COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, OPPOSING THE CONTENTIONS OF THE REVENUE, SUBMITTED HAT THERE IS NO MISTAKE APPARENT FROM RECORD, INASMUCH AS THE TAX E FFECT INVOLVED IN THE REVENUES APPEAL IS LESS THAN RS.3 LAKHS, AND AS SU CH THE SAME WAS CORRECTLY DISMISSED BY THE TRIBUNAL, IN LIMINE, AS NOT MAINTAINABLE. IN FACT, THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEE IN THE WRITTEN SUBMISSION FILED HAS FURNISHED A DETAILED C ALCULATION DEMONSTRATING THAT THE TAX EFFECT IS BELOW RS.3 LAK HS. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIAL ON RECORD, IN THE LIGHT OF THE AVERMENTS M ADE BY THE APPLICANT IN THE PRESENT APPLICATION. WE FIND THAT THE TRIBUNAL HAS RENDERED ITS DECISION, AFTER HEARING BOTH THE PARTIES TO THE DIS PUTE, AND THE DECISION TO DISMISS THE APPEAL OF THE REVENUE, TREATING THE SAM E AS NON- MAINTAINABLE ON THE GROUND THAT THE TAX EFFECT WAS LESS THAN RS.3 LAKHS, WAS DULY PRONOUNCED IN THE OPEN COURT AT THE CONCLU SION OF HEARING. THE FINDING OF THE TRIBUNAL THAT THE TAX EFFECT WAS LES S THAN RS.3 LAKHS WAS A FINDING OF FACT AND THE SAME WAS NOT DISPUTED BY TH E LEARNED DEPARTMENTAL REPRESENTATIVE, WHEN THE DECISION WAS PRONOUNCED IN THE OPEN COURT AT THE CONCLUSION OF HEARING. THE DEPAR TMENT, HAVING NOT RAISED ANY CONTENTIONS, TO DISPUTE THE SAID FINDING OF THE TRIBUNAL, AS TO THE TAX EFFECT INVOLVED, AND BY ADDUCING NECESSARY EVIDENCE TO SUBSTANTIATE THE SAID CONTENTIONS, AT THAT STAGE, IT CANNOT BE SAID THAT MA 25/HYD/13 (IN ITA NO.1041/HYD/2012) SHRI LANKA RAMA SIVA REDDY, NELLORE. 3 THERE WAS ANY MISTAKE APPARENT FROM RECORD IN THE O RDER OF THE TRIBUNAL DATED 17.10.2012. EVEN IN THESE PROCEEDINGS UNDER S.254(2) OF THE ACT, THE REVENUE HAS NOT SPECIFICALLY DREW ATTENTION TO ANY MATERIAL AVAILABLE IN THE RECORD AT THE STAGE OF HEARING ON APPEAL, BA SED ON WHICH IT COULD BE SAID THAT THE TRIBUNALS FINDING THAT THE TAX EF FECT WAS LESS THAN RS.3 LAKHS WAS ERRONEOUS. MORE SO, WHEN THE FINDING OF THE TRIBUNAL IN RELATION TO TAX EFFECT, WAS NOT DISPUTED BY THE REV ENUE, WHEN IT WAS PRONOUNCED IN THE OPEN COURT AT THE CONCLUSION OF H EARING ON APPEAL. 5. THE CONTENTIONS OF THE REVENUE NOW RAISED, BAS ED ON THE ORDER PASSED BY THE ASSESSING OFFICER TO GIVE EFFEC T TO THE ORDER OF THE CIT(A) IMPUGNED IN THE APPEAL, ARE TOO LATE IN THE DAY, AND THEY CANNOT SUBSTANTIATE ANY MISTAKE APPARENT FROM RECORD IN TH E ORDER OF THE TRIBUNAL IN AS MUCH AS THE CONSEQUENTIAL ORDER OF T HE ASSESSING OFFICER WAS NOT PART OF THE RECORD AT THE STAGE OF HEARING ON APPEAL. FURTHER, THE LEARNED COUNSEL FOR THE ASSESSEE TOO ARGUED AND FIL ED WRITTEN SUBMISSIONS, TO POINT OUT THAT THE TAX EFFECT WAS I NDEED LESS THAN RS.3- LAKHS. THE SUBMISSION MADE BY THE LEARNED COUNSEL F OR THE ASSESSEE IN THIS BEHALF ALSO REMAINS UNCONTROVERTED. THE DEPART MENT HAS NOT BEEN ABLE TO DEMONSTRATE THAT THE TAX CALCULATION MADE B Y THE ASSESSEE IN ITS WRITTEN SUBMISSIONS BEFORE US, IS NOT CORRECT. IN THESE CIRCUMSTANCES, IT CANNOT BE SAID THAT THERE WAS ANY MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL DATED 17.10.2012. WE ARE SU PPORTED IN THIS BEHALF BY THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V/S. ITAT & ANR. 206 ITR 126 THE ANDHRA PRADESH HIGH COU RT HELD AS UNDER: 'THE APPELLATE TRIBUNAL, BEING A CREATURE OF THE STAT UTE, HAS TO CONFINE ITSELF IN THE EXERCISE OF ITS JURISDICTI ON TO THE ENABLING OR EMPOWERING TERMS OF THE STATUTE. IT HAS NO INHERENT POWER. EVEN OTHERWISE, IN CASES WHERE SPEC IFIC PROVISION DELINEATES THE POWERS OF THE COURT OR TRI BUNAL, IT CANNOT DRAW UPON ITS ASSUMED INHERENT JURISDICTION AND PASS ORDERS AS IT PLEASES. THE POWER OF RECTIFICATION WH ICH IS SPECIFICALLY CONFERRED ON THE TRIBUNAL HAS TO BE EX ERCISED IN MA 25/HYD/13 (IN ITA NO.1041/HYD/2012) SHRI LANKA RAMA SIVA REDDY, NELLORE. 4 TERMS OF THAT PROVISION. IT CANNOT BE ENLARGED ON A NY ASSUMPTION THAT THE TRIBUNAL HAS GOT AN INHERENT PO WER OF RECTIFICATION OR REVIEW OR REVISION. IT IS AXIOMATI C THAT SUCH POWER OF REVIEW OR REVISION HAS TO BE SPECIFICALLY CONFERRED; IT CANNOT BE INFERRED. UNLESS THERE IS A MISTAKE AP PARENT FROM THE RECORD IN THE SENSE OF PATENT, OBVIOUS AND CLEAR ERROR OR MISTAKE, THE TRIBUNAL CANNOT RECALL ITS PRE VIOUS ORDER. IF THE ERROR OR MISTAKE IS ONE WHICH COULD B E ESTABLISHED ONLY BY LONG-DRAWN ARGUMENTS OR BY A PR OCESS OF INVESTIGATION AND RESEARCH, IT IS NOT A MISTAKE APPARENT FROM THE RECORD. IF TWO VIEWS ARE POSSIBLE ON A POI NT OF LAW, AND ONE OF THE ALTERNATIVES IS ACCEPTED IN ITS PREV IOUS ORDER, IT CANNOT BE HELD THAT THE MISTAKE IS APPARENT FROM THE RECORD. UNLESS THERE ARE MANIFEST ERRORS WHICH ARE OBVIOUS, CLEAR AND SELF- EVIDENT, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER IN AN ATTEMPT TO REWRITE THE ORDER. 6. IN VIEW OF THE FOREGOING DISCUSSION, WE FIND NO MISTAKE APPARENT FROM RECORD, WITHIN THE MEANING OF S.254(2 ) OF THE ACT, THE SCOPE OF WHICH IS CONFINED TO MERE RECTIFICATION O F THE MISTAKES APPARENT FROM RECORD. WE ACCORDINGLY REJECT THE PRESENT APPL ICATION OF THE REVENUE, WHICH IS DEVOID OF MERIT. 7. IN THE RESULT, APPLICATION OF THE REVENUE IS R EJECTED. ORDER PRONOUNCED IN THE COURT ON 19.4.2013 SD/- SD/- (CHANDRA POOJARI) (SAKTIJIT DEY) ACCOUNTANT MEMBE R. JUDICIAL MEMBER. DT/- 19 TH APRIL, 2012 COPY FORWARDED TO: 1. SHRI LANKA RAMA SIVA REDDY, PLOT NO.68, RITWIK ENCL AVE, A.K. NAGAR, NELLORE. 2. ASSTT. COMMISSIONER OF INCOME - TAX CIRCLE 1, NELLORE. MA 25/HYD/13 (IN ITA NO.1041/HYD/2012) SHRI LANKA RAMA SIVA REDDY, NELLORE. 5 3. 4. COMMISSIONER OF INCOME-TAX(APPEALS) GUNTUR COMMISSIONER OF INCOME-TAX, GUNTUR 5 . THE DEPARTMENTAL REPRESENTATIVE, ITAT HYDERABAD B.V.S.