ITO, Ward - 9(4), Kolkata, Kolkata V. M/s Sagar Trexim (P) Ltd., Kolkata

MA 26/KOL/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6792 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 1996-1997
• Appeal Filed On: 26-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A BHATTACHARJEE
• Assessee Lawyers: M D SHAH
• Keywords: Opportunity of being heard; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C, BENCH KOLKATA BEFORE SHRI A. T. VARKEY , JM & DR. A.L.SAINI, AM M.A NO.26/KOL/2018 (ARISING OUT OF I.T.A NO.715/KOL/2012) ( / ASSESSMENT YEAR: 1996-97) ITO , WARD - 9 (4) , KOLKATA VS. M/S. SAGAR TREXIM (P) LTD. 9, JAGMOHAN MULLICK LANE, KOLKATA 700 007. ./ ./PAN/GIR NO. : AAECS 8194 E (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI A. BHATTACHARJEE, ADDL. CIT (DR). RESPONDENT BY : SHRI M. D. SHAH, AR / DATE OF HEARING : 25/05/2018 /DATE OF PRONOUNCEMENT : 06/06/2018 / O R D E R PER DR. ARJUN LAL SAINI, AM: BY WAY OF CAPTIONED APPLICATION, THE REVENUE HAS SOUGHT TO POINT OUT THAT A MISTAKE APPARENT FROM RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE INCOME TAX ACT, 1961(IN SHORT THE ACT) HAS CREPT IN THE ORDER OF THE TRIBUNAL DATED 15.12.2017. 2. THE CASE OF THE REVENUE IN THIS MISCELLANEOUS APPLICATION IS THAT THE REVENUE HAS FILED EARLIER MISCELLANEOUS APPLICATION NO.136/KOL/2017 ARISING OUT OF ITA NO.715/KOL/2012 FOR ASSESSMENT YEAR 1996-97. THE SAID MISCELLANEOUS APPLICATION WAS DISMISSED BY THIS TRIBUNAL BY ORDER DATED 15.12.2017 ON THE GROUND THAT TAX EFFECT INVOLVED IS LESS THAN RS.10 LAKHS. BUT IN REALITY ACTUAL TAX EFFECT INVOLVED IS MORE THAN RS.10 LAKHS. THEREFORE, AGAIN, THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS APPLICATION NO.26/KOL/2018 REQUESTING THE BENCH TO RECTIFY THE EARLIER MISCELLANEOUS APPLICATION NO.136/KOL/2017, AS THE REVENUE NOTED THAT THE TAX EFFECT IS MORE THAN RS.10 LAKH. THE LD. DR FOR THE REVENUE HAS PRAYED THE BENCH THAT SINCE THE TAX EFFECT M.A NO.26/KOL/2018 M/S. SAGAR TREXIM (P) LTD. PAGE | 2 IN THE APPEAL IS MORE THAN RS.10 LAKH, THEREFORE, EARLIER MISCELLANEOUS APPLICATION NO.136/KOL/2017 SHOULD BE RECTIFIED. 3. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THIS MISCELLANEOUS APPLICATION IS TO RECTIFY THE ORDER PASSED BY THIS TRIBUNAL IN AN EARLIER MISCELLANEOUS APPLICATION WHICH IS NOT PERMITTED, THAT IS, M.A ON M.A IS NOT ALLOWED. SINCE M.A ON ANOTHER M.A DOES NOT ARISE OUT OF AN ORDER PASSED BY THE TRIBUNAL U/S 254(1) OF THE ACT, THEREFORE, REVENUES M.A MUST BE DISMISSED. FOR THAT HE RELIED ON THE JUDGMENT OF THE SPECIAL BENCH OF ITAT, DELHI IN THE CASE OF SHRI PADAM PRAKASH (HUF) VS. ITO IN THE CASE OF MISCELLANEOUS APPLICATION NO.57/DEL/2010 WHEREIN IT WAS HELD AS FOLLOWS: 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS IN THE LIGHT OF MATERIAL PLACED BEFORE US. IT IS TRUE THAT SUB-SECTION (2) OF SECTION 254 CAN BE INVOKED ONLY IN A SITUATION IF THERE IS A MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL UNDER SUB-SECTION (1) OF SECTION 254. THE IMPUGNED MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS AGAINST THE ORDER PASSED ON 27.11.2009 WHICH IS AN ORDER PASSED U/S 254(2). THEREFORE, PRINCIPALLY, THE APPLICATION FILED BY THE ASSESSEE HAS TO BE REJECTED ON THIS GROUND ALONE AND FOR THIS PURPOSE, RELIANCE CAN BE PLACED ON THE FOLLOWING DECISIONS:- (I) CIT VS. PRESIDENT, INCOME TAX APPELLATE TRIBUNAL 196 ITR 838 (ORISSA) WHEREIN IT HAS BEEN HELD THAT TO ATTRACT APPLICABILITY OF SECTION 254(2), A MISTAKE WHICH IS SOUGHT TO BE RECTIFIED MUST BE APPARENT FROM RECORD AND THE SAME MUST BE IN ANY ORDER PASSED UNDER SUB-SECTION (1) OF SECTION 254. THE ORDER REFERRED TO IN SECTION 254(1) IS ONE RELATING TO AN APPEAL FILED EITHER BY THE ASSESSEE OR BY THE REVENUE. THE APPEAL REFERRED TO IN THE PROVISION IS ONE FILED U/S 253. THEREFORE, THE ORDER WHICH CAN BE RECTIFIED MUST BE ONE WHICH HAS BEEN PASSED BY THE TRIBUNAL IN AN APPEAL FILED U/S 253. AN ORDER REJECTING AN APPLICATION FOR RECTIFICATION U/S 254(2) CANNOT BE RECTIFIED U/S 254(2). THE SAME MAY RELATE TO AN APPEAL BUT IS NOT AN ORDER PASSED BY THE TRIBUNAL UNDER SUB-SECTION (1) OF SECTION 254 AND THUS, IT WAS HELD THAT SUBSEQUENT APPLICATION FILED BY THE ASSESSEE WAS RIGHTLY REJECTED BY THE TRIBUNAL. HTTP://WWW.ITATONLINE.ORG 6 MA-57/DEL/2010 (II) IN THE CASE OF MENTHA & ALLIED PRODUCTS CO.LTD. VS. ITAT 244 ITR 470 (DEL), AFTER REFERRING TO THE PROVISIONS OF SECTION 254(1) AND (2), IT WAS HELD AS UNDER:- 7. THE RELEVANT PROVISIONS OF S. 254 READ AS UNDER: 254. ORDERS OF APPELLATE TRIBUNAL. (1) THE TRIBUNAL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THEREON AS IT THINKS FIT. (2) THE TRIBUNAL MAY, AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER, WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB-S. (1) AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE AO;. THE AFORE-NOTED PROVISIONS OF LAW ARE CLEAR AND UNAMBIGUOUS. A BARE READING WHEREOF LEAVES NO DOUBT IN OUR MIND THAT THE TRIBUNAL IS COMPETENT TO RECTIFY A MISTAKE APPARENT FROM THE RECORD AND AMEND ANY ORDER WHICH HAS BEEN PASSED UNDER SUB-S.(1). ADMITTEDLY, BY THE IMPUGNED ORDER, THE TRIBUNAL HAS SOUGHT TO RECTIFY THE ORDER PASSED BY IT UNDER S. 256(1) OF THE ACT AND NOT AN ORDER PASSED UNDER S. 254(1). WE HAVE NO HESITATION IN HOLDING THAT THE TRIBUNAL IS NOT CLOTHED WITH AN INHERENT POWER TO RECTIFY/RECALL AN ORDER PASSED UNDER S. 256(1) OF THE ACT BY TAKING RECOURSE TO S. 254(2) OF THE ACT AND, THEREFORE, THE IMPUGNED ORDER IS ILLEGAL AND INVALID. THE VIEW TAKEN BY US FINDS SUPPORT FROM A DECISION OF THIS COURT IN CIT VS. KABIR DAS INVESTMENT LTD. (1995) 124 CTR (DEL) 259 : (1994) 210 ITR 898 (DEL) : TC 55R.777. M.A NO.26/KOL/2018 M/S. SAGAR TREXIM (P) LTD. PAGE | 3 4. WE HAVE GIVEN A CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD AND AFTER HEARING THE LD. DR FOR THE REVENUE, WE NOTE THAT THE REVENUE HAS FILED THE MISCELLANEOUS APPLICATION TO RECTIFY OUR EARLIER ORDER IN MISCELLANEOUS APPLICATION NO.136/KOL/2017 WHICH IS NOT PERMITTED AS PER SECTION 254(2) OF THE ACT. SECTION 254(2) OF THE ACT CAN BE INVOKED ONLY IN A SITUATION IF THERE IS MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL U/S 254(1) OF THE ACT. IT SHOULD BE NOTED THAT OUR EARLIER ORDER PASSED IN THE MISCELLANEOUS APPLICATION NO.136/KOL/2017 CANNOT BE HELD AS A MISTAKE ARISING OUT OF THE ORDER PASSED BY THE TRIBUNAL U/S 254(1) OF THE ACT. TO ATTRACT THE APPLICABILITY OF SECTION 254(2) WHICH IS SOUGHT TO BE RECTIFIED MUST BE APPARENT FROM RECORD AND THE SAME CAN BE MADE ONLY AGAINST AN ORDER PASSED BY THIS TRIBUNAL UNDER SUB-SECTION (1) OF SECTION 254 OF THE ACT. THE ORDER REFERRED TO IN SECTION 254(1) IS ONE RELATING TO AN APPEAL FILED EITHER BY THE ASSESSEE OR BY THE REVENUE. THE APPEAL REFERRED TO IN THE PROVISION IS ONE FILED U/S 253 OF THE ACT. THEREFORE, THE ORDER WHICH CAN BE RECTIFIED MUST BE ONE WHICH HAS BEEN PASSED BY THE TRIBUNAL IN AN APPEAL FILED U/S 253. THUS, WE HOLD THAT AN ORDER REJECTING AN APPLICATION FOR RECTIFICATION U/S 254(2) CANNOT BE AGAIN RECTIFIED U/S 254(2) OF THE ACT. 5. HENCE, WE SEE NO REASONS TO TAKE ANY OTHER VIEW OF THE MATTER THAN THE VIEW SO TAKEN BY THE SPECIAL BENCH OF ITAT DELHI IN THE CASE OF PADAM PRAKASH (HUF) (SUPRA). THEREFORE, RELYING ON THE JUDGMENT OF THE SPECIAL BENCH OF DELHI IN THE CASE OF SHRI PADAM PRAKASH (HUF) (SUPRA), WE DISMISS THE MISCELLANEOUS APPLICATION OF THE REVENUE. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 06/06/2018. SD/- (A. T. VARKEY) SD/- (A. L. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; DATED 06/06/2018 RS, SR.PS M.A NO.26/KOL/2018 M/S. SAGAR TREXIM (P) LTD. PAGE | 4 / COPY OF THE ORDER FORWARDED TO : //TRUE COPY// BY ORDER SENIOR PRIVATE SECRETARY, HEAD OF OFFICE/D.D.O, I.T.A.T, KOLKATA BENCHES, KOLKATA . 1. / THE APPELLANT ITO, WARD-9(4), KOLKATA 2. / THE RESPONDENT- M/S. SAGAR TREXIM (P) LTD. 3. ( ) / THE CIT(A), :KOLKATA. 4. / CIT 5. , , / DR, ITAT, KOLKATA 6. / GUARD FILE.