Smt. M K Rajeshwari , Raichur V. The Income Tax Officer Ward-3 , Raichur

MA 370/BANG/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 3430 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2015-2016
• Appeal Filed On: 26-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JDIT
• Section: 201; 254(2); 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC A BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENT M.P. NO.370/BANG/2018 [IN ITA NO. 1723/BANG/2018] ASSESSMENT YEAR : 2015 - 16 SMT. M.K. RAJESHWARI, PROPX.: LAXMINARAYANA AGRI INDUSTRIES, BESIDE RAICHUR SOLVENT HYDERABAD ROAD, RAAYACHURU 584 102. PAN: ACYPR 8709F VS. THE INCOME TAX OFFICER, WARD 3, RAICHUR. APP L IC ANT RESPONDENT APP L IC ANT BY : SHRI H.N. KHINCHA, CA RESPONDENT BY : SHRI S. VENKATESH, JDIT DATE OF HE ARI NG : 25 .01.2019 DATE OF PRONOUNCEMENT : 20 .0 2 . 201 9 O R D E R THIS MISCELLANEOUS PETITION IS FILED BY THE ASSES SEE U/S. 254(2) OF THE INCOME-TAX ACT, 1961 ['THE ACT'] STATING THAT T HE ORDER OF TRIBUNAL DATED 12.10.2018 SUFFERS FROM MISTAKE APPARENT ON THE FAC E OF RECORD AND PRAYING THAT THE ORDER OF TRIBUNAL SHOULD BE RECALL ED AND THE APPEAL BE POSTED FOR HEARING AFRESH. 2. THE FIRST MISTAKE POINTED OUT IN THE ORDER OF TR IBUNAL IS THAT THE TOTAL INCOME ASSESSED BY THE AO IN THIS CASE FOR AY 2015- 16 WAS A SUM OF RS.55,91,720. AS PER THE PROVISIONS OF SECTION 255 (3) OF THE ACT, THIS CASE M.P. NO.370/BANG/2018 PAGE 2 OF 3 SHOULD NOT HAVE BEEN HEARD BY A SINGLE MEMBER BENCH SINCE IT IS ONLY IN CASES WHERE THE TOTAL INCOME COMPUTED BY THE AO DOE S NOT EXCEED RS.50 LAKHS THAT A SINGLE MEMBER CAN HEAR A CASE. OUR AT TENTION WAS DRAWN TO THE DECISION OF THE HONBLE PUNJAB & HARYANA HIGH C OURT IN THE CASE OF GEE CITY BUILDERS P. LTD. V CIT [2017] 88 TAXMANN.C OM 688 (P&H) WHEREIN THE HONBLE HIGH COURT IN AN IDENTICAL CASE SET ASI DE THE ORDER OF TRIBUNAL HOLDING THAT THE SAME WAS NOT IN ACCORDANCE WITH LA W. OUR ATTENTION WAS ALSO DRAWN TO THE DECISION OF THE HONBLE SUPREME C OURT IN THE CASE OF SAURASHTRA KUTCH STOCK EXCHANGE LTD. [2008] 173 TAX MANN.COM 322 (SC) , HONDA SIEL POWER PRODUCTS LTD. V. CIT, 295 ITR 466 (SC) AND THE DECISION OF THE HONBLE HIGH COURT OF KARNATAKA IN CIT V. SANKALA POLYMERS P. LTD., 388 ITR 617 (KAR) . THESE DECISIONS ARE ON THE SCOPE OF POWERS U/S. 254(2) OF THE ACT. IN THE DECISION OF HONBLE HIGH COURT OF KARNATAKA, IT HAS BEEN HELD THAT WHEN A SPECIFIC PROVISION OF THE ACT HAS NOT BEEN APPLIED WHILE PASSING AN ORDER, THAT CASE GIVES RISE TO A M ISTAKE APPARENT ON THE RECORD. 3. THE LD. DR COULD NOT DISPUTE THE FACTUAL POSITIO N THAT AS ON THE DATE WHEN THE TRIBUNAL HEARD THE MATTER, THE TOTAL INCOM E ASSESSED IN THE CASE OF ASSESSEE WAS ABOVE RS.50 LAKHS. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ARE OF THE VIEW THAT SINCE THE INCOME ASSESSED IN THE HANDS OF ASSESSEE WAS MORE THAN RS.50 LAKHS, THE APPEAL OUGHT NOT TO HAVE BEEN HEARD BY A SINGLE MEMBER BENCH. SINCE THE CASE WAS HEARD IN VIOLATION OF TH E PROVISIONS OF SECTION 255(3) OF THE ACT, THE ORDER OF THE TRIBUNAL SUFFER S FROM A MISTAKE APPARENT ON THE FACE OF RECORD AND THE ORDER OF THE TRIBUNAL DATED 12.10.2018 IS ACCORDINGLY RECALLED. THE REGISTRY IS DIRECTED TO FIX THE CASE FOR HEARING BEFORE THE DIVISION BENCH IN DUE COURSE. M.P. NO.370/BANG/2018 PAGE 3 OF 3 5. IN VIEW OF THE ABOVE CONCLUSION, THE OTHER CONTE NTIONS PUT FORTH IN THE MISCELLANEOUS PETITION ARE NOT TAKEN UP FOR CON SIDERATION. 6. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON THIS 20 TH DAY OF FEBRUARY, 2019. SD/- ( N.V. VASUDEVAN ) VICE PRESIDENT BANGALORE, DATED, THE 20 TH FEBRUARY, 2019. / D ESAI S MURTHY / COPY TO: 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.