M/S. Kedia Pipes, Kolkata V. ACIT, Circle-35, Kolkata, Kolkata

MA 34/KOL/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6898 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 07-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHARJEE
• Assessee Lawyers: J P KHAITAN
• Keywords: Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA A BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER) M.A. NO. 34/KOL/2018 A/O ITA NO. 2098/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. KEDIA PIPES................................................................................APPELLANT 33/1, NETAJI SUBHASH ROAD 277, MARSHALL HOUSE 2 ND FLOOR KOLKATA 700 001 [PAN : AADFK 1107 D] ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-35, KOLKATA.......................RESPONDENT APPEARANCES BY: SHRI J.P. KHAITAN, SR. ADVOCATE, APPEARED ON BEHALF OF THE ASSESSEE. SHRI ARINDAM BHATTACHARJEE, ADDL. CIT, D/R. APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JUNE 15 TH , 2018 DATE OF PRONOUNCING THE ORDER : JULY 18 TH , 2018 ORDER PER J. SUDHAKAR REDDY, AM :- BY THIS MISCELLANEOUS APPLICATION THE ASSESSEE STATES THAT A MISTAKE APPARENT ON RECORD HAS CREPT INTO THE ORDER OF THE TRIBUNAL REQUIRING RECTIFICATION BY WAY OF RECALL. 2. THE LD. SR. ADVOCATE, SHRI J.P. KHAITAN, SUBMITTED THAT FACTUAL ERRORS HAVE CREPT INTO THE ORDER OF THE TRIBUNAL. HE REFERRED TO THE FINDINGS OF THE TRIBUNAL WHEREIN AT PARA 3.1. IT WAS OBSERVED THAT THE ASSESSEE HAD FAILED TO PRODUCE THE BOOKS OF ACCOUNTS AND OTHER DOCUMENTS IN RESPONSE TO SUMMONS DT. 16/02/2010 AND THAT THE BOOKS OF ACCOUNTS WERE INCOMPLETE. HE POINTED OUT THAT FACT IS THAT, AT THE TIME OF SURVEY THE BOOKS OF ACCOUNTS WERE INCOMPLETE AND A SUMMON WAS ISSUED DURING THE COURSE OF SURVEY PROCEEDINGS ON FEBRUARY 11 TH , 2010, REQUIRING THE ASSESSEE TO APPEAL ON 16 TH FEBRUARY, 2010. IT WAS SUBMITTED THAT THE PARTNER OF THE ASSESSEE FIRM, SHRI PRABHAT KEDIA, SOUGHT AN ADJOURNMENT ON 16 TH FEBRUARY, 2010, ON BEHALF OF THE ASSESSEE, AS THE ACCOUNT HAD TO BE UPDATED FOR THE REASON THAT THE ACCOUNTS WAS OUT OF STATION. THE ASSESSING OFFICER HAD GRANTED SUCH REASONS. IT WAS SUBMITTED THAT ON 23 RD FEBRUARY, 2010, THE ASSESSEE COMPANY THROUGH ITS PARTNERS AND AUTHORIZED REPRESENTATIVES APPEARED AND SUBMITTED VARIOUS DOCUMENTS AND EXPLANATIONS BEFORE THE ASSESSING OFFICER. IT WAS FURTHER POINTED OUT THAT THE STATEMENT WAS RECORDED BY THE ASSESSING OFFICER, COPIES OF RECONCILIATION OF CLOSING STOCK, RECONCILIATION OF BANK BALANCE, DETAILS OF EXPENDITURE NOT ENTERED IN THE BOOKS, 2 M.A. NO. 34/KOL/2018 A/O ITA NO. 2098/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. KEDIA PIPES PROFESSIONAL BANK ACCOUNT AS ON FEBRUARY, 2010, WERE PRODUCED AND THESE WERE RECORDED IN THE ORDER SHEET ENTRIES, DT. 23 RD FEBRUARY, 2010. IT WAS FURTHER SUBMITTED THAT THE AUDITED BOOKS OF ACCOUNTS WERE PRODUCED BEFORE THE ASSESSING OFFICER AND THAT THE ASSESSING OFFICER AND THAT THE ASSESSING OFFICER HAD NOT POINTED ANY DEFECTS IN THE SAME. THUS, HE SUBMITS THAT INADVERTENT MISTAKE OF FACTS HAS CREPT INTO THE ORDER OF THE TRIBUNAL WHICH REQUIRES RECTIFICATION. HE RELIED ON THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. BALLABH PRASAD AGARWALLA, (1998) 233 ITR 354 (CAL), SPECIFICALLY AT PAGES 359 & 361 OF THE JUDGMENT, FOR THE PROPOSITION THAT, IF MATERIAL ASPECTS HAVE BEEN LOST SIGHT OF, THE TRIBUNAL CANT RECTIFY THE ORDER BY WAY OF RECALL. 3. THE LD. D/R, SHRI ARINDAM BHATTACHARJEE, ADDL. CIT, OPPOSED THE CONTENTIONS AND SUBMITTED THAT THIS IS A CASE OF SURVEY AND THAT THE ASSESSING OFFICER FOUND INCOMPLETE BOOKS AND HENCE THE OBSERVATIONS MADE BY THE TRIBUNAL IN ITS ORDER ARE CORRECT. HE SUBMITS THAT THERE IS NOT MISTAKE APPARENT ON RECORD REQUIRING RECTIFICATION AND THAT THE ASSESSEE WANTS REVIEW OF THE ORDER. 4. AFTER HEARING RIVAL CONTENTIONS AND PERUSING THE PAPERS ON RECORD, WE FIND THAT A MISTAKE OF FACT CREPT INTO THE ORDER OF THE TRIBUNAL. THE ASSESSEE HAD COMPLETED THE INCOMPLETE BOOKS OF ACCOUNTS FOUND DURING THE COURSE OF SURVEY AND SUBMITTED THE AUDITED BOOKS OF ACCOUNTS BEFORE THE ASSESSING OFFICER. THIS FACT WAS LOST SIGHT OF. 4.1. THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. BALLABH PRASAD AGARWALLA (SUPRA) AT PAGE 361, HELD AS FOLLOWS:- IT IS ONE OF THE BASIC PRINCIPLES AND A LEGAL POLICY THAT WHEN THERE IS A PROVISION OF RECTIFICATION OF A MISTAKE ON RECORD, THAT POWER SHOULD BE ALLOWED TO BE EXERCISED FOR CORRECTING MISTAKES AND/OR ERROR ON THE RECORD AND IF THE TRIBUNAL FEELS THAT THE TRIBUNAL HAS COMMITTED AN ERROR OF LAW, IN THAT EVENT, IT WOULD BE AGAINST THE CONCEPT OF JUSTICE AND FAIR PLAY AND ALSO AGAINST THE PRINCIPLE OF LEGAL POLICY NOT TO ALLOW THE TRIBUNAL TO EXERCISE SUCH POWER. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE CLEARLY OF THE VIEW THAT THE POWER THAT IS SOUGHT TO BE EXERCISED BY THE TRIBUNAL COMES WITHIN THE SCOPE AND AMBIT OF THE PROVISIONS OF SECTION 154, READ WITH SECTION 254(2), AND, ACCORDINGLY, WE DO NOT FIND THAT ANY QUESTION OF LAW ARISES OUT OF THE ORDER OF THE TRIBUNAL, DATED 12-10-1993. THE APPLICATION IS, ACCORDINGLY, REJECTED. 5. APPLYING THE PROPOSITIONS OF LAW LAID DOWN IN THE ABOVE REFERRED CASE-LAW TO THE FACTS OF THE CASE ON HAND AND KEEPING IN MIND THAT CERTAIN FACTUAL INACCURACIES HAVE 3 M.A. NO. 34/KOL/2018 A/O ITA NO. 2098/KOL/2018 ASSESSMENT YEAR: 2010-11 M/S. KEDIA PIPES CREPT INTO THE ORDER OF THE TRIBUNAL, WE RECTIFY THE ORDER PASSED ON 31 ST OCTOBER, 2017 IN ITA NO. 2098/KOL/2014, BY RECALLING THE SAME. HENCE, THE IMPUGNED ORDER IS RECALLED. THE REGISTRY IS DIRECTED TO POST THE CASE AFRESH FOR HEARING IN DUE COURSE. 6. IN THE RESULT, THIS MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 18 TH DAY OF JULY, 2018. SD/- SD/- [ S.S. VISWANETHRA RAVI ] [ J. SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 18.07.2018 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. M/S. KEDIA PIPES 33/1, NETAJI SUBHASH ROAD 277, MARSHALL HOUSE 2 ND FLOOR KOLKATA 700 001 2. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-35, KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES