M/s Metallic Enterprise, RAJKOT-GUJARAT V. The Assistant Commr. of Income Tax, RAJKOT-GUJARAT

MA 32/RJT/2011

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 5452 (ITAT-RAJKOT)
• Duration Of Justice: 7 year(s) 11 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-08-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 28-10-2013
• Assessment Year: 2002-2003
• Appeal Filed On: 06-09-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Difference of opinion
• Section: 263

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT [CONDUCTED THROUGH E COURT AT AHMEDABAD] BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER MISC. APPLICATION NO.32/RJT/2011 IN ITA NO.45/AHD/2006 / ASSTT.YEAR : 2002-03 M/S.METALLIC ENTERPRISE GIDC, AJI-II, PLOT NO.330 RAJKOT. VS. ACIT, CIR.2 RAJKOT. ( APPLICANT ) ( RESPONENT ) ASSESSEE BY : SHRI VIMAL DESAI, AR REVENUE BY : SHRI PRAVEEN VERMA, SR.DR / DATE OF HEARING : 19/08/2019 / DATE OF PRONOUNCEMENT: 20 /08/2019 .// O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER: PRESENT MISC. APPLICATION IS DIRECTED AT THE INSTAN CE OF THE ASSESSEE POINTING OUT APPARENT ERROR IN THE ORDER OF THE TRI BUNAL DATED 3/6/2011 PASSED IN ITA NO.45/RJT/2006. 2. IT IS PLEADED IN THE APPLICATION THAT THE ASSESS EE HAS CHALLENGED THE ORDER OF THE LD.CIT PASSED UNDER SECTION 263 OF THE INCOME TAX ACT, 1961. THE TRIBUNAL HAS DECIDED TWO APPEALS OF THE ASSESSE E ONE ARISING FROM THE ORDER PASSED UNDER SECTION 263 AND THE OTHER BEARIN G ITA NO.361/RJT/2009 ARISING AGAINST THE ASSESSMENT ORDER PASSED IN PURS UANCE OF 263-ORDER. AS FAR AS PRESENT MA IS CONCERNED IT IS CONFINED TO PROCEE DINGS AROSE AGAINST THE MA NO.32/RJT/2011 2 ORDER OF THE CIT PASSED UNDER SECTION 263. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT IN PARA-4 OF THE ORDER, TRIBUNAL HAS OBSERVED THAT AO HAS NOT CARRIED OUT INQUIRIES AND HAS NOT MADE ELABORATE DI SCUSSION. HE REPRODUCED PARA-4 OF THE TRIBUNALS ORDER IN THE APPLICATION. ACCORDINGLY, THE LD.COUNSEL FOR THE ASSESSEE CONTENDED THAT THE TRIBUNAL HAS FA ILED TO TAKE COGNIZANCE OF THE RATIO LAID DOWN IN THE CASE OF ASHOK MANILAL T HAKKAR, 279 ITR 243 AS WELL AS THE ORDER OF THE ITAT RELIED UPON BEFORE TH E TRIBUNAL AT THE TIME OF HEARING. DURING THE COURSE OF HEARING, HE FURTHER CONTENDED THAT HOW TO DRAFT ASSESSMENT ORDER IS NOT IN THE DISCRETION OF THE AS SESSEE. ONCE THE ASSESSEE HAS SUBMITTED ALL REQUISITE DETAILS CALLED FOR BY T HE AO, THEN IT HAS TO BE ASSUMED THAT THE AO HAS GONE THROUGH ALL THESE DETA ILS, AND WAS SATISFIED BY THE EXPLANATION OF THE ASSESSEE. IT IS NOT NECESSA RY THAT A DISCUSSION WITH REGARD TO QUESTIONNAIRE AND DETAILS SUBMITTED BY TH E ASSESSEE SHOULD BE INCORPORATED IN THE ASSESSMENT ORDER. THIS FACT CA N BE DERIVED FROM THE MATERIAL AVAILABLE IN THE ASSESSMENT ORDER. THE TR IBUNAL FAILED TO CONSIDER THIS ASPECT WHILE DECIDING THE APPEAL OF THE ASSESS EE, AND HOLD THAT NO FINDING AT THE END OF THE AO IS DISCERNIBLE QUA THIS ASPECT. ON THE OTHER HAND, THE LD.DR RELIED UPON THE ORDER OF THE ITAT. 3. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND GONE TH ROUGH THE RECORD. POWER OF RECTIFICATION UNDER SECTION 254 OF THE INC OME TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE, WHICH IS SOUGHT TO BE RECTIFIED, IS AN OBVIOUS PATENT MISTAKE, WHICH IS APPARENT FROM THE RECORD AND NOT A MISTAKE, WHICH IS REQUIRED TO BE ESTABLISHED BY ARGUMENTS AN D LONG DRAWN PROCESS OF REASONING ON POINTS, ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. 4. A PERUSAL OF THE FINDING RECORDED BY THE TRIBUNA L WOULD REVEAL THAT IT IS CONSCIOUS FORMATION OF CONCLUSION BASED UPON ANALYS IS OF ALL THE FACTS. IT IS A PROCESS OF TAKING DECISION ON THE DISPUTED ISSUE. THE TRIBUNAL HAS CONSIDERED MA NO.32/RJT/2011 3 THE SUBMISSIONS MADE BY THE ASSESSEE, AND THEREAFTE R FORMED THE OPINION. THERE IS NO APPARENT ERROR AS SUCH. THERE CAN BE A DIFFERENCE OF OPINION BETWEEN THE ASSESSEE VIS--VIS ONE FORMED BY THE IT AT. BUT THAT DOES NOT FALL WITHIN THE DEFINITION OF APPARENT ERROR. IN OTHER WORDS, THE OPINION FORMULATED BY THE LD.COUNSEL FOR THE ASSESSEE WHILE ARGUING TH E APPEAL BEFORE THE TRIBUNAL DID NOT MEET APPROVAL OF THE TRIBUNAL. BUT THAT IS NOT AN APPARENT ERROR. THAT IS A DECISION. WE HAVE ALSO BEEN INFORMED THAT ORD ER OF THE TRIBUNAL HAS BEEN CHALLENGED BEFORE THE HONBLE HIGH COURT AND APPEAL STANDS ADMITTED. AGAINST THE ORDER OF THE TRIBUNAL PASSED IN ITA NO. 45 AS WELL AS 361/RJT/2009. IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND ANY MERIT IN THIS APPLICATION. IT IS DISMISSED. 5. IN THE RESULT, MA OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 20 TH AUGUST, 2019 AT AHMEDABAD. S D / - (AMARJIT SINGH) ACCOUNTANT MEMBER S D / - (RAJPAL YADAV) JUDICIAL MEMBER