The Patiala Improvement Trust, Patiala V. ACIT, Patiala

MA 37/CHANDI/2015

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6730 (ITAT-CHANDIGARH)
• Duration Of Justice: 3 year(s) 1 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-06-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 09-09-2016
• Assessment Year: 2007-2008
• Appeal Filed On: 28-04-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: V K SOOD
• Section: 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH B, CHANDIGARH BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA, ACCOUNTANT MEMBER MA NOS.37 & 38/CHD/2015 (IN ITA NOS.1183 & 1184/CHD/2013) ( ASSESSMENT YEARS : 2007-08 & 2008-09) THE PATIALA IMPROVEMENT TRUST, VS THE A.C.I.T., CHHOTTI BARADARI, PATIALA. CIRCLE PATIALA. PAN : AAAJI 0034 L (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI V.K. SOOD, CA RESPONDENT BY : SHRI MANJIT SINGH, SR.DR DATE OF HEARING : 11.05.2018 DATE OF PRONOUNCEMENT : 18.06.2018 ORDER PER SANJAY GARG, JUDICIAL MEMBER : BOTH THE PRESENT MISCELLANEOUS APPLICATIONS HAVE BEEN MOVED BY THE SAME ASSESSEE PLEADING THEREIN TH AT A MISTAKE APPARENT ON RECORD HAS OCCURRED IN THE CONSOLIDATED ORDER OF THE TRIBUNAL DATED 31.10.2014 , PASSED IN ITA NOS.1183 & 1184/CHD/2013 RELATING TO ASSESSMENT YEARS 2007-08 AND 2008-09. 2. THE LD. COUNSEL FOR ASSESSEE POINTING OUT TO THE TITLE OF THE ORDER HAS SUBMITTED THAT THE ASSESSMENT YEAR INVOLVED IN THE PRESENT APPEAL IN ITA NO.1183/CHD/2 013 IS ASSESSMENT YEAR 2007-08 WHEREAS IT HAS BEEN WRON GLY WRITTEN AS ASSESSMENT YEAR 2006-07. 3. FURTHER THE LD. COUNSEL FOR ASSESSEE DURING THE COURSE OF ARGUMENTS HAS PLEADED THAT THE ORIGINAL ASSESSMENT ORDER DATED 17.10.2013 (WRONGLY WRITTEN AS 2 17.10.2008) HAD CEASED TO EXIST BY VIRTUE OF THE ASSESSMENT ORDER DATED 18.3.2013, HENCE THE IMPUGNE D ORDER OF THE CIT(APPEALS) DATED 17.10.2013 WAS NOT ENFORCEABLE. THAT THE ORIGINAL ASSESSMENT ORDER CA N BE REVIVED ONLY ON THE ANNULMENT OF THE RE-ASSESSMENT ORDER BY THE TRIBUNAL VIDE ORDER DATED 29.4.2014 THAT THE ORDER OF THE CIT(APPEALS) DATED 17.10.2013 WAS, THEREFORE , NOT A VALID ORDER. HOWEVER, THE TRIBUNAL HAS DISMISSED TH E ABOVE GROUND RAISED BY THE ASSESSEE DESPITE THE FAC T THAT THE TRIBUNAL IN PARA 20 OF THE ORDER ITSELF HAS REC ORDED AS UNDER: WE HOLD THAT WHERE REASSESSMENT ORDER IS ANNULLED LATER ON THEN ORIGINAL ASSESSMENT ORDER WOULD AUTOMATICALLY GET RESTORED. 4. IT HAS FURTHER BEEN PLEADED THAT THE TRIBUNAL HA S DISCUSSED THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. KESHO RAM INDS. LTD., 271 IT R 353. HOWEVER, DURING THE ARGUMENTS, NEITHER THE SAID DEC ISION WAS STATED NOR THE SAME WAS CONFRONTED TO THE LD. C OUNSEL FOR ASSESSEE. IT HAS, THEREFORE, BEEN PLEADED THAT A MISTAKE APPARENT ON RECORD HAS OCCURRED IN THE ORDE R OF THE TRIBUNAL WHILE DISMISSING THE AFORESAID PLEA OF THE ASSESSEE. 