The ITO, Ward-2, Vapi V. M/s. Krishna Plast, Umbergam

MA 43/AHD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8463 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-07-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 12-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Keywords: Opportunity of being heard; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD (BEFORE SHRI MUKUL KR. SHRAWAT, JM AND SHRI A. MOHA N ALANKAMONY, AM) M. A. NO.43/AHD/2011 (IN ITA NO.1475/AHD/2008 - AY: 2005-06) THE INCOME TAX OFFICER, WARD-2, VAPI VS M/S. KRISHNA PLAST, 4217 CLASSIC ZONE, SARIGAM, TAL. UMBERGAM P. A. NO. AAEFK 4672 L (APPLICANT) (RESPONDENT) APPLICANT BY SHRI B. L. YADAV, SR. DR RESPONDENT BY SHRI RAJESH UPADHYAY, AR DATE OF HEARING: 22-06-2012 DATE OF PRONOUNCEMENT: 06-07-2012 ORDER PER A. MOHAN ALANKAMONY : THIS MISC. APPLICATION IS FILED BY THE REVENUE SEEKING RECTIFICATION OF TH E ORDER PASSED BY THE TRIBUNAL IN ITA NO.1475/AHD/2008 FOR THE ASSESSMENT YEAR 2005-06 DATED 02-07-2010. 2. IN THE MISC. PETITION, THE REVENUE HAS STATED AS UNDER: 4. AGAINST THE ABOVE DECISION OF THE LD. CIT(A), T HE ASSESSEE PREFERRED APPEAL BEFORE THE HON. ITAT. THE HON. ITAT VIDE THEIR ORDER IN ITA NO.1475/AHD/2008 DATED 2.7.2010 HAS RESTORED THE CASE TO THE FILE OF THE AO FOR FRE SH DECISION AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. HOWEVER, WHILE DELIVERING THE ABOVE DECIS ION THE HON. ITAT HAS SET A RESTRICTION THAT IN THE RE-ASSE SSMENT THE ADDITIONS TO BE MADE, IF ANY, WILL NOT EXCEED WHAT THE LD. CIT(A) HAS SUSTAINED AS THE REVENUE DID NOT FILE AN Y APPEAL MA NO.43/AHD/2011 (IN ITA NO.1475/AHD/2008AY: 2005-6) THE ITO, W-2, VAPI VS M/S. KRISHNA PLAST 2 AGAINST THE DECISION OF THE LD. CIT(A). THIS RESTRI CTION IS AGAINST THE NATURAL JUSTICE. WHEN THE ENTIRE ASSESSMENT HAS BEEN SET ASIDE TO BE MADE AFRESH AFTER CONSIDERING THE FACTU AL LEGAL POSITION ON THE ISSUES, SUCH DECISION OF THE HON. I TAT DENIES NATURAL JUSTICE TO THE REVENUE. AS CAN BE SEEN FROM THE RECORDS, THE ASSESSEE WAS GIVEN AMPLE OPPORTUNITIES AT THE TIME OF ORIGINAL ASSESSMENT. HOWEVER, THE ASSESSEE DID NOT AVAIL OF THE SAME. 5. IN VIEW OF THE ABOVE, IT IS RESPECTFULLY PRAYED THAT THE RESTRICTION MADE BY THE HON. ITAT IN THE ABOVE ORDE R BE REMOVED AND THE AO MAY KINDLY BE GIVEN DIRECTIONS T O VERIFY THE FACTS IN ALL ISSUES OF ADDITIONS. THEREFORE, TH E HON. ITAT, AHMEDABAD BENCH D IS REQUESTED TO KINDLY RECTIFY T HEIR ORDER TO THE ABOVE EXTENT. 3. HOWEVER, ON PERUSING THE ORDER OF THE TRIBUNAL, WE DO NOT FIND ANY MERIT ON THE SUBMISSIONS OF THE REVENUE. THE RE LEVANT PORTION OF THE ORDER IS EXTRACTED HEREIN BELOW: 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW THE ASSESSMENT IS REQUIRED TO BE FRAMED AGAIN AS PROPER OPPORTUNIT Y OF BEING HEARD HAS NOT BEEN GIVEN TO THE ASSESSEE. EVEN OTHE RWISE, THE AO WAS EXPECTED TO COLLECT EVIDENCE BEFORE MAKING A DDITIONS. MERE REJECTING THE CLAIM OR MAKING DISALLOWANCES WI THOUT SUPPORTING WITH VALID REASONS AND EVIDENCE ON RECOR D CANNOT BE SUSTAINED. FOR NON-COMPLIANCE TO NOTICES SEPARAT E PENAL PROVISIONS HAVE BEEN PROVIDED. IT MEANS THAT PASSIN G EX PARTE ORDER AND MAKING DISALLOWANCES OR REJECTING THE CLA IM IN SWEEPING MANNER WILL GIVE THE IMPRESSION THAT AO IS INTENDING TO PENALIZE THE ASSESSEE FOR NON-COMPLIANCE OF THE NOTICES WITHOUT INVOLVING THE PENAL PROVISIONS PROVIDED IN I. T. ACT OF INDIAN PENAL CODE. THIS APPROACH IS NOT ACCEPTABLE. EVEN WHILE MAKING EX PARTE ASSESSMENT, JUSTICE MUST BE A PPEARED TO HAVE BEEN DONE AND REASONABILITY SHOULD NOT APPEAR AS A CASUALTY. HENCE HIGH PITCHED HOLLOW EX PARTE ASSESS MENT CANNOT BE UPHELD. THE DEPARTMENT IS NOT IN APPEAL I N RESPECT OF MA NO.43/AHD/2011 (IN ITA NO.1475/AHD/2008AY: 2005-6) THE ITO, W-2, VAPI VS M/S. KRISHNA PLAST 3 ADDITION DELETED BY THE LD. CIT(A). THUS, IN REASSE SSMENT THE ADDITIONS TO BE MADE, IF ANY, WILL NOT EXCEED WHAT LD. CIT(A) HAS SUSTAINED. THE LD. AO WILL CONSIDER THE FACTUAL LEG AL POSITION ON THE ISSUE AND TAKE DECISION AFRESH AFTER GIVING OPP ORTUNITY OF BEING HEARD TO THE ASSESSEE. THEREFORE, WE RESTORE THE MATTER TO THE FILE OF THE AO FOR FRESH DECISION AFTER GIVI NG REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. APPEAL OF ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 4. IT IS PERTINENT TO NOTE THAT THE TRIBUNAL HAS PO WER ONLY TO RECTIFY THE MISTAKES WHICH ARE APPARENT ON RECORD. THE TRIB UNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN DECISION. MISTAKE IN TAXATION LAWS HAS A SPECIFIC SIGNIFICATION. IT IS MOSTLY SUBJECTI VE AND THE DEFINING LINE IS INDISCERNIBLE. APPARENT MEANS VISIBLE, CAPABLE OF BEING SEEN, OBVIOUS, PLAIN, OPEN TO VIEW, EVIDENT ETC. THE PLAI N MEANING OF THE WORD APPARENT IS THAT IT MUST BE SOMETHING WHICH APPEARS TO BE EX- FACIE AND EXPLICIT. IF SUCH A MISTAKE APPARENT ON T HE FACE OF THE RECORD IS BROUGHT TO THE NOTICE OF THE BENCH, SECTION 254( 2) OF THE ACT EMPOWERS THE TRIBUNAL TO AMEND ITS ORDER PASSED U/S 254(1) OF THE ACT. THUS, THE SCOPE AND AMBIT OF SECTION 254(2) OF THE ACT IS VERY LIMITED. IN THE PRESENT MISC. APPLICATION OF THE R EVENUE, IT IS PRAYED THAT THE RESTRICTIONS IMPOSED BY THE TRIBUNAL MAY B E RELAXED. ANY SUCH ALTERATION OR MODIFICATION IN THE ORDER OF THE TRIBUNAL WILL AMOUNT TO REVIEW AND THE TRIBUNAL DOES NOT HAVE SUCH POWER S VESTED BY THE ACT. THEREFORE, WE DO NOT SEE ANY MERIT IN THE MISC . PETITION FILED BY THE REVENUE AND HENCE, WE DISMISS THE SAME. MA NO.43/AHD/2011 (IN ITA NO.1475/AHD/2008AY: 2005-6) THE ITO, W-2, VAPI VS M/S. KRISHNA PLAST 4 5 IN THE RESULT, THE MISC. APPLICATION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 06-07-2012. SD/- SD/- (MUKUL KR. SHRAWAT) JUDICIAL MEMBER (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/- -- - COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 05-07-12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 05-07-12 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR.P.S ./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. 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 ORDER: 9. DATE OF DESPATCH OF THE ORDER: