The Income Tax Office, Ward-1(2), RAJKOT-GUJARAT V. Shri Pravinchandra C. Parekh (HUF), GONDAL

MA 28/RJT/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0686 (ITAT-RAJKOT)
• Duration Of Justice: 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-06-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 29-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MA THEWS D R R
• Assessee Lawyers: P C PARESKH CA R

Judgement Text

S D , L IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. . . R . . BEFORE SHRI T. K. SHARMA JM AND SHRI D. K. SRIVASTAVA AM M. A . NO. 2 8 /RJT/2013 (ARISEN OUT OF THE ORDER IN ITA NO. 505 /RJT/2012) / ASSESSMENT YEAR 200 3 - 04 THE INCOME - TAX OFFICER, WARD - 1( 2 ) , RAJKOT. ( 8 / APPELLANT) S HRI P RAVINCHANDRA C. PAREKH (HUF) , M/S.PAR DES H DEHYDRATION, N.H.8 - B GUNDALA ROAD, GONDAL. PAN : A AIHP4156Q N8 / RESPONDENT R / REVENUE BY SHRI K. C. MA THEWS, D R. R / ASSESSEE BY SHRI P.C. PARESKH , CA. (ASSESSEE) R S / DATE OF HEARING 0 7 - 06 - 2013 R S / DATE OF PRONOUNCEMENT 14 - 0 6 - 2013 / ORDER . . , R / T. K. SHARMA, J. M. : THIS MISCELLANEOUS APPLICATION FILED BY THE REVENUE READS AS UNDER: - 2. IN THIS CASE, THE HONBLE ITAT HAS NOT CONSIDERED THEIR OWN ORDER IN QUANTUM P ROCEEDINGS IN ITA 381/RJT/2011. IN THIS ORDER ITAT HAS SET ASIDE THE ORDER OF CIT (A). THE CIT (A) HAD ALLOWED THE SET OFF OF LOSS OF ANOTHER UNIT OF ASSESSEE, IN RESPECT OF WHICH A SEPARATE RETURN OF INCOME WAS FILED, AGAINST THE PROFITS OF ASSESSEE AS PER ITS MAIN RETURN OF INCOME. ITAT HAS SET ASIDE THE ORDER OF CIT (A) BECAUSE THE CONSOLIDATED RETURN OF INCOME FROM TWO SEPARATE RETURN OF INCOME SHOULD HAVE BEEN FILED BY THE ASSESSEE BEFORE THE AO, BEFORE CLAIMING THE SET OFF OF HIS OTHER UNIT FROM TH E ASSESSED INCOME OF ORIGINAL UNIT. HOWEVER, ITAT HAS UPHELD THE ORDER OF CIT (A) OF CANCELLING THE PENALTY ON THE GROUND THAT DR COULD NOT POINT OUT THAT IN QUANTUM PROCEEDINGS, AFTER GIVING APPEAL EFFECT TO THE ORDER OF THE APPELLATE AUTHORITY, THE INCO ME OF THE ASSESSEE IN THE ASSESSMENT ORDER IS TAXABLE. THE OBVIOUS MISTAKE IN THE ORDER OF ITAT AGAINST THE ORDER U/S.271(1)(C), IN ITA NO.505/RJT/2012 IS THAT ITAT DID NOT CONSIDER THEIR OWN ORDER DATED 04 - 05 - 2012, PASSED BY THE SAME MEMBERS, IN ITA NO.3 81/RJT/2011 AND ONLY REFERRED TO THE INABILITY OF DR TO SUBMIT THE RESULT OF QUANTUM PROCEEDINGS. 3. THUS, THE ABOVE MISTAKE HAS CREPT IN THE ORDER DATED 11 - 01 - 2013 OF THE HONBLE ITAT IN ITA NO.505/RJT/2012. 4. THE GROUNDS OF APPEAL IS MENTIONED AS UNDE R: - (I) THE HONBLE ITAT HAS ERRED IN LAW AND ON FACTS IN DELETING PENALTY LEVIED U/S.271(1)(C) OF THE ACT OF RS.11,24,770/ - FOR A.Y. 2003 - 04. M A 2 8 - 201 3 2 PRAYER IN VIEW OF THE ABOVE, IT IS PRAYED THAT THE ORDER DATED 11 - 01 - 2013 I N ITA N O.505/RJT/2012 FOR A.Y. 2003 - 04 BE MODIFIED/CANCELLED. 