The Dy. Commissioner of Income-tax, Jalandhar V. Sh. Ashok Kumar Malhotra (Deceased), Jalandhar

MA 30/ASR/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9898 (ITAT-AMRITSAR)
• Duration Of Justice: 8 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-03-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 22-03-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 28-06-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRIK CHAND
• Keywords: Principle of natural justice
• Section: 143(3); 153A; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER M.A.NO.30(ASR)/2012 (ARISING OUT OF I.T.A. NO.523(ASR)/2012) ASSESSMENT YEAR:2006-07 PAN :AARPM7568A ASSTT. COMMR. OF INCOME TAX, VS. SH. ASHOK KUMAR MA LHOTRA (DECD) CIRCLE-II, L/H SMT. SATISH BALA MALHOTRA, JALANDHAR. M.B.D. HOUSE, JALANDHAR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.AMRIK CHAND, DR RESPONDENT BY:SH.SUDHIR SEHGAL, DATE OF HEARING: 22/03/2013 DATE OF PRONOUNCEMENT:22/03/2013 ORDER PER BENCH ; THIS MISCELLANEOUS APPLICATION OF THE REVENUE ARI SES OUT OF THE ORDER OF THE ITAT, AMRITSAR BENCH, DATED 23.04.2012 PASSED IN ITA NO. 532(ASR)/2011 FOR THE ASSESSMENT YEAR 2006-07. THE REVENUE HAS SUBMITTED WRITTEN SUBMISSIONS, WHICH FOR THE SAKE OF CLARITY ARE REPRODUCED AS UNDER: THAT IT HAS BEEN NOTED FROM THE ORDER DATED 23.04. 2012 PASSED BY THE HON'BLE BENCH I.T.A.T., AMRITSAR BEARING I.T.A . NO. 532 (ASR)/ 2011 FOR THE A.Y.2006-07 THAT ADDITIONAL GROUNDS O F APPEAL ARISING OUT OF CIT(A) ORDER IN APPEAL NO. 41-IT/CIT-I(A)/L DH/2010-11 DATED 11.08.2011 FOR THE ASSESSMENT YEAR 2006-07 DOES NO T APPEAR TO HAVE MA NO.30(ASR)/2012 2 BEEN DISCUSSED OR ARGUED OR HEARD DURING THE COURS E OF DELIBERATIONS AND PROCEEDINGS BEFORE IT. THE ADDITIONAL GROUNDS WHICH WERE TO BE RAISED FOR THE ASSESSMENT YEAR 2006-07, AND WHICH WERE CONVEYED TO THE ASSIS TANT REGISTRAR, I.T.A.T., ON 16/17.01.2012(COPY ENCLOSED) AMRITSAR WERE AS UNDER: I. THE LEARNED CIT(A) HAS ERRED BOTH IN LAW AND ON FA CTS OF THE CASE IN RE-ADJUDICATING THE SETTLED MATTER IGNORING THE I NTENDED SPIRIT OF THE PROVISION OF SECTION 153A OF THE ACT PARTICU LARLY WHEN NO DOCUMENT CONTRARY TO ITS EARLIER FINDINGS HAD BEEN FOUND AND SEIZED DURING SEARCH OPERATION U/S 132 OF THE INCOM E-TAX ACT,1961. II. THE LEARNED CIT(A) ERRED BOTH IN LAW AND ON THE FA CTS OF THE CASE ON DELETING THE ADDITION OF RS. 10,55,63,625/- I/S. 2(22) OF THE ACT IGNORING THE FACT THAT THE ISSUE UNDER REFERENCE HA D ALREADY BEEN ADJUDICATED BY THE FIRST APPELLATE AUTHORITY IN THE INSTANT CASE IN FAVOUR OF THE REVENUE AND INTENDED PURPOSE FOR INCO RPORATING THE PROVISIONS OF SECTION 153A IS FOR THE FACILITATION OF THE REVENUE AND NOR FOR THE ASSESSEE. III. THE LEARNED CIT(A) ERRED BOTH IN LAW AND ON FACTS OF THE CASE IN DELETING THE ADDITION OF RS. 10,55,63,625/- U/S 2(2 2) OF THE ACT IGNORING THE FACT THAT THE SAID ADDITION STAND ALRE ADY CONFIRMED IN ITS EARLIER ORDER DATED 26.02.2010 AND PRESENT FIND INGS TANTAMOUNT TO VIEW OF ITS EARLIER DECISION. 3. IN VIEW OF THE ABOVE, THEREFORE, IT CAN BE SEEN THAT PRINCIPLES OF NATURAL JUSTICE HAVE BEEN DENIED TO REVENUE. FURTH ER, THE ORDER ALSO APPEARS TO GO AGAINST THE BASIC CONCEPTS OF FAIRNE SS AND TRANSPARENCY. THE ORDER OF THE HON'BLE I.T.A.T. IN VIEW OF THE A BOVE GROUNDS AND REASONS CITED THEREIN APPEARS TO BE LACKING IN APP LICATION OF JUSTICE AND ALSO APPEARS TO BE VIOLATIVE OF THE DELIVERY O F THE SPIRIT OF NATURAL JUSTICE [ISKRAREMECO REGENT LTD. VS. CIT; (2011) 237 CTR 239: 49 DTR 185 (MAD)]. 4. THE ABOVE ISSUES, CONTAINING THE ADDITIONAL GR OUNDS AS PER PARA- 2, WHICH HAVE NEITHER BEEN CONSIDERED NOR DISCUSS ED AND DELIBERATED, BEFORE PASSING OF THE ORDER BY THE HON'BLE BENCH I .T.A.T., AMRITSAR, MA NO.30(ASR)/2012 3 COLLECTIVELY CONSTITUTE THE PROVISION OF SECTION 2 54(2) OF THE INCOME- TAX ACT, 1961. SINCE, THE JUDICIAL ORDER OF THE HON'BLE I.T.A.T. IS NON-SPEAKING ON THE AFORESAID ISSUES, AND NOT SUPPORTED BY SUFFICIENT REASONS, FOR ARRIVING AT THE CONCLUSION, IT IS A FIT CASE FOR CONSIDERAT ION FOR RECTIFICATION IN TERMS OF SECTION 254(2) OF THE I.T. ACT, 1961 AND THEREFORE, NEED TO BE CONSIDERED AND DISCUSSED, IN THE INTEREST OF JUSTI CE. 5. FURTHER RELIANCE IS PLACED ON THE FOLLOWING CAS ES FOR FILING OF THE MISC. APPLICATION MERITING RECTIFICATION IN TE RMS OF SECTION 254(2):- I) CASE NO. 1:- HONDA SIEL 295 ITR 466 II) CASE NO. 2:- DHIRAJ SURI 179 CTR 265. IN VIEW OF THE ABOVE NOTINGS AND ALSO IN VIEW OF T HE RELIED UPON CASE LAWS, IT IS SUBMITTED THAT NECESSARY RECTIFICATION MAY BE CARRIED OUT TO THE ORDER IN I.T.A. NO. 532(ASR)/2011 DATED 23.04. 2012 FOR THE A.Y. 2006-07 CONSIDERING THE ADDITIONAL GROUNDS ALREADY SUBMITTED IN THIS CASE. 2. THE LD. DCIT(DR), MR. AMRIK CHAND, ARGUED THAT T HE ITAT HAS NOT DECIDED THE ADDITIONAL GROUNDS WHILE DECIDINGS THE SAID APPEAL I.E. IN ITA NO.532(ASR)/2011 FOR THE ASSESSMENT YEAR 2006-07. A CCORDINGLY, THIS IS A MISTAKE APPARENT FROM RECORD IN VIEW OF THE MISC. A PPLICATION FILED BY THE REVENUE. 3. THE LD. COUNSEL FOR THE ASSESSEE, MR. SUDHIR SEH GAL, ON THE OTHER HAND, ARGUED AND HAS STRONGLY OBJECTED TO THE MISC. APPLICATION FILED BY THE REVENUE. HE POINTED OUT THAT THESE ADDITIONAL GROUN DS WERE NEVER PURSUED BY THE LD. DR WHILE ARGUING THE APPEAL IN ITA NO.53 2(ASR)/2011 FOR THE A.Y. 2006-07 AND THIS IS FOR THE FIRST TIME THAT TH ESE ADDITIONAL GROUNDS HAVE MA NO.30(ASR)/2012 4 BEEN TAKEN AS PART OF THE MISC. APPLICATION U/S 254 (2) OF THE I.T. ACT. HE FURTHER STATED THAT ONCE THE MATTER HAS BEEN CONCLU DED VIDE ORDER DATED 23.04.2012 MENTIONED HEREINABOVE, RAISING OF SUCH A DDITIONAL GROUNDS IN THE MISC. APPLICATION ARE OUTSIDE