A.C.I.T., Central Circle, Agra V. M/s Gayatri Shiksha Samiti, Agra

MA 29/AGR/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9600 (ITAT-AGRA)
• Duration Of Justice: 3 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-12-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 21-12-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 18-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VITHAL DAS

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER M.A. NO.29/AGR/2012 (IN ITA NO.464/AGR/2009) ASSESSMENT YEAR: 2004-05 A.C.I.T. (CENTRAL CIRCLE), VS. M/S. GAYATRI SHIKS HA SAMITI, AGRA. 14/195, GHATIA AZAM KHAN, AGRA. (PAN: AAAAG 1565 D) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI WASEEM ARSHAD, SR. D.R . RESPONDENT BY : SHRI VITHAL DAS, ADVOCATE DATE OF HEARING : 21.12.2012 DATE OF PRONOUNCEMENT OF ORDER : 21.12.2012 ORDER PER A.L. GEHLOT, ACCOUNTANT MEMBER: THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E REVENUE AGAINST THE ORDER OF TRIBUNAL DATED 11.05.2012. 2. IT IS SUBMITTED IN THE MISCELLANEOUS APPLICATION (M.A.) THAT THE APPEAL OF THE ASSESSEE HAS BEEN DECIDED WITHOUT CONSIDERING T HE DEPARTMENTS LEGAL POSITION AS THE CROSS OBJECTION/APPEAL WAS TO BE FILED BY TH E DEPARTMENT. IN THE ORDER OF I.T.A.T. IT HAS BEEN INDICATED THAT THE C.I.T. D.R. SUBMITTED THAT M.A. NO.29/AGR/2012 A.Y. 2004-05 2 DEPARTMENT INTENDS TO FILE CROSS OBJECTION BUT THE A.O.S OFFICE WAS NOT INFORMED ABOUT THE POSITION. THEREFORE, THE CROSS OBJECTION COULD NOT BE FILED. 3. WE HAVE HEAD THE LD. REPRESENTATIVES OF THE PART IES AND RECORDS PERUSED. THE BRIEF FACTS OF THE ISSUE ARE THAT THE APPEAL HA S BEEN FILED BY THE ASSESSEE ON 09.12.2009. SINCE 04.04.2011 THE APPEAL OF THE ASS ESSEE IS ON BOARD FOR HEARING. HOWEVER, ON REQUEST OF THE PARTIES AND SOME TIME ON ACCOUNT OF ADMINISTRATIVE REASONS APPEAL WAS ADJOURNED FROM TIME TO TIME. ON 23.02.2012 THE LD. DEPARTMENTAL REPRESENTATIVE STATED THAT THE DEPARTM ENT INTENDS TO FILE CROSS OBJECTION. ON THE BASIS OF THE REQUEST OF THE LD. DEPARTMENTAL REPRESENTATIVE, THE APPEAL OF THE ASSESSEE WAS ADJOURNED TO 21.03.2012 WITH THE CONDITION THAT NO FURTHER TIME SHALL BE GRANTED. ON 21.03.2012, THE LD. DEPARTMENTAL REPRESENTATIVE AGAIN SOUGHT TIME FOR FILING CROSS OBJECTION AND TH E SAME WAS GRANTED AND APPEAL OF THE ASSESSEE WAS FIXED FOR 25.04.2012. ON 25.04 .2012, AGAIN THE LD. DEPARTMENTAL REPRESENTATIVE REQUESTED FOR GRANTING LAST OPPORTUNITY. ON THE REQUEST OF THE LD. DEPARTMENTAL REPRESENTATIVE, APP EAL OF THE ASSESSEE WAS ADJOURNED TO 03.05.2012. THE DEPARTMENT DID NOT FI LE ANY APPEAL/CROSS OBJECTION UPTO 03.05.2012. THE APPEAL OF THE ASSESSEE WAS HE ARD ON 03.05.2012 AND ACCORDINGLY PASSED AN ORDER DATED 11.05.2012. THE APPEAL OF THE ASSESSEE WAS DECIDED AFTER CONSIDERING MATERIAL ON RECORD AND AF TER HEARING THE LD. REPRESENTATIVES OF THE PARTIES INCLUDING LD. DEPART MENTAL REPRESENTATIVE. THE M.A. NO.29/AGR/2012 A.Y. 2004-05 3 I.T.A.T. IN ITS ORDER HAS CONSIDERED ALL THE ABOVE FACTS FROM PAGE NOS.8 TO 10, PARAGRAPH NO.5.1 OF THE ORDER. FROM THE RECORD AND FROM THE ORDER OF I.T.A.T., IT HAS BEEN FOUND THAT THE REVENUE DID NOT FILE CROSS OBJECTION INSPITE OF SUFFICIENT OPPORTUNITY PROVIDED IN THIS REGARD. HOWEVER, THE I.T.A.T. HAS DECIDED THE APPEAL OF THE ASSESSEE ON MERIT AFTER DETAILED DISCUSSIONS . UNDER THESE FACTS AND CIRCUMSTANCES, THE ISSUE TO BE EXAMINED WHETHER THE M.A. FILED BY THE REVENUE IS IN ACCORDANCE WITH SECTION 254(2) OF THE ACT. SECT ION 254(2) OF THE ACT PROVIDES THAT THE I.T.A.T. MAY, AT ANY TIME WITHIN FOUR YEAR S 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-SECTION (1), AND SHALL MAKE SUCH AM ENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE A.O. A MISTAKE APPARENT ON RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMET HING WHICH CAN BE ESTABLISHED BY LONG DRAWN PROCESS OF REASONING ON POINTS ON WHI CH THERE MAY BE CONCEIVABLY TWO OPINIONS. THE HONBLE MADHYA PRADESH HIGH COUR T IN THE CASE OF CIT VS. K.D. WIRES PVT. LTD, 323 ITR 257 (MP) HAS HELD AS U NDER :- FROM A PERUSAL OF THE SECTION 254(2), IT IS LUCULE NT THAT RECTIFICATION UNDER THAT SECTION IMPLIES AMENDMENT IF THE MISTAKE IS BROUGHT TO THE NOTICE OF THE TRIBUNAL BY THE ASSESS EE OR THE ASSESSING OFFICER. LEARNED COUNSEL HAS ALSO BROUGHT TO OUR N OTICE THE JUDGMENT OF THIS COURT IN DR. HUKUMCHAND MAROTHI VS. CIT [20 02] 254 ITR 602 TO THE EFFECT THAT SCOPE OF THE PROCEEDINGS UNDER A RTICLE 254(2) OF THE INCOME-TAX ACT IS LIMITED AND IS NARROWER THAN THE PROCEEDINGS FOR REVIEW. ATTENTION HAS ALSO BEEN INVITED TO THE DECI SION OF THE DELHI HIGH COURT IN CIT VS. HONDA SIEL POWER PRODUCTS LTD . [2007] 293 ITR 132 THAT POWER OF RECTIFICATION UNDER SECTION 2 54(2) OF THE INCOME-TAX ACT DOES NOT IMPLY THE POWER TO RECALL O R REVIEW THE ORDER. M.A. NO.29/AGR/2012 A.Y. 2004-05 4 IT IS NOT DISPUTED BEFORE US THAT ON AN APPLICATION UNDER SECTION 254(2) OF THE INCOME-TAX ACT HAVING BEEN FILED, THE TRIBUNAL SET ASIDE ITS OWN ORDER IN ITS ENTIRETY FOR PASSING AN ORDER AFRESH. THIS WAS TANTAMOUNT TO REVIEWING THE ORDER AND NOT RECTIFYIN G IT. UNDER THESE CIRCUMSTANCES, THE ORDER OF THE TRIBUNAL PASSED UND ER THE PROVISIONS OF SECTION 254(2) OF THE INCOME-TAX ACT AND THE SUB SEQUENT FRESH ORDER PASSED ON APRIL 23, 2004, CANNOT BE SUSTAINED. 4. IN THE LIGHT OF ABOVE DISCUSSION, MERELY ON THE FACT THAT THE DEPARTMENT DID NOT FILE CROSS OBJECTION OR APPEAL INSPITE OF SUFFI CIENT OPPORTUNITY PROVIDED BY I.T.A.T., UNDER THE FACTS AND CIRCUMSTANCES, THE OR DER PASSED BY THE I.T.A.T. IN ASSESSEES APPEAL DID NOT COMMIT ANY MISTAKE APPARE NT FROM RECORD WHICH CAN BE RECTIFIED UNDER SECTION 254(2) OF THE ACT. THE REV ENUE WANTS THAT WE SHOULD REVIEW OUR ORDER IN THE GARB OF RECTIFICATION. THE I.T.A.T. HAS NO SUCH POWER UNDER SECTION 254(2) OF THE ACT AS HELD BY THE HONBLE M. P. HIGH COURT IN THE CASE OF CIT VS. K.D. WIRES PVT. LTD. (SUPRA). WE, THEREFOR E, DO NOT FIND SUBSTANCE IN THE M.A. FILED BY THE DEPARTMENT, THUS, THE SAME IS DIS MISSED. 5. IN THE RESULT, M.A. FILED BY THE REVENUE IS DISM ISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 21.12.2012) SD/- SD/- (BHAVNESH SAINI) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER PBN/* M.A. NO.29/AGR/2012 A.Y. 2004-05 5 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT (APPEALS) CONCERNED 4. CIT CONCERNED 5. D.R., ITAT, AGRA BENCH, AGRA 6. GUARD FILE. BY ORDER SR. PRIVATE SECRETARY INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY