M/s. B.Banamber & Co., Cuttack V. Pr. CIT-1, Bhubaneswar, Bhubaneswar

MA 28/CTK/2018

• Counselvise Citation: [NaN] 107 COUNSELVISE.COM (IT) 1716 (ITAT-CUTTACK)
• Duration Of Justice: 3 year(s) 7 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-02-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 26-06-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 263; 207; 192; 254(2); 64; 22

Judgement Text

आयकर अपीऱीय अधिकरण, कटक न्यायपीठ,कटक IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK BENCH CUTTACK BEFORE SHRI C.M. GARG, JM & SHRI ARUN KHODPIA, AM Miscellaneous Application No.28/CTK/2018 ( Ar is in g o u t o f I T A No . 4 0 4 / CT K/ 2 0 1 4 ) (नििाारण वषा / Assessment Year :2009-2010) M/s B.Banamber & Co. Bhairabi Sahi, Talcher, Angul-759107 Vs. CIT, Bhubaneswar स्थायी ऱेखा सं./जीआइआर सं./PAN/GIR No. : AADFB 2121 Q (अऩीऱाथी /Appellant) .. (प्रत्यथी / Respondent) ननधााररती की ओर से /Assessee by : Shri S.N.Sahu, Advocate राजस्व की ओर से /Revenue by : Shri M.K.Gautam, CIT-DR स ु नवाई की तारीख / Date of Hearing : 03/02/2022 घोषणा की तारीख/Date of Pronouncement 04/02/2022 आदेश / O R D E R Per C.M.Garg, JM: This miscellaneous application filed by the assessee is arising out of the order dated 10.05.2018, passed by the Tribunal in ITA No.404/CTK/2014. 2. The contents of the miscellaneous application filed by the assessee are as under :- 1) That the petitioner is in receipt of the order dated. 10.05.2018 dismissing the appeal considering only one ground and omitting to consider other grounds following the decision of Tribunal in the case of Sophia Study Circle Vs. Income-tax Officer in ITA No. 286jCTKj2012 dated. 10.06.2013 and some other behind the back of the appellant without bringing the same to the notice of the appellant to have his say in the matter and to make his submission in reply which is against the principle of natural Justice. 2) It has also the law laid down by the jurisdictional High Court of Orissa in the case of Murali Manohar Prabhudayal Vs. State of Orissa (1920) 26 STC Page 22 at 25 that no material should be accepted without being tested. It is also the law that the authority is bound to disclose to the assessee any material adverse to the MANo.28/2018 2 assessee which he is going to utilize against the assessee (C.S.T. Vs. Ram Naravan.Sitararn, 37 STC 591). 3) Ignoring to consider the various case laws cited on behalf of the appellant particularly in the case of Asst. Commissioner of Income Tax Vs. Orissa Stevedores Limited of ITAT, Cuttack Bench 16 ITR (Trib.) 431 CTK together with a Plethora of other case laws of different High Courts, Supreme Court and co- ordinate Bench of Tribunal in the case Shantilata Godawat Vs. ACIT, 126 TTJ (Jodh) 135 is a mistake apparent on record. 4) The Jodhpur Bench of Tribunal held that the assessment order though passed on 28th December 2007, it was dispatched to the assessee on 2nd January 2008. The Tribunal in the said case held that the last date of passing the order being 31st December 2007, the assessment order served on 2nd January, 2008 were beyond the period of limitation and as such, the assessment is ineffective under law. Other case laws submitted and argued along with written notes of submissions submitted and argued before the Tribunal in course of hearing (enclosed herewith) have not been considered by though the Tribunal is duty bound as per the decision of Honourable Orissa High Court, the jurisdictional court in the case of A. Venkata Rao, 203 ITR Page 64 which is binding and on the basis of the decision of Jurisdictional High Court an order can be rectified. It has been decided in the case of Ashok Kumar Porwal Vs. Commissioner of Income-tax TTJ Part -1, Issue No. 16 p. 133 Paul Mathews & Sons Vs. CIT (Ker) 207 (263 ITR 101 (Ker) u/s 263. : Omission of the Tribunal to consider a decision cited during the hearing of appeal is a mistake apparent on record which requires to be rectified u/s. 254 (2) (Finquick Finance (P) Ltd. Vs. Dy CIT (2003) 81 TTJ (Del) 319 87 ITD 323 (Del) relied on B. Karmchand Pairelal VS. I.T.O. (Asr) (TM) 329 TTJ - Part - iii issue No. 25 : Rectification ujs 254 (2) Non-consideration of relevant argument and judgments cited and points raised before he Tribunal, not considered important arguments made on behalf of assessee, and various judgements on which reliance was placed which had relevant bearing on the points in issue, not considered it was appropriate for Tribunal to recall its order for the purpose of considering the arguments and judgements, afresh. 5) That the case of the petitioner assessee was finally heard on 08.05.2018 being adjourned from time to time several times since 16.02.2017. It was heard at length on all and other points. Even written notes of submissions were submitted. The D.R. was asked by the Honourable bench to produces record only to show to the evidence of service of order u/s. 263 within the statutory period. Even the record was not produced, even on the last date of hearing on 8.5.2018. MANo.28/2018 3 6) That on 16.02.2017 the case was heard both on merits as well as on the point of limitation and on subsequent dates, the Bench allowed time to the department only for production of record for verification. 