M/s Jaspal Filing Station, Nawanshahr V. The Income Tax Officer, Nawanshahr

MA 43/ASR/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4881 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 4 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-10-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 21-10-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 28-05-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH : AMRITSAR. BEFORE SH. T. S. KAPOOR, ACCOUNTANT MEMBER AND SH. N.K. CHOUDHRY, JUDICIAL MEMBER MA NO.43(ASR)/2015 (ARISING OUT OF ITA NO.163(ASR)/2013) ASSESSMENT YEAR:2006-07 PAN: AAFFJ5357 M/S. JASPAL FILLING STATION, VS. INCOME TAX OFFIC ER, VILL. PALLI JHIKKI, NAWANSHAHAR. NAWANSHAHAR. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. ANIL MIGLANI, ADVOCATE RESPONDENT BY: SH. RAHUL DHAWAN, DR DATE OF HEARING: 21/10/2016 DATE OF PRONOUNCEMENT: 23/10/2016 ORDER PER T.S. KAPOOR, AM: THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY T HE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL, DATED 22.03.2015 , PASSED IN ITA NO.163/ASR/2013 FOR THE ASSESSMENT YEAR 2006-07. 2. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE HONBLE TRIBUNAL HAS DECIDED THE APPEAL OF THE ASS ESSEE ON THE BASIS OF WRONG FACTS AND IN THIS RESPECT HE INVITED OUR ATTE NTION TO PARA 5 OF THE AFORESAID ORDER OF THE TRIBUNAL, WHERE THE TRIBUNAL HAS NOTED THE ARGUMENTS OF THE ASSESSEE. THE LD. COUNSEL SUBMITTE D THAT THE TRIBUNAL HAS NOTED THE FOLLOWING FACTS, WHICH THE LD. COUNSE L HAD NOT ARGUED: MA NO.43/ASR/2015 A.Y. 2006-07 2 5. THE LD. COUNSEL FOR THE ASSESSEE, MR. ANIL MIGL ANI, ADVOCATE TRIED TO CONVINCE THE BENCH THAT THE MONEY HAS BEEN DEPOSITED AFTER 2005 I.E. 01.04.2005 TO 31.07.2005 AFTER VARIOUS RE ALIZATION, WHICH WERE POINTED OUT IN THE PAPER BOOK AT PAGES 1 TO 23 AND ARGUED THAT THE ADDITION WAS WRONGLY SUSTAINED BY THE LD. CIT(A ) AND THE SAME MAY DIRECTED TO BE DELETED. 7..THE ASSESSEE HAS NOT BROUGHT ANY MATERIAL ON RECORD ON ACCOUNT OF REALIZATION MADE OUT OF BALANCES OUTSTAN DING AS ON 31.03.2005. 7.. SINCE THE ASSESSEE HAD NOT FILED THE RETURN O F INCOME FOR THE YEAR ENDING 31.03.2006 RELEVANT TO ASSESSMENT YEAR 2006-07. THE LD. COUNSEL FURTHER SUBMITTED THAT THESE FACTS ARE WRONG FACTS AND THE COUNSEL HAD NEVER ARGUED THESE FACTS BEFORE THE TRIBUNAL. THEREFORE, THE ORDER PASSED BY THE TRIBUNAL ON THE BASIS OF WR ONG FACTS NEEDS TO BE RECTIFIED. THE LD. COUNSEL IN THIS RESPECT INVITED OUR ATTENTION TO WRITTEN SUBMISSIONS WHICH WERE FILED AT THE TIME OF ARGUMEN TS. THE LD. AR ALSO SUBMITTED THAT HE HAS FILED AN AFFIDAVIT IN THIS RE SPECT. 