HANSA MOTOR WORKS, V. ITO WD 24(3)(1),

MA 328/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7067 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-08-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: misc
• Appeal Filed On: 09-06-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Rectification of order

Judgement Text

1 MA NO. 328/MUM/2011 ARISING OUT OF ITA NO.1862/MUM/2008 (ASST YEAR 2000-01) IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI H BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI RAJENDRA SINGH , AM & SHRI VIJAY PAL R AO, JM MA NO. 328/MUM/2011 ARISING OUT OF ITA NO.1862/MUM/2008 (ASST YEAR 2000-01) M/ HANSA MOTOR WORKS PLOT NO.17 CAMA INDUSTRIAL ESTATE GOREGAON (E) MUMBAI 63 VS THE INCOME TAX OFFICER WARD 24(3)(1), MUMBAI (APPLICANT ) (RESPONDENT) PAN NO. AAAFE 9256K ASSESSEE BY SHRI PRAMOD KUMAR PARIDA/ MRS SANJUKTA CHOWDHURY REVENUE BY SHRI V V SASTRI DT.OF HEARING 5 AUG 2011 DT OF PRONOUNCEMENT 12 AUG 2011 ORDER PER VIJAY PAL RAO, JM THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE IS D IRECTED AGAINST THE ORDER OF THE TRIBUNAL DATED 25.3.2011 WHEREBY THE APPEAL OF THE REVENUE IN ITA NO.1862 TO 1864/MUM/2008 FOR THE AY 2000-01 TO 2002-03 WERE D ISPOSED OFF. 2 THE ASSESSEE HAS STATED IN THE MA TO DEMONSTRATE THE MISTAKE APPARENT FROM THE RECORD IN PARA 2 AS UNDER: 2. THE FACTS WHICH CONSTITUTE THE MISTAKE APPARENT FROM THE RECORDS WHICH HAS NOT TAKEN JUDICIAL NOTICE AND WHICH CAN BE VERI FIED FROM THE RECORDS OF THE HONBLE TRIBUNAL AS UNDER: I) THE HEARING OF THREE APPEALS WERE FIXED BEFORE H BENCH IN COURT ROOM NO.4 WITH SR NOS.11-13 2 MA NO. 328/MUM/2011 ARISING OUT OF ITA NO.1862/MUM/2008 (ASST YEAR 2000-01) II) WHEN THE MATTER WAS CALLED OUT, OUR COUNSEL MR PRAMOD KUMAR PARIDA, ADVOCATE WAS ON HIS LEGS IN ANOTHER MATER B EFORE COURT ROOM NO.7 III) ULTIMATELY THIS MATTER WAS PASSED ON TO BE TA KEN AT LAST IV) IN THE MEAN TIME, ANOTHER MATTER WHERE MR PARID A WAS TO ARGUE WAS ALSO CALLED OUT FOR HEARING IN COURT ROOM NO.3. THAT WAS ATTENDED BY MR PARIDA AND WAS ALSO HEARD WHERE HEARING CONTI NUED FOR A LONG TIME. V) BY THE TIME MR PARIDA REACHED COURT ROOM NO.4, IT WAS LEARNT THAT THE ENTIRE BOARD HAD BEEN DISCHARGED AND OUR PARTIC ULAR MATTER WAS HEARD EX-PARTE. VI) THE EX-PARTE ORDER WAS PASSED IN SPITE OF THE P RAYER OF THE JUNIOR ADVOCATE, MRS SANJUKTA CHOWDHURY TO KINDLY ADJOURN THE MATTER. THE HONBE JUDICIAL MEMBER, DID NOT NEED TO THE REQUEST OF THE ADVOCATE APPEARED WHO HAD NOT PREPARED FOR THE MATTER. VII) THE VAKALATNAMA WAS ON THE RECORD VII) ULTIMATELY, THIS HAS RESULTED PASSING OFF THE ORDER EX-PARTE BY SETTING ASIDE THE MATTES TO THE ASSESSING OFFICER. IT IS PR AYED THAT THIS IS NOT A CASE OF SETTING ASIDE THE MATTER TO THE FILES OF TH E ASSESSING OFFICER. IX) WE PRAY FOR THE RECALLING FOR MATER AND FOR HEA RING OUR MATTERS AFTER GRANTING DUE OPPORTUNITY TO US. X) IT WAS FOR THE CIRCUMSTANCES BEYOND OUR CONTROL, OUR COUNSEL MR PARIDA ADVOCATE, COULD NOT ATTEND THE HEARING ON TH E RELEVANT DAY. A CASE OF IN DELIBERATE HAPPENING CONSTITUTE A REASON ABLE CAUSE WHICH SHOULD NOT WARRANT AN EX-PATE ORDER. IF ADJOURNMENT WAS NOT GRANTED, THE MATTERS COULD HAVE BEEN TAKEN ON THE NEXT DAY A S THE SAME COMBINATION OF MEMBERS CONTINUE FOR TWO WEEKS. XII KINDLY BE CONSIDERATE AND RECALL OUR MATTERS. 2.1 THE LD AR HAS ALSO FILED AFFIDAVIT DATED NIL ST ATING THE FACTS AS MENTIONED IN THE MISCELLANEOUS APPLICATION. 3 WE HAVE HEARD THE LD AR AS WELL AS THE LD DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE LD AR OF THE ASSESSEE HAS S UBMITTED THAT WHEN THE MATTER WAS CALLED FOR HEARING BEFORE THE H BENCH OF THE TR IBUNAL, THE REPRESENTATIVE WAS BUSY IN ANOTHER BENCH OF THE TRIBUNAL AND THEREFOR E, THE ASSESSEE WAS NOT GIVEN A 3 MA NO. 328/MUM/2011 ARISING OUT OF ITA NO.1862/MUM/2008 (ASST YEAR 2000-01) PROPER OPPORTUNITY OF HEARING BEFORE PASSING THE IM PUGNED ORDER. THE MAIN THRUST OF ARGUMENTS OF THE LD AR IS THAT THOUGH THE PRESEN CE OF THE LD AR MRS SANJUKTA CHOWDHURY HAS BEEN MARKED; HOWEVER, SHE APPEARED BE FORE THE TRIBUNAL ONLY TO SEEK ADJOURNMENT AS THE LD AR OF THE ASSESSEE WAS B USY BEFORE THE OTHER BENCH OF THE TRIBUNAL. THUS, THE LD AR HAS SUBMITTED THAT TH ERE IS AN APPARENT MISTAKE ON RECORD BECAUSE THE APPEALS OF THE REVENUE WERE DI SPOSED OFF WITHOUT HEARING OF THE ASSESSEE. HE HAS URGED FOR RECALLING THE ORDER OF THE TRIBUNAL DATED 25.3.2011AND THE ASSESSEE BE GIVEN AN OPPORTUNITY O F FRESH HEARING OF THE MATTER. 3.1 THE LD DR HAS SUBMITTED THAT THE MATTER WAS HEA RD AND DISPOSED OF ON MERIT; THEREFORE, IN THE ABSENCE OF ANY MISTAKE OR ERROR A PPARENT ON THE RECORD POINTED OUT BY THE ASSESSEE, THE ORDER OF THE TRIBUNAL PASS ED ON MERIT CANNOT BE RECALLED U/S 254(2) OF THE I TACT. HE HAS VEHEMENTLY OPPOSED TH E MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. 4 AFTER CONSIDERING THE RIVAL CONTENTION AND CAREFU LLY PERUSED THE RELEVANT MATERIAL ON RECORD, WE NOTE THAT ON 16.3.2011 THIS MATTER WAS LISTED FOR HEARING BEFORE THE H BENCH OF THE TRIBUNAL. WHEN THE MATTE R WAS CALLED FOR HEARING, NOBODY APPEARED ON BEHALF OF THE ASSESSEE AND IT WA S PASSED OVER. FINALLY, THE MATTER WAS AGAIN CALLED FOR HEARING AND MRS SANJUKT A CHOWDHURY, ADVOCATE APPEARED ON BEHALF OF THE ASSESSEE; SHE HAD POINTE D THAT HER SENIOR COUNSEL WAS BUSY IN ANOTHER CASE BEFORE OTHER BENCH OF THE TRIB UNAL. SINCE THERE WAS NO OTHER MATTER LEFT WITH THE BENCH FOR HEARING AND ONLY THI S MATTER WAS LEFT ON THE BOARD OF THE BENCH, IN THOSE CIRCUMSTANCES, THE BENCH PROPOS ED TO HEAR THE MATTER. ACCORDINGLY THE MATTER WAS HEARD. THE LD DR AS WEL L AS THE LD AR WHO APPEARED BEFORE THE BENCH WERE GIVEN PROPER OPPORTUNITY OF H EARING. IT IS TO BE NOTED THAT 4 MA NO. 328/MUM/2011 ARISING OUT OF ITA NO.1862/MUM/2008 (ASST YEAR 2000-01) MRS SANJUKTA CHOWDHURY, ADVOCATE HAS ALSO SIGNED T HE VAKALATHNAMA ON BEHALF OF THE ASSESSEE AND THEREFORE, SHE WAS DULY AUTHORIZED IN THE MATTER BEFORE THE TRIBUNAL. SINCE PROPER OPPORTUNITY WAS GIVEN TO THE ASSESSEE AND THE MATTER WAS TAKEN AT THE END OF THE BOARD AFTER WAITING FOR THE REPRESENTATIVE OF THE ASSESSEE THEREFORE, IN OUR CONSIDERED OPINION, THE ASSESSEE WAS GIVEN PROPER OPPORTUNITY FOR HEARING. 5 EVEN OTHERWISE, WE HAVE DECIDED THE APPEALS OF T HE REVENUE ON MERIT AFTER CONSIDERING THE RIVAL CONTENTION AS WELL AS THE MA TERIAL ON RECORD AND IN THE MISCELLANEOUS APPLICATION, NO OTHER MISTAKE OR ERRO R HAS BEEN POINTED OUT BY THE ASSESSEE, EXCEPT THAT THE LD AR OF THE ASSESSEE COU LD NOT ATTEND THE HEARING BECAUSE HE WAS BUSY IN THE OTHER COURT. THEREFORE, THE ORDER PASSED ON MERIT CANNOT BE RECALLED ONLY ON THE GROUND THAT THE MAIN COUNSEL OF THE ASSESSEE COULD NOT APPEAR IN THE MATTER. THE TRIBUNAL, OTHERWISE R ECORDED THE CONTENTION OF THE LD AR, WHO APPEARED AT THE TIME OF HEARING AND ALSO CO NSIDERED THE CONTENTION OF THE ASSESSEE, AS RAISED BEFORE THE LOWER AUTHORITIES. T HEREFORE, IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WHEN NO APPARENT MIS TAKE OR ERROR HAS BEEN BROUGHT OUT WHICH CAN BE RECTIFIED U/S 254(2), THEN , WE DO NOT FIND ANY MERIT IN THE MA OF THE ASSESSEE. 6 THE SCOPE OF SEC 254(2) IS VERY LIMITED AND CIRCU MSCRIBED. FOR EXERCISING THE JURISDICTIONAL U/S 254(2), IT IS THE MANDATORY COND ITION THAT SUCH MISTAKE SHOULD BE WIDE APPARENT, MANIFEST AND PATENT AND NOT SOMETHIN G WHICH COULD BE INVOLVED SERIOUS CIRCUMSTANCES OF DISPUTES OF QUESTION OF FA CTS OR LAW AND CAN BE ESTABLISHED BY LONG DRAWN PROCESS AND REASONING ON THE POINT TO BE RECTIFIED. IT IS WELL SETTLED 5 MA NO. 328/MUM/2011 ARISING OUT OF ITA NO.1862/MUM/2008 (ASST YEAR 2000-01) THAT SEC 254(2) DOES NOT CONFER POWER ON THE TRIBUN AL TO REVIEW IS EARLIER ORDER. THUS, THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER PASSE D ON MERIT AND IN THE GRAB OF RECTIFICATION OF MISTAKE NO ORDER CAN BE PASSED U/S 254(2) WHICH MAY GIVE RISE TO SITUATION FOR REVERSAL OF THE ORDER PASSED AFTER D ISCUSSING ALL THE FACTS AND STATUTORY PROVISIONS IN DETAIL. WHEN THE ENTIRE ISSUE WAS EX AMINED AND DECIDED ON MERIT AFTER CONSIDERING THE RELEVANT FACTS AND MATERIAL ON RE CORD THEN IT WOULD NOT BE SUBJECTED TO FOR THE ADJUDICATION AT THE LEVEL OF S OME FORM. ACCORDINGLY, WE DISMISS THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE . 7 IN THE RESULT, THE MISCELLANEOUS APPLICATION FILE D BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THE 12 TH , DAY OF AUG 2011. SD/ SD/- ( RAJENDRA SINGH ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 12 TH AUG 2011 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI