Gayathri Ramani, CHENNAI V. ITO, CHENNAI

MA 358/CHNY/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6561 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-05-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 22-11-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N MADHAVAN
• Assessee Lawyers: N DEVANATHAN
• Keywords: Reopening of assessment; Rectification of order; Tangible material
• Section: 143(3); 147; 148; 154

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . , . , BEFORE SHRI ABRAHAM P. GEORGE , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY , JUDICIAL MEMBER M .P. NO S . 357 & 358 / CHNY /2017 [IN I.T. A. NO. 2944 / CHNY /20 1 4 & C.O. NO. 09/CHNY/2015 ] ASSESSMENT YEAR : 2007 - 08 SMT. GAYATHRI RAMANI, NO. 18/3, 2 ND MAIN ROAD, NEHRU NAGAR, ADYAR, CHENNAI 600 020. [PAN: AA BPR6439B ] VS. THE INCO ME TAX OFFICER, NON CORPORATE WARD 15(2), CHENNAI 600 034. ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI N. DEVANATHAN , ADVOCATE / RESPONDENT BY : SHRI N. MADHAVAN , ADDL. CIT / DATE OF HEARING : 09 .0 3 .2018 / DATE OF P RONOUNCEMENT : 03 . 0 5 .201 8 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : BY MEANS OF PRESENT MISCELLANEOUS PETITION S , THE ASSESSEE SEEKS TO REC ALL THE CONSOLIDATED ORDER PASSED BY THE TRIBUNAL IN THE APPEAL FILED BY THE REVENUE IN I.T.A. NO. 2944 / CHNY /20 1 4 AND THE ASSESSEE S OBJECTION IN C.O. NO. 09/CHNY/2015 VIDE ORDER DATED 30 .0 9 .201 5 . BY REFERRING TO THE PETITIONS, THE LD. COUNSEL HAS SUBMITTED THAT THERE IS MISTAKE APPARENT ON RECORD IN THE CONSOLIDATED ORDER OF THE TRIBUNAL DATED 30.09.2015, WHEREIN, M .P. NO S . 357 & 358 / CHNY/17 2 THE TRIBUNAL SUSTAINED THE REOPENING OF ASSESSMENT UNDER SECTION 147 OF THE ACT WITHOUT ANY TANGIBLE MATERIAL AVAILABLE ON RECORD. FURTHER, THE TICKETS ARE GIVEN TO THE AGENTS AFTER DEDUCTING TDS AND IT IS NOT THE CASE THAT THE N O TDS HAS BEEN DEDUCTED BY THE PETITIONER . ACCORDINGLY, THE LD. COUNSEL PRAYED THAT THE ORDER OF THE TRIBUNAL DATED 30.09.2015 MAY PLEASE BE RECALLED AND CONSIDER THE ISSUES ON MERITS. 2. PER CONTRA, THE LD. DR SERIOUSLY OBJECTS TO THE SUBMISSIONS OF TH E LD. COUNSEL. THE LD. DR HAS SUBMITTED THAT AFTER CONSIDERING THE ENTIRE FACTS, PROVISIONS AND CASE LAW, THE TRIBUNAL HAS GIVEN FAIR DECISION AND THE SAME CANNOT BE RECALLED . IN THE PETITION, NO MISTAKE WAS POINTED OUT BY THE PETITION APPARENT ON RECORD A GAINST WHICH THE ORDER OF TRIBUNAL IS REQUIRED TO BE RECALLED AND IN CASE THE POINT RAISED IN THE PETITION OF THE ASSESSEE IS ACCEPTED, IT WOULD TANTAMOUNT TO REVIEW OF THE ORDER OF THE TRIBUNAL, WHICH IS NOT PERMISSIBLE. 3. WE HAVE HEARD BOTH SIDES AND PERUSED THE PETITION AND GONE THROUGH THE ORDER OF THE TRIBUNAL INCLUDING ORDERS OF AUTHORITIES BELOW . WITH REGARD TO REOPENING OF ASSESSMENT, IN THE REASONS FOR REOPENING OF ASSESSMENT, THE ASSESSING OFFICER NOTIFIED THAT NO DETAIL OF DISCOUNT RECIPIENTS IN THE FILE, WHICH CORRESPOND TO THE INCOME UNDER THE HEAD COMMISSION , THE TDS APPLICABILITY NEEDS TO BE EXAMINED. IN COLUMN NO. 27(A) OF FORM 3CD CERTIFICATE, THE ASSESSEE HAS NOT MADE ANY TDS IN RESPECT OF DISCOUNT M .P. NO S . 357 & 358 / CHNY/17 3 PAYMENT OF .52,03,410/ - . THEREFORE, FROM THE REASONS FOR REOPENING OF ASSESSMENT, WE ARE OF THE OPINION THAT THE ASSESSING OFFICER HAD VALID REASONS FOR ARRIVING SUBJECTIVE SATISFACTION FOR REOPENING OF ASSESSMENT. IN THIS CASE, WE FIND THAT NO ASSESSMENT UNDER SECTION 143(3) OF THE ACT WAS COMPLETED. MOREOVER, NOTICE UNDER SECTION 148 OF THE ACT WAS ISSUED ON 23.03.2012, WHICH IS, WELL WITHIN THE TIME LIMIT PROVIDED UNDER THE ACT. THUS, WE ARE OF THE CONSIDERED OPINION THAT THE TRIBUNAL HAS RIGHTLY HELD THAT THE ASSESSING OFFICER WAS JUSTIFI ED REOPENING OF ASSESSMENT SINCE THE ISSUE IS SQUARELY COVERED BY THE DECISION IN THE CASE OF ACIT V. RAJESH JHAVERI STOCK BROKER PVT. LTD. 291 ITR 500. THE PETITIONER HAS NOT BROUGHT ON RECORD ANY VALID REASON FOR OBJECTING THE REOPENING OF THE ASSESSMENT UNDER SECTION 147 OF THE ACT. 4. IN THE PETITION, IT WAS THE SUBMISSION OF THE ASSESSEE THAT (B) IT IS NOT THE CASE THAT THE APPLICANT HAD NOT PAID TDS, THE TICKETS ARE GIVEN TO THE AGENTS AFTER DEDUCTING TDS. IF IT IS SO, WHAT PREVENTED THE ASSESSEE TO FURNISH COMPLETE DETAILS OF TDS DEDUCTED ON THE DISCOUNT PAYMENTS OF .52,03,410/ - BEFORE THE ASSESSING OFFICER RATHER THAN FILING A PETITION ON 14.12.2012 BEFORE THE JOINT/ADDL. CIT UNDER SECTION 144A OF THE ACT REQUESTING TO ISSUE DIRECTIONS TO THE A SSESSING OFFICER TO DROP THE REOPENING PROCEEDINGS. SINCE THE LD. CIT(A) HAS OBSERVED THAT THERE WAS NO NEED TO DEDUCT TDS ON THE DISCOUNT, THE TRIBUNAL HAS DIRECTED THE ASSESSING OFFICER M .P. NO S . 357 & 358 / CHNY/17 4 FOR FRESH CONSIDERATION IN THE LIGHT OF THE DECISIONS REFERRED TO IN THAT ORDER, WHICH WAS IN FORCE. 5. AGAINST THE APPEAL OF THE REVENUE, THE ASSESSEE FILED CROSS OBJECTION AND RAISED THE MAINTAINABILITY OF THE APPEAL OF THE REVENUE. AFTER CONSIDERING THE OBJECTIONS OF THE ASSESSEE, THE TRIBUNAL HELD THAT THE ISSUE OF REOPENING WAS DECIDED AGAINST THE ASSESSEE AND REMITTED THE ISSUE ON MERITS TO THE ASSESSING OFFICER FOR FRESH CONSIDERATION, THE CROSS OBJECTION FILED BY THE ASSESSEE BECOME INFRUCTUOUS AND ACCORDINGLY DISMISSED. W E FIND NO MISTAKE APPARENT IN THE ORDER O F THE TRIBUNAL WARRANTING RECALLING AND RECONSIDERING THE ISSUES BOTH IN THE APPEAL FILED BY THE REVENUE AS WELL AS CROSS OBJECTION OF THE ASSESSEE SINCE THE SAME AMOUNT TO REVIEW OF THE ORDER OF THE TRIBUNAL, WHICH IS NOT PERMISSIBLE. THE SCOPE OF SECTION 254(2) OF THE INCOME TAX ACT HAS BEEN EXAMINED BY THE HON BLE JURISDICTIONAL HIGH COURT AND GAVE ITS FINDINGS ELABORATELY IN THE CASE OF EXPRESS NEWSPAPERS LIMITED V. DCIT [2010] (320 ITR 12 MAD) AND RELEVANT PORTION OF THE DECISION IS EXTRACTED AS UNDER: THE SCOPE AND AMPLITUDE OF SECTION 254(2) FIND THE ANALOGOUS PROVISION 12 OF SECTION 154 OF THE ACT HAVE BEEN CONSIDERED BY A CATENA OF DECISIONS OF THE APEX COURT AND OTHER HIGH COURTS. THE UNIFORM OPINION OF THE COURTS OF SUPERIOR JURISDICTION IS THAT A PATENT, MANIFEST AND SELF - EVIDENT ERROR WHICH DOES NOT REQUIRE ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENT TO ESTABLISH IT, CAN BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORD AND CAN BE CORRECTED UNDER SECTION 254(2). AN ERROR CANNOT BE SAID TO BE APPARENT ON THE FACE OF THE RECORD IF ONE HAS TO TRAVEL BEYOND THE RECORD TO SEE WHETHER THE JUDGMENT IS CORRECT OR NOT. AN ERROR APPARENT ON THE RECORD MEANS AN M .P. NO S . 357 & 358 / CHNY/17 5 ERROR WHICH STRIKES ONE ON MERE LOOKING AND DOES NOT NEED A LONG DRAWN OUT PROCESS OF RE ASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. THE ERROR SHOULD NOT REQUIRE ANY EXTRANEOUS MATTER TO SHOW ITS INCORRECTNESS. TO PUT IT DIFFERENTLY, IT SHOULD BE SO MANIFEST AND CLEAR THAT NO COURT WOULD PERMIT IT TO REMAIN ON RECORD. IF THE VIEW ACCEPTED BY THE COURT IN THE ORIGINAL JUDGMENT IS ONE OF POSSIBLE VIEWS, THE CASE CANNOT BE SAID TO BE COVERED BY AN ERROR APPARENT ON THE FACE OF THE RECORD. SECTION 254(2) SPECIFICALLY EMPOWERS THE TRIBUNAL TO AMEND AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF AN ORDER, ANY ORDER PASSED BY IT UNDER SECTION 254(1) WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD EITHER SUO MOTU OR ON AN APPLICATION. IN ORDER TO ATTRACT THE APPLICATION OF SECTION 254(2), THE MISTAKE MUST EXIST AND THE SAME MUST BE APPARENT FROM THE RECORD. THE EXPRESSION 'MISTAKE APPARENT FROM THE RECORD' CONTAINED IN SECTIONS 154 AND 254(2) HAS WIDER CONTENT THAN THE EXPRESSION 'ERROR APPARENT ON THE FACE OF THE RECORD OCCURRING IN ORDER 47, RULE 1 OF THE CODE OF CIVI L PROCEDURE. THE RESTRICTIONS ON THE POWER OF REVIEW UNDER ORDER 47, RULE 1 OF THE CODE OF CIVIL PROCEDURE DO NOT HOLD GOOD IN THE CASES OF SECTIONS 254(2) AND 154 OF THE ACT. SECTION 254(2) DOES NOT CONFER POWER ON THE TRIBUNAL TO REVIEW ITS EARLIER ORDER . UNDER THE GARB OF RECTIFICATION OF MISTAKE IT IS NOT POSSIBLE FOR A PARTY TO TAKE FURTHER CHANCE OF REARGUING THE APPEAL ALREADY DECIDED. WHAT CAN BE RECTIFIED UNDER SECTION 254(2) IS A MISTAKE WHICH IS APPARENT AND PATENT. THE MISTAKE HAS TO BE SUCH FOR WHICH NO ELABORATE REASONS OR ENQUIRY IS NECESSARY. WHERE TWO OPINIONS ARE POSSIBLE THEN IT CANNOT BE SAID TO BE A MISTAKE APPARENT ON THE RECORD. WHEN PREJUDICE RESULTING FROM AN ORDER IS ATTRIBUTABLE TO THE TRIBUNAL'S MISTAKE, ERROR OR OMISSION, IT IS I TS BOUNDEN DUTY TO SET IT RIGHT. THE PURPOSE BEHIND THE ENACTMENT OF SECTION 254(2) OF THE ACT TO AMEND ANY ORDER PASSED UNDER SUB - SECTION (1), IF ANY MISTAKE APPARENT FROM THE RECORD IS BROUGHT TO THE NOTICE OF THE TRIBUNAL, IS BASED ON THE FUNDAMENTAL PR INCIPLE THAT NO PARTY APPEARING BEFORE THE TRIBUNAL, BE IT AN ASSESSEE OR THE DEPARTMENT, SHOULD SUFFER ON ACCOUNT OF ANY MISTAKE COMMITTED BY THE TRIBUNAL. THIS FUNDAMENTAL PRINCIPLE HAS NOTHING TO DO WITH THE INHERENT POWER OF THE TRIBUNAL. IF PREJUDICE HAS RESULTED TO THE PARTY, WHICH PRE JUDICE IS ATTRIBUTABLE TO THE TRIBUNAL S MISTAKE, ERROR OR OMISSION AND WHICH ERROR IS A MANIFEST ERROR, THEN THE TRIBUNAL WOULD BE JUSTIFIED IN RECTIFYING ITS MISTAKE. RECTIFICATION CAN BE MADE ONLY WHEN A GLARING MIST AKE OF FACT OR LAW COMMITTED BY THE OFFICER PASSING THE ORDER BECOMES APPARENT FROM THE RECORD. THE RECTIFICATION IS NOT POSSIBLE IF THE QUESTION IS DEBATABLE. A POINT WHICH WAS NOT EXAMINED ON FACTS OR IN LAW CANNOT BE DEALT WITH AS A MISTAKE APPARENT FRO M THE RECORD. NO ERROR CAN BE SAID TO BE APPARENT ON THE FACE OF THE RECORD IF M .P. NO S . 357 & 358 / CHNY/17 6 IT IS NOT MANIFEST OR SELF - EVIDENT AND REQUIRES AN EXAMINATION OR ARGUMENT TO ESTABLISH IT. WHERE WITHOUT ANY ELABORATE ARGUMENT ONE COULD POINT TO THE ERROR AND SAY HERE IS A S UBSTANTIAL POINT OF LAW WHICH STARES ONE IN THE FACE, AND THERE COULD REASONABLY BE NO TWO OPINIONS ENTERTAINED ABOUT IT, IS A CLEAR CASE OF ERROR APPARENT ON THE FACE OF THE RECORD. VIDE ASST. CIT V. SAURASHTRA KUTCH STOCK EXCHANGE LTD. [2008] 305 ITR 227 (SC), HONDA SIEL POWER PRODUCTS LTD. V. CIT [2007] 295 ITR 466 (SC), HARI VISHNU KAMATH V. AHMAD ISHAQUE, AIR 1955 SC 233; [1955] 1 SCR 1104, CIT V. KESHRI METAL PVT. LTD. (1999] 237 ITR 165 (SC), DEVA METAL POWDERS P. LTD. V. COMMISSIONER, TRADE TAX [200 7] 10 VST 751 (SC) ; [2008] 2 SCC439, CIT V. HERO CYCLES PVT. LTD. [1997] 228 ITR 463 (SC), SATYANARAYAN LAXMINARAYAN HEGDE V. MALLIKARJUN BHAVANAPPA. TIRU MALE, AIR 1960 SC 137; [1960] 1 SCR 890, THUNGABHADRA INDUSTRIES LTD. V. GOVERNMENT OF ANDHRA PRADES H REP. BY THE DEPUTY COMMISSIONER OF COMMERCIAL TAXES, AIR 1964 SC: 1372, BATUK K. VIYAS V. SURAT BOROUGH MUNICIPALITY, ILR 1953 BORN 191,MRS. K. T. M. S. UMMA SALMA V.CIT [1983] 144 ITR 890 (MAD), KIL KOTAGIRI TEA AND COFFEE ESTATES CO. LTD. V. ITAT [1988 ]174 ITR 579 (KER), CITV. R. CHELLADURAI [1979] 118 ITR 108 (MAD), STATE OF TAMIL NADU V. THAKOREBHAI AND BROTHERS[1983] 52 STC 104 (MAD); JAINARAIN JEEVRAJ V. CIT [L980] 121 ITR 358 (RAJ), CIT V. VARDHMAN SPINNING [1997] 226 ITR 296 (P&H), BATA INDIA LTD. V. DEPUTY CIT(L996] 217 ITR 871 (CAL) AND CIT V PRAHLAD RAI TODI [2001] 251 ITR 833 (GAU HATI). FROM THE VARIOUS JUDGMENTS OF THE SUPREME COURT ABOVE REFERRED TO AND OTHER HIGH COURTS, IT IS CLEAR THAT THE TRIBUNAL'S POWER UNDER SECTION 254(2) IS NOT TO REVIEW ITS EARLIER ORDER BUT ONLY TO AMEND IT WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD. WHAT CAN BE TERMED AS 'MISTAKE APPARENT ? MISTAKE IN GENERAL MEANS TO TAKE OR UNDERSTAND WRONGLY OR INACCURATELY; TO MAKE AN ERROR IN INTERPRETING ; IT IS AN ERROR; A FAULT, A MISUNDERSTANDING, A MISCONCEPTION. MISTAKE IN TAXATION LAWS HAS A SPECIAL SIGNIFICANCE. IT IS MOSTLY SUBJECTIVE AND THE DIVIDING LINE IS THIN AND INDISCERNIBLE. APPARENT MEANS VISIBLE, CAPABLE OF BEING SEEN, EASILY SEEN, OBVI OUS PLAIN, OPEN TO VIEW, EVIDENT, APPEARS, APP4ARING AS REAL AND TRUE, CONSPICUOUS, MANIFEST, SEEMING. THE PLAN MEANING OF THE WORD APPARENT IS THAT IT MUST BE SOMETHING WHICH APPEARS TO BE EX FACIE AND INCAPABLE OF ARGUMENT AND DEBATE. IF SUCH A MISTAK E APPARENT ON THE FACE OF RECORD IS BROUGHT O THE NOTICE, SECTION 254(2) EMPOWERS THE TRIBUNAL TO AMEND THE ORDER PASSED UNDER SECTION 254(1). AMENDMENT OF AN ORDER DOES NOT MEAN OBLITERATION OF THE ORDER ORIGINALLY PASSED AND ITS SUBS TITUTION BY A NEW ORDER. WHAT IS MISTAKE M .P. NO S . 357 & 358 / CHNY/17 7 APPARENT ON THE FACE OF THE RECORD OR WHERE DOES A MISTAKE CEASE TO BE MERE MISTAKE, AND BECOME MISTAKE APPARENT ON THE FACE OF THE RECORD IS RATHER DIFFICULT TO DEFINE PRECISELY, SCIENTIFICALLY AND WITH CERTAINTY. AN ELEMENT OF INDEFINITENESS INHERENT IN ITS VERY NATURE AND IT MUST BE DISCERNIBLE FROM THE FACTS OF EACH CASE BY JUDICIOUSLY TRAINED MIND. MERE EXISTENCE OF A MISTAKE OR ERROR WOULD NOT PER SE RENDER THE ORDER AMENABLE FOR RECTIFICATION, BUT SUCH A MISTA KE MUST BE ONE WHICH MUST BE MANIFEST ON THE FACE OF THE RECORD. 6. I N VIEW OF THE RATIO OF THE DECISION AS CITED AND EXTRACTED ABOVE, WE FIND THAT THERE IS NO MISTAKE APPARENT ON RECORD TO REVISE THE ORDER OF THE TRIBUNAL DATED 30.09.2015 AND BOTH THE MISCELLANEOUS PETITION S FILED BY THE ASSESSEE ARE DISMISSED. 7 . IN THE RESULT, BOTH THE MP S FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED ON THE 03 RD MAY , 201 8 AT CHENNAI. SD/ - SD/ - ( ABRAHAM P. GEORGE ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDI CIAL MEMBER CHENNAI, DATED, THE 03 .0 5 . 201 8 VM/ - / COPY TO: 1. / APPELLANT , 2. / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.