THE SCOPE AND AMBIT OF SECTION 254(2) OF THE ACT. THE ASSESSEE OR HIS LD. COUNSEL HAS NEVER RECE IVED COPY OF THE ADDITIONAL GROUNDS ON OR BEFORE THE DATE OF HEARING IN MAIN APPEAL I.E. IN ITA NO.532(ASR)/2011. ACCORDINGLY, THE LD. COUNSEL FOR THE ASSESSEE, MR. SUDHIR SEHGAL PRAYED TO DISMISS THE MISC. APPLICAT ION FILED BY THE REVENUE UNDER THE GARB OF REVIEW OF THE ITAT ORDER DATED 23 .04.2012. MR. SUDHIR SEHGAL ALSO SUPPORTED THE ORDER OF ITAT DATED 23.04 .2012 EVEN IF ADDITIONAL GROUNDS ARE TAKEN INTO CONSIDERATION. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. A QUERY WAS RAISED BY THE BENCH TO THE LD. DCIT(DR) MR. AMRIK CHAND WHETHER AT ALL THESE ADDITIONAL GROUNDS WERE PURSUE D BEFORE THE BENCH WHILE ARGUING THE MATTER IN ITA NO. 532(ASR)/2011 ON THE DATE OF HEARING I.E. 11.04.2012 OR WHETHER THE SAID GROUNDS HAVE BEEN AD MITTED OR NOT. THE LD. DR REPLIED AND ARGUED THAT THESE ADDITIONAL GROUNDS GO DEEP INTO THE ROOT OF THE MATTER AND CAN BE TAKEN UP IN THE MISC. APPLICA TION U/S 254(2) OF THE ACT, THOUGH HE RELIED UPON THE MISC. APPLICATION FI LED BY THE REVENUE. 5. AFTER HEARING THE PARTIES AND PERUSING THE MATER IAL AVAILABLE ON RECORD, THE MISC. APPLICATION FILED BY THE REVENUE IS OUT RIGHTLY REJECTED MA NO.30(ASR)/2012 5 SINCE THE SAID ADDITIONAL GROUNDS WERE NEVER PURSUE D BEFORE THE BENCH AT THE TIME OF HEARING. FILING OF THE ADDITIONAL GROU NDS OF APPEAL IN THE MISC. APPLICATION U/S 254(2) OF THE ACT, IS OUTSIDE THE S COPE AND SPIRIT OF SECTION 254(2) OF THE ACT. NO EVIDENCE HAS BEEN BROUGHT ON RECORD BY THE LD. DR THAT THE SAID ADDITIONAL GROUNDS WERE FORWARDED OR RECEIVED BY THE ASSESSEE OR BY THE LD. COUNSEL ON OR BEFORE THE DATE OF HEAR ING. ON THE FACTS OF THE ADDITIONAL GROUNDS, WE HAVE PERUSED THE RECORDS. BE SIDES THAT IN THE SO CALLED ADDITIONAL GROUNDS OF APPEAL SOUGHT TO BE TA KEN BY WAY OF MISC. APPLICATION IS OTHERWISE MIS-CONCEIVED SINCE THE LD . CIT(A) HAS ALREADY DEALT WITH THE SAME AND WHICH WAS THE GROUND TAKEN BY THE ASSESSEE BEFORE HIM AND HE HAD ADJUDICATED THE MATTER IN DETAIL AND DISMISSED THE GROUND OF APPEAL IN PARA 9.1 OF HIS ORDER AT PAGE 30. THUS, T HE DEPARTMENT IS OTHERWISE PRECLUDED FROM TAKING THAT GROUND OF APPEAL WHICH S TANDS ALREADY DISPOSED OFF BY THE LD. CIT(A) AGAINST THE ASSESSEE AND WE H AVE ALSO IN OUR ORDER REPRODUCED THE FINDINGS OF THE LD. CIT(A) AT RELEVA NT PAGES 14, 15 & 16, WHERE THE RELEVANCE OF THE PROCEEDINGS U/S 153A OF THE ACT HAS BEEN DISCUSSED THEREIN. EVEN OTHERWISE, THE DEPARTMENT I S TAKING CONTRADICTORY STAND BECAUSE ON ONE HAND THEY INTEND TO TAKE ADDIT IONAL GROUNDS OF APPEAL THAT THE ISSUE WHICH HAS ALREADY BEEN SETTLED BY TH E ORDER U/S 143(3) EARLIER CANNOT BE TAKEN IN THE COURSE OF PROCEEDINGS U/S 15 3A AND THEY HAVE THEMSELVES WHILE PASSING THE ORDER U/S 153A MADE THE ADDITIONS ON ACCOUNT OF DISALLOWANCE OF INTEREST AND GROSS PROFI T RATE WHICH WERE MA NO.30(ASR)/2012 6 ADJUDICATED BY THE LD. CIT(A) AGAINST THE ORDER OF THE A.O. U/S 143(3) WHICH WAS ALSO BEFORE US IN ITA NO.164(ASR)/200 FOR THE S AME ASSESSMENT YEAR AND THUS, WHEN THE ISSUE HAS ATTAINED FINALITY IN R ESPECT OF THOSE TWO ISSUES, THE DEPARTMENT CAN NOT CONTEND FURTHER WHICH IS OU TSIDE THE SCOPE OF SECTION 153A OF THE ACT. 6. REGARDING GROUNDS NO. 2 & 3 AS RAISED IN THE MIS C. APPLICATION AS ADDITIONAL GROUNDS OF APPEAL, THEY ARE ON THE SIMIL AR LINES THAT ONCE THE ISSUE HAS BEEN DEALT EARLIER BY THE LD. CIT(A) IN THE ORD ER AGAINST ORDER U/S 143(3) OF THE ACT THEN IT WOULD AMOUNT REVIEW OF THE EARL IER DECISION OF THE LD. CIT(A) IS NOT MAINTAINABLE SINCE SEPARATE APPEAL IS DECIDED, BOTH AGAINST THE ORDER U/S 143(3) AND AGAINST THE ORDER U/S 153 A OF THE ACT AND THEREFORE, THESE ADDITIONAL GROUNDS NO. 1, 2 & 3 AS TAKEN IN THE MISC. APPLICATION ARE NOT MAINTAINABLE AND ARE REJECTED. 7. THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDE R U/S 254(2) OF THE ACT ON THE BASIS OF VARIOUS JUDGMENTS OF HONBLE SU PREME COURT. THE LD. COUNSEL RELIED UPON THE DECISIONS OF VARIOUS COURTS OF LAW AS UNDER: 1. J.N. SHNI VS. I.T.A.T. & ORS. (HIGH COURT OF DE LHI), REPORTED IN 257 ITR 16 (DEL). 2. KARAN & CO. VS. I.T.A.T. (HIGH COURT OF DELHI), RE PORTED IN 253 ITR 131. 3. ACIT VS. DR. VED PRAKASH & ANR., REPORTED IN 209 I TR 448 (AP) 4. BUDHEWAL CO-OPERATIVE SUGAR MILLS LTD. VS. DCIT, R EPORTED IN 102 TTJ (CHD-TRIB) 336 5. VOLKAR BROTHERS VS. ITO, REPORTED IN (1967) 65 ITR 179 (BOM.) MA NO.30(ASR)/2012 7 6. CIT VS. KESARIA TEA CO. LTD., REPORTED IN (1998) 2 33 ITR 700 (KER.) 7. CIT VS. MODI PON LTD., REPORTED IN (2008) 170 TAXM AN 569 (DEL) 8. CIT VS. SOORA SUBRAMANIAN, REPORTED IN (2010) 230 CTR 92 (MAD). 9. HOTZ HOTELS P. LTD. VS. CIT, REPORTED IN 164 CTR 3 19 10. CIT VS. DALMIA DADRI CEMENT LTD. (P&H), REPORTED I N (1970) 77 ITR 410. 11. BERGER PAINTS INDIA LTD. VS. CIT, REPORTED IN 266 ITR 99 (SUPREME COURT). 12. CIT VS. MASOOD HALIM, REPORTED IN (2005) 275 ITR 1 4 (ALL) 13. RADHASOAMI SATSANT VS. CIT, REPORTED IN (1992) 193 ITR321 (SUPREME COURT). 8. THEREFORE, IN VIEW OF OUR FINDINGS GIVEN HEREINA BOVE AND THE DECISIONS OF VARIOUS COURTS OF LAW CITED BY THE LD. COUNSEL FOR THE ASSESSEE, THE MISC. APPLICATION FILE OF THE REVENUE IS REJECT ED. 9. IN THE RESULT, THE M.A.NO.30(ASR)2012 OF THE RE VENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22ND MARCH, 2013. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 22ND MARCH, 2013 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. ASHOK KUMAR MALHOTRA (DECD) 2. THROUGH L/H SMT. SATISH BALA MALHOTR, JALANDHAR. 3. THE ACIT CIR.II, JALANDHAR. 4. THE CIT(A) 5. THE CIT 6. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER