DCIT, Central.Circle-6, Hyderabad V. Smt.G.Venkat Lakshmi, Hyderabad

MA 40/HYD/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0001 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-03-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 05-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMISHA S GUPTDR
• Assessee Lawyers: J J VARUN
• Keywords: Difference of opinion; Change of opinion

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER MA NO.40/HYD/2013 (ITA NO.1135/HYD/2012) : ASSESSMENT YEAR 2005 -06 DY. COMMISSIONER OF INCOME- TAX, CENTRAL CIRCLE- 6, HYDERABAD V/S SMT.G.VENKAT LAKSHMI, HYDERABAD ( PAN - ADBPG 1396 H ) (APPLICANT) (RESPONDENT) APPLICANT BY : MS. AMISHA S.GUPT(DR) RESPONDENT BY : SHRI J.J.VARUN DATE OF HEARING 08.03.2013 DATE OF PRONOUNCEMENT 15.3.2013 O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER: BY THIS APPLICATION UNDER S.254(2) OF THE INCOME- TAX ACT, 1961, THE REVENUE SEEKS RECTIFICATION/RECALL OF THE ORDER OF THIS TRIBUNAL DATED 9.11.2012 IN ITA NO.1135/HYD/2012 FOR THE AS SESSMENT YEARS 2006-07, ON THE GROUND THAT CERTAIN MISTAKES APPARE NT FROM RECORD HAVE CREPT INTO THE SAME. 2. WE HEARD BOTH SIDES AND PERUSED THE ORDER OF TH IS TRIBUNAL DATED 9.11.2012 IN THE LIGHT OF THE AVERMENTS MADE IN THE PRESENT APPLICATION UNDER S.254(2) OF THE ACT. THE CONTENT ION OF THE REVENUE IN THIS APPLICATION IS THAT IN VIEW OF THE FINDING OF THE TRIBUNAL IN PARA 9 OF ITS ORDER, THE INFERENCE OF THE TRIBUNAL APPEARS TO BE THAT JOURNAL ENTRIES ARE EXCLUDED FROM THE PURVIEW OF S.269SS, WHICH IS A MI STAKE OF LAW APPARENT FROM RECORD. THE RELEVANT OBSERVATIONS OF THE TRIBUNAL, BASED ON WHICH THE PRESENT APPLICATION IS MOVED READ AS F OLLOWS- MA NO.40/HYD/2013 (IN ITA NO.1135/HYD/2012) SMT. G.VENKAT LAKSHMI, HYDERABAD 2 9. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MAT ERIALS ON RECORD. WE HAVE ALSO EXAMINED THE DECISIONS RE LIED UPON BY THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEE. THE ONLY ISSUE TO BE DECIDED IN THE PRESENT APPEAL IS AS TO WHETHER THE ASSESSEE HAS ACCEPTED CASH LOAN FROM M/S. LAHARI GREEN PARK, IN CONTRAVEN TION OF S.269SS OF THE ACT, SO AS TO INVITE THE RIGOUR OF THE PENAL PROVIS ION OF S.271D OF THE ACT. IT IS THE CASE OF THE DEPARTMENT THAT THE ASSESSEE HAS ACCEPTED CASH LOAN IN CONTRAVENTION OF THE PROVISIONS UNDER S.269SS, W HEREAS THE ASSESSEES CONSISTENT STAND HAS BEEN THAT THERE WAS NO CASH LO AN, AND WHATEVER HAS HAPPENED WAS ONLY BY WAY OF JOURNAL ENTRIES IN THE BOOKS OF THE FIRM IN RESPECT OF THE TRANSACTIONS BETWEEN THE PROPRIETARY CONCERN, M/S. LAHARI GREEN PARK AND THE VENDOR, WITHOUT HER KNOWLEDGE OR INVOLVEMENT. THIS CLAIM OF THE ASSESSEE THAT THERE WAS NO CASH FLOW B ETWEEN THE PROPRIETARY FIRM AND THE ASSESSEE, AND WHATEVER HAPPENED WAS ON LY BY WAY OF PASSING OF JOURNAL ENTRIES IN THE BOOKS OF THE PROP RIETARY CONCERN NEEDS TO BE VERIFIED FROM THE RECORDS OF THE FIRM. HOWEVER, FROM THE RECORDS AVAILABLE BEFORE US, WE ARE NOT ABLE TO DECIDE THE ISSUE AS TO WHETHER THE ASSESSEE HAS TAKEN CASH LOAN AS STATED BY THE DEPAR TMENT, OR THERE ARE ONLY JOURNAL ENTRIES AS CLAIMED BY THE ASSESSEE, SI NCE MATERIAL TO THAT EFFECT HAVE NOT BEEN FURNISHED BEFORE US. WE THERE FORE, DEEM IT JUST AND PROPER TO REMIT THE MATTER TO THE FILE OF THE ASSES SING OFFICER, TO VERIFY THE FACT AS TO WHETHER THE ASSESSEE HAS ACTUALLY RECEIV ED CASH LOAN FROM M/S. LAHARI GREEN PARK OR THERE WERE MERE JOURNAL ENTRIE S TO THAT EFFECT. IF ULTIMATELY, IT IS FOUND THAT NO CASH LOAN WAS ACTUA LLY RECEIVED BY THE ASSESSEE IN THE COURSE OF THE TRANSACTION AND T HERE WERE ONLY JOURNAL ENTRIES TO THAT EFFECT, THEN NO PENALTY CAN BE LEVIED UNDER S.271D OF THE ACT. THE ASSESSING OFFICER SHALL ACCO RDINGLY REDECIDE THE ISSUE OF APPLICABILITY OF THE PENAL PROVISIONS OF S.271D OF THE ACT TO THE FACTS OF THE PRESENT CASE, IN ACCORDANCE WITH LAW, KEEPING IN VIEW OUR AFORESAID DIRECTION, AND AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. (EMPHASIS SUPPLIED) 3. ON CAREFUL CONSIDERATION OF THE MATTER, WE FIND NO MERIT IN THE CONTENTION OF THE REVENUE THAT THE INFERENCE, ATTRI BUTED TO THE TRIBUNAL, IS A MISTAKE OF LAW, AND HENCE APPARENT FROM RECORD. CLA USE (III) OF EXPLANATION BELOW S.269SS CLEARLY DEFINES LOAN OR DEPOSIT AS MEANING LOAN OR DEPOSIT OF MONEY. AS SUCH, ANY LOAN OR DEPOSIT OTHER THAN T HROUGH THE MEDIUM OF MONEY IS OUTSIDE THE CLUTCHES OF THE PROVISIONS OF S.269SS OF THE ACT. CONSEQUENTLY, MERE JOURNAL ENTRIES MADE IN THE BOOK S OF ACCOUNTS OF THE PARTIES DO NOT ATTRACT THE PROVISIONS OF S.269SS OF THE ACT. IN ANY EVENT, THE TRIBUNAL HAS TAKEN A SPECIFIC AND CONSCIOUS VIEW ON INTERPRETING THE RELEVANT MA NO.40/HYD/2013 (IN ITA NO.1135/HYD/2012) SMT. G.VENKAT LAKSHMI, HYDERABAD 3 PROVISIONS OF THE STATUTE, WHICH CANNOT BE SAID TO BE A MISTAKE APPARENT FROM RECORD, EVEN IF SUCH AN INTERPRETATION, ACCORDING T O THE PARTIES IS INCORRECT. 4. BY THE CONTENTIONS URGED AND THE PRAYER MADE, THE APPLICANT IS MERELY SEEKING AN OPPORTUNITY TO RE-ARGUE THE CASE, AND A MERE REVIEW OF ITS ORDER BY THE TRIBUNAL NOT. SUCH A COURSE OF REVIE W IS NOT PERMISSIBLE IN THESE PROCEEDINGS UNDER S.254(2), THE SCOPE OF WHICH IS C ONFINED TO MERE RECTIFICATION OF THE MISTAKES APPARENT FROM RECORD. 5. IN ARRIVING AT THE ABOVE CONCLUSION, WE ARE SU PPORTED IN THIS BEHALF BY THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT V/S. VED PRAKASH (209 ITR 448)-AP, WHEREIN IT WAS HELD AS FO LLOWS- 'IF TWO VIEWS ARE POSSIBLE ON A POINT OF LAW, AND O NE OF THE ALTERNATIVES IS ACCEPTED BY THE TRIBUNAL, IT CANNOT BE HELD THAT THE MISTAKE IS APPARENT FROM THE RECORD, UNLESS THERE A RE MANIFEST ERRORS WHICH ARE OBVIOUS, CLEAR AND SELF-EVIDENT, T HE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER IN AN ATTEMPT TO R EWRITE THE ORDER. A CHANGE OF OPINION BY THE TRIBUNAL CONSISTING OF THE SAME MEMBERS SHALL NOT JUSTIFY RECTIFICATION, NOR CAN FRESH THIN KING BROUGHT IN BY NEW MEMBERS OF THE TRIBUNAL JUSTIFY REWRITING OF TH E ORDER UNDER THE GUISE OF RECTIFICATION. THE ONLY FACT THAT HAD THE SECOND SET OF MEMBERS HEARD THE APPEAL, THEY WOULD HAVE DECIDED I N FAVOUR OF THE ASSESSEE IS NOT A REASON FOR THEM TO RECALL AN ORDER ALLEGEDLY FOR THE PURPOSE OF RECTIFICATION OF A MISTAKE. SIMILARLY, IN THE CASE OF CIT V/S. ITAT & ANR. 206 ITR 126 THE ANDHRA PRADESH HIGH COURT HELD AS UNDER: 'THE APPELLATE TRIBUNAL, BEING A CREATURE OF THE ST ATUTE, HAS TO CONFINE ITSELF IN THE EXERCISE OF ITS JURISDICTION TO THE E NABLING OR EMPOWERING TERMS OF THE STATUTE. IT HAS NO INHERENT POWER. EVE N OTHERWISE, IN CASES WHERE SPECIFIC PROVISION DELINEATES THE POWERS OF T HE COURT OR TRIBUNAL, IT CANNOT DRAW UPON ITS ASSUMED INHERENT JURISDICTION AND PASS ORDERS AS IT PLEASES. THE POWER OF RECTIFICATION WHICH IS SPECIF ICALLY CONFERRED ON THE TRIBUNAL HAS TO BE EXERCISED IN TERMS OF THAT PROVI SION. IT CANNOT BE ENLARGED ON ANY ASSUMPTION THAT THE TRIBUNAL HAS GO T AN INHERENT POWER OF RECTIFICATION OR REVIEW OR REVISION. IT IS AXIOM ATIC THAT SUCH POWER OF REVIEW OR REVISION HAS TO BE SPECIFICALLY CONFERRED ; IT CANNOT BE INFERRED. MA NO.40/HYD/2013 (IN ITA NO.1135/HYD/2012) SMT. G.VENKAT LAKSHMI, HYDERABAD 4 UNLESS THERE IS A MISTAKE APPARENT FROM THE RECORD IN THE SENSE OF PATENT, OBVIOUS AND CLEAR ERROR OR MISTAKE, THE TRI BUNAL CANNOT RECALL ITS PREVIOUS ORDER. IF THE ERROR OR MISTAKE IS ONE WHIC H COULD BE ESTABLISHED ONLY BY LONG-DRAWN ARGUMENTS OR BY A PROCESS OF IN VESTIGATION AND RESEARCH, IT IS NOT A MISTAKE APPARENT FROM THE REC ORD. IF TWO VIEWS ARE POSSIBLE ON A POINT OF LAW, AND ONE OF THE ALTERNAT IVES IS ACCEPTED IN ITS PREVIOUS ORDER, IT CANNOT BE HELD THAT THE MISTAKE IS APPARENT FROM THE RECORD. UNLESS THERE ARE MANIFEST ERRORS WHICH ARE OBVIOUS, CLEAR AND SELF- EVIDENT, THE TRIBUNAL CANNOT RECALL ITS PREVI OUS ORDER IN AN ATTEMPT TO REWRITE THE ORDER. 6. AT THE COST OF REPETITION, WE WOULD LIKE TO RE ITERATE THAT ON GOING THROUGH THE ORDER PASSED BY THE TRIBUNAL, WE ARE CO NVINCED THAT THE TRIBUNAL PASSED THE ORDER DATED 9.11.2012, AFTER MARSHALLING ALL THE FACTS CONSIDERING THE SUBMISSIONS MADE BEFORE IT AND APPLYING ITS MIN D TO THE RELEVANT PROVISIONS OF LAW. WE DO NOT FIND ANY MISTAKE IN THE ORDER OF THE TRIBUNAL OF THE NATURE AS ENVISAGED UNDER S.254(2) OF THE ACT. PERMITTING TH E PARTIES TO RAISE THE SAME ISSUES OVER AGAIN IN THE GUISE OF RECTIFICATION WIL L AMOUNT TO RECALLING THE APPEAL ORDER IN ITS ENTIRETY AND RE-HEARING IT AFRESH, WHI CH IS NOT WITHIN THE SCOPE AND AMBIT OF S.254(2) OF THE ACT. CONSEQUENTLY, THE PR ESENT APPLICATION OF THE REVENUE IS DEVOID OF MERIT, AND AS SUCH IT IS LIABL E TO BE REJECTED. WE REJECT THE SAME ACCORDINGLY. 7. IN THE RESULT, APPLICATION OF THE REVENUE IS RE JECTED ORDER PRONOUNCED IN THE COURT ON 15.3.2013 SD/- SD/- (CHANDRA POOJARI) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER. DT/- 15TH MARCH, 2013 COPY FORWARDED TO: 1. SMT. G.VENKAT LAKSHMI, PLOT NO.723A,RAOD NO.26, JUB ILEE HILLS, HYDERABAD. 2. 3. DY. COMMISSIONER OF INCOME - TAX CENTRAL CIRCLE 6 , HYDERABAD COMMISSIONER OF INCOME-TAX(APPEALS)-I, HYDERABAD MA NO.40/HYD/2013 (IN ITA NO.1135/HYD/2012) SMT. G.VENKAT LAKSHMI, HYDERABAD 5 4. COMMISSIONER OF INCOME-TAX CENTRAL HYDERABAD 5 DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S.