YELLAPPA CHITHANANDAPPA KURUBA, V. ITO 21(3)(2),

MA 426/MUM/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2884 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-03-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2007-2008
• Appeal Filed On: 02-12-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN V P
• Assessee Lawyers: ASHWIN S CHHAG

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL I BE NCH, MUMBAI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER M.A. NO. 426/MUM/2014 (ARISING OUT OF I .T.A. NO. 1599/MUM/2013) ( / ASSESSMENT YEAR : 2007-08 SHRI YELLAPPA, CHITHANANDAPPA KURUBA, PROP. OF M/S.B. ENTERPRISES, B/4 TOWER NO. 1, KURLA, KAMGAR SOCIETY, KAMGAR NAGAR, KURLA (E), MUMBAI-400 024 / VS. THE ITO-21(3)(2), C-11 BLDG., 5 TH FLOOR, BKC, BANDRA (E), MUMBAI-400 051 ./ ./ PAN/GIR NO. : AGEPK 8433D ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY: SHRI ASHWIN S. CHHAG / RESPONDENT BY: SHRI ASGHAR ZAIN V.P. ! '# / DATE OF HEARING : 13.03.2015 $% '# / DATE OF PRONOUNCEMENT : 13.03.2015 &' / O R D E R PER N.K. BILLAIYA, AM: WITH THIS MISCELLANEOUS APPLICATION, THE ASSESSEE HAS CONTESTED THAT THE ORDER OF THE TRIBUNAL DT. 2.7.2014 IN ITA NO. 1599/M/2013 IS ERRONEOUS AND DESERVES TO BE RECTIFIED U/S. 254(2) OF THE ACT. M.A. NO.426/M/2014 2 2. RELYING UPON THE CONTENTS OF THE MISCELLANEOUS A PPLICATION, THE LD. COUNSEL FOR THE ASSESSEE POINTED OUT THAT THE TRIBU NAL HAS NOT CONSIDERED THE ARGUMENTS MADE AT THE TIME OF THE HEARING NOR T HE TRIBUNAL HAS CONSIDERED THE DECISIONS CITED BEFORE IT. THIS HAS RENDERED THE ORDER OF THE TRIBUNAL ERRONEOUS AND RECTIFIABLE U/S. 254(2) OF THE ACT. 3. THE LD. DEPARTMENTAL REPRESENTATIVE STATED THAT THERE IS NO MISTAKE APPARENT FROM RECORD. 4. WE HAVE CAREFULLY PERUSED THE CONTENTS OF THE MI SCELLANEOUS APPLICATION. WE HAVE ALSO GONE THROUGH THE DECISIO N OF THE TRIBUNAL. WE FIND THAT ONE OF THE CONTENTION RELATED TO THE DENI AL OF REASONABLE AND PROPER OPPORTUNITY TO THE ASSESSEE ALONGWITH OTHER CONTENTIONS MADE DURING THE COURSE OF THE HEARING. THE TRIBUNAL IN ITS WISDOM CONSIDERED IT FIT TO DECIDE ON THE DENIAL OF REASONABLE AND PR OPER OPPORTUNITY AND RESTORED THE MATTER TO THE FILE OF THE AO FOR FRESH ADJUDICATION. WE, THEREFORE, DO NOT FIND ANY MERIT IN THE CONTENTION OF THE LD. COUNSEL. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS RA MESH ELECTRIC & TRADING CO. 203 ITR 497 HAS HELD AS UNDER: UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961, THE APPELLATE TRIBUNAL MAY, WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED B Y IT UNDER SUB-SECTION (1) WITHIN THE TIME PRESCRIBED THEREIN. IT IS AN ACCEPTED POSITION THAT THE APPELLATE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER THE PROVISIONS OF THE ACT. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO R ECTIFY ANY MISTAKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD. THIS IS MERELY A POWER OF AMENDING ITS ORDER. THE POWER OF RECTIFICATION UNDER SECTION 254(2) CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND P ATENT MISTAKE WHICH IS APPARENT FROM THE RECORD, AND NOT A MISTAK E WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS M.A. NO.426/M/2014 3 OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVAB LY BE TWO OPINIONS. FAILURE OF THE TRIBUNAL TO CONSIDER AN A RGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSI ON IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE TRIBUNAL CANNOT, IN THE EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES W HICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION. 5. DRAWING SUPPORT FROM THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT (SUPRA), MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 13 TH MARCH, 2015 SD/- SD/- (SANJAY GARG ) (N.K. BILLAIYA) JUDICIAL MEMBER / ACCOUNTANT MEMBER ! MUMBAI; (& DATED : 13 TH MARCH, 2015 . . ./ RJ , SR. PS &' &' &' &' ') ') ') ') *)' *)' *)' *)' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. + ( ) / THE CIT(A)- 4. + / CIT 5. ),- ' , , ! / DR, ITAT, MUMBAI 6. -. /! / GUARD FILE. &' &' &' &' / BY ORDER, )' ' //TRUE COPY// 0 00 0 / 1 1 1 1 (DY./ASSTT. REGISTRAR) , ! / ITAT, MUMBAI