7) That the paper book was submitted containing written notes of submission before ITAT dated 16.02.2017 together with the copy of compliance before the commissioner of Income Tax, Bhubaneswar, vide letter dated 07.02.2014. and in the said letter of the petitioner assessee contractor had written the entire facts which was also referred in course of hearing of the appeal on 16.02.2017 8) That the only point which was pending was only for verification of the records and evidence regarding date of services of the order u/s 263 of the IT Act, 1961 on point of limitation. 9) The case law of co-ordinate bench of tribunal regarding general presumption under General Clauses Act. that the Govt. documents cannot be questioned in the absence of substantial evidence was not the issue. The issue is the case law laid down by Honourable S.C. in the case of B. J. Shelat that an order takes effect only on communication in prescribed time. 10) That in the course of hearing, comparable case in the case of Mangalam Timbers Product Ltd where in reliance was placed in the ratio of the decision of the Honourable Supreme Court in the case of Malbar Industrial company Ltd. Vs. CIT (2000) 243 ITR 83 in support of the argument on merit with regard to factual aspect that the order of the assessing officer is not at all erroneous, which is one of the ingredients required for invoking jurisdiction u/s.263 of the IT Act by the learned CIT was argued in earlier occasions of hearing and written notes was filed which is a part of the Paper Book, but nothing has been discussed by the Tribunal which amounts mistake apparent on record. 11) The consecutively on several dates of adjournment granted to the revenue. The learned Bench had announced their mind pointing out to the D.R. saying in the open court that even one day delay is enough to make the order barred by limitation according the decision of Supreme Court but while passing the order they did not mention anything. 14) That on the date of final hearing on 08.05.2018, since the counsel appearing on behalf of the assessee Shri S. N. Sahu, Advocate was under the bonafide impression that the case was already heard on both on merits as well in law in earlier occasion it was not required to repeat the same argument particularly when the written notes is a part of the , record. ' 15) It may be mentioned here that it is not a fact that other grounds were not pressed rather emphatically pressed, both on merits as well on the point of limitation. MANo.28/2018 4 12) Further the counsel for the appellant when objected to adjournment given to the department. The learned Accountant Member categorically said in the open court that the bench is in favour of the appellant and advised the counsel not to object. 13) That even on the last date of hearing on 08.05.2018 the D.R. did not produce any record and only argued that the order has been passed on 30.03.2014. 16) That more so, just on the earlier date, when the counsel for the assessee objected for the adjournment to the department, the Honourable Bench stated in several words that the bench is in favour of the assessee on the point of limitation and the counsel should not object for allowing time to the department for production of records. It was announced in the open court. Therefore, the counsel appearing on behalf of the assessee did not repeat his argument on other points on the last date of hearing. 17) That it is humbly stated all the points were raised both on the point of merits as well as limitation but the learned bench have considered only the considered issue regarding "limitation" and omitted to deal with other important points on merits citing the decision of Supreme Court in Malbar Industries 243 ITR 83 affecting the maintainability of the merits of the appeal and for that a decision of the same Cuttack Bench in the case of Mangalam Timber was cited which is a part of Paper Book submitted. Therefore, it is a mistake of both facts and law apparent from the record which the tribunal is empowered to rectify u/s. 254(2) of the IT. Act, 1961. Case Laws: i) Laxmi Electronic Corporation Ltd. Vs. CIT, CTR 1992, Pg-39- 138, 188 ITR 398 (All) 18) That in this case the factual mistake is so apparent and glaring that it becomes necessary to correct the same. Citation: i) Champalal Chopra Vs. State of Rajasthan, 177 CTR (Raj.) 234 ii) CIT Vs. Mithalal Ashok Kumar, 158 ITR 755 (MP) 19) That non disposal of ground No.3 by the Tribunal also is mistake apparent from the record Case Law: i) Mohan Meakin Ltd. Vs. ITa (2004) 84 DJ (Del)(TM) 20) That Honourable Supreme Court of India in the case of L. Hirday Narain Vs. ITO 78 ITR 26 (SC) has held, the power to rectify the MANo.28/2018 5 order of assessment conferred on the Income tax officer by sec. 35 is to insure that injustice to the assessee or to the revenue may be avoided. It is implicit in the nature of the power and its entrustment to the authority invested with quasi - judicial functions under the Act, that to do justice it shall be exercised, when a mistake apparent from the record is brought to his notice by a person concerned with or interested in the proceeding. That power is not discretion any and the Income Tax Officer cannot, if the conditions for its exercise were shown to exist, decline to exercise it. 21) That a plethora of decisions on the point of limitation of various High Court and tribunal having delay of two days five days, six days, seven days, thirteen days, twenty days, and even one day were cited before the learned tribunal which has not been noted but citing some decision of tribunal behind the back of the assessee without bringing the same to the notice of the appellant is in gross violation of natural justice. Which itself is enough to quash the order. 22) It is humbly stated that the judgment of ACIT Vs. Orissa Stevedores Ltd. Where in various important judgments of High Court, Supreme Court and co-ordinate bench of the tribunal on the points of limitation were cited discussed but not considered. 23) That citing judgement of Supreme Court in the case of Union of India Vs. Raghubir Singh, 178 ITR 548 (SC) followed by Cochin Bench in the case of presentation of sisters was submitted that the tribunal should follow its own decision and should not differ from its earlier view simply because contrary view is possible was omitted to be considered. 24) That it is settled law decided by Honourable Supreme Court in ;the case of conflicting decisions the one in favour of the assessee should be adopted. Case Law cited : i) Vegetables Product Ltd. Vs. ITO, 88 ITR 192 (SC) ii) Union of India Vs. Onkar S. Kanwar, 258 ITR 761 (SC). 25) It is very important and surprising to note that on the very same issue of limitation, the same Bench ITAT allowed the appeals in favour of the assessee .declartnq the assessment of 7 (seven) consecutive assessment years in the case of Nidan, Berhampur Vs. ACIT, Central Circle-1, on 16 May, 2018 in ITA No. 32 to 37 / CTK / 2018. Passing the order only few days after the filing of the appeals. 26) That it is also surprising to note that the ab ve appeals were heard and disposed of only few days after filing of appeals in an unusual manner for the reasons best known. Whereas the MANo.28/2018 6 petitioner has been done grave injustice on the same points of limitation. 27) That the order passed contrary to the judicial discipline is a mistake apparent from liable to be rectified u/s 254 (2) of the IT. Act, 1961. PRAYER In view of the above facts and circumstances of the case and the case laws cited above on the point in issue, there being a mistake apparent on record the same may kindly be rectified u/s. 254(2) of the IT Act, 1961 restoring the matter for rehearing and for this act of your kindness the petitioner as in duty bound shall ever pray. 3. The main arguments of the ld. AR of the assessee before us that the appeal of the assessee was wrongly dismissed by the Tribunal without considering the grounds raised by the assessee in Form No.36. It was also submitted by the ld. AR that the on the date of hearing of the appeal, he had argued the case both on merits as well as on the point of legality of action of Pr.CIT u/s.263 of the Act. However, the Tribunal decided the appeal of the assessee on merits but grund No.1 was not adjudicated in the order dated 10.05.2018. Accordingly, ld. AR submitted that the miscellaneous application of the assessee may kindly be allowed and appeal of the assessee may kindly be restored to its original number for deciding the appeal on ground No.1 providing the assessee due opportunity of hearing to put forth his case properly. 4. On the other hand, ld. CIT-DR did not controvert the above submissions of the assessee with regard to the contentions that the ground No.1 raised by the assessee in Form No.36 have not been decided by the Tribunal while disposing the appeal of the assessee. MANo.28/2018 7 5. We have heard rival contentions of the parties and perused the relevant material available on the record of the Tribunal. We, also on careful perusal of the order of the Tribunal dated 10.05.2018, observe that the Tribunal has decided the appeal of the assessee on ground No.2 only but ground No.1 of assessee challenging the legality of action u/s.263 of the Act has not been adjudicated therein. However, the ld. AR before us submitted that the ground No.1 raised by the assessee in Form No.36 have not been decided by the Tribunal, which amounts to mistake apparent on record. Ld. CIT-DR did not controvert and also agreed to the above contentions of the ld. AR of the assessee. Considering the submissions of the assessee and looking to the facts and circumstances of the case, we allow the miscellaneous application filed by the assessee and order of the Tribunal dated 10.05.2018 is recalled for limited purpose i.e. for adjudication of ground No.1 of assessee only. The Registry is directed to list this case on 10.03.2022. As the date of hearing of main appeal was pronounced after completion of hearing, requirement of notice is dispensed with. 6. In the result, miscellaneous application of the assessee is allowed in terms as directed above. Order pronounced in the open court on 04/02/2022. Sd/- (ARUN KHODPIA) Sd/- (C.M.GARG) ऱेखा सदस्य / ACCOUNTANT MEMBER न्यानयक सदस्य / JUDICIAL MEMBER कटक Cuttack; ददनांक Dated 04/02/2022 Prakash Kumar Mishra, Sr.P.S. MANo.28/2018 8 आदेश की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to : आदेशाि ु सार/ BY ORDER, (Senior Private Secretary) आयकर अपीऱीय अधिकरण, कटक/ITAT, Cuttack 1. अऩीऱाथी / The Appellant- M/s B.Banamber & Co. Bhairabi Sahi, Talcher, Angul-759107 2. प्रत्यथी / The Respondent- CIT, Bhubaneswar 3. आयकर आय ु क्त(अऩीऱ) / The CIT(A), 4. आयकर आय ु क्त / CIT 5. ववभागीय प्रनतननधध, आयकर अऩीऱीय अधधकरण, कटक / DR, ITAT, Cuttack 6. गार्ा पाईऱ / Guard file. सत्यावऩत प्रनत //True Copy//