Swapnil Kisan Karande, Aurangabad V. Income-tax Officer, Ward - 2(3), Aurangabad

MA 37/PUN/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 9169 (ITAT-PUNE)
• Duration Of Justice: 4 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-09-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 24-05-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANJEEV GHEI
• Keywords: Rectification of order; Principle of natural justice; Reason to believe; Set aside
• Section: 201; 254(2); 147

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY, JM M.A. NO.37 /PUN/20 19 (ARISING OUT OF ITA NO. 2631/PUN/2017) / ASSESSMENT YEAR : 2008 - 09 SWAPNIL KISAN KARANDE, PLOT NO.68, C/O. KEDAR D. GOGATE, MANIK APARTMENT , MAIN POST OFFICE, NIRALA BAZAR, NEAR MONALISA, BEARUTY PARLOUR, AURANGABAD. PIN - 431 001 PAN : ARXPK6056E .. /APPLICANT / V/S. THE INCOME TAX OFFICER, WARD 2(3), AURANGABAD. . / RESPONDENT A SSESSEE BY : NONE REVENUE BY : SHRI SANJEEV GHEI / DATE OF HEARING : 27 .0 9 .2019 / DATE OF PRONOUNCEMENT : 27 .09 .2019 / ORDER PER PARTHA SARATHI CHAUDHURY , JM THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY ASSESSEE U/S. 254(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) SEEKING RECTIFICATION IN THE ORDER OF TRIBUNAL IN ITA NO.2631/PUN/2017 DATED 07.02.2019 . 2 M A NO.37 /PUN/20 19 A.Y . 2008 - 09 2. IT APPEAR S FROM THE RECO RDS THAT THE NOTICE WAS DULY SERVED BUT NONE APPEARED ON BEHALF OF THE ASSESSEE. IN EARLIER DATES OF HEARING I.E. ON 30.08.2019, NEITHER THE ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE WAS PRESENT AND EVEN ON 13.09.2019, AT THE REQUEST OF THE LD. AR, THE CA SE WAS FIXED FOR HEARING TODAY I.E. ON 27.09.2019. BUT TODAY ALSO AT THE TIME OF HEARING, NEITHER THE ASSESSEE NOR HIS AUTHORIZED REPRESENTATIVE WAS PRESENT. THE EVASIVE ATTITUDE REGARDING COURT PROCEEDINGS OF THE ASSESSEE HEREIN IS VERY MUCH EVIDENT. IN V IEW THE ABOVE, WE PROCEED FOR HEARING THIS MISCELLANEOUS APPLICATION EX - PARTE AND ADJUDICATE THE MATTER AFTER HEARING THE SUBMISSIONS OF LD. DR. 3. T HE LD. DR SUBMITTED THAT ORDER OF THE TRIBUNAL DATED 07.02.2019 IS WELL REASONED ORDER AND THE ASSESSEE HAS FAILED TO POINT OUT ANY APPARENT MISTAKE IN THE ORDER WARRANTING RECTIFICATION. THE ASSESSEE IS SEEKING REVIEW OF THE ENTIRE ORDER IN THE GRAB OF RECTIFICATION. THE LD. DR PRAYED FOR DISMISSING THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. 4 . WE HAVE PERUSED THE CASE RECORDS AND HEARD THE RIVAL CONTENTIONS. ON THE DATE OF HEARING I.E. 07.02.2019, WHEN THE BENCH R E - ENQUIRED WHETHER THE CHANGE OF ADDRESS WAS COMMUNICATED BY THE ASSESSEE TO THE DEPARTMENT; THE LD. AR SUBMITTED THAT CHANGE OF ADDRE SS WAS NOT COMMUNICATED TO THE DEPARTMENT BY THE ASSESSEE. THE ASSESSEE IS SILENT ABOUT THE FACT AS TO WHY HE HAS NOT COMMUNICATED HIS NEW ADDRESS TO THE DEPARTMENT. IN WHATEVER MANNER SATISFACTION IS RECORDED BY THE ASSESSING OFFICER FOR RE - OPENING OF AS SESSMENT , THE PRINCIPLES OF NATURAL JUSTICE DEMANDS THAT THE REASONS FOR RE - OPENING THE ASSESSMENT SHOULD CONVEY IN AN UNAMBIGUOUS MANNER FOR WHICH THE ASSESSEE IS BEING PENALIZED. THE ASSESSING OFFICER IN HIS ORDER HAS GIVEN A CLEAR - CUT FINDINGS REGARDING RE - 3 M A NO.37 /PUN/20 19 A.Y . 2008 - 09 OPENING OF ASSESSMENT AND ALSO ON ENQUIRY REGARDING GENUINENESS OF THE TRANSACTIONS, THE ASSESSEE HAS NOT RESPONDED TO AND ON THE BASIS OF WHICH, T HE TRIBUNAL VIDE ORDER DATED 07.02.2019 IN PARA 5 OF THE ORDER HAS CATEGORICALLY OBSERVED AS UNDER : 5 ..F URTHER, IN THE REASONS RECORDED, IT IS STATED ON VERIFICATION OF AST DATA, THAT THE ASSESSEE HAS NOT FURNISHED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008 - 09. THE ASSESSEE HAS NOT OFFERED THE AMOUNT OF RS.16.04 LAKH FOR TAXATION. IN VIEW OF ABOVE, THE ASSESSING OFFICER HAS REASON TO BELIEVE THE AMOUNT OF RS.16,04,400/ - ESCAPED THE ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE ACT. THEREFORE, THERE ARE NUMBER OF REASONS IN THIS CASE BECAUSE OF WHICH, THE ASSESSING OFFICER REOPENED THE AS SESSMENT WHICH ARE AS FOLLOWS: I) LETTER OF VERIFICATION ISSUED ON 26/12/2014 TO VERIFY THE GENUINENESS OF TRANSACTION WAS NOT RESPONDED TO BY THE ASSESSEE. II) THE ASSESSEE WAS REQUIRED TO FURNISH THE DETAILS OF SOURCES OF THE FINANCIAL TRANSACTION ALONG WITH COPIES OF DOCUMENTS IN SUPPORT OF HIS CLAIM. III) AS PER AST DATA, THE ASSESSEE HAS NOT FURNISHED HIS RETURN OF INCOME FOR THE A.Y.2008 - 09. THE ASSESSEE HAS NOT OFFERED THE AMOUNT OF RS.16.04 LAKH FOR TAXATION. THESE ARE SUFFICIENT REASONS FOR FORMIN G REASON TO BELIEVE THAT INCOME HAS ESCAPED ASSESSMENT FOR REOPENING OF THE ASSESSMENT AND THEREFORE, THE ASSESSEE FAILS IN THIS LEGAL GROUND. 5. THERE ARE S ERIES OF DECISIONS BY THE HON'BLE SUPREME COURT AS WELL AS HON'BLE HIGH COURT EXPOUNDING SCOPE OF EXERCISING POWERS UNDER SECTION 254(2) OF THE ACT. WE DO NOT DEEM IT NECESSARY TO RECITE AND RECAPITULATE ALL OF THEM, BUT SUFFI CE TO SAY THAT CORE OF ALL THESE AUTHORITATIVE PRONOUNCEMENTS IS THAT POWER FOR RECTIFICATION UNDER SECTION 254(2) OF THE ACT CAN BE EXERCISED ONLY WHEN MISTAKE, WHICH IS SOUGHT TO BE RECTIFIED, IS AN OBVI OUS AND PATENT MISTAKE, WHICH IS APPARENT FROM THE RECORD AND NOT A MISTAKE, WHICH IS REQUIRED TO BE ESTABLISHED BY ARGUMENTS AND LONG DRAWN PROCESS OF REASONING ON POINTS, ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. FOR FORTIFYING THIS VIEW, WE MAKE 4 M A NO.37 /PUN/20 19 A.Y . 