NARANG INTERNATINAL HOTELS P.LTD, V. DCIT CIR 1(2),

MA 375/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7288 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-10-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 07-07-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Rectification of order; Opportunity of being heard; Difference of opinion

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH B,MUMBAI BEFORE SHRI R.S. SYAL (ACCOUNTANT MEMBER) (THIRD MEMBER) M.A.NO.375/MUM/2011 (ARISING OUT OF I.T.A.NO.2242/MUM/2010) (A.Y. 2002-03) DY. COMMR. OF INCOME-TAX, CIRCLE 1(2), MUMBAI. VS. M/S. NARANGS INTERNATIONAL HOTELS PVT. LTD., AMBASSADOR HOTEL, CHURCHGATE, MUMBAI-400 020. PAN: AAACN2084L APPLICANT RESPONDENT APPLICANT BY SHRI PAWAN VED. RESPONDENT BY SHRI F IROZE B. ANDHYARUJINA. DATE OF HEARING 21 - 10 - 2011 DATE OF PRONOUNCEMENT 21 - 10 - 2011 O R D E R PER R.S. SYAL, AM : THIS MISC. APPLICATION HAS BEEN FILED BY THE REVENU E AGAINST THE THIRD MEMBER ORDER PASSED ON 07-04-2011 ON DIFFERENCE OF OPINION BETWEEN THE TWO MEMBERS WHO ORIGINALLY HEARD THE APPEAL FILED BY TH E REVENUE. 2. THE FOLLOWING POINT OF DIFFERENCE WAS R EFERRED BY THE HONBLE PRESIDENT FOR CONSIDERATION AND DECISION U/S 255(4) OF THE IN COME-TAX ACT, 1961: WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE PENALTY U/S.271(1)(C) WAS LEVIABLE. M.A.NO.375/M/11 NARANG INTERNATIONAL HOTELS P.LTD. 2 3. AFTER CONSIDERING THE SUBMISSIONS ADVAN CED BY BOTH THE SIDES, THE THIRD MEMBER ANSWERED THE QUESTION IN NEGATIVE BY AGREEIN G WITH THE VIEW EXPRESSED BY THE LD. JUDICIAL MEMBER THEREBY DECIDING THE IS SUE IN FAVOUR OF THE ASSESSEE. THE PRESENT MISC. APPLICATION HAS BEEN FILED BY THE REVENUE AGAINST THE SAID ORDER OF THE THIRD MEMBER STATING THAT THERE ARE MI STAKES WHICH REQUIRE RECTIFICATION. 4. I HAVE HEARD BOTH THE SIDES AND PERUSED THE RELE VANT MATERIAL ON RECORD. THE PRELIMINARY QUESTION WHETHER A MISC. APPLICATIO N U/S.254(2) IS MAINTAINABLE AGAINST THE ORDER PASSED BY THE THIRD MEMBER HAS BE EN DECIDED BY THE MUMBAI BENCH OF THE TRIBUNAL IN DCIT VS. M/S. TELCO DADAJI DAKJI LTD. IN M.A.NO.509/MUM/2010. THE THEN PRESIDENT OF THE TRIB UNAL, VIDE HIS ORDER DATED 11-03-2011, HAS DISMISSED THE MISC. APPLICATION BY HOLDING THAT THE SAME DOES NOT LIE AGAINST THE OPINION EXPRESSED BY THE THIRD MEMBER. THE RELEVANT OBSERVATIONS ARE CONTAINED IN PARA 3 OF THE SAID OR DER READING AS UNDER : 3. A PRELIMINARY QUESTION ARISES AS TO WHETHER AN APPLICATION FOR RECTIFICATION OF MISTAKES APPARENT FROM THE RECORD CAN LIE U/S.254(2) AGAINST THE ORDER OF THE THIRD MEMBER PASSED U/S.254(2) OF THE ACT. UNDER SEC.254( 1) THE TRIBUNAL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THEREO N AS IT THINKS FIT. SUB-SECTION (2) PROVIDES THAT THE TRIBU NAL MAY, AT ANY TIME WITHIN FAVOUR YEARS FROM THE DATE OF THE O RDER, WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1) AND SHALL CARRY OUT SUCH AMENDMENT IF THE MISTAKE IS BR OUGHT TO THE NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER . THE ORDER PASSED UNDER SUB-SECTION (1) IS THE ORDER OF THE TRIBUNAL FINALLY DISPOSING OF THE APPEAL; AND IT IS ONLY SUCH AN ORDER THAT CAN BE AMENDED UNDER SUB-SECTION (2) AS IS CLEAR FROM THE WORDS OF THE SUB-SECTION UNDERLINES BY US FOR EMPHASIS. AN ORDER PASSED BY THE TRIBUNAL UNDER SUB -SECTION (1) IS AN ORDER FINALLY DISPOSING OF THE APPEAL AND NOT ANY ORDER REFERABLE TO THE POWER GIVEN BY THAT PROVISIO N. A SPECIAL PROCEDURE IS PRESCRIBED IN CASE THERE IS A DIFFERENT OF OPINION BETWEEN THE MEMBERS DISPOSING OF THE APPEAL . SUB- M.A.NO.375/M/11 NARANG INTERNATIONAL HOTELS P.LTD. 3 SECTION (4) OF SECTION 255 SAYS THAT IF THE MEMBER S DIFFER IN OPINION ON ANY POINT, THE POINT SHALL BE DECIDED AC CORDING TO THE OPINION OF THE MAJORITY, IF THERE IS ONE, BUT I F THE MEMBERS ARE EQUALLY DIVIDED (AND THERE IS THUS NO M AJORITY) THEY SHALL STATE THE POINT OR POINTS ON WHICH THEY DIFFER, AND THE CASE SHALL BE REFERRED BY THE PRESIDENT OF THE TRIBUNAL FOR HEARING ON SUCH POINT OR POINTS BY ONE OR MORE OF T HE OTHER MEMBERS OF THE TRIBUNAL AND SUCH POINT OR POINTS SH ALL BE DECIDED ACCORDING TO THE OPINION OF THE MAJORITY OF THE MEMBERS WHO HAVE HEARD THE CASE INCLUDING THOSE WHO FIRST HEARD IT. THUS THE DECISION RENDERED BY THE THIRD M EMBER IS ONE WHICH DOES NOT FINALLY DISPOSE OF THE APPEAL TI LL THE POINT OR POINTS ARE DECIDED ACCORDING TO THE OPINION OF T HE MAJORITY OF THE MEMBERS FOR WHICH ANOTHER ORDER IS TO BE PAS SED BY THE TRIBUNAL AND IT IS THIS ORDER WHICH FINALLY DIS POSES OF THE APPEAL. AN APPLICATION UNDER SEC. 254(2) WOULD LIE ONLY WHEN THAT ORDER IS PASSED AND NOT BEFORE. 5. SIMILAR VIEW HAS BEEN REITERATED IN THE C ASE OF DCIT VS. GLOFAME COTSPIN INDUSTRIES LTD. IN M.A.NO. 579/MUM/2010. THE LATER ORDER REJECTING THE MISC. APPLICATION FILED BY THE REVENUE AS NOT MAINTAINABL E, IS DATED 29-04-2011. 6. FURTHER NO MATERIAL HAS BEEN BROUGHT TO MY NOTIC E INDICATING THE OVERTURNING OR MODIFYING BY THE HONBLE HIGH COURT OF THE AFORENOTED TWO ORDERS REJECTING THE MISCELLANEOUS APPLICATIONS. ON A SPECIFIC QUERY FROM THE BENCH, THE LD. D.R. COULD NOT POINT OUT ANY PRECEDE NT IN WHICH THE MISC. APPLICATION UNDER SIMILAR CIRCUMSTANCES HAS BEEN HE LD TO BE MAINTAINABLE OR DISPOSED OF ON MERITS. IN VIEW OF THE ORDERS PASSE D BY THE CO-ORDINATE BENCH OF THE TRIBUNAL IN TWO CASES AFOREMENTIONED, I HOLD TH AT THE MISC. APPLICATION FILED BY THE REVENUE IS NOT MAINTAINABLE. 7. BE THAT AS IT MAY, THE LEARNED COUNSEL FOR THE A SSESSEE, WHILE REFERRING TO THE MISC. APPLICATION FILED BY THE REVENUE, HAS INV ITED MY ATTENTION TOWARDS PARA 4 ,WHICH OPENS AS UNDER : M.A.NO.375/M/11 NARANG INTERNATIONAL HOTELS P.LTD. 4 4. THEREFORE, FOR RECONSIDERATION OF THE MATTER OF PENALTY U/S. 271(1)(C) THE PRAYER TO BE MADE BY FILING MIS C. APPLICATION TO REVIEW THE FINDINGS OF THE THIRD ME MBER OF THE ITAT ON FOLLOWING GROUNDS : IT CAN BE NOTICED FROM THE MISC. APPLICATION SO FIL ED BY THE REVENUE THAT THE WHOLE EMPHASIS IS ON RECONSIDERATION OF THE MATTE R AND TO REVIEW THE FINDINGS OF THE THIRD MEMBER OF THE TRIBUNAL. NEED LESS TO SAY THAT THE PROCEEDINGS U/S.254(2) DEAL WITH CORRECTING A MISTA KE APPARENT FROM RECORD. THERE IS NO SCOPE FOR RECONSIDERATION OF THE MATTER OR REVIEWING THE FINDINGS GIVEN IN THE ORIGINAL ORDER WITHIN THE FRAMEWORK OF SEC. 254(2). 8. IN MY CONSIDERED OPINION, THE MISC. APPLICATION FILED BY THE REVENUE HAS NO MERITS AND DESERVES THE FATE OF DISMISSAL. I HOL D ACCORDINGLY. 9. IN THE RESULT, THE MISC. APPLICATION IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON THE 21 ST DAY OF OCTOBER, 2011. SD/- (R.S. SYAL) ACCOUNTANT MEM BER (THIRD MEMBER) MUMBAI: 21 ST OCTOBER , 2011. NG: COPY TO : 1. DEPARTMENT. 2.ASSESSEE. 3 CIT(A) CONCERNED. 4 CIT CONCERNED. 5.DR,B BENCH,MUMBAI. M.A.NO.375/M/11 NARANG INTERNATIONAL HOTELS P.LTD. 5 6.MASTER FILE. (TRUE COPY) BY ORDER, ASST.REGISTRAR, ITAT, MUMBAI. M.A.NO.375/M/11 NARANG INTERNATIONAL HOTELS P.LTD. 6 DETAILS DATE INITIALS DESIGN ATION 1 . DRAFT DICTATED ON 2 1 - 1 0 - 11 SR.PS/ 2 . DRAFT PLACED BEFORE AUTHOR 2 1 - 1 0 - 11 SR.PS/ 3 . DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM /AM 4 . DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/ 6. KEPT FOR PRONOUNCEMENT ON SR.PS/ 7. FILE SENT TO THE BENCH CLERK SR.PS/ 8 . DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 . DATE O N WHICH FILE GOES TO THE AR 10. DATE OF DISPATCH OF ORDER &