M/s. Rohit Tandan, Jalandhar V. The Income Tax Officer, Jalandhar

MA 44/ASR/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3968 (ITAT-AMRITSAR)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 19-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: Y K SUD
• Assessee Lawyers: R K SHARDA
• Keywords: Question of law
• Section: 260A; 10B

Judgement Text

I IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER M.A. NOS. 23 TO 27(ASR)2015 (ARISING OUT OF ITA NOS.345, 55, 410,238 & 284(ASR) /2015, 11, 10, 11 & 12) ASSESSMENT YEARS:2006-07 TO 2009-10 INCOME TAX OFFICER, VS. SHRI ROHIT TANDON PROP. WARD 1(3), M/S. PRAJNA (INDIA). JALANDHAR. JALANDHAR. PAN :AAFPT3362Q (APPELLANT) (RESPONDENT) M.A. NO.44(ASR)2015 (ARISING OUT OF ITA NO. 55(ASR)/2011) ASSESSMENT YEARS:2006-07 SHRI ROHIT TANDON PROP. VS. INCOME TAX OFFICER, M/S. PRAJNA (INDIA). WARD 1(3), JALANDHAR. JALANDHAR. PAN :AAFPT3362Q (APPELLANT) (RESPONDENT) DEPARTMENT BY:SH. R.K. SHARDA, DR RESPONDENT BY: SH. Y.K. SUD, CA DATE OF HEARING: 26/02/2016 DATE OF PRONOUNCEMENT: 04/03/2016 ORDER PER A.D. JAIN, JM THESE FIVE MISCELLANEOUS APPLICATIONS HAVE BEEN FI LED BY THE REVENUE, WHEREAS ONE MISC. APPLICATION HAS BEEN FIL ED BY THE ASSESSEE, AGAINST THE ORDER OF THE TRIBUNAL DATED 05.03.3015. 2. M.A.NOS.23 TO 27(ASR)/2015 MA NO.23 TO 27 & 44(ASR)/2015 2 IN ALL THESE APPLICATIONS, THE DEPARTMENT HAS RAIS ED COMMON ISSUES, CONTENDING AS FOLLOWS: IT IS SUBMITTED THAT THE HON'BLE TRIBUNAL HAS PASSE D A COMMON ORDER IN ITA NO.235/2009,55/2011,410/2010,238/2011 & 284/2012 DATED 05.03.2015 IN THE AFOREMENTIONED CAS E. THE TRIBUNAL HAD EARLIER DISMISSED THE ASSESSEE'S APPEA L IN ITA NO.345/ASR/2009 VIDE ITS ORDER DATED 31.08.2009 AND SUBSEQUENTLY THE SAID ORDER HAD BEEN RECALLED VIDE ITS ORDER IN MA NO.98/ASR/2009 DATED 04.03.2010 AND REVERSED ITS PR EVIOUS ORDER DATED 31.08.2009 AND ALLOWED THE ASSESSEE'S APPEAL. THE TRIBUNAL HAS RECORDED THE BASIS OF RECALLING THE SAID ORDER IN ITS ORDER DATED 05.03.2015 AT PARA 8 WHICH IS REPRODUCED HEREUNDER: - '10. HAVING CONSIDERED THE RIVAL SUBMISSIONS, WE FI ND THE GRIEVANCES OF THE ASSESSEE TO BE CORRECT. A PERUSAL OF THE ORDER SHOWS THAT THE CASE LAWS CITED ON BEHALF OF THE ASS ESSEE HAVE NOT BEEN CONSIDERED. THE AFORESAID VARIOUS ARGUMENT S, STATED TO HAVE BEEN MADE BEFORE THE TRIBUNAL AT THE TIME O F HEARING OF THE APPEAL, HAVE ALSO NOT BEEN DISPOSED OF IN TH EIR RIGHT PERSPECTIVE, AS POINTED OUT IN THE APPLICATION AND ARGUED DURING THE HEARING OF THE APPEAL. THIS, IN OUR CONS IDERED OPINION, INDEED CONSTITUTES A RECTIFIABLE MISTAKE A PPARENT FROM RECORD. THEREFORE, OUR ORDER DATED 31.08.2009 (SUPR A) IS HEREBY RECALLED. THE MATTER IS REFIXED FOR HEARING ON MERITS AFRESH UNDER NOTICE TO THE PARTIES ON 8.4.2010.' THE SR.DR'S SUBMISSIONS AS HAS BEEN RECORDED BY THE TRIBUNAL AT PARA 12 & 13 OF ITS AFORESAID ORDER READ AS UNDER:- '12. AS A COUNTER TO THE WRITTEN SUBMISSIONS DATED 12.01.2015, THE LD.DR FILED WRITTEN SUBMISSIONS DAT ED 27.01.2015. THEREIN, IT WAS CONTENDED THAT BY PASSI NG THE ORDER DATED 04.03.2010, THE TRIBUNAL HAS CAUSED IMM ENSE PREJUDICE TO THE INTERESTS OF THE REVENUE AND AS SU CH PREJUDICE REQUIRED TO BE DONE AWAY WITH IN THE FIRST INSTANCE . RELIANCE WAS PLACED ON HONDA SIEL POWER PRODUCTS LTD. VS CIT REPORTED IN (2007) 295 ITR 466 (SC). IT WAS CONTEND ED THAT THE TRIBUNAL ERRED IN HOLDING THAT NINE JUDGMENTS CITED ON BEHALF OF THE ASSESSEE WERE NOT CONSIDERED BY THE TRIBUNAL WHILE PASSING ITS EARLIER ORDER DATED 31.08.2009; THAT TH E TRIBUNAL FURTHER ERRED IN HOLDING THAT VARIOUS ARGUMENTS ADV ANCED ON BEHALF OF THE ASSESSEE AT THE TIME OF HEARING OF TH E APPEAL HAD NOT BEEN DISPOSED OF IN THEIR RIGHT PERSPECTIVE; TH AT IN CASE IT WERE SO, SUCH NON-CONSIDERATION OF THE ARGUMENTS ' IN THEIR RIGHT PERSPECTIVE' AMOUNTED TO PERVERSITY, WHICH CO ULD NOT BE MA NO.23 TO 27 & 44(ASR)/2015 3 REVIEWED BY THE TRIBUNAL; THAT THE ORDER COULD HAVE BEEN RECALLED BY INVOKING THE PROVISIONS OF SECTION 254( 2) OF THE ACT ONLY IN CASE THE ARGUMENTS HAD NOT BEEN CONSIDERED AT ALL; THAT THE RECALLING OF THE TRIBUNAL'S EARLIER ORDER BE TREATED AS VACATED; AND THAT THUS, THERE REMAINED NOTHING TO B E TAKEN AFRESH IN THE APPEAL, AS ' WHEN THE TRIBUNAL WILL A TONE FOR ITS WRONG, IT WILL ONLY RESULT IN RESTORATION OF ITS OR DER DATED 31.08.2009 WHICH IS HUMBLY PRAYED FOR'. FURTHER, A PARA-WISE DISCUSSION OF THE ORDER DATED 04.03.3010 WAS MADE, CHALLENGING THE OBSERVATIONS MADE THEREIN AND IT WA S REITERATED THAT THE TRIBUNAL HAD CAUSED PREJUDICE T O THE INTERESTS OF THE REVENUE BY RECALLING ITS EARLIER O RDER. APROPOS THE ISSUE REGARDING THE POWER OF THE TRIBUNAL TO RE CALL AN ORDER IN TOTO, IT WAS CONTENDED THAT THE TRIBUNAL D OES NOT HAVE ANY SUCH POWER. THE LAWS RELIED ON BY THE ASSESSEE IN THIS BEHALF WERE STATED TO BE NOT APPLICABLE. 13. THE LD.DR FILED FURTHER WRITTEN SUBMISSIONS DAT ED 03.02.2015, REITERATING THE REQUEST THAT THE PREJUD ICE CAUSED TO THE INTERESTS OF THE REVENUE BE DONE AWAY WITH A ND THE ISSUE AS TO WHETHER THE ORDER OF THE TRIBUNAL ALLOW ING THE APPLICATION OF THE ASSESSEE HAD NOT CAUSED SUCH PRE JUDICE BE DECIDED FIRST .' THE TRIBUNAL HAS EMINENTLY CONCEDED THE MISTAKE WHI CH THE DR HAD POINTED OUT AS ABOVE AT PARA 19 OF ITS ORDER IN THE FOLLOWING WORDS: IN THE ORDER ALLOWING THE APPLICATION, MISTAKENLY, THE TRIBUNAL OBSERVED THAT THESE LATTER NINE JUDGMENTS HAD NOT B EEN CONSIDERED BY THE TRIBUNAL WHILE PASSING ITS EARLIE R ORDER. THIS, EVIDENTLY, WAS A TYPOGRAPHICAL ERROR SINCE A PERUSAL OF THE EARLIER ORDER OF THE TRIBUNAL SHOWS THAT THE OT HER SET OF NINE JUDGMENTS RELIED ON BY THE ASSESSEE DURING THE APPEAL PROCEEDINGS HAD NOT BEEN CONSIDERED. THEREFORE, THE OBJECTION OF THE DEPARTMENT IN THIS REGARD IS NOT JUSTIFIED. IT IS THUS MANIFESTLY CLEAR THAT THE TRIBUNAL HAS C ONCEDED THE MISTAKE IN ITS ORDER. THEREFORE, IN VIEW OF THE JUD GMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF HONDA SIEL POW ER PRODUCT LTD. VS CIT (SUPRA) THERE WAS LITTLE OPTION WITH THE TRI BUNAL EXCEPT TO FIRST RECTIFY THE MISTAKE AND THEN PROCEED WHETHER THE OT HER SET OF NINE JUDGMENTS WERE CONSIDERED OR NOT. IT IS FURTHER SEE N THAT THE TRIBUNAL'S OBSERVATION IN THE LAST TWO LINES OF PAG E 8 'SINCE A PERUSAL OF THE EARLIER ORDER OF THE TRIBUNAL SHOWS THAT THE OTHER SET OF NINE JUDGMENTS RELIED ON BY THE ASSESSEE DURING THE APPE AL PROCEEDINGS HAD NOT BEEN CONSIDERED' IS ALSO A MISTAKE AS THE FACT IS THE SAID SET MA NO.23 TO 27 & 44(ASR)/2015 4 OF NINE JUDGMENTS WERE DULY CONSIDERED BY THE BENCH AT DIFF ERENT PAGES OF THE OPERATIVE PART OF THE DECISION. IT IS WORTHWHILE TO MENTION HERE THAT FIRST JUDGMEN T IN THE SET OF NINE JUDGEMENT IS IN THE CASE OF TEXTILE MACHINERY CORPO RATION LTD VS CIT (107 ITR 195)(SC) WHICH HAS BEEN DEALT AT PAGE 10 O F THE ORDER. THE SECOND JUDGMENT IN THE CASE OF INDIAN ALUMINIUM COR PORATION LTD VS CIT(108 ITR 367)(SC) HAS BEEN CONSIDERED AT PAGE 10 ITSELF. THIRD JUDGMENT IN THE CASE OF CIT VS ORIENT PAPER MILLS ( 176 ITR 1210) (SC) HAS BEEN CONSIDERED AT PAGE 11. FIFTH JUDGMENT IN THE CASE OF T.SATISH.U.PAL VS. CIT (119 ITR 877) HAS BEEN CONSI DERED AT PAGE 9. SIXTH JUDGMENT IN THE CASE OF ITO VS SARVIYON GLOBA L SOLUTIONS LTD. (117 TTJ 11) HAS BEEN CONSIDERED AT PAGE 11. SEVENT H JUDGMENT IN THE CASE OF ITO VS DSM SOFT PRIVATE LTD (115 TTJ 46 9) HAS BEEN CONSIDERED AT PAGE 11. EIGHTH JUDGMENT IN THE CASE OF HINDUSTAN GENERAL INDUSTRIES LTD. VS CIT (137 ITR 851) HAS BE EN CONSIDERED AT PAGE 10. NINTH JUDGMENT IN THE CASE OF CHANDA DIESE LS VS CIT (216 ITR 639) HAS BEEN CONSIDERED AT PAGE 11. JUDGMENT A T S.NO.4 IS NOT FINDING MENTION IN THE ORDER OBVIOUSLY THE SAME HAD NOT BEEN PRESSED INTO SERVICE BY THE LEARNED COUNSEL FOR THE ASSESSEE. THUS, IT IS CLEAR THAT THE TRIBUNAL HAS COMPOUNDED THE PREJU DICE CAUSED TO THE INTERESTS OF THE REVENUE BY REPEATING THE MISTA KE WHICH IT ITSELF CONCEDES THAT IT HAD COMMITTED. AS REGARDS THE OTHER REASON FOR RECALLING THE ORDER I.E. ' THE AFORESAID VARIOUS ARGUMENTS STATED TO HAVE BEEN MAD E BEFORE THE TRIBUNAL AT THE TIME OF HEARING THE APPEAL, HAVE AL SO NOT BEEN DISPOSED OF IN THEIR RIGHT PERSPECTIVE', THE TRIBUN AL HAS NOWHERE DEALT WITH THE SUBMISSIONS OF THE SR.DR DATED 27.01 .2015 THAT' IF SUBMISSIONS ARE NOT CONSIDERED IN THEIR RIGHT PERSP ECTIVE', IT TENTAMOUNTS TO PERVERSITY WHICH IS BEYOND THE PALE OF THE PROVISIONS OF SECTION 254(2) OF THE INCOME TAX ACT, 1961. THE TRIBUNAL'S NOT DEALING WITH THIS SUBMISSION OF THE DEPARTMENT CLEA RLY AMOUNTS TO COMMITTING A MISTAKE WITHIN THE REALM OF THE PROVIS IONS OF SECTION 254(2) OF THE INCOME TAX ACT, 1961 AND THUS IMPUGNE D ORDER EMINENTLY QUALIFIES TO BE WITHDRAWN AND THE TRIBUNA L COMES UNDER OBLIGATION TO RECTIFY ITS ORDER BY THE MANDATE OF T HE HON'BLE SUPREME COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD (SUPRA). IT IS PERTINENT TO MENTION HERE THAT THE TRIBUNAL HAS SIM PLY OBSERVED WITHOUT ADDUCING ANY REASONING OR ANY CASE LAW AT P ARA 22 OF ITS ORDER THAT 'THERE IS NO FORCE IN THE OBJECTION OF T HE DEPARTMENT THAT IT WAS NOT WITHIN THE PURVIEW OF THE TRIBUNAL TO RECAL L ITS EARLIER ORDER ON THE BASIS THAT ARGUMENTS HAD NOT BEEN CONSIDERED IN THEIR RIGHT PERSPECTIVE. THERE IS NOT A WHISPER IN THE IMPUGNED ORDER THAT IF 'CERTAIN ARGUMENTS ARE NOT CONSIDERED IN THEIR RIGH T PERSPECTIVE' THAT CONSTITUTES MISTAKE AND NOT PERVERSITY. THEREFORE, IT IS CLEAR THAT BY REITERATING ITS EARLIER POSITION, THE TRIBUNAL HAS ONLY COMPOUNDED THE MA NO.23 TO 27 & 44(ASR)/2015 5 PREJUDICE CAUSED TO THE INTERESTS OF THE REVENUE AN D AS SUCH THE IMPUGNED ORDER NEEDS TO BE RECALLED IN TOTO AND THE MISTAKES IN THE TRIBUNAL'S ORDER IN MA NO.98/ASR/2009 DESERVE TO BE RECTIFIED FIRST AND THUS IT WAS EMINENTLY A MISTAKE TO DECIDE THE A FOREMENTIONED APPEALS. IT IS, THEREFORE, PRAYED THAT THE MISTAKE THUS COMMITTED IN THE ORDER DATED 05.03.2015 BE RECTIFIED. IT IS FURTHER SUBMITTED THAT THE TRIBUNAL HAS TAKEN AS HEARD APPEAL NO.55/ASR/2011 ALSO WHICH PERTAIN TO PENALTY AND AS SUCH THE SAID ITA NEEDS TO BE EXCLUDED FROM THE IMPUGNED ORD ER. 3. THE FACTS ARE THAT AS PER THE FINDINGS OF THE A O IN THE ASSESSMENT ORDER, AS TAKEN NOTE OF BY THE LD. CIT(A) FROM PAG E 2, PARA-2.1 TO PAGE 5, PARA 2.5 OF THE IMPUGNED ORDER, THE AO REFUSED TO A LLOW TO THE ASSESSEE THE DEDUCTION CLAIMED U/S 10B OF THE INCOME TAX ACT (THE ACT, FOR SHORT). THE LD. CIT(A), BY VIRTUE OF HIS FINDINGS C ONTAINED AT PAGE 24, PARA 6 TO PAGE 43 OF THE IMPUGNED ORDER, PARTLY ALL OWED THE APPEAL OF THE ASSESSEE. THE TRIBUNAL, VIDE ORDER DATED 31.08.2009 DISMISSED THE ASSESSEES APPEAL AGAINST THE AFORESAID ORDER PASS ED BY THE LD. CIT(A). 2.1 THE ASSESSEE FILED M.A. NO.98(ASR)/2009 BEFORE THE TRIBUNAL, POINTING OUT VARIOUS ALLEGED MISTAKES APPARENT FROM THE RECORD IN THE AFORESAID TRIBUNAL ORDER DATED 31.08.2009. 2.2. VIDE ORDER DATED 04.03.2010, THE TRIBUNAL ALLO WED THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE, OB SERVING AS FOLLOWS: 10. HAVING CONSIDERED THE RIVAL SUBMISSIONS, WE FIN D THE GRIEVANCES OF THE ASSESSEE TO BE CORRECT. A PERUSAL OF THE ORDER SHOWS THAT THE CASE LAWS CITED ON BEHALF OF THE ASS ESSEE HAVE NOT BEEN CONSIDERED. THE AFORESAID VARIOUS ARGUMENTS, S TATED TO HAVE BEEN MADE BEFORE THE TRIBUNAL AT THE TIME OF HEARI NG OF THE APPEAL, HAVE ALSO NOT BEEN DISPOSED OF IN THEIR RIGHT PERSP ECTIVE, AS POINTED OUT IN THE APPLICATION AND ARGUED DURING THE HEARIN G OF THE APPEAL. THIS, IN OUR CONSIDERED OPINION, INDEED CONSTITUTES A RECTIFIABLE MA NO.23 TO 27 & 44(ASR)/2015 6 MISTAKE APPARENT FROM RECORD. THEREFORE, OUR ORDER DATED 31.8.2009 (SUPRA) IS HEREBY RECALLED. THE MATTER IS REFIXED F OR HEARING ON MERITS AFRESH UNDER NOTICE TO THE PARTIES ON 8.4.2010. 3. BY VIRTUE OF THE COMPOSITE ORDER DATED 05.03.201 5, THE TRIBUNAL ALLOWED ALL THE FIVE APPEALS OF THE ASSESSEE, CONCL UDING AS FOLLOWS: 90. TO SUM UP, WE HOLD THAT: A) THE TRIBUNAL RIGHTLY RECALLED ITS ORDER DATED 31 .08.2009 IN ITS ENTIRETY, FOR HEARING AFRESH AND NO PREJUDICE WAS C AUSED TO ANY INTEREST OF THE REVENUE THEREBY. B) THE LD. CIT(A) WENT WRONG IN HOLDING IT TO BE A CASE OF TRANSFER OF CAPITAL FROM THE EXISTING BUSINESS TO THE NEW ON E. C) THE LD. CIT(A) HAS ERRED IN HOLDING THAT ORDERS FOR MANUFACTURE WERE SHIFTED FROM THE EXISTING BUSINESS TO THE NEW ONE. D) THE LD. CIT(A) HAS FALLEN INTO ERROR IN HOLDING THAT THERE WAS A UNITY OF CONTROL IN THE TWO BUSINESSES. E) THE LD. CIT(A) HAS WRONGLY HELD THAT THERE WAS A SHIFTING OF STAFF FROM THE EXISTING UNIT TO THE ONE NEWLY SET UP. F) THE LD. CIT(A) HAS ERRONEOUSLY HELD THAT TAX EVA SION WAS THE SOLE REASON FOR SETTING UP THE NEW UNIT. F) THE LD. CIT(A) HAS, ON THE BASIS OF THE ABOVE MI SPLACED FINDINGS, INCORRECTLY HELD IT TO BE A CASE OF SPLIT TING UP OF EXISTING BUSINESS. 91. IN VIEW OF THE ABOVE DISCUSSION, WE HOLD THAT THE LD. CIT(A) HAS MISDIRECTED HIMSELF IN SUSTAINING THE DISALLOWA NCE OF DEDUCTION CLAIMED BY THE ASSESSEE U/S 10B OF THE ACT. THE GR IEVANCE OF THE ASSESSEE IS ACCEPTED. THE ORDER OF THE LD. CIT(A) IS REVERSED. 92. AS STATED IN THE BEGINNING OF THIS ORDER, THE F ACTS IN ALL THE FIVE APPEALS ARE, MUTATIS MUTANDIS, SIMILAR. THEREFORE, OUR OBSERVATIONS WILL EQUALLY APPLY TO THE OTHER APPEALS ALSO. 93. IN THE RESULT, ALL THE FIVE APPEALS FILED BY TH E ASSESSEE ARE ALLOWED. 4. THE DEPARTMENT HAS NOW FILED THE PRESENT MISC. A PPLICATIONS. 5. THE LD. DR, REITERATING THE CONTENTS OF THE APPL ICATIONS HAS CONTENDED THAT THE TRIBUNAL HAS ERRED IN RECALLING ITS EARLIER ORDER DATED 31.08.2009, WHEREBY THE ASSESSEES APPEALS HAVE RIG HTLY BEEN DISMISSED; MA NO.23 TO 27 & 44(ASR)/2015 7 THAT IN ACCORDANCE WITH THE DECISION OF THE HONBL E SUPREME COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD. VS. CIT , 295 ITR 466 (SC), THE TRIBUNAL OUGHT TO HAVE FIRST RECTIFIED THE MIST AKE AND THEN, TO HAVE PROCEEDED TO DECIDE AS TO WHETHER THE OTHER SET OF NINE JUDGMENTS HAD OR HAD NOT BEEN CONSIDERED; THAT THE CONTENTION OF THE LD. DR AT THE RELEVANT TIME WERE THAT IF THE SUBMISSIONS WERE NOT CONSIDERED IN THEIR RIGHT PERSPECTIVE, IT TANTAMOUNTED TO PERVERSITY WH ICH IS BEYOND THE PALE OF THE PROVISIONS OF SECTION 254(2) OF THE INCOME T AX ACT, 1961. 6. ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSES SEE, SUPPORTING THE ORDER OF THE TRIBUNAL PASSED ON 05.03.2015, HAS CON TENDED THAT THE APPLICATIONS UNDER CONSIDERATION ARE MISCONCEIVED, IN AS MUCH AS THE REMEDY WITH THE DEPARTMENT, IF ANY AVAILABLE TO IT, WAS TO CHALLENGE THE TRIBUNAL ORDER DATED 04.03.2010, WHEREBY ITS EARLIE R ORDER DATED 31.08.2009 WAS RECALLED, BY WAY OF APPEAL/WRIT PETI TION; THAT HOWEVER, EVEN THOUGH ALMOST FIVE YEARS HAVE ELAPSED, NO SUCH RECOURSE BY WAY OF APPEAL/WRIT PETITION HAS BEEN ADOPTED BY THE DEPART MENT, AS NO NOTICE HAS BEEN SERVED ON THE ASSESSEE IN THIS REGARD. REL IANCE HAS BEEN PLACED ON DIRECTOR OF INCOME TAX (EXEMPTION) VS. ALL INDI A PERSONALITY ENHANCEMENT & CULTURAL CENTRE FOR SCHOLARS AIPECCS SOCIETY, 281 CTR (DEL) 1. 7. HAVING HEARD THE RIVAL CONTENTIONS IN THE LIGHT OF THE MATERIAL PLACED ON RECORD, WE FIND THAT THE DEPARTMENT HAS N OT PLACED ANYTHING ON RECORD TO SHOW THAT THE TRIBUNAL ORDER DATED 04. 03.2010, WHEREBY ITS MA NO.23 TO 27 & 44(ASR)/2015 8 EARLIER ORDER DATED 31.08.2009 WAS RECALLED, HAS BE EN CHALLENGED BY THE DEPARTMENT BEFORE THE HONBLE HIGH COURT BY WAY OF APPEAL/WRIT PETITION. OBVIOUSLY, THE REMEDY, IF ANY AVAILABLE W ITH THE DEPARTMENT AGAINST THE AFORESAID TRIBUNAL ORDER DATED 04.03.20 10, WAS BY WAY OF APPEAL/WRIT PETITION BEFORE THE HONBLE HIGH COURT, AS PER ADVICE. ALMOST A PERIOD OF FIVE YEARS HAS EXPIRED SINCE THE PASSIN G OF THE SAID ORDER OF THE TRIBUNAL, THIS OBVIOUSLY SHOWS THAT THE DEPARTM ENT SITS SATISFIED WITH THE TRIBUNAL ORDER DATED 04.03.2010. FOR THIS VERY REASON, THE APPLICATIONS NOW FILED BY THE DEPARTMENT DO NOT CAR RY ANY MERIT. 8. THE HONBLE DELHI HIGH COURT, IN ALL INDIA PERS ONALITY ENHANCEMENT & CULTURAL CENTRE FOR SCHOLARS AIPECCS SOCIETY (SUPRA), IN SIMILAR CIRCUMSTANCES, HAS HELD THAT ONCE THE DEPARTMENT HAD ACCEPTED THE ORDER PASSED BY THE TRIBUNAL, IT WOULD NOT BE OPEN FOR THE REVENUE TO CHALLENGE THE SAME, IN ITS APPEAL AGAINS T THE TRIBUNAL ORDER PASSED ON MERIT, POST RECALLING ITS EARLIER ORDER. THEIR LORDSHIPS REFERRED TO THE DECISION OF THE FULL BENCH OF THE DELHI HIGH COURT IN THE CASE OF LACHMAN DASS BHATIA VS. ASSTT. CIT, DECIDED VIDE ORDER DATED 06.08.2010 IN I.T. APPEAL NO.724 OF 2010, WHEREIN, IT WAS HELD THAT AN ORDER PASSED U/S 254(2) OF THE I.T. ACT, RECALLING AN ORDER IN ITS ENTIRETY WOULD NOT BE AMENABLE TO APPEAL UNDER SECTION 260A OF THE ACT; THAT AN ORDER REJECTING THE APPLICATION UNDER SECTION 254(2 ) IS NOT APPEALABLE; AND THAT IF AN ORDER IS PASSED UNDER SECTION 254(2) AMENDING THE ORDER MA NO.23 TO 27 & 44(ASR)/2015 9 PASSED IN APPEAL, THE SAME CAN BE ASSAILED IN FURTH ER APPEAL ON SUBSTANTIAL QUESTION OF LAW. IT WAS FURTHER CLARIFIED THAT IN CASES WHERE AN APP EAL IS NOT MAINTAINABLE AGAINST THE ORDER U/S 254(2), THE SAME COULD BE CHA LLENGED BY WAY OF A WRIT PETITION UNDER ARTICLES 226 & 227 OF THE CO NSTITUTION OF INDIA. THE ABOVE POSITION IS DIRECTLY APPLICABLE TO THE CASE AT HAND. TO REITERATE, THE DEPARTMENT, IF SO ADVISED, OUGHT TO HAVE TAKEN APPR OPRIATE PROCEEDINGS AGAINST THE TRIBUNALS ORDER DATED 04.03.2010, BEFO RE THE HONBLE HIGH COURT. THIS, HOWEVER, WAS NOT DONE, EVINCING THAT THE DEPARTMENT REMAINED SATISFIED WITH THE SAID ORDER OF THE TRIB UNAL. ALMOST FIVE YEARS HAVE EXPIRED SINCE PASSING OF THE SAID TRIBUNAL ORD ER. THE PRESENT APPLICATIONS FILED BY THE DEPARTMENT ARE, THEREFORE , OBVIOUSLY NOT MAINTAINABLE IN LAW. THE SAME ARE, ACCORDINGLY, REJ ECTED. 9. MA NO.44(ASR)/2015 IN THIS APPLICATION FILED BY THE ASSESSEE, IT HAS BEEN CONTENDED AS FOLLOWS: 2. THAT IN PARA 92 IT HAS BEEN MENTIONED THAT AS STAT ED IN THE BEGINNING OF THIS ORDER, THE FACTS IN ALL THE FIVE APPEALS ARE, MUTATIS MUTANDIS, SIMILAR. THEREFORE, OUR OBSERVATIONS WILL EQUALLY APPLY TO THE OTHER APPEALS ALSO. THIS FINDING NEEDS MODIFI CATION BECAUSE THIS APPEAL WAS AN APPEAL AGAINST THE ORDER OF THE CIT(A SUSTAINING THE PENALTY IMPOSED BY THE ITO U/S 271(1)(C) OF TH E INCOME TAX ACT, 1961. THE OTHER FOUR APPEALS WHICH HAVE BEEN CONSOL IDATED ON THE ORDER PERTAIN TO QUANTUM FOR ASSESSMENT YEARS 2006- 07, 2007-08, 2008-0-9 & 2009-10. HENCE, ALTHOUGH THE APPEAL OF T HE ASSESSEE HAS BEEN CORRECTLY ALLOWED IN VIEW OF THE FACT THAT QUANTUM APPEAL I.E. ITA NO.345(ASR)2009 HAS BEEN ALLOWED AND HENCE FOLLOWING THAT ORDER THE PENALTY APPEAL IS ALSO ALLOWED BUT TO CLA RIFY THE SAME IT IS MA NO.23 TO 27 & 44(ASR)/2015 10 PRAYED THAT THE PARA 92 OF THE ORDER MAY KINDLY BE SUITABLY AMENDED WITH CLARIFICATION OF DELETION OF THE PENAL TY. 3. THAT PARA NO.92 HAS BEEN NUMBERED TWICE AND REPE ATED PARA NO.92 MAY BE ALTERED TO PARA NO.93. 4. THE ADDRESS OF THE ASSESSEE HAS BY MISTAKE BEEN MENTIONED AS PROP. PRAJNA INDIA LIMITED WHEREAS IT SHOULD BE PROP. PRAJNA (INDIA). 10. ALL THESE GRIEVANCES OF THE ASSESSEE ARE FOUND TO B E CORRECT. ITA NO.345(ASR)/2009 WAS AN APPEAL AGAINST THE ACTION O F THE LD. CIT(A) IN SUSTAINING THE PENALTY IMPOSED ON THE ASSESSEE U/S 271(1)(C) OF THE I.T. ACT. THE OTHER FOUR APPEALS, ON THE OTHER HAND, WER E QUANTUM APPEALS FOR THE ASSESSMENT YEARS 2006-07 TO 2009-10. AS SUC H, THERE HAS CREPT IN AN INADVERTENT ERROR IN OUR ORDER DATED 05.03.21 5, WHEREIN, IN PARA NO.92, IT HAS BEEN OBSERVED THAT AS STATED IN THE BEGINNING OF THIS ORDER, THE FACTS IN ALL THE FIVE APPEALS ARE, MUTATIS MUTA NDIS, SIMILAR. THEREFORE, OUR OBSERVATIONS WILL EQUALLY APPLY TO THE OTHER AP PEALS ALSO. THIS SENTENCE SHALL NOW STAND REPLACED BY THE FOLLOWIN G SENTENCE: ITA NO.345(ASR)/2009: WHICH IS THE ASSESSEES APPE AL AGAINST THE ACTION OF THE LD. CIT(A) IN SUSTAINING THE CONCEAL MENT PENALTY LEVIED ON THE ASSESSEE, FOR THE ASSESSMENT YEAR 200 6-07, IS ALLOWED. ITA NO. 55(ASR)/2011, FOR THE A.Y. 2006-07 , ITA NO.410(ASR)/2010, FOR A.T. 2007-08, ITA NO.238(ASR) /2011, FOR A.Y. 2008-09 AND ITA NO.284(ASR)/2012 FOR A.Y. 2009 -10, BEING THE ASSESSEES APPEALS IN THE QUANTUM MATTER, ARE A LSO ALLOWED. 11. PARA-92, BEING THE LAST PARA OF OUR ORDER DATED 05.03.2015 HAS INADVERTENTLY BEEN MENTIONED AND IT SHALL NOW BE TR EATED AS PARA-93. LASTLY, THE ADDRESS OF THE ASSESSEE HAS ALSO BEEN I NCORRECTLY MENTIONED MA NO.23 TO 27 & 44(ASR)/2015 11 AS PROP. M/S. PRAJNA (INDIA) LIMITED., JALANDHAR, WHEREAS THE CORRECT ADDRESS IS PROP. PRAJNA (INDIA), JALANDHAR. THIS MISTAKE IS ALSO RECTIFIED AND THE SAID CORRECT ORDER OF THE ASSESSEE SHALL NO W BE MENTIONED INSTEAD OF THE EARLIER MENTIONED ORDER. 12. ACCORDINGLY, THE MISC. APPLICATION FILED BY THE ASSESSEE IS ACCEPTED. 13. IN THE RESULT, ALL THE MISC. APPLICATIONS FILED BY THE DEPARTMENT ARE REJECTED, WHEREAS, THE APPLICATION FILED BY THE ASS ESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 04/03/ 2016 . SD/- SD/- (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 04/03/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. ROHIT TANDON, JALANDHAR. 2. THE ITO WARD 1(3), JALANDHAR. 3. THE CIT(A) JALANDHAR 4. THE CIT, JALANDHAR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR. I