Income Tax Officer-6(5), Lucknow V. Shri Deepak Gupta, Lucknow

MA 31/LKW/2017

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 5704 (ITAT-LUCKNOW)
• Duration Of Justice: 4 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 09-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K VISHWAKARMA
• Assessee Lawyers: P K KAPOOR
• Keywords: Rectification of order; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI. T.S. KAPOOR, ACCOUNTANT MEMBER AND PARTHA SARATHI CHAUDHURY , JUDICIAL MEMBER M.A. NO.31/LKW/2017 [ARISING OUT OF M.A NO.39/LKW/2016 IN ITA NO. 09 /LKW/2015 ] ASSESSMENT YEAR: 200 8 - 09 INCOME TAX OFFICER 6(5) LUCKNOW V. SHRI DEEPAK GUPTA 514 - B, SECTOR M, ASHIYANA COLONY KANPUR ROAD, LUCKNOW T AN /PAN : AKZPG2717P (APP LIC ANT) (RESPONDENT) APP LIC ANT BY: SHRI R. K. VISHWAKARMA, D.R. RESPONDENT BY: SHRI P. K. KAPOOR, C.A. DATE O F HEARING: 15 12 201 7 DATE OF PRONOUNCEMENT: 08 01 201 8 O R D E R PER T.S. KAPOOR, A .M : THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE TRIBUNAL DATED 16/12/2015. 2 . AT THE OUTSET, THE LD. D.R. SUBMITTED THAT THE TAX EFFECT INCLUDING THE SURCHARGE AND EDUCATIONAL CESS WAS MORE THAN RS.10 LAKHS AND, THEREFORE, THE TRIBUNAL HAS WRONGLY DISMISSED THE APPEAL OF THE REVENUE . THEREFORE, THERE IS A MISTAKE CREPT IN THE ORDER OF THE TRIBUNAL , WHICH MAY BE RECALLED. 3 . THE LD. A. R. OF THE ASSESSEE, ON THE OTHER HAND, SUBMITTED THAT THE MISCELLANEOUS APPLICATION HAS ALREADY BEEN DECIDED BY THE TRIBUNAL VIDE ITS ORDER DATED 11/4/2017 WHEREIN THE REVENUE HAS TAKEN SAME GROUND OF APPEAL AND THE TRIBUNAL WAS PLEASED TO DISMISS THE SAME IN M.A. NO.39/LKW/2017 AND NOW THE MISCELLANEOUS APPLICATION FILED BY [ ITA NO.583/LKW/2015 ] 2 THE REVENUE IS AGAINST A MISCELLANEOUS APPLICATION WHICH IS NOT PERMITTED UNDER THE LAW AND, THEREFORE, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS LIABLE TO BE DISMISSED. RE LIANCE IN THIS RESPECT WAS PLACED ON THE FOLLOWING DECISIONS: - ( 1 ) CIT VS. AISWARYA TRADING CO. [2010] 192 TAXMAN 385 (KERALA) ( 2 ) CIT VS. SMT. VASANTBEN H. SHETH [2014] 48 TAXMANN.COM 287 (GUJARAT) 4 . WE HAVE GONE THROUGH THE MATERIAL AND HEARD THE PARTIES. WE FIND THAT THE REVENUE HAS ALSO FILED MISCELLANEOUS APPLICATION NO.39/LKW/ 2016 IN ITA NO.09/LKW/2015 ON SIMILAR FACTS AND THE TRIBUNAL HAS DISMISSED THE SAME VIDE ORDER DATED 11/4/2017 AND, THEREFORE, THIS MISCELLANEOUS APPLICATION AGAIN FILED BY THE REVENUE IS NOT MAINTAINABLE , AS IT HAS ALREADY BEEN DISMISSED BY THE TRIBUNAL. THE PRESENT MISCELLANEOUS APPLICATION IS NOT MAINTAINABLE, AS MISCELLANEOUS APPLICATION AGAINST A MISCELLANEOUS APPLICATION IS NOT PERMI TT ED AS HAS BEEN HELD IN THE CASE LAWS RELIED UPON BY THE ASSESSEE. FOR THE SAKE OF COMPLETENESS, THE FINDINGS OF THE HON'BLE KERALA HIGH COURT (SUPRA) ARE REPRODUCED BELOW: - 4.AFTER HEARING BOTH SIDES AND AFTER GOING THROUGH THE APPELLATE ORDER, WE ARE OF THE VIEW THAT THE SECOND APPLICATION ON THE VER Y SAME ISSUE IS NOT MAINTAINABLE BEFORE THE TRIBUNAL. IN FACT, MERGER APPLIES ONLY ON ISSUES DECIDED IN RECTIFICATION PROCEEDINGS AND THE TRIBUNAL'S ORDER ISSUED UNDER SECTION 254(1) WILL REMAIN UNAFFECTED ON ALL MATTERS OTHER THAN THOSE COVERED BY THE REC TIFICATION ORDER ISSUED UNDER SECTION 254(2). IN OTHER WORDS, EVEN AFTER THE TRIBUNAL RECTIFIES THE APPELLATE ORDER UNDER SECTION 254(2) ON ANY ISSUE RAISED, STILL THE ORIGINAL ORDER CAN BE RECTIFIED ON ANY OTHER ISSUE DECIDED BY THE TRIBUNAL. HOWEVER, IF THE RECTIFICATION APPLICATION FILED BY ONE OF THE PARTIES IS ALLOWED OR REJECTED BY THE TRIBUNAL, THE VERY SAME ISSUE CANNOT BE AGITATED [ ITA NO.583/LKW/2015 ] 3 IN ANOTHER RECTIFICATION APPLICATION BY THE OPPOSITE PARTY. IF THIS IS DONE AND ALLOWED TO BE ENTERTAINED BY THE TRIBUN AL, THEN WHAT HAPPENS IS THAT THE TRIBUNAL GETS AN OPPORTUNITY TO REVIEW ITS OWN ORDER FOR WHICH IT HAS NO POWERS UNDER THE STATUTE. THEREFORE, ONCE THE RECTIFICATION APPLICATION FILED BY ONE OF THE PARTIES IS CONSIDERED AND DECIDED BY THE TRIBUNAL RIGHTLY OR WRONGLY, ANOTHER RECTIFICATION APPLICATION ON SAME ISSUE IS NOT MAINTAINABLE AGAINST THE ORDER ISSUED BY THE TRIBUNAL UNDER SECTION 254(2) OF THE ACT. IN THIS CASE, THE QUESTION OF LIABILITY FOR INTEREST PAYABLE BY THE ASSESSEE UNDER SECTION 220(2) RIG HTLY OR WRONGLY WAS DECIDED BY THE TRIBUNAL IN THE RECTIFICATION APPLICATION FILED BY THE ASSESSEE IN THEIR FAVOUR AND SO MUCH SO, THE DEPARTMENT CANNOT SEEK TO RECTIFY THE VERY SAME ORDER AGAIN UNDER SECTION 254(2) BY FILING ANOTHER APPLICATION. AS ALREAD Y HELD, THE SECOND RECTIFICATION APPLICATION BY EITHER PARTY IS MAINTAINABLE ONLY ON ISSUES NOT DECIDED BY THE TRIBUNAL IN ANY OTHER RECTIFICATION APPLICATION FILED BY EITHER OF THE PARTIES. WE, THEREFORE, CLARIFY THAT THE APPELLATE ORDER ISSUED UNDER SECT ION 254(1) GETS MERGED IN RECTIFICATION ORDERS ONLY ON THE ISSUES RAISED IN THE RECTIFICATION APPLICATION AND ON ALL OTHER ISSUES DECIDED BY THE TRIBUNAL IN THE APPEAL, THE APPELLATE ORDER UNDER SECTION 254(1) SURVIVES AND IS AVAILABLE FOR RECTIFICATION AG AIN ON ANY OTHER ISSUE ON AN APPLICATION FILED BY EITHER OF THE PARTIES. CONSEQUENTLY, WE UPHOLD THE ORDER OF THE TRIBUNAL AND DISMISS THE DEPARTMENT APPEAL. 5 . IN VIEW OF THE ABOVE, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. ORDER PRO NOUNCED IN THE OPEN COURT ON 08 / 0 1/ 201 8 . SD/ - SD/ - [ PARTHA SARATHI CHAUDHURY ] [ T.S. KAPOOR ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 8 TH JANUARY, 2018 JJ: 1 512 [ ITA NO.583/LKW/2015 ] 4 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR