Commissioner of Income-tax., Faizabad V. Shri Rajesh Kumar Pandey, Pratapgarh

MA 4/LKW/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8731 (ITAT-LUCKNOW)
• Duration Of Justice: 3 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-06-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 08-06-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 05-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K C MEENA
• Assessee Lawyers: G N SRIVASTAV ITR
• Keywords: Opportunity of being heard
• Section: 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI S UNIL KUMAR YADAV , JUDICIAL MEMBER AND SHRI B. R. JAIN , ACCOUNTANT MEMBER M. A NO. 04/LKW/2012 [ARISING OUT OF ITA NO. 230/LKW/2011] ASSESSMENT YEAR: 2006 - 08 CIT FAIZABAD V . SHRI. RAJESH KUMAR PANDEY S/O SHRI. JAGDISH PRASAD PANDEY VILL. & POST GONDEY, PRATAPGARH PAN: ADKPP0614 (APP LIC ANT) (RESPONDENT) APP LIC ANT BY: SHRI. K. C. MEENA, D.R. RESPONDENT BY: SHRI. G. N. SRIVASTAV, ITR DATE OF HEARING: 08.06.2012 DATE OF PRONOUNCEMENT: 08.06.2012 O R D E R PER B. R JAIN : IN THIS APPLICATION DATED 5.3.2012, THE REVENUE SEEKS RECTIFICATION OF THE ORDER DATED 19.8.2011 PASSED BY THE APPELLATE TRIBUNAL LUCKNOW BENCH IN ITA NO. 230/LKW/2011 FOR ASSESSMENT YEAR 2006 - 07 ON THE GROU ND THAT THE TRIBUNAL COMMITTED A MISTAKE IN SETTING ASIDE THE ORDER PASSED UNDER SECTION 263 OF THE ACT ON THE GROUND THAT THERE WAS NO SATISFACTION OF THE COMMISSIONER BEFORE TAKING UP THE PROCEEDINGS WHICH WAS STATUTORY REQUIREMENT AND ALSO THAT THE NOTI CE WAS NOT SIGNED BY THE COMMISSIONER HIMSELF BUT HAD BEEN SIGNED BY THE INCOME - TAX OFFICER (TECHNICAL). 2 . THE LD. D.R., SHRI. K. C. MEENA PRESSED THE FACTS AS ARE STATED IN THE APPLICATION WHILE SHRI. PRA VEEN KUMAR, CIT (DR) JOINED THE PROCEEDINGS AND CONTE NDED THAT THE SOLITARY REQUIREMENT OF SECTI O N 263 OF THE ACT IS THAT AN OPPORTUNITY OF BEING HEARD IS TO BE AFFORDED TO THE ASSESSEE BEFORE HOLDING THE ASSESSMENT ORDER TO BE ERRONEOUS AND PREJUDICIAL TO THE : - 2 - : INTEREST OF THE REVENUE. HE, THEREFORE, REQUIRE D THE TRIBUNAL TO RECALL THE ORDER AS IT SUFFERS FROM A MISTAKE OF APPARENT FACT WHICH WAS PERVERSE AND CONTRARY TO THE REQUIREMENT OF STATUTE. 3 . ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE, SHRI. G. N. SRIVASTAVA PLACED A COPY OF NOTICE ISSUED IN IT A NO. 47/2011 BY HON'BLE ALLAHABAD HIGH COURT AT LUCKNOW BENCH IN QUANTUM APPEAL BY REVENUE SAYING THAT THE ISSUE OF ORDER BEING ERRONEOUS HAS ALREADY BEEN CHALLENGED BY THE REVENUE IN THE AFORESAID APPEAL AND THE SAME IS PENDING FOR ADJUDICATION. IN THIS VIEW OF THE MATTER, IT CANNOT BE CONTENDED THAT THE ORDER OF THE TRIBUNAL SUFFERS FROM MISTAKE RECTIFIABLE WITHIN THE MEANING OF SECTION 254(2) OF THE ACT. 4 . HEARD PARTIES WITH REFERENCE TO THE MATERIAL ON RECORD. ESSENTIALLY THE REQUIREMENT OF SECTION 263 OF THE ACT IS ONLY OF GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE AND IN THE EXPRESSED TERMS IT DOES NOT REQUIRE A NOTICE TO BE SERVED ON THE ASSESSEE OR A SATISFACTION TO BE RECORDED IN THAT REGARD AS HAS ALSO BEEN HELD BY THE HON'BLE APEX COURT IN THE CASE OF CIT V. ELECTRO HOUSE, 82 ITR 824 (SC) AT PAGE 827 AND IN THE CASE OF GITA DEVI AGGARWAL V. CIT [1970] 76 ITR 496 (SC). THAT BEING SO, THE REVENUE MAY HAVE A GOOD PRIMA - FACIE CASE IN ITS FAVOUR TO SAY THAT THE ORDER DATED 19.8.2011 OF THE A PPELLATE TRIBUNAL IS ERRONEOUS, IT HOWEVER CANNOT BE TAKEN AS AN ORDER SUFFERING FROM MISTAKE RECTIFIABLE WITHIN THE MEANING OF SECTION 254(2) OF THE ACT, MORE SO WHEN THE MATTER IS BEING AGITATED BY THE REVENUE IN APPEAL NO.47/2011 BEFORE THE HON'BLE HIGH COURT OF ALLAHABAD AT LUCKNOW BENCH . IN THESE CIRCUMSTANCES, WE DO NOT FIND ANY MISTAKE THAT CAN BE RECTIFIED UNDER SECTION 254(2) OF THE ACT AND ACCORDINGLY REJECT THE SAME AS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF PARTIES IMMEDIATELY AFTER CON CLUSION OF HEARING ON 8.6.2012. S D/ - S D/ - [SUNIL KUMAR YADAV] [B. R. JAIN] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 11.6.2012 JJ: 0806 : - 3 - : COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR ASSISTANT REGISTRAR