DY. Commissioner of Income Tax, Lucknow V. M/s Fortuna Foundation Engineers and Consultants Pvt. Ltd., Lucknow

MA 42/LKW/2018

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0924 (ITAT-LUCKNOW)
• Duration Of Justice: 1 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 11-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: C K SINGH
• Keywords: Rectification of order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A , LUCKNOW BEFORE SHRI. T.S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER M.A. NO.42/LKW/2018 [IN M.A. NO.99/LKW/2016 ARISING OUT OF C.O. NO.30/LKW/2015 IN ITA NO. 59/LK W/2015] ASSESSMENT YEAR: 2005 - 06 DCIT RANGE 2 LUCKNOW V. FORTUNA FOUNDATION ENGINEERS & CONSULTANTS PVT. LTD. 22, G.B. MARG LUCKNOW T AN /PAN : AAACF3510H (APP LICA NT) (RESPONDENT) APP LIC ANT BY: SHRI C. K. SINGH, D.R. RESPONDENT BY: SHRI RAKESH GA RG, ADVOCATE DATE OF HEARING: 16 11 201 8 DATE OF PRONOUNCEMENT: 20 11 201 8 O R D E R PER P ARTHA SARATHI CHAUDHURY, J.M : THIS MISCELLANEOUS APPLICATION IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF THE TRIBUNAL DATED 21/5/2018 PASSED IN M.A. NO.99/L KW/2018. 2 . BEFORE GOING TO THE MERITS OF THE MISCELLANEOUS APPLICATION, WE TAKE A GLANCE OF THE PROVISIONS OF SECTION 254(2) OF THE ACT WHICH PROVIDES POWER TO RECTIFY ANY MISTAKE APPARENT FROM RECORD / AMEND ANY ORDER PASSED BY IT. THE ENTIRE READING OF THE PROVISION CLEARLY BRINGS O UT TO LIGHT THAT THERE HAS TO BE AN ORDER OF THE TRIBUNAL WHICH CAN BE RECTIFIED IF THERE IS ANY MISTAKE APPARENT FROM RECORD. NOWHERE IN THE PROVISION IT IS MENTION ED THAT TRIBUNAL HAS THE POWER TO RECTIFY ITS OWN ORDER PASSED I N A MISCELLANEOUS APPLICATION. IN THIS MISCELLANEOUS APPLICATION PREFERRED BY THE REVENUE, GRIEVANCE IS THAT TRIBUNAL IN M.A. M.A. NO.42/LKW/2018 PAGE 2 OF 4 NO.99/LKW/2016 WITH REGARD TO C.O. NO.30/LKW/2015 ARISING OUT OF ITA NO.59/LKW/2015 FOR ASSESSMENT YEAR 2005 - 06, HAD RECALLED THE CROSS OBJECTION FOR THE REASONS AND FINDING AS APPEARING IN THAT ORDER. GRIEVANCE OF THE REVENUE IS THAT RECALLING C.O IN THAT MISCELLANEOUS APPLICATION I.E. M.A. NO.99/LKW/2016 IS NOT CORRECT AND, THEREFORE, THEY HAVE FILED ANOTHER M.A. NO.42/LKW/2018 I .E. PRESENT MISCELLANEOUS APPLICATION TO RECTIFY THE ALLEGED MISTAKE , AS ACCORDING TO THE REVENUE , IN M.A. NO.99/LKW/2016. 3 . WE HAVE ALREADY ANALYSED THE SCOPE AND JURISDICTION IN PROVISIONS OF SECTION 254(2) OF THE ACT WHICH IS CRYSTAL CLEAR THAT IN AN ORDE R PASSED BY THE TRIBUNAL IT CAN RECTIFY ANY MISTAKE APPARENT FROM RECORD. THE PRESENT MISCELLANEOUS APPLICATION IS ALSO NOT MAINTAINABLE FOR THE REASON THAT A MISCELLANEOUS APPLICATION AGAINST MISCELLANEOUS APPLICATION IS NOT PERMITTED AS HAS BEEN HELD IN THE FOLLOWING CASE S : - 1 . CIT VS. AISWARYA TRADING CO. [2010] 192 TAXMAN 385 (KERALA) 2 . CIT VS. SMT. VASANTBEN H. SHETH [2014] 48 TAXMANN.COM 287 (GUJARAT) 4 . FOR THE SAKE OF COMPLETENESS, THE FINDINGS OF THE HON'BLE KERALA HIGH COURT (SUPRA) ARE REPRODUCED BELOW : - 4.AFTER HEARING BOTH SIDES AND AFTER GOING THROUGH THE APPELLATE ORDER, WE ARE OF THE VIEW THAT THE SECOND APPLICATION ON THE VERY SAME ISSUE IS NOT MAINTAINABLE BEFORE THE TRIBUNAL. IN FACT, MERGER APPLIES ONLY ON ISSUES DECIDED IN RECTIFICATION PROCE EDINGS AND THE TRIBUNAL'S ORDER ISSUED UNDER SECTION 254(1) WILL REMAIN UNAFFECTED ON ALL MATTERS OTHER THAN THOSE COVERED BY THE RECTIFICATION ORDER ISSUED UNDER SECTION 254(2). IN OTHER WORDS, EVEN AFTER THE TRIBUNAL RECTIFIES THE APPELLATE ORDER UNDER S ECTION 254(2) ON ANY ISSUE RAISED, STILL THE ORIGINAL ORDER CAN BE RECTIFIED ON ANY OTHER ISSUE DECIDED BY THE TRIBUNAL. HOWEVER, IF THE RECTIFICATION APPLICATION FILED BY ONE OF THE PARTIES IS ALLOWED OR M.A. NO.42/LKW/2018 PAGE 3 OF 4 REJECTED BY THE TRIBUNAL, THE VERY SAME ISSUE CANNO T BE AGITATED IN ANOTHER RECTIFICATION APPLICATION BY THE OPPOSITE PARTY. IF THIS IS DONE AND ALLOWED TO BE ENTERTAINED BY THE TRIBUNAL, THEN WHAT HAPPENS IS THAT THE TRIBUNAL GETS AN OPPORTUNITY TO REVIEW ITS OWN ORDER FOR WHICH IT HAS NO POWERS UNDER THE STATUTE. THEREFORE, ONCE THE RECTIFICATION APPLICATION FILED BY ONE OF THE PARTIES IS CONSIDERED AND DECIDED BY THE TRIBUNAL RIGHTLY OR WRONGLY, ANOTHER RECTIFICATION APPLICATION ON SAME ISSUE IS NOT MAINTAINABLE AGAINST THE ORDER ISSUED BY THE TRIBUNAL U NDER SECTION 254(2) OF THE ACT. IN THIS CASE, THE QUESTION OF LIABILITY FOR INTEREST PAYABLE BY THE ASSESSEE UNDER SECTION 220(2) RIGHTLY OR WRONGLY WAS DECIDED BY THE TRIBUNAL IN THE RECTIFICATION APPLICATION FILED BY THE ASSESSEE IN THEIR FAVOUR AND SO M UCH SO, THE DEPARTMENT CANNOT SEEK TO RECTIFY THE VERY SAME ORDER AGAIN UNDER SECTION 254(2) BY FILING ANOTHER APPLICATION. AS ALREADY HELD, THE SECOND RECTIFICATION APPLICATION BY EITHER PARTY IS MAINTAINABLE ONLY ON ISSUES NOT DECIDED BY THE TRIBUNAL IN ANY OTHER RECTIFICATION APPLICATION FILED BY EITHER OF THE PARTIES. WE, THEREFORE, CLARIFY THAT THE APPELLATE ORDER ISSUED UNDER SECTION 254(1) GETS MERGED IN RECTIFICATION ORDERS ONLY ON THE ISSUES RAISED IN THE RECTIFICATION APPLICATION AND ON ALL OTHER ISSUES DECIDED BY THE TRIBUNAL IN THE APPEAL, THE APPELLATE ORDER UNDER SECTION 254(1) SURVIVES AND IS AVAILABLE FOR RECTIFICATION AGAIN ON ANY OTHER ISSUE ON AN APPLICATION FILED BY EITHER OF THE PARTIES. CONSEQUENTLY, WE UPHOLD THE ORDER OF THE TRIBUNAL AND DISMISS THE DEPARTMENT APPEAL. 5 . IN VIEW OF THE ABOVE, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 / 1 1 / 201 8 . SD/ - SD/ - [ T.S. KAPOOR ] [PARTHA SARATHI CHAUDHURY ] ACCOUNTANT MEMBER JUDICIA L MEMBER DATED: 20 TH NOVEMBER , 201 8 JJ: 1811 M.A. NO.42/LKW/2018 PAGE 4 OF 4 COPY FORWARDED TO: 1 . APP LIC ANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT 5 . DR BY ORDER ASSISTANT REGISTRAR 1. DATE OF DICTATION 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEM ENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORD ER 9. DATE OF DESPATCH OF THE ORDER