M/s Maharashtra Apex Corporation Limited, Manipal V. Deputy Commissioner of Income Tax, Circle-1, Udupi

MA 37/BANG/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6982 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-08-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 30-04-2021
• Assessment Year: 1995-1996
• Appeal Filed On: 24-02-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: M ANIL KUMAR
• Keywords: Rectification of order; Opportunity of being heard; Question of law
• Section: 254(2); 13; 54

Judgement Text

MP NOS.37 TO 40/BANG/2021 M/S. MAHARASHTRA APEX CORPORATION LTD., MANIPAL IN THE INCOME TAX APPELLATE TRIBUNAL ABENCH: BANGALORE BEFORE SHRI B. R. BASKARAN, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER M.P. NOS.37 TO 40/BANG/2021 (IN MP 52 TO 55/BANG/2020) (ARISING OUT OF ITA NO.239 TO 242/BANG/2018) ASSESSMENT YEARS :1995-96 TO 1998-99 M/S. MAHARASHTRA APEX CORPORATION LTD. SYNDICATE HOUSE MANIPAL 576 104 PAN NO :AACCM2741B VS. DEPUTY COMMISSIONER OF INCOME-TAX CIRCLE-1 UDUPI APPELLANT RESPONDENT A PPELLANT BY : SHRI M. ANIL KUMAR, A.R. RESPONDENT BY : SHRI KANNAN NARAYANAN, D.R. DATE OF HEARING : 13.08.2021 DATE OF PRONOUNCEMENT : 13.08.2021 O R D E R PERB.R. BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED THESE MISCELLANEOUS APPLICAT IONS SUBMITTING THAT THERE IS MISTAKES APPARENT FROM REC ORD IN THE ORDER DATED 14.8.2020 PASSED IN MP NOS.52 TO 55/BANG/2020 IN ITA NOS.239 TO 242/BANG/2018. 2. WE NOTICE THAT THE ASSESSEE HAS FILED THESE MISC ELLANEOUS APPLICATIONS ON THE ORDER PASSED BY THE TRIBUNAL U/ S 254(2) OF THE INCOME-TAX ACT,1961 ['THE ACT' FOR SHORT] ON EARLIE R MISCELLANEOUS APPLICATIONS. HENCE, AT THE OUTSET, WE HEARD THE P ARTIES ON THE MP NOS.37 TO 40/BANG/2021 M/S. MAHARASHTRA APEX CORPORATION LTD., MANIPAL PAGE 2 OF 6 MAINTAINABILITY OF THE PRESENT MISCELLANEOUS APPLIC ATIONS FILED BY THE ASSESSEE ON THE ORDER DATED 14.8.2020 PASSED BY THE TRIBUNAL U/S 254(2) OF THE ACT. 3. THE LD. A.R. PLACED HIS RELIANCE ON THE DECISION RENDERED BY HONBLE SUPREME COURT IN THE CASE OF HONDA SIEL POW ER PRODUCTS LTD. VS. CIT 295 ITR 466 AND INVITED OUR ATTENTION TO THE FOLLOWING OBSERVATION MADE BY HONBLE APEX COURT:- THE TRIBUNAL HAS INHERENT POWER TO RECTIFY MISTAKE COMMITTED BY IT ON THE FUNDAMENTAL PRINCIPLE THAT NO PARTY AP PEARING BEFORE THE APPELLATE TRIBUNAL, BE IT EITHER AN ASSE SSEE OR THE DEPARTMENT, SHOULD SUFFER ON ACCOUNT OF ANY MISTAKE COMMITTED BY THE TRIBUNAL. ACCORDINGLY, HE SUBMITTED THAT THE TRIBUNAL MAY REC TIFY THE MISTAKE OCCURRED IN THE ORDER DATED 14.8.2020 PASSED IN MP NO.52 TO 55/BANG/2020. 4. ON THE CONTRARY, THE LD. D.R. SUBMITTED THAT POW ER OF RECTIFICATION GIVEN TO THE TRIBUNAL U/S 254(2) OF T HE ACT EXTENDS ONLY TO THE ORDER PASSED BY THE TRIBUNAL U/S 254(1) OF T HE ACT. HE SUBMITTED THAT THE IMPUGNED ORDER DATED 14.8.2020 P ASSED HAS BEEN IN MP NOS.52 TO 55/BANG/2020 U/S 254(2) OF THE ACT. ACCORDINGLY, HE SUBMITTED THAT THE PROVISIONS OF SE C.254(2) OF THE ACT DO NOT GIVE POWER TO THE TRIBUNAL TO RECTIFY TH E MISTAKES APPARENT FROM RECORD IN THE ORDER PASSED U/S 254(2) OF THE ACT. 5. WE HEARD THE PARTIES AND PERUSED THE RECORD. THE HONBLE KARNATAKA HIGH COURT HAD THE OCCASION TO CONSIDER T HE QUESTION WHETHER A MISCELLANEOUS PETITION U/S 254(2) OF THE ACT COULD BE FILED AGAINST THE ORDER PASSED U/S 254(2) OF THE AC T ON AN EARLIER MISCELLANEOUS PETITION IN THE CASE OF THE PCIT VS. SMT. ALPANA MP NOS.37 TO 40/BANG/2021 M/S. MAHARASHTRA APEX CORPORATION LTD., MANIPAL PAGE 3 OF 6 BHARTIA (ITA NO.847 OF 2018 DATED 25.03.2019. THE DECISION RENDERED BY HONBLE JURISDICTIONAL HIGH COURT ARE E XTRACTED BELOW:- 5. ON HEARING THE LEARNED COUNSEL FOR THE APPELLAN TS REVENUE AND ON PERUSAL OF THE APPEAL PAPERS INCLUDING THE D ETAILED ORDER PASSED BY THE TRIBUNAL, WE ARE OF THE VIEW THAT NO SUBSTANTIAL QUESTION OF LAW WOULD ARISE TO ENTERTAIN THE APPEAL . THE ASSESSEE AS WELL AS HER HUSBAND HAD FILED ITA NOS.855 AND 85 6 OF 2016 BEFORE THE TRIBUNAL AGAINST THE ADDITION OF RS.5,98 ,40,617/- TO THEIR INDIVIDUAL ASSESSMENT. ADDITION OF THE SAID A MOUNT COULD NOT HAVE BEEN MADE TO BOTH ASSESSEE AND ASSESSEES HUSBAND FOR THE PURPOSE OF TAXATION. BUT, THE TRIBUNAL HAD DISM ISSED THE APPEALS OF BOTH ASSESSEE AND HER HUSBAND CONFIRMING THE ORDER PASSED BY THE CIT (A). THE ASSESSEE FILED MISC. PET ITION 178 OF 2016 UNDER SECTION 254(2) OF THE ACT TO RECTIFY THE MISTAKE APPARENT ON RECORD IN RESPECT OF THE ASSESSEE ON TH E GROUND THAT ADDITION OF INCOME HAS BEEN MADE TO BOTH ASSESSEE A S WELL AS HER HUSBAND, WHICH WOULD AMOUNT TO DOUBLE ADDITION. THE TRIBUNAL, IN EXERCISE OF ITS POWER UNDER SECTION 254(2) OF TH E ACT RECTIFIED THE MISTAKE AND DELETED THE ADDITION OF INCOME OF RS.5,98,40,617/- MADE TO THE ASSESSEE. THE REVENUE FILED MISC. PETITION 35 OF 2018 UNDER SECTION 254(2) AGAINST TH E ORDER PASSED UNDER SECTION 254(2) IN MISC. PETITION NO.17 8 OF 2017, CONTENDING THAT THERE IS A MISTAKE APPARENT ON RECO RD AND SOUGHT TO RECTIFY THE SAME. THE TRIBUNAL RIGHTLY DISMISSED THE MISC. PETITION HOLDING THAT THE MISC. PETITION TO RECTIFY THE MISTAKE IN MISC. PETITION WOULD NOT BE MAINTAINABLE. WHILE REJ ECTING, THE TRIBUNAL RELIED ON THE DECISION OF THE SPECIAL BENC H OF THE TRIBUNAL IN SHRI.PADMA PRAKASH V/S ITO. MP NOS.37 TO 40/BANG/2021 M/S. MAHARASHTRA APEX CORPORATION LTD., MANIPAL PAGE 4 OF 6 6. SECTION 254 (1) AND (2) OF THE ACT READS AS FOLL OWS: 254(1) THE APPELLATE TRIBUNAL MAY, AFTER GIVING BOT H THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD , PASS SUCH ORDERS THEREON AS IT THINKS FIT. 254(2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITH IN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED, WITH A VIEW TO RECTIFYING ANY MISTAKE APPAR ENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB- SECTION(1), AND SHALL MAKE SUCH AMENDMENT IF THE MI STAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE. PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCING AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INCREA SING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UN DER THIS SUB-SECTION UNLESS THE APPELLATE TRIBUNAL HAS GIVE N NOTICE TO THE ASSESSEE OF ITS INTENTION TO DO SO AN D HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BE ING HEARD. PROVIDED FURTHER THAT ANY APPLICATION FILED BY THE ASSESSEE IN THIS SUB-SECTION ON OR AFTER THE 1ST DAY OF OCTO BER 1998, SHALL BE ACCOMPANIED BY A FEE OF FIFTY RUPEES. 7. SECTION 253 OF THE ACT PROVIDES AN APPEAL TO THE APPELLATE TRIBUNAL, WHICH WOULD BE CONSIDERED UNDER SECTION 2 54 OF THE ACT. SECTION 254(1) CONTEMPLATES HEARING OF THE APP EAL BY THE APPELLATE TRIBUNAL AND PASSING OF THE ORDER THEREON . SUB-SECTION (2) OF SECTION 254 OF THE ACT WOULD EMPOWER THE TRI BUNAL TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED UNDER SUB-SECTION (1), IF THE MISTAKE IS BRO UGHT TO ITS MP NOS.37 TO 40/BANG/2021 M/S. MAHARASHTRA APEX CORPORATION LTD., MANIPAL PAGE 5 OF 6 NOTICE BY THE PARTIES TO THE PROCEEDINGS, WITHIN SI X MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED. FROM A READING OF SUB-SECTION (2) OF SECTION 254, IT WOULD BE CLEAR THAT THE TRIBUNAL POSSESSES THE POWER TO RECTIFY ANY MISTAKE APPARENT ON THE RECORD IN THE ORDER PASSED BY IT UN DER SUB- SECTION (1). IF THE ORDER UNDER SUB-SECTION (2) OF SECTION 254 IS PASSED, THE SAID ORDER WOULD NOT BE AVAILABLE FO R RECTIFICATION OF MISTAKE AGAIN UNDER SECTION 254 (2 ) OF THE ACT. THE ORDER PASSED UNDER SECTION 254(2) CANNOT BE RE CTIFIED NOR AMENDED BY INVOKING SUB-SECTION (2) OF SECTION 254 ONCE AGAIN. REPETITIVE APPLICATIONS UNDER SECTION 254 (2 ) OF THE ACT ARE NOT PERMISSIBLE. IN THE CASE ON HAND ALSO, THE TRIBUNAL IN EXERCISE OF ITS POWER UNDER SUB-SECTION (2) OF SECT ION 254 HAS RECTIFIED THE MISTAKE APPARENT ON THE RECORD AND DE LETED THE DOUBLE ADDITION OF INCOME IN RESPECT OF THE ASSESSE E. THEREAFTER, THE REVENUE AGAIN FILES AN APPLICATION UNDER SUB-SE CTION (2) OF SECTION 254 SEEKING RECTIFICATION OF THE ORDER PASS ED UNDER SUB- SECTION (2) OF SECTION 254 WHICH IS NOT MAINTAINABL E. THE TRIBUNAL HAS RIGHTLY DISMISSED THE MISC. PETITION F ILED BY THE REVENUE. THERE IS NO ERROR OR OMISSION IN THE ORDER PASSED BY THE TRIBUNAL. 11 . NO SUBSTANTIAL QUESTION WOULD ARISE IN THIS AP PEAL. HENCE, THE APPEAL IS DISMISSED. 6. IN THE PRESENT CASE ALSO, THE ASSESSEE IS SEE KING RECTIFICATION OF MISTAKES APPARENT FROM RECORD IN THE ORDER PASSED U /S 254(2) OF THE ACT ON AN EARLIER MISCELLANEOUS APPLICATIONS, W HICH ARE NOT MAINTAINABLE AS PER THE DECISION RENDERED BY HONBL E JURISDICTIONAL MP NOS.37 TO 40/BANG/2021 M/S. MAHARASHTRA APEX CORPORATION LTD., MANIPAL PAGE 6 OF 6 HIGH COURT IN THE ABOVE SAID CASE. ACCORDINGLY, WE REJECT ALL THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE. 7. IN THE RESULT, ALL THE MISCELLANEOUS APPLICA TIONS FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH AUG, 2021 SD/- (BEENA PILLAI) JUDICIAL MEMBER SD/- (B.R. BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED 13 TH AUG, 2021. VG/SPS COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, BANGALORE.