2008 - 09 R EFERENCE TO THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LD., 262 ITR 146 WHICH HAS BEEN UPHELD BY THE HON'BLE SUPREME COURT REPORTED IN 305 ITR 227. 6 . THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. RAMESH ELECTRIC & TRADING COMPANY REPORTED AS 203 ITR 497 HAS HELD THAT THE SCOPE OF SECTION 254(2) IS LIMITED TO RECTIFICATION OF MISTAKE APPARENT FROM RECORD ITSELF AND NOT RECTIFICATION IN ERROR OF JUDGMENT. THE RELEVANT OBSERVAT IONS OF THE HON'BLE HIGH COURT ARE AS UNDER: THE TRIBUNAL CANNOT, IN EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION SO ARRIVED AT. THE MISTAKE WHICH THE TRIBUNAL IS ENTITLED T O CORRECT IS NOT AN ERROR OF JUDGMENT BUT A MISTAKE WHICH IS APPARENT FROM THE RECORD ITSELF. WE ARE OF CONSIDERED VIEW THAT IN THE GUISE OF RECTIFICATION, THE ASSESSEE IS SEEKING REVIEW OF THE ORDER OF TRIBUNAL, WHICH IS BEYOND THE SCOPE OF POWERS AS EN VISAGED U/S. 254(2) OF THE ACT. 7. THAT FURTHER, THE CONTENTIONS RAISED IN THE MISCELLANEOUS APPLICATION, THE ASSESSEE HAS STATED THAT ONLY THE LEGAL GROUNDS HAS BEEN ADJUDICATED WHEREAS, GROUNDS ON MERITS REMAIN UN - ADJUDICATED. FOR THIS FACT OF THE MATTE R, WE OBSERVE IN OUR ORDER DATED 07.02.2019 IN PARA S 7, 8 AND 9, IT IS ABSOLUTELY CLEAR THAT SO FAR AS THE GROUNDS ON MERITS ARE CONCERN ED , AS PER OUR OBSERVATIONS AND REASONING RECORDED THEREIN, WE HAD SET ASIDE THESE GROUND S ON MERITS TO THE FILE OF LD. CIT(APPEALS) FOR ADJUDICATION IN COMPLIANCE WITH THE PRINCIPLES OF NATURAL JUSTICE. THEREFORE, THIS CONTENTION OF THE ASSESSEE HAS NO LEGS TO STAND AND HENCE, IS DISMISSED. 5 M A NO.37 /PUN/20 19 A.Y . 2008 - 09 8 . IN VIEW OF THE ABOVE AND AS PER THE MISCELLANEOUS APPLICATION FILED BEFORE US , WE DO NOT FIND ANY MISTAKE, MUCH LESS ANY APPARENT MISTAKE THAT WARRANTS RECTIFICATION IN THE ORDER OF TRIBUNAL DATED 07.02.2019. ACCORDINGLY, MISCELLANEOUS APPLICATION FILED BY ASSESSEE IS DISMISSED BEING DEVOID OF ANY MERIT. 9 . IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY ASSESSEE IS DISMISSED. ORDER PRO NOUNCED ON 27 TH DAY OF SEPTEMBER , 201 9 . SD/ - SD/ - D. KARUNAKARA RAO PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 27 TH SEPTEMBER , 201 9 . SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS) - 2, AURANGABAD. 4. THE PR. CIT - 2, AURANGABAD. 5 . , , - , / DR, ITAT, SMC BENCH, PUNE. 6 . / GUARD FILE. // TRUE COPY // / BY ORDER, / PRIVATE SECRETARY , / ITAT, PUNE . 6 M A NO.37 /PUN/20 19 A.Y . 2008 - 09 DATE 1 DRAFT DICTATED ON 27 .0 9 .2019 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 27 .0 9 .2019 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER