M/s Baba Vishwanath Gramodyog Sewa Sansthan, Kanpur V. Astt. Commissioner of Income Tax-1, Kanpur

MA 35/LKW/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3615 (ITAT-LUCKNOW)
• Duration Of Justice: 6 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-02-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 10-08-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: C K SINGH
• Assessee Lawyers: PRADEEP SETH
• Keywords: Reasonable cause

Judgement Text

M.A. NO.35/LKW/2018 (IN M.A. NO.02/LKW/2018 (IN I.T.A. NO.671/LKW/2016) ASSESSMENT YEAR:2013 - 14 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH SMC, LUCKNOW BEFORE SHRI A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER M.A. NO.35/LKW/2018 (IN M.A. NO.02/LKW/2018 (IN I.T.A. NO.671/LKW/2016) ASSESSMENT YEAR:2013-14 M/S BABA VISHWANATH GRAMODYOG SEWA SANSTHAN, VILLAGE TILAK NAGAR, KANPUR. PAN:AABTB 1377 L VS. A.C.I.T. - 1, KANPUR. (APPELLANT) (RESPONDENT) O R D E R PER T. S. KAPOOR, A.M. THIS MISC. APPLICATION HAS BEEN FILED BY THE ASSESS EE AGAINST THE ORDER OF THE TRIBUNAL DATED 01/05/2018 PASSED IN M.A.NO.0 2/LKW/2018 VIDE WHICH THE MISC. APPLICATION OF THE ASSESSEE WAS DISMISSED . AGAINST THE DISMISSAL OF THE MISC. APPLICATION, THE ASSESSEE HAS AGAIN FI LED THE MISC. APPLICATION WHEREBY HE HAS CHALLENGED THE DISMISSAL OF MISC. AP PLICATION BY THE HON'BLE TRIBUNAL AND HAS REQUESTED FOR ITS RECALL. 2. LEARNED D. R., ON THE OTHER HAND, SUBMITTED THAT MISC. APPLICATION AGAINST MISC. APPLICATION IS NOT ALLOWED AS HAS BEE N HELD BY HON'BLE SPECIAL APPELLANT BY SHRI PRADEEP SETH, F.C.A. RESPONDENT BY SHRI C. K. SINGH, D.R. DATE OF HEARING 08 / 02 /201 9 DATE OF PRONOUNCEMENT 22/02/2019 M.A. NO.35/LKW/2018 (IN M.A. NO.02/LKW/2018 (IN I.T.A. NO.671/LKW/2016) ASSESSMENT YEAR:2013 - 14 2 BENCH OF HON'BLE DELHI TRIBUNAL IN THE CASE OF PADA M PRAKASH (HUF) VS. INCOME TAX OFFICER [2011] 136 TTJ (DEL) 257. 3. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE T HROUGH THE MATERIAL PLACED ON RECORD AND THE CONTENTS OF THE MISC. APPL ICATION. WE FIND THAT AGAINST THE DISMISSAL OF ITS MISC. APPLICATION, THE ASSESSEE HAS AGAIN FILED THE MISC. APPLICATION WHEREBY IT HAS CHALLENGED THE DISMISSAL OF MISC. APPLICATION BY THE HON'BLE TRIBUNAL AND HAS REQUEST ED FOR ITS RECALL. HOWEVER, WE FIND THAT SPECIAL BENCH OF HON'BLE DELH I TRIBUNAL IN THE CASE OF PADAM PRAKASH (HUF) VS. INCOME TAX OFFICER [2011] 1 36 TTJ (DEL) 257, WHILE DEALING WITH THE MAINTAINABILITY OF MISC. APP LICATION FOR RECTIFICATION OF EARLIER ORDER U/S 254(2) HAS HELD AS UNDER: 9. IT IS TRUE THAT SUB-S. (2) OF S. 254 CAN BE INVO KED ONLY IN A SITUATION IF THERE IS A MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL UNDER SUB-S. (1) OF S. 254. THE IMPUGNED MISCELLANE OUS APPLICATION FILED BY THE ASSESSEE IS AGAINST THE ORDER PASSED O N 27TH NOV., 2009 WHICH IS AN ORDER PASSED UNDER S. 254(2). THEREFORE , PRINCIPALLY, 