5. THE LD. DR, ON THE OTHER HAND, HAS SUBMITTED THA T THE TRIBUNAL HAS AFTER LENGTHY DISCUSSION ON THE IS SUE HAS RIGHTLY DISMISSED THE ABOVE PLEA OF THE ASSESSEE AN D, THEREFORE, THERE IS NO MISTAKE APPARENT ON RECORD I N THE ORDER DATED 31.10.2014. 3 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND HAVE ALS O GONE THROUGH THE DOCUMENTS. SO FAR AS THE PLEA OF M ISTAKE IN RECORDING ASSESSMENT YEAR 2006-07 INSTEAD OF ASSESSMENT YEAR 2007-08 IS CONCERNED, THE LD. DR HA S FAIRLY CONCEDED THAT WRONG MENTIONING OF ASSESSMENT YEAR IS A MISTAKE APPARENT ON RECORD WHICH IS LIABLE TO BE CORRECTED. WE ACCORDINGLY DIRECT TO RECTIFY THE OR DER OF THE TRIBUNAL BY WAY OF SUBSTITUTION OF CORRECT ASSE SSMENT YEAR. NECESSARY CORRIGENDUM BE ISSUED IN THIS RESPE CT. 7. SO FAR AS THE PLEA OF REJECTION OF GROUND NO.2 REGARDING THE VALIDITY OF THE ORDER OF THE CIT(APPE ALS) IN THESE APPEALS IS CONCERNED, WE FIND THAT THE SAID P LEA OF THE ASSESSEE HAS ALREADY BEEN DISCUSSED BY THE TRIB UNAL AT LENGTH IN THE ORDER DATED 31.10.2014. THE TRIBUN AL WHILE DELIBERATING UPON THE ISSUE AND RELYING UPON VARIOUS CASE LAWS HAS FINALLY ARRIVED AT A CONCLUSI ON TO DISMISS GROUND NOS. 2 AND 3 OF THE ASSESSEES APPEA L. NOW THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATION WANTS TO RE-AGITATE THE SAME ISSUE WHICH CANNOT BE ALLOWE D AS PER THE PROVISIONS OF LAW. SO FAR AS THE CONTENTION OF THE ASSESSEE THAT THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF KESHO RAM INDS. LTD. (SUPRA) H AS BEEN RELIED UPON BY THE TRIBUNAL IN ITS ORDER, WHIC H WAS NOT CONFRONTED TO THE ASSESSEE IS CONCERNED, WE DEE M IT FIT TO MENTION HERE THAT THE ORDER DATED 31.10.2014 WAS NOT PASSED BY THE MEMBERS CONSTITUTING THIS BENCH. OUT OF TWO MEMBERS THEN CONSTITUTING THE BENCH, WHO HAD PA SSED THE ORDER DATED 31.10.2014, ONE OF THE MEMBER (LD. 4 ACCOUNTANT MEMBER) HAS SINCE RETIRED AND THE OTHER MEMBER (LD. JUDICIAL MEMBER) HAS SINCE BEEN TRANSFE RRED. SO AT THIS STAGE, IN THE ABSENCE OF PERSONAL KNOWLE DGE, WE DO NOT HAVE ANY MATERIAL ON THE FILE FROM WHICH IT CAN BE GATHERED THAT THE SAID CASE LAW WAS NOT CITED BY TH E LD. DR DURING THE COURSE OF ARGUMENTS. HOWEVER, WE HAD SPECIFICALLY ASKED THE LD. COUNSEL FOR ASSESSEE THA T EVEN IF WE ASSUME THAT THE CASE LAW WAS NOT CITED AT THE TI ME OF ARGUMENTS, EVEN THEN, TO EXPLAIN BEFORE US AS TO HO W THE SAID CASE LAW WAS NOT APPLICABLE OR AS TO WHAT PREJ UDICE HAS BEEN CAUSED TO THE ASSESSEE IN THIS RESPECT. IN REPLY, THE LD. COUNSEL FOR ASSESSEE HAS RELIED UPON THE JU DGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF K.L. SR IHARI (HUF), 176 CTR 8699 AND FURTHER ON THE COMMENTARY GIVEN BY CHATURVEDI AND PRITHISARIA. WE FIND THAT T HE SAID CASE LAWS INTER ALIA WERE ALSO RELIED UPON BY THE L D. COUNSEL FOR ASSESSEE AT THE TIME OF FINAL ARGUMENTS ON THE APPEAL. WE FIND THAT THE COPIES OF THE SAID JUDGMEN T WITH COVER NOTE SUBMITTED BY THE ASSESSEE ARE PART OF TH E RECORD, EVEN THE SAID DECISION AND THE COMMENTARY H AD BEEN DULY DISCUSSED AND CONSIDERED BY THE TRIBUNAL IN ITS ORDER DATED 31.10.2014. THE TRIBUNAL HAS CONSIDERED THE ENTIRE ARGUMENTS OF THE ASSESSEE AT LENGTH. THE DIS CUSSION IS RUNNING INTO 17 PAGES OUT OF 18 PAGES ORDER. 8. EVEN THE ARGUMENTS PUT FORTH BY THE LD. A.R. ARE NOT RELATING TO ANY MISTAKE APPARENT ON RECORD IN THE O RDER. THE LD. A.R. HAS SOUGHT TO REARGUE THE CASE ON MERI TS WHICH CANNOT BE DONE UNDER THE PROVISIONS OF SECTION 254( 2) OF THE 5 ACT. TRIBUNAL HAS NO POWER TO REVIEW ITS ORDERS. I F THE ASSESSEE HAS ANY GRIEVANCE AGAINST THE IMPUGNED ORD ER, PROPER COURSE TO AGITATE THE SAME IS BY FILING AN A PPEAL BEFORE THE NEXT APPELLATE AUTHORITY I.E. THE HONBL E HIGH COURT, BUT, NOT WITH THE PRESENT APPLICATION U NDER SECTION 254(2) OF THE ACT. THE TRIBUNAL, VIDE IMPU GNED ORDER, HAS NOT ONLY CONSIDERED THE SUBMISSIONS OF T HE ASSESSEE BUT HAS GIVEN A CATEGORICAL FINDING ON ALL OF THE ISSUES WHICH WERE RAISED BEFORE THE TRIBUNAL BY THE LD. COUNSEL FOR THE ASSESSEE. THE HONBLE BOMBAY HIGH C OURT IN THE CASE OF COMMISSIONER OF INCOME-TAX VS RAMES H ELECTRIC AND TRADING CO. 1993 203 ITR 497 (BOM.), WHILE RELYING UPON THE DECISION OF THE HONBLE SUPREME CO URT IN THE CASE OF T. S. BALARAM, ITO V. VOLKART BROTHERS [1971] 82 ITR 50 AND FURTHER RELYING UPON THE DECISIONS OF THE VARIOUS HIGH COURTS HAS CATEGORICALLY HELD THAT THE POWER OF RECTIFICATION UNDER SECTION 254(2) OF THE INCOME-TA X ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT; MISTAKE WHICH IS APPARENT FROM THE RECORD, AND NOT A MISTAKE WHICH R EQUIRES TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PRO CESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. FAILURE BY THE TRIBUNAL TO CONSIDER AN AR GUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSI ON IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT AND UNDER SUCH CIRCUMSTANCES THE TRIBUNAL HAS NO JURISDICTION UNDER SECTION 254(2) T O PASS THE SECOND ORDER. 6 9. IN VIEW OF OUR ABOVE OBSERVATIONS AND THE LEGAL POSITION AS STATED ABOVE, THE MISCELLANEOUS APPLICA TION FILED BY THE ASSESSEE IS PARTLY ALLOWED TO THE LIMI TED EXTENT OF CORRECTION OF ASSESSMENT YEAR IN THE TITLE OF TH E ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 18.06.2018. SD/- SD/- (ANNAPURNA GUPTA) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 18 TH JUNE, 2018 *RATI* COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSISTANT REGISTRAR, ITAT, CHANDIGARH