2. AT THE TIME OF HEARING OF AFORESAID MISCELLANEOUS APPLICATION, ON BEHALF OF REVENUE, SHRI K.C. MATHEWS, DR APPEARED AND POINTED OUT THAT THERE IS AN OFFICE MISTAKE BECAUSE THE TRIBUNAL DID NOT CON SIDER ITS OWN ORDER DTD.04 - 05 - 2012 IN ITA NO.381/RJT/2011 AND ONLY REFERRED TO THE INABILITY OF DR TO SUBMIT THE RESULT OF QUANTUM PROCEEDINGS , THEREFORE TRIBUNAL MAY RECALL ITS ORDER. AS AGAINST THIS, COUNSEL OF THE ASSESSEE POINTED OUT THAT THE LD. CIT (A) VIDE ORDER DATED 18 - 06 - 2012 CANCELLING THE PENALTY OF RS.11,24,740/ - LEVIED BY AO U/S.271(1)(C) OF THE I.T. ACT,1961. AGAINST THIS ORDER, THE REVENUE PREFERRED AN APPEAL BEFORE THE TRIBUNAL I.E. THE RELEVANT APPEAL ITA NO. 505/RJT/2012. HOWEVER, THIS APPEAL WAS DISMISSED ON THE GROUND THAT LD. DR COULD NOT POINT OUT THAT AFTER GIVING APPEAL EFFECT, THE ASSESSEE IN THE ASSESSMENT YEAR HAS TAXABLE INCOME. HE SUBMITTED THAT EVEN WITH THE MISCELLANEOUS APPLICATION, THE ASSESSEE HAS NOT FILED ANY SUCH DOC UMENTARY EVIDENCE I.E. ORDER GIVING APPEAL EFFECT TO THE ORDER OF TRIBUNAL WHEREBY THE TAXABLE INCOME IS COMPUTED. THE ASSESSEE HIMSELF POINTED OUT THAT SINCE AT THE TIME OF HEARING, THE LD. DR COULD NOT PRODUCE THE COPY OF ORDER GIVING APPEAL EFFECT TO T HE ORDER OF TRIBUNAL, THEREFORE THERE IS NO MISTAKE APPARENT FROM THE RECORD WITHIN THE MEANING OF SECTION 253(2) OF THE I. T. ACT, 1961. WITHOUT PREJUDICE TO THIS, THE ASSESSEE POINTED OUT THAT TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER. THEREFORE, ON TH IS GROUND ALSO THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE BE DISMISSED. 3. RIVAL SUBMISSIONS WERE CONSIDERED. ADMITTEDLY, AT THE TIME OF HEARING OF ITA NO.505/RJT/2012 ON 09 - 01 - 2013, THE LD. DR COULD NOT PRODUCE THE COPY OF ORDER GIVING APPEAL EF FECT TO THE ORDER OF TRIBUNAL IN QUANTUM PROCEEDINGS. ON THIS BASIS, TRIBUNAL UPHELD THE ORDER OF LD. CIT (A) ON 18 - 06 - 2012 CANCELLING THE PENALTY OF RS.11,24,770/ - . SINCE THAT VIEW WAS TAKEN AFTER CONSIDERING THE RIVAL SUBMISSIONS AND MATERIALS PRODUCED AT THE TIME OF HEARING, THEREFORE NOW WE HAVE NO POWER TO REVIEW OUR ORDER IN PROCEEDINGS U/S.254(2) OF THE I.T. ACT, 1961. ON THIS GROUND ALONE, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS M A 2 8 - 201 3 3 DISMISSED. 4 . IN THE RESULT, THE MISCELLANEOUS A PPL IC ATION FILED BY THE REVENUE IS DISMISSED. 5 . THIS ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD/ - SD/ - ( . . D. K. SRIVASTAVA ) ( S . . / T. K. SHARMA) / ACCOUNTANT MEMBER L / JUDICIAL MEMBER / ORDER DATE 14 - 0 6 - 2013. /RAJKOT NVA/ - 4 RJO O / COPY OF ORDER FORWARDED TO: - 1 . 8 / APPELLANT - THE INCOME - TAX OFFICER, WARD - 1 ( 2 ), RAJKOT. 2 . N8 / RESPONDENT - S HRI PRAVINCHANDRA C. PAREKH (HUF), GONDAL. 3 . D T / CONCERNED CIT - I, RAJKOT. 4 . T - / CIT (A) - I, RAJKOT. 5 . ND , S D , / DR, ITAT, RAJKOT 6 . / GUARD FILE. / BY ORDER TRUE COPY. SENIOR PRIVATE SECRETARY, ITAT, RAJKOT