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, ITAT (1992) 102 CTR (ORI) 296 : (1992) 196 ITR 838 (ORI) WHEREIN IT HAS BEEN HELD THAT TO ATTRACT APPL ICABILITY OF S. 254(2), A MISTAKE WHICH IS SOUGHT TO BE RECTIFIED M UST BE APPARENT FROM RECORD AND THE SAME MUST BE IN ANY ORDER PASSE D UNDER SUB-S. (1) OF S. 254. THE ORDER REFERRED TO IN S. 254(1) I S ONE RELATING TO AN APPEAL FILED EITHER BY THE ASSESSEE OR BY THE REVEN UE. THE 'APPEAL' REFERRED TO IN THE PROVISION IS ONE FILED UNDER S. 253. THEREFORE, THE ORDER WHICH CAN BE RECTIFIED MUST BE ONE WHICH HAS BEEN PASSED BY THE TRIBUNAL IN AN APPEAL FILED UNDER S. 253. AN OR DER REJECTING AN APPLICATION FOR RECTIFICATION UNDER S. 254(2) CANNO T BE RECTIFIED UNDER S. 254(2). THE SAME MAY RELATE TO AN APPEAL BUT IS NOT AN ORDER PASSED BY THE TRIBUNAL UNDER SUB-S. (1) OF S. 254 A ND THUS, IT WAS HELD THAT SUBSEQUENT APPLICATION FILED BY THE ASSES SEE WAS RIGHTLY REJECTED BY THE TRIBUNAL. (II) IN THE CASE OF MENTHA & ALLIED PRODUCTS CO. (P ) LTD. VS. ITAT (2000) 163 CTR (DEL) 25 : (2000) 244 ITR 470 (DEL), AFTER REFERRING TO THE PROVISIONS OF S. 254(1) AND (2), IT WAS HELD AS UNDER : M.A. NO.35/LKW/2018 (IN M.A. NO.02/LKW/2018 (IN I.T.A. NO.671/LKW/2016) ASSESSMENT YEAR:2013 - 14 3 '7. THE RELEVANT PROVISIONS OF S. 254 READ AS UNDER : '254. ORDERS OF APPELLATE TRIBUNAL.'(1) THE TRIBUNA L MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BE ING 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 MISTAKE AP PARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB-S. ( 1) AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO IT S 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 TH E TRIBUNAL IS COMPETENT TO RECTIFY A MISTAKE APPARENT FROM THE RE CORD AND AMEND ANY ORDER WHICH HAS BEEN PASSED UNDER SUB-S. (1). A DMITTEDLY, BY THE IMPUGNED ORDER, THE TRIBUNAL HAS SOUGHT TO RECT IFY THE ORDER PASSED BY IT UNDER S. 256(1) OF THE ACT AND NOT AN ORDER PASSED UNDER S. 254(1). WE HAVE NO HESITATION IN HOLDING T HAT THE TRIBUNAL IS NOT CLOTHED WITH AN INHERENT POWER TO RECTIFY/RECAL L AN ORDER PASSED UNDER S. 256(1) OF THE ACT BY TAKING RECOURSE TO S. 254(2) OF THE ACT AND, THEREFORE, THE IMPUGNED ORDER IS ILLEGAL AND I NVALID. 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. (20 10) 236 CTR (KER) 334 : (2010) 46 DTR (KER) 126 : (2011) 192 TAXMAN 385 (KER), IT WAS HELD THAT THE TRIBUNAL WAS JUSTIFIED IN REFUSIN G TO ENTERTAIN AN APPLICATION FILED BY THE REVENUE UNDER S. 254(2) TO RECTIFY THE ORDER ISSUED BY THE TRIBUNAL IN AN EARLIER RECTIFICATION APPLICATION FILED BY THE ASSESSEE, AS THE SECOND APPLICATION ON THE VERY SAME ISSUE IS NOT MAINTAINABLE BEFORE THE TRIBUNAL. 11. IN THE CASE OF DR. S. PANNEERSELVAM VS. ASSTT. CIT (2010) 228 CTR (MAD) 423 : (2009) 32 DTR (MAD) 357 : (2009) 319 ITR 135 (MAD), IT WAS HELD THAT THE TRIBUNAL HAVING ALLOWED FIRST RECTIFICATION PETITION, SECOND PETITION WAS NOT MAI NTAINABLE; REMEDY BY WAY OF APPEAL WAS THE ONLY COURSE OPEN. 12. IF THE APPLICATION FILED BY THE ASSESSEE IS VIEW ED IN THE LIGHT OF AFOREMENTIONED JUDICIAL PRONOUNCEMENTS, THEN IT WIL L BECOME CLEAR THAT THE RELIEF WHICH IS BEING SOUGHT BY THE ASSESS EE BY WAY OF IMPUGNED RECTIFICATION APPLICATION IS NOT LEGALLY T ENABLE FOR THE REASON THAT THE TRIBUNAL HAS NO POWER TO ADJUDICATE UPON SUBSEQUENT APPLICATION FILED UNDER S. 254(2). HERE, IT MAY BE THE CASE OF THE ASSESSEE THAT EARLIER ORDER AGAINST WHI CH IMPUGNED RECTIFICATION APPLICATION IS FILED IS ALSO AN ORDER PASSED ON SUBSEQUENT M.A. NO.35/LKW/2018 (IN M.A. NO.02/LKW/2018 (IN I.T.A. NO.671/LKW/2016) ASSESSMENT YEAR:2013 - 14 4 APPLICATION, THEN THE ONLY COURSE PERMISSIBLE TO TH E ASSESSEE IS TO FILE AN APPEAL AGAINST THAT ORDER AND NOT TO APPROACH TH E TRIBUNAL TO CONTEND THAT THE SAID ORDER WAS AN INVALID ORDER, T HEREFORE, IT SHOULD BE RECALLED. 13. MOREOVER, WHAT HAS BEEN DONE BY THE TRIBUNAL BY THE ORDER DT. 27TH NOV., 2009 IS THAT BY KEEPING IN VIEW THE LATE ST DECISION OF HON'BLE SUPREME COURT, IT WAS OBSERVED THAT THE OBS ERVATIONS MADE BY IT IN EARLIER ORDER DT. 26TH SEPT., 2008 ARE NO MORE RELEVANT AND THEREFORE, THOSE OBSERVATIONS HAVE BEEN WITHDRAWN. ACCORDING TO THE WELL ESTABLISHED LAW, THE ORDER OF THE TRIBUNAL HAS TO BE BROUGHT IN CONFORMITY WITH THE DECISION OF THE APEX COURT, EVE N IF THE SAID DECISION IS RENDERED SUBSEQUENT TO THE PRONOUNCEMEN T OF THE ORDER AND REFERENCE IN THIS REGARD CAN BE MADE TO THE DEC ISION OF HON'BLE SUPREME COURT IN THE CASE OF ASSTT. CIT VS. SAURASH TRA KUTCH STOCK EXCHANGE LTD. (2008) 219 CTR (SC) 90 : (2008) 12 DTR (SC) 346 : (2008) 305 ITR 227 (SC). 14. SO FAR AS IT RELATES TO THE CONTENTION OF THE A SSESSEE THAT INDISPOSITION OF THE COUNSEL CONSTITUTED REASONABLE CAUSE FOR NON- APPEARANCE ON THE FIXED DATE OF HEARING, WE MAY OBS ERVE THAT IN PARA 5 OF THE ORDER DT. 27TH NOV., 2009, IT HAS BEE N RECORDED BY THE TRIBUNAL THAT THERE IS NO CO-OPERATION FROM THE ASS ESSEE'S SIDE WHO HAS ALSO SOUGHT AN ADJOURNMENT. THEREFORE, THIS GRO UND CANNOT CONSTITUTE ANY CAUSE TO RECALL THE SAID ORDER AS WH AT WAS DONE IN THAT ORDER WAS TO BRING THE EARLIER ORDER IN CONFOR MITY WITH THE DECISION OF THE HON'BLE APEX COURT RENDERED SUBSEQU ENTLY. 15. IN VIEW OF THE ABOVE DISCUSSION, WE FIND NO FOR CE IN THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE WHI CH IS REJECTED AND DISMISSED. 4. RESPECTFULLY FOLLOWING THE ABOVE DECISION OF HON 'BLE SPECIAL BENCH OF THE DELHI TRIBUNAL, WE DISMISS THE PRESENT MISC. AP PLICATION FILED BY THE ASSESSEE. 5. IN THE RESULT, THE MISC. APPLICATION OF THE ASSE SSEE IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON 22/02/2019) SD/. SD/. ( A. D. JAIN ) ( T. S. KAPOOR ) VICE PRESIDENT ACCOUNTANT MEMBER DATED:22/02/2019 *SINGH M.A. NO.35/LKW/2018 (IN M.A. NO.02/LKW/2018 (IN I.T.A. NO.671/LKW/2016) ASSESSMENT YEAR:2013 - 14 5 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW