Deputy commissioner of income tax, Central Circle 2(1), Bangalore V. ALPANA BHARTIA, Bangalore

MA 35/BANG/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6425 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-04-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 08-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P V PRADEEP KUMAR
• Assessee Lawyers: H N KHINCHA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER M.P. NO. 35/BANG/2018 (IN M.P. NO. 178/BANG/2017 (IN ITA NO. 856/BANG/2016)) ASSESSMENT YEAR : 20 07 - 08 THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(1), BANGALORE. VS. SMT. ALPANA BHARTIA, NO. 209, RAMANASHREE CHAMBERS, NO. 37, LADY CURZON ROAD, BANGALORE 560 001. PAN: ADUPB 5981G APPELLANT RESPONDENT APPELLANT BY : DR. P.V. PRADEEP KUMAR, ADDL. CIT (DR) RESPONDENT BY : SHRI H.N. KHINCHA, CA DATE OF HEARING : 23 . 0 3 .2018 DATE OF PRONOUNCEMENT : 27 . 0 4 .201 8 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS M.P. IS FILED BY THE REVENUE CONTENDING THAT T HERE ARE SOME APPARENT MISTAKES IN THE TRIBUNAL ORDER PASSED BY THE TRIBUN AL ON 24.08.2017 IN M.P. NO. 178/BANG/2017 IN RESPECT OF ITA NO. 856/BANG/20 16. 2. THE REVENUE HAS FILED THIS M.P. IN WHICH IT IS C ONTENDED THAT THERE ARE APPARENT MISTAKES IN THE TRIBUNAL ORDER DATED 24.08.2017 PAS SED IN M.P. NO. 178/BANG/2017 IN ITA NO. 856/BANG/2016. VARIOUS AR GUMENTS WERE MADE BY BOTH SIDES AND BOTH SIDES WERE HEARD IN LENGTH. LE ARNED AR OF THE ASSESSEE SUBMITTED THAT AS PER AN ORDER OF SPECIAL BENCH OF TRIBUNAL RENDERED IN THE CASE OF SHRI PADAM PRAKASH (HUF) VS. ITO AS REPORTE D IN 131 ITD 121 DELHI SPECIAL BENCH, IT WAS HELD THAT U/S. 254(2) OF IT A CT, ONLY THAT TRIBUNAL ORDER CAN BE RECTIFIED WHICH WAS PASSED U/S. 254(1) OF IT ACT AND SINCE THE PRESENT M.P. NO. 35/BANG/2018 (IN M.P. NO. 178/BANG/2017 (IN ITA NO. 856/BANG/2016)) PAGE 2 OF 5 M.P. IS FILED AGAINST THE ORDER PASSED BY THE TRIBU NAL U/S. 252(2) OF IT ACT, THIS M.P. OF REVENUE IS NOT MAINTAINABLE AND SHOULD BE D ISMISSED. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND GON E THROUGH THE MATERIAL AVAILABLE ON RECORD AND WE FIND THAT THE TRIBUNAL O RDER U/S. 254(1) WAS PASSED ON 16.06.2017 AND THEREAFTER, ONE M.P. WAS FILED BY THE ASSESSEE AND THE SAME WAS DECIDED BY TRIBUNAL IN M.P. NO. 178/BANG/2 017 DATED 24.08.2017. NOW THE PRESENT M.P. FILED BY THE REVENUE IS AGAINS T THIS ORDER PASSED BY THE TRIBUNAL IN M.P. PROCEEDINGS. IN THE LIGHT OF THES E ADMITTED FACTS, WE NOW EXAMINE THE APPLICABILITY OF THE ORDER OF SPECIAL B ENCH OF TRIBUNAL RENDERED IN THE CASE OF SHRI PADAM PRAKASH (HUF) VS. ITO (SUPRA ). PARAS 9 TO 12 OF THIS TRIBUNAL ORDER ARE RELEVANT WHICH ARE REPRODUCED HE REINBELOW FOR READY REFERENCE. 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS IN THE LIGHT OF MATERIAL PLACED BEFORE US. IT IS TRUE THAT SUB-S ECTION (2) OF SECTION 254 CAN BE INVOKED ONLY IN A SITUATION IF T HERE IS A MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL UNDER S UB-SECTION (1) OF SECTION 254. THE IMPUGNED MISCELLANEOUS APPL ICATION FILED BY THE ASSESSEE IS AGAINST THE ORDER PASSED O N 27.11.2009 WHICH IS AN ORDER PASSED U/S 254(2). THEREFORE, PRI NCIPALLY, THE APPLICATION FILED BY THE ASSESSEE HAS TO BE REJECTE D ON THIS GROUND ALONE AND FOR THIS PURPOSE, RELIANCE CAN BE PLACED ON THE FOLLOWING DECISIONS:- (I) CIT VS. PRESIDENT, INCOME TAX APPELLATE TRIBUNA L 196 ITR 838 (ORISSA) WHEREIN IT HAS BEEN HELD THAT TO ATTRACT A PPLICABILITY OF SECTION 254(2), A MISTAKE WHICH IS SOUGHT TO BE REC TIFIED MUST BE APPARENT FROM RECORD AND THE SAME MUST BE IN ANY OR DER PASSED UNDER SUB-SECTION (1) OF SECTION 254. THE ORDER REF ERRED TO IN SECTION 254(1) IS ONE RELATING TO AN APPEAL FILED E ITHER BY THE ASSESSEE OR BY THE REVENUE. THE APPEAL REFERRED T O IN THE PROVISION IS ONE FILED U/S 253. THEREFORE, THE ORDE R WHICH CAN BE RECTIFIED MUST BE ONE WHICH HAS BEEN PASSED BY THE TRIBUNAL IN AN APPEAL FILED U/S 253. AN ORDER REJECTING AN APPL ICATION FOR RECTIFICATION U/S 254(2) CANNOT BE RECTIFIED U/S 25 4(2). THE SAME MAY RELATE TO AN APPEAL BUT IS NOT AN ORDER PASSED BY THE TRIBUNAL UNDER SUB-SECTION (1) OF SECTION 254 AND T HUS, IT WAS HELD THAT SUBSEQUENT APPLICATION FILED BY THE ASSES SEE WAS RIGHTLY REJECTED BY THE TRIBUNAL. M.P. NO. 35/BANG/2018 (IN M.P. NO. 178/BANG/2017 (IN ITA NO. 856/BANG/2016)) PAGE 3 OF 5 (II)IN THE CASE OF MENTHA & ALLIED PRODUCTS CO .LTD . VS. ITAT 244 ITR 470 (DEL), AFTER REFERRING TO THE PROVISIONS OF SECTION 254(1) AND (2), IT WAS HELD AS UNDER:- 7.THE RELEVANT PROVISIONS OF S. 254 READ ASUNDER: 254.ORDERS OF APPELLATE TRIBUNAL. (1) THE TRIBUN AL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THEREON AS IT THINKS FIT. (2) THE TRIBUNAL MAY, AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER, WITH A VIEW TO RECTIFYING ANY MI STAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB-S. (1) AND SHALL MAKE SUCH AMENDMENT IF THE MIS TAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE AO; THE AFORENOTED PROVISIONS OF LAW ARE CLEAR AND UNAM BIGUOUS. A BARE READING WHEREOF LEAVES NO DOUBT IN OUR MIND THAT THE TRIBUNAL IS COMPETENT TO RECTIFY A MISTAKE APPARENT FROM THE RECORD AND AMEND ANY ORDER WHICH HAS BEEN PASSED UN DER SUB- S.(1). ADMITTEDLY, BY THE IMPUGNED ORDER, THE TRIBU NAL HAS SOUGHT TO RECTIFY THE ORDER PASSED BY IT UNDER S. 2 56(1) OF THE ACT AND NOT AN ORDER PASSED UNDER S. 254(1). WE HAV E NO HESITATION IN HOLDING THAT THE TRIBUNAL IS NOT CLOT HED WITH AN INHERENT POWER TO RECTIFY/RECALL AN ORDER PASSED UN DER S. 256(1) OF THE ACT BY TAKING RECOURSE TO S. 254(2) O F THE ACT AND, THEREFORE, THE IMPUGNED ORDER IS ILLEGAL AND INVALI D. THE VIEW TAKEN BY US FINDS SUPPORT FROM A DECISION OF THIS C OURT IN CIT VS. KABIR DAS INVESTMENT LTD. (1995) 124 CTR (DEL) 259 : (1994) 210 ITR 898 (DEL) : TC 55R.777. 10. IN THE CASE OF CIT VS. AISWARYA TRADING CO. 1 96 TAXMAN 385 (KER.), IT WAS HELD THAT THE TRIBUNAL WAS JUSTIFIED IN REFUSING TO ENTERTAIN AN APPLICATION FILED BY THE REVENUE UNDER SECTION 254(2) TO RECTIFY THE ORDER ISSUED BY THE TRIBUNAL IN AN E ARLIER RECTIFICATION APPLICATION FILED BY THE ASSESSEE, AS THE SECOND AP PLICATION ON THE VERY SAME ISSUE IS NOT MAINTAINABLE BEFORE THE TRIB UNAL. 11. IN THE CASE OF DR.S.PANNEERSELVAM VS. ACIT 31 9 ITR 135, IT WAS HELD THAT THE TRIBUNAL HAVING ALLOWED FIRST REC TIFICATION PETITION, SECOND PETITION WAS NOT MAINTAINABLE; REMEDY BY WAY OF APPEAL WAS THE ONLY COURSE OPEN. 12. IF THE APPLICATION FILED BY THE ASSESSEE IS VIE WED IN THE LIGHT OF AFOREMENTIONED JUDICIAL PRONOUNCEMENTS, THEN IT WIL L BECOME CLEAR THAT THE RELIEF WHICH IS BEING SOUGHT BY THE ASSESSEE BY WAY OF IMPUGNED RECTIFICATION APPLICATION IS NOT LEGALL Y TENABLE FOR THE REASON THAT THE TRIBUNAL HAS NO POWER TO ADJUDI CATE UPON SUBSEQUENT APPLICATION FILED U/S 254(2). HERE, IT M AY BE THE CASE M.P. NO. 35/BANG/2018 (IN M.P. NO. 178/BANG/2017 (IN ITA NO. 856/BANG/2016)) PAGE 4 OF 5 OF THE ASSESSEE THAT EARLIER ORDER AGAINST WHICH IM PUGNED RECTIFICATION APPLICATION IS FILED IS ALSO AN ORDER PASSED ON SUBSEQUENT APPLICATION, THEN THE ONLY COURSE PERMIS SIBLE TO THE ASSESSEE IS TO FILE AN APPEAL AGAINST THAT ORDER AN D NOT TO APPROACH THE TRIBUNAL TO CONTEND THAT THE SAID ORDE R WAS AN INVALID ORDER, THEREFORE IT SHOULD BE RECALLED. 4. AS PER ABOVE PARAS REPRODUCED FROM THIS ORDER OF SPECIAL BENCH OF TRIBUNAL, IT IS SEEN THAT THE TRIBUNAL HAS HELD THAT M.P. AGAINS T M.P. IS NOT MAINTAINABLE AND WHILE HOLDING SO, THE TRIBUNAL HAS FOLLOWED VAR IOUS JUDGMENTS OF VARIOUS HONBLE HIGH COURTS SUCH AS HONBLE ORISSA HIGH COU RT, HONBLE DELHI HIGH COURT, HONBLE KERALA HIGH COURT AND HONBLE MADRAS HIGH COURT. IN THE PRESENT CASE, THIS IS NOT IN DISPUTE THAT THE PRESE NT M.P. FILED BY THE REVENUE IS REGARDING ALLEGED MISTAKES IN THE TRIBUNAL ORDER PA SSED U/S. 254(2) IN M.P. NO. 178/BANG/2017 DATED 24.08.2017. HENCE RESPECTFULLY FOLLOWING THIS TRIBUNAL ORDER PASSED BY SPECIAL BENCH OF TRIBUNAL AND IN TU RN FOLLOWING VARIOUS JUDGMENTS OF VARIOUS HONBLE HIGH COURTS, WE HOLD T HAT THE PRESENT M.P. OF REVENUE IS NOT MAINTAINABLE AND THE SAME IS DISMISS ED ACCORDINGLY. 5. IN THE RESULT, THE M.P. FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (SUNIL KUMAR YADAV) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 27 TH APRIL, 2018. /MS/ M.P. NO. 35/BANG/2018 (IN M.P. NO. 178/BANG/2017 (IN ITA NO. 856/BANG/2016)) PAGE 5 OF 5 COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.