Smt. Santosh Gill, JAIPUR V. CIT, BIKANER

MA 35/JODH/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6177 (ITAT-JODHPUR)
• Duration Of Justice: 5 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-03-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 10-02-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 30-09-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Rectification of order; Opportunity of being heard
• Section: 43B; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR. BEFORE SHRI S.V. MEHROTRA, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER M.A. NO.35/JU/2010 (IN ITA NO.665/JU/2008) (ASSESSMENT YEAR : 2005-06) SMT. SANTOSH GILL, 1/34, PROFESSOR COLONY, HANUMAANGARHTOWN, JODHPUR. PAN NO.ABIPG 0574 G VS. COMMISSIONER OF INCOME TAX, BIKANER. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SURESH OJHA RESPONDENT BY : SHRI AMIT NIGAM PER V. DURGA RAO : THIS MISC. APPLICATION U/S.254(2) OF THE INCOME T AX ACT, 1961 HAS BEEN MOVED BY THE ASSESSEE PRAYING FOR THE RECT IFICATION OF THE ORDER OF THE TRIBUNAL IN ITA NO.665/JU/2008 DT.22.9.2009. 2. THE LEARNED COUNSEL FOR THE ASSESSEE STATED THA T THE TRIBUNAL WHILE PASSING THE ORDER FAILED TO CONSIDER THE DECISION O F THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. GANPAT RAM BISHNOI 198 CTR 546 (RAJ) AND FURTHER SUBMITTED THAT THE FOLLOWING CASE LAWS ARE NOT CONSIDERED BY THE TRIBUNAL WHILE PASSING THE ORDER : I) 259 ITR PAGE 502 II) 247 ITR PAGE 555 III) 270 ITR PAGE 157 IV) 243 ITR PAGE 83 V) 105 ITR PAGE 212 VI) 253 ITR PAGE 645 VII) 32 T W PAGE 18 VIII) 198 CTR PAGE 546 IX) 233 ITR PAGE 649 X) 218 ITR PAGE 331 XI) 163 ITR M A NO.35/JU/2010 (IN ITA NO.665/JU/08) SMT. SANTOSH GILL 2 PAGE 129 XII) 250 ITR PAGE 472 XIII) 171 ITR PAGE 141 AND XIV) 250 ITR PAGE 133. HE ALSO RELIED ON THE DECISION OF ACIT VS. SAURASTR A KUTCH STOCK EXCHANGE LTD. (305 ITR 227) (SC) AND THE DECISION REPORTED IN 295 ITR 443. 3. ON THE OTHER HAND, THE LEARNED DEPARTMENTAL REP RESENTATIVE SUBMITTED THAT THE TRIBUNAL AFTER CONSIDERING THE E NTIRE FACTS, VARIOUS CASE LAWS HAS DECIDED THE ISSUE AND THE MISC. APPLICATIO N FILED BY THE ASSESSEE IS NOT MAINTAINABLE. THE TRIBUNAL HAS CONSIDERED ALL C ASE LAWS RELIED ON BY THE LEARNED COUNSEL FOR THE ASSESSEE AND IF THESE CASE LAWS RELIED ON BY THE LEARNED COUNSEL FOR THE ASSESSEE ON MISC. APPLICAT ION IS CONSIDERED AGAIN, IT WILL BECOME A DEBATABLE ISSUE AND THEREFORE THE M.A . IS NOT MAINTAINABLE. 4. WE HAVE HARD BOTH THE SIDES, PERUSED THE ORDER P ASSED BY THE TRIBUNAL. THE FIRST ARGUMENT RAISED BY THE LEARNED COUNSEL FOR THE ASSESSEE IN THIS MISC. APPLICATION IS THAT THE TRIBUNAL HAS FAILED TO CONSIDER THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF GAN PAT RAM BISHNOI (SUPRA). THE; ARGUMENTS RAISED BY THE ASSESSEE ARE NOT CORRE CT BECAUSE THE TRIBUNAL HAS ALREADY CONSIDERED THE JURISDICTIONAL HIGH COUR T DECISION IN THE CASE OF GANPAT RAM BISNOI (SUPRA) AT PAGE 10 OF THE ORDER. THEREFORE THERE IS NO MERIT IN THIS ARGUMENT OF THE LEARNED COUNSEL FOR T HE ASSESSEE. IN SO FAR AS NON-CONSIDERATION OF THE OTHER ARGUMENTS AND CASE L AWS RELIED UPON BY THE LEARNED COUNSEL FOR THE ASSESSEE, THE TRIBUNAL HAS PASSED A DETAILED ORDER IN M A NO.35/JU/2010 (IN ITA NO.665/JU/08) SMT. SANTOSH GILL 3 RESPECT OF EACH AND EVERY ASPECT OF THE ISSUE, THE RELEVANT PORTION OF THE ORDER IS REPRODUCED HEREUNDER : WE HAVE HEARD THE PARTIES AND HAVE CAREFULLY PER USED THE MATERIAL ON RECORD WITH REFERENCE TO SUB-RULE (6) O F RULE 18 OF APPELLATE TRIBUNAL RULES, 1963 AND PRECEDENTS CITED AT BAR. THIS IS A CASE WHERE THE ASSESSING OFFICER MADE HALF HEA TED INQUIRY AND DID NOT PERFORM ALL THE THREE FUNCTIONS OF QUAS I JUDICIAL AUTHORITY BEFORE COMPLETING ASSESSMENT ON 27.11.200 7 AT A LOSS OF RS.60,800 AS AGAINST RETURNED LOSS OF RS.2,72,37 7. THE ASSESSING OFFICER CALLED FOR DETAILS ONLY OF A FEW OF THE EXPENSES AND SKETCHY DETAILS WITH RESPECT TO TANKERS/CARRIER S OWNED BY THE ASSESSEE, CREDITS APPEARING IN HER BOOKS OF ACCOUNT , INVESTMENT IN PROPERTIES AND INTEREST PAYMENT. AFTER COLLECTI NG SUCH INFORMATION HE DID NOT PROCESS THE SAME. NO INDEPE NDENT VERIFICATION THEREON HAS BEEN MADE. THE ASSESSEE I S SHOWN TO HAVE MADE INVESTMENT IN SIX TANKERS AGGREGATING RS. 88,80,143 DURING THE YEAR UNDER CONSIDERATION ITSELF BUT NO I NQUIRY WITH RESPECT TO THE SOURCE OF AVAILABILITY OF FUNDS WAS EVER MADE BEFORE COMPLETION OF THE ASSESSMENT BY ;HIM. EVEN THE GENU INENESS OF CREDITS APPEARING AT RS.13.78 LACS HAS NOT BEEN IND EPENDENTLY VERIFIED BY THE ASSESSING OFFICER. THE ENQUIRY INT O THE FACTS AS TO WHETHER PROVISIONS OF SECTION 43B OF THE IT ACT ARE APPLICABLE TO THE INTEREST PAYMENT, WAS ALSO NOT MADE. NO INQUIR Y HAS BEEN MADE WITH RESPECT TO DIESEL EXPENSES CLAIMED TO HAV E BEEN INCURRED AT RS.61.15 LACS NOR ANY DETAILS THEREOF H AVE BEEN TAKEN ON RECORD. THERE IS THUS LACK OF DUE AND PROPER IN QUIRY ON THE PART OF THE ASSESSING AUTHORITY WITH RESPECT TO EXPENSES , PROPERTIES AND SOURCE OF INVESTMENT THEREIN. THE ORDER SO PAS SED BY THE ASSESSING AUTHORITY WAS THUS ERRONEOUS AND HAS RESU LTED IN UNDER ASSESSMENT OF INCOME CAUSING PREJUDICE TO THE INTER EST OF REVENUE. LD CIT IS THUS FOUND TO HAVE ACTED WITHIN THE SCOPE OF POWERS CONTAINED U/S.263 OF THE IT ACT AND HAVING R EGARD TO THE JUDGMENT RENDERED BY THE HIGH COURT OF JUDICATURE O F RAJASTHAN AT JODHPUR IN THE CASE OF RENU GUPTA VS.CIT (SUPRA) AN D THE TWIN CONDITIONS OF ORDER BEING ERRONEOUS AS WELL AS PREJ UDICIAL TO THE INTEREST OF REVENUE HAVING BEEN SATISFIED AND HAVIN G REGARD TO JUDGMENT RENDERED BY HONBLE APEX COURT IN MALABAR INDUSTRIAL CO. LTD. VS. CIT 243 ITR 83 (SC) WE FIND NO ERROR I N THE ORDER OF LEARNED CIT. UNDER THE PECULIAR FACTS AND FINDINGS AS AFORESAID ALL THE CASE LAWS REFERRED BY LEARNED COUNSEL FOR THE A SSESSEE DO NOT LEND ANY SUPPORT TO THE CASE OF THE ASSESSEE. THE LEARNED CIT IS ALSO JUSTIFIED TO SET ASIDE THE ORDER AND DIRECTING THE ASSESSING OFFICER TO MAKE ASSESSMENT AFRESH AFTER PROVIDING P ROPER M A NO.35/JU/2010 (IN ITA NO.665/JU/08) SMT. SANTOSH GILL 4 OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. FINDIN G NO MERIT IN THE GROUNDS RAISED BY THE ASSESSEE, THE SAME STAND REJECTED AND THE APPEAL STANDS DISMISSED. THE TRIBUNAL WHILE PASSING THE ORDER HAS GIVEN A CA TEGORICAL FINDING THAT THE ASSESSING OFFICER HAS NOT MADE ENQUIRY IN RESPECT O F DIESEL EXPENSES AND THERE IS A LACK OF ENQUIRY IN RESPECT OF OTHER EXPE NSES AND THE SOURCE OF INVESTMENT AND UPHELD THE ORDER PASSED BY THE COMMI SSIONER. THEREFORE, WE FIND THERE IS NO MISTAKE APPARENT ON RECORD FROM TH E ORDER OF THE TRIBUNAL AND THERE IS NO MERIT IN THE ARGUMENT OF THE LEARNED CO UNSEL THAT THE TRIBUNAL HAS NOT CONSIDERED THE ARGUMENTS OF THE ASSESSEE PROPER LY. IN SO FAR AS THE CASE LAWS RELIED UPON BY THE LEARNED COUNSEL IS CONCERNE D, THE TRIBUNAL AFTER CONSIDERING THE VARIOUS CASE LAWS CAME TO A CONCLUS ION THAT THE COMMISSIONER HAS RIGHTLY INVOKED THE SECTION 263 OF THE ACT. IF AGAIN WE CONSIDER SOME OTHER CASE LAWS, ASSUMING WITHOUT ADM ITTING, AND COMING TO A DIFFERENT CONCLUSION, THE ISSUE ITSELF BECOMES A DE BATABLE ISSUE, THEREFORE, A DEBATABLE ISSUE CANNOT BE DECIDED U/S 254(2) OF THE ACT. AS PER PROVISIONS OF SECTION 254(2), RECTIFICATION OF MISTAKES CAN BE DO NE IF THEY ARE APPARENT ON RECORD. IN ORDER TO BRING A CASE WITHIN THE FOLD O F THIS PROVISION, IT IS NOT ONLY NECESSARY THAT THERE SHOULD BE MISTAKE IN THE ORDER , BUT THAT MISTAKE MUST BE APPARENT ON THE RECORD. APPARENT FROM RECORD MEANS WHICH IS SO OBVIOUS THAT THERE IS NO NEED TO ENTER INTO COMPLEXITIES OF THE MATTER. IF THE ISSUE IS DEBATABLE, THAT GOES OUT OF THE PURVIEW OF RECTIFIC ATION PROCEEDINGS. THE HONBLE SUPREME COURT IN THE CASE OF T.S. BALARAM, ITO VS. VOLKART BROTHERS AND OTHERS (1971) 82 ITR 50 (SC) HAS HELD THAT NO R ECTIFICATION CAN BE DONE M A NO.35/JU/2010 (IN ITA NO.665/JU/08) SMT. SANTOSH GILL 5 ON DEBATABLE ISSUES. SIMILAR VIEW HAS BEEN REITER ATED IN THE CASE OF CIT VS. HERO CYCLES PVT. LTD. AND ANOTHER (1997) 228 ITR 46 3 (SC). IN VIEW OF THE FOREGOING, WE FIND THAT THERE IS NO MERIT IN THE MI SC. APPLICATION. ACCORDINGLY, WE DISMISS THE MISC. APPLICATION. 5. IN THE RESULT THE MISC. APPLICATION IS DISMISSED . PRONOUNCED ON 22 ND MARCH, 2011. SD/- SD/- (S.V. MEHROTRA) (V. DURGA RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DT. 22 ND MARCH, 2010. *GPR COPIES OF THE ORDER FORWARDED TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT CONCERNED. (4) DR, (5) GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES M A NO.35/JU/2010 (IN ITA NO.665/JU/08) SMT. SANTOSH GILL 6 DATE INI TIALS DRAFT DICTATED ON 11/03/2011 DRAFT PLACED BEFORE AUTHOR DRAFT PROPOSED & PLACED BEFORE SECOND MEMBER DRAFT DISCUSSED & APPROVED BY SECOND MEMBER APPROVED DRAFT COMES TO SR.PS/PS KEPT FOR PRONOUNCEMENT ON FILE SENT TO BENCH CLERK DATE ON WHICH FILE GOES TO THE HEAD CLERK DATE OF DISPATCH OF ORDER.