A.N.Nazar Mohamed, Mayiladuthurai V. ITO, Kumbakonam

MA 252/CHNY/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7474 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 1995-1996
• Appeal Filed On: 07-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIRUDH RAI
• Assessee Lawyers: A S SRIRAMAN
• Keywords: Retrospective amendment; Question of law
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI BEFORE SHRI SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMB ER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER .. M.P. NOS. 251 & 252/MDS/2011 (IN M.P. NOS. 269 & 270/MDS/2008 ARISING OUT OF I.T.A. NOS. 880 & 881/MDS/2004) ASSESSMENT YEARS : 1994-95 & 1995-96 MR. A.N. NAZAR MOHAMED, 133, M.G. ROAD, MAYILADUTHURAI. PAN : AADPN4716F (PETITIONER) V. THE INCOME TAX OFFICER, WARD I(2), KUMBAKONAM. (RESPONDENT) M.P. NO. 253/MDS/2011 (IN M.P. NO. 271/MDS/2008 ARISING OUT OF I.T.A. NO. 1032/MDS/2004) ASSESSMENT YEAR : 1995-96 MRS. N. FAZARUNNISA, 133, M.G. ROAD, MAYILADUTHURAI. PAN : AAPHF2447F (PETITIONER) V. THE INCOME TAX OFFICER, WARD I(2), KUMBAKONAM. (RESPONDENT) PETITIONERS BY : SHRI A.S. SRIRAMAN, ADVOCATE RESPONDENT BY : SHRI ANIRUDH RAI, CIT-DR DATE OF HEARING : 20.01.2012 DATE OF PRONOUNCEMENT: 31.01.2012 M.P. NOS.251 TO 253/MDS/11 2 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : THROUGH THESE MISCELLANEOUS PETITIONS, ASSESSEES HAVE PRAYED FOR RECALL OF CONSOLIDATED ORDER OF THIS TRI BUNAL DATED 13 TH OCTOBER, 2004. AS PER THE ASSESSEES, THE TRIBUNAL HAD ALLOWED THE APPEALS OF THE ASSESSEES FOR A REASON THAT NOTICE U NDER SECTION 143(2) OF INCOME-TAX ACT, 1961 (IN SHORT THE ACT) WERE NOT ISSUED WITHIN A PERIOD OF TWELVE MONTHS FROM THE END OF TH E MONTH IN WHICH THE RETURNS WERE FILED. SINCE THE ASSESSMENTS WERE QUASHED ON LEGAL ISSUE, NONE OF THE GROUNDS RAISED WERE CONSIDERED. ASSESSEES ALSO POINTED OUT THAT THEY HAD EARLIER FILED MISCELLANEO US PETITIONS IN M.P. NOS. 269, 270 & 271/MDS/2008 RAISING THE SAME ISSUE THAT THEIR GROUNDS ON MERITS WERE NOT DISPOSED OF BY THIS TRIB UNAL. BUT, THIS TRIBUNAL VIDE ITS ORDER DATED 18.2.2010 DISMISSED S UCH MISCELLANEOUS PETITIONS FOR A REASON THAT NON-ADJUDICATION OF THE ISSUES RAISED WAS ON ACCOUNT OF QUASHING OF THE ASSESSMENT ITSELF AND THIS DID NOT CONSTITUTE ANY APPARENT ERROR OR MISTAKE WHICH COUL D BE RECTIFIED UNDER SECTION 254(2) OF THE ACT. M.P. NOS.251 TO 253/MDS/11 3 2. WHEN THESE MISCELLANEOUS PETITIONS CAME UP BEFOR E US, LEARNED COUNSEL FOR THE ASSESSEES SUBMITTED THAT HO N'BLE JURISDICTIONAL HIGH COURT VIDE ITS DECISION DATED 1 2.10.11 ON REVENUES APPEALS, AGAINST THE ORDERS OF THIS TRIBU NAL IN I.T.A. NOS. 880, 881/MDS/04 AND I.T.A. NO. 1032/MDS/04, HAD HEL D THAT NOTICES ISSUED UNDER SECTION 143(2) OF THE ACT WERE VALID, THEREBY ANSWERING THE SUBSTANTIAL QUESTION OF LAW IN FAVOUR OF REVENU E. LD. COUNSEL SUBMITTED THAT THIS HAS PUT THE ASSESSEES IN A PIQU ANT SITUATION SINCE ITS GROUNDS ON MERITS WERE NOT ADJUDICATED BY THE T RIBUNAL. 3. PER CONTRA, LEARNED D.R., THOUGH AGREED WITH THE CONTENTION OF THE ASSESSEES, SUBMITTED THAT THESE ARE MPS AGAINST MPS AND COULD NOT BE ADMITTED IN VIEW OF THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF DR. S. PANNEERSELVAM V. ACIT ( 319 ITR 135). FURTHER, ACCORDING TO HIM, THIS TRIBUNAL HAD TAKEN CONSCIOUS DECISION IN DISMISSING THE EARLIER MPS ON SUBSTANTIALLY SIMI LAR GROUNDS. 4. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL C ONTENTIONS. IT IS CORRECT THAT THIS TRIBUNAL HAD ALLOWED THE APPEA LS OF THE ASSESSEES FOR THE IMPUGNED ASSESSMENT YEARS FOR A REASON THAT THE NOTICES ISSUED UNDER SECTION 143(2) WERE INVALID AND THE AS SESSMENTS STOOD M.P. NOS.251 TO 253/MDS/11 4 QUASHED. HOWEVER, THIS DECISION TAKEN BY THE TRIBU NAL WAS PRIOR TO THE RETROSPECTIVE AMENDMENT TO SECTION 148 BROUGHT IN BY FINANCE ACT, 2006 WHICH COMPLETELY CHANGED THE SCENARIO. I T IS ALSO TRUE THAT THE EARLIER MISCELLANEOUS PETITIONS FILED BY THE AS SESSEES PRAYING FOR CONSIDERATION OF THEIR GROUNDS ON MERITS WERE DISMI SSED BY THE TRIBUNAL FOR A REASON THAT ASSESSMENTS ITSELF STOOD QUASHED AND ISSUE ON MERITS COULD NOT BE RAISED IN PETITION UND ER SECTION 254(2) OF THE ACT. WE DO APPRECIATE THE SUBMISSION OF LEARNE D D.R. THAT NORMALLY THERE CANNOT BE A SECOND MISCELLANEOUS PET ITION WHERE THERE WAS ALREADY AN ORDER UNDER SECTION 254(2) OF THE ACT, IN VIEW OF THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT I N THE CASE OF DR. S. PANNEERSELVAM (SUPRA). BUT, HERE THERE IS AN EXCEP TIONAL SITUATION. EXCEPTIONAL SITUATION CALLS FOR EXCEPTIONAL REMEDIE S, WHEN EFFECTUATION OF SUBSTANTIAL JUSTICE REQUIRES SUCH R EMEDIES. IT SEEMS THAT AT THE TIME WHEN THE TRIBUNAL PASSED THE ORIGI NAL ORDER, THE AMENDMENT IN THE ACT WAS NOT THERE WHICH VALIDATED NOTICE UNDER SECTION 143(2) OF THE ACT EVEN WHEN IT WAS ISSUED A FTER TIME PERIOD OF 12 MONTHS IN A PROCEEDING OF REOPENING UNDER SECTIO N 147 OF THE ACT. HON'BLE JURISDICTIONAL HIGH COURT, IN REVENUES APP EALS, HAS CLEARLY HELD THAT THE NOTICES ISSUED UNDER SECTION 143(2) O F THE ACT, EVEN M.P. NOS.251 TO 253/MDS/11 5 WHERE SUCH DELAY WAS VALID, ON ACCOUNT OF AMENDMENT MADE IN SECTION 148 VIDE FINANCE ACT, 2006. THEIR LORDSHIP S ALSO NOTED THAT THE SAID AMENDMENT WAS RETROSPECTIVE. THIS TRIBUNA L HAD NO OCCASION TO CONSIDER THE SAID AMENDMENT WHILE DECID ING THE APPEALS ORIGINALLY IN 2004 WHEN THE AMENDMENT WAS MADE IN F INANCE ACT, 2006. THIS DECISION OF HON'BLE JURISDICTIONAL HIGH COURT WAS ALSO NOT AVAILABLE WITH THIS TRIBUNAL WHEN ASSESSEES EARLIE R MISCELLANEOUS PETITIONS WERE CONSIDERED AND DISPOSED OF ON 18.2.2 010. WE ARE OF THE OPINION THAT THIS IS AN EXCEPTIONAL SITUATION W HICH CALLS FOR INVOCATION OF INHERENT POWERS VESTED TO THIS TRIBUN AL FOR ADVANCEMENT OF JUSTICE AND TO AVOID PREJUDICE BEING CAUSED TO A PARTY BY A MISTAKE OF THIS TRIBUNAL ON ACCOUNT OF NOT FAULT OF THE PAR TY. WE ARE OF THE OPINION THAT THE ORDERS OF THIS TRIBUNAL IN I.T.A. NOS. 880, 881 AND 1032/MDS/2004 HAVE TO BE RECALLED FOR DECIDING ON T HE GROUNDS RAISED THEREIN ON MERITS. THEREFORE, WE ALLOW THES E MPS AND RECALL THE ORDERS OF THIS TRIBUNAL BOTH IN M.P. NOS. 269, 270 & 271/MDS/ PASSED ON 18,2,2010 AND THE ORDERS IN I.T.A. NOS. 8 80, 881 & 1032/MDS/2004 PASSED ON 13 TH OCTOBER, 2004. THE APPEALS SHALL BE POSTED FOR FRESH HEARING IN REGULAR COURSE BY REGIS TRY. NOTICES TO BE ISSUED TO THE PARTIES. M.P. NOS.251 TO 253/MDS/11 6 5. IN THE RESULT, THE MISCELLANEOUS PETITIONS STAND ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 31 ST JANUARY, 2012. SD/- SD/- (GEORGE MATHAN) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 31 ST JANUARY , 2012. KRI. COPY TO: (1) PETITIONER (2) RESPONDENT (3) CIT(A) (4) CIT (5) D.R. (6) GUARD FILE