3. THE LD. DR, ON THE OTHER HAND, INVITED OUR ATTEN TION TO THE FINDINGS OF THE TRIBUNAL, AS CONTAINED IN PARA-7 AND SUBMITT ED THAT THE TRIBUNAL HAD PASSED THE ORDER AFTER CONSIDERING ALL THE FACT S AND CIRCUMSTANCES OF THE CASE AND AFTER GOING THROUGH THE ORDER OF THE LD. CITA). HE SUBMITTED THAT THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESS EE THAT THE TRIBUNAL HAD PASSED THE ORDER BY ASSUMING WRONG FACTS, DOES NOT HOLD ANY FORCE IN VIEW OF THE FACT THAT THE TRIBUNAL CANNOT REVIEW ITS OWN DECISION AND THE SCOPE UNDER SECTION 254(2) OF THE ACT IS VERY L IMITED AND IS ONLY APPLICABLE TO THE APPARENT MISTAKE IN THE ORDER. TH E LD. DR IN THIS RESPECT RELIED UPON THE DECISION OF THE HONBLE PUN JAB & HARYANA HIGH MA NO.43/ASR/2015 A.Y. 2006-07 3 COURT, IN THE CASE OF COMMISSIONER OF INCOME TAX VS . PEARL WOOLLEN MILLS, 330 ITR 164. 4. THE LD. COUNSEL FOR THE ASSESSEE IN HIS REJOINDE R RELIED UPON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF M /S. HONDA SIEL POWER PRODUCTS LTD. VS. CIT, 295 ITR 466 (SC), WHEREIN TH E HONBLE SUPREME COURT HAS HELD THE PURPOSE BEHIND ENACTMENT OF SEC TION 254(2) IS BASED ON THE FUNDAMENTAL PRINCIPLE THAT NO PARTY APPEARI NG BEFORE THE TRIBUNAL SHOULD SUFFER ON ACCOUNT OF ANY MISTAKE CO MMITTED BY THE TRIBUNAL. 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL AVAILABLE ON RECORD. WE ARE IN AGREEMENT W ITH THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE HONBLE S UPREME COURT IN THE CASE OF M/S. HONDA SIEL POWER PRODUCTS LTD. VS. CIT (SUPRA), HAS LAID DOWN THE PURPOSE BEHIND ENACTMENT OF SECTION 254(4) , WHICH IS BASED ON THE FUNDAMENTAL PRINCIPLE THAT NO PARTY APPEARING BEFORE THE TRIBUNAL SHOULD SUFFER ON ACCOUNT OF ANY MISTAKE COMMITTED B Y THE TRIBUNAL. HOWEVER, WE ARE NOT IN AGREEMENT WITH THE VIEW OF T HE LD. COUNSEL THAT THE MISTAKES POINTED OUT BY HIM ARE THE MISTAKES RE CTIFIABLE UNDER SECTION 254(2) OF THE ACT, AS THE TRIBUNAL HAD DECI DED THE ISSUE AFTER TAKING INTO ACCOUNT ALL THE FACTS AND CIRCUMSTANCES OF THE CASE. THE ORDER SOUGHT TO BE RECTIFIED IN THE MISC. APPLICAT ION BY PLEADING THAT CERTAIN FACTS WERE WRONGLY NOTED BY THE TRIBUNAL IS NOT A VALID GROUND FOR RECTIFICATION, AS THE TRIBUNAL HAD PASSED THE ORDER AFTER CONSIDERING THE MA NO.43/ASR/2015 A.Y. 2006-07 4 FACTS AND CIRCUMSTANCES. EVEN IF WE RECTIFY THE NOT INGS NOTED BY THE HONBNLE TRIBUNAL, ITS FINAL DECISION CANNOT BE CH ANGED, AS THE TRIBUNAL IS NOT PERMITTED TO REVIEW ITS OWN DECISION. THE HO NBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. PEARL WOOLLEN MILLS, 330 ITR 164, HAS HELD AS UNDER: THE TRIBUNAL COULD NOT HAVE READJUDICATED THE MATT ER UNDER S. 254(2). IT IS WELL-SETTLED THAT A STATUTORY AUTHORI TY CANNOT EXERCISE POWER OF REVIEW UNLESS SUCH POWER IS EXPRESSLY CONF ERRED. THERE IS NO EXPRESS POWER OF REVIEW CONFERRED ON THE TRIBUNA L. EVEN OTHERWISE, SCOPE OF REVIEW DOES NOT EXTEND TO REHEA RING OF A CASE ON MERITS. FINALITY OF ORDER OF TRIBUNAL CANNOT BE DIS TURBED BY A DIFFERENT BENCH BEYOND THE STATUTORY POWER AVAILABL E TO IT. THE TRIBUNAL HAS REFERRED TO PRINCIPLE OF INHERENT POWE R AND INCIDENTAL POWER AND ALSO THE PRINCIPLE THAT ACT OF COURT CANN OT PREJUDICE ANYONE. SCOPE OF THE PRINCIPLE 'ACTUS CURIAE NEMINE M GRAVABIT' I.E., NOBODY WILL BE PREJUDICED BY ACT OF COURT, EXTENDS TO CORRECTING AN ERROR FROM AN ACCIDENTAL SLIP OR OMISSION. SUCH POW ER IS AVAILABLE UNDER S. 254(2) WHICH IS AKIN TO S. 152 CPC. SUCH P OWER IS LIMITED TO CORRECTING AN ERROR APPARENT ON THE FACE OF RECORD AND NOT TO AN ERROR TO BE DISCOVERED BY LONG DRAWN PROCESS OF REASONING . THUS, NEITHER BY INVOKING INHERENT POWER NOR THE PRINCIPLE OF MIS TAKE OF COURT NOT PREJUDICING A LITIGANT NOR BY INVOKING DOCTRINE OF INCIDENTAL POWER, THE TRIBUNAL COULD REVERSE A DECISION ON MERITS. PO WER AVAILABLE TO A COURT OF RECORD, EX DEBITO JUSTITIAE, OR POWER TO B E INVOKED WHERE AN ORDER MAY BE NULLITY, ON ACCOUNT OF HAVING PASSED W ITHOUT SERVICE OF A PARTY, STAND ON A DIFFERENT FOOTING. THUS, THE TR IBUNAL WAS NOT JUSTIFIED IN RECALLING ITS PREVIOUS FINDING RESTORI NG THE ADDITION, MORE SO WHEN AN APPLICATION FOR THE SAME RELIEF HAD BEEN EARLIER DISMISSED.- T.S.BALARAM, ITO VS. VOLKART BRORS. & O RS.(1971) 82 ITR 50 (SC), ASSTT. VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD .(2008) 219 CTR (SC) 90: (2008) 12 DTR (SC) 346: (2008) 305 ITR 227 (SC), DEVA METAL POWDERS (P) LTD. VS. COMMR., TRADE TAX (2008) 2 SCC 439 AND PATEL NARSHI THAKERSHI & ORS. VS. PRADYUMAN SINGHJI ARJUNSINGHJI (1971) 3 SCC 844 RELIED ON. 6. SIMILARLY, THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. KARAM CHAND AND BROS. P. LTD., 176 ITR 535 HAS HELD AS UN DER MA NO.43/ASR/2015 A.Y. 2006-07 5 IT IS EQUALLY SETTLED THAT THE DECISION OF THE TRI BUNAL HAS NOT TO BE SCRUTINIZED SENTENCE BY SENTENCE MERELY TO FIND OUT WHETHER ALL FACTS HAVE BEEN SET OUT IN DETAIL BY THE TRIBUNAL OR WHET HER SOME INCIDENTAL FACT WHICH APPEARS ON THE RECORD HAS NOT BEEN NOTICED BY THE TRIBUNAL IN ITS JUDGMENT. IF THE COURT, ON A FA IR READING OF THE JUDGMENT OF THE TRIBUNAL FINDS THAT IT HAS TAKEN IN TO ACCOUNT ALL RELEVANT MATERIAL AND HAS NOT TAKEN INTO ACCOUNT AN Y IRRELEVANT MATERIAL IN BASING ITS CONCLUSIONS, THE DECISION OF THE TRIBUNAL IS NOT LIABLE TO BE INTERFERED WITH, UNLESS, OF COURSE, TH E CONCLUSIONS ARRIVED AT BY THE TRIBUNAL ARE PERVERSE. IT IS NOT NECESSARY FOR THE TRIBUNAL TO STATE IN IT S JUDGMENT SPECIFICALLY OR IN EXPRESS WORDS THAT IT HAS TAKEN INTO ACCOUNT THE CUMULATIVE EFFECT OF THE CIRCUMSTANCES OR HAS CONSI DERED THE TOTALITY OF FACTS, AS IF THAT WERE A MAGIC FORMULA ; IF THE JUDGMENT OF THE TRIBUNAL SHOWS THAT IT HAS, IN FACT, DONE SO, THERE IS NO REASON TO INTERFERE WITH THE DECISION OF THE TRIBUNAL. 7. IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND ANY JUSTIFICATION IN ACCEPTING THE MISC. APPLICATION FILED BY THE ASSESS EE. 8. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23/10/20 16. SD/- SD/- (N.K. CHOUDHRY) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER /SKR/ DATED: 23/10/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. JASPAL FILLING STATION, NAWANSHAH AR. 2. THE ITO, NAWANSHAHAR. 3. THE CIT(A), JALANDHAR 4. THE CIT, JALANDHAR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER INCOME TAX APPELLATE TRIBUNAL,