Sh. Chattar Singh Tomar, Ponta Sahib V. ITO, Nahan

MA 44/CHANDI/2014

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3820 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 8 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-01-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 20-11-2015
• Assessment Year: 2002-2003
• Appeal Filed On: 11-04-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MANJIT SINGH
• Assessee Lawyers: KULWANT CHAUHAN
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH, CHANDIGARH BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND MS. RANO JAIN, ACCOUNTANT MEMBER M.A.NOS.44 TO 46/CHD/2014 IN M.A.NOS.185 TO 187/CHD/2008 IN ITA NOS.51 TO 53/CHD/2008 (ASSESSMENT YEARS: 2002-03 TO 2004-05) CHATTAR SINGH TOMAR, VS. THE INCOME TAX OFFICER, S/O MUNDI RAM, NAHAN. VPO KAMRAO, TEHSIL PAONTA SAHIB. PAN: A (APPELLANT) (RESPONDENT) APPLICANT BY : SHRI KULWANT CHAUHAN RESPONDENT BY : SHRI MANJIT SINGH, DR DATE OF HEARING : 18.12.2015 DATE OF PRONOUNCEMENT : 04.01.2016 O R D E R PER RANO JAIN, A.M . : THESE MISCELLANEOUS APPLICATIONS ARE FILED BY THE APPLICANT REQUESTING FOR RECALL OF AN ORDER DAT ED 24.5.2013 OF THE TRIBUNAL MADE UNDER PREVIOUS MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE FO R RECALLING OF AN ORDER DATED 7.7.2008 IN ITA NOS.51, 52 & 53/CHD/2008. 2 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT ON AN APPEAL FILED BY THE ASSESSEE FOR ASSESSMENT YEARS 2 002-03 TO 2004-05, VIDE ITA NOS.51, 52 AND 53/CHD/2008, CONSOLIDATED ORDER WAS PASSED BY THE I.T.A.T., CHAN DIGARH BENCH AS ON 7.7.2008. CITING SOME MISTAKES IN THE SAID ORDER, THE ASSESSEE FILED MISCELLANEOUS APPLICATION S REQUESTING FOR RECALL OF THE ORDER. HOWEVER, WHEN THE MISCELLANEOUS APPLICATIONS WERE LISTED FOR HEARING ON A NUMBER OF OCCASIONS, NOBODY APPEARED ON BEHALF OF T HE ASSESSEE. CONSEQUENTLY, A CONSOLIDATED EX-PARTE OR DER IN MISCELLANEOUS APPLICATION NOS.185, 186 & 187/CHD/20 08 WAS PASSED BY THE I.T.A.T., CHANDIGARH BENCH DATED 24.5.2013 DISMISSING THE SAID APPLICATION IN LIMINE . 3. NOW, THE PRESENT APPLICATION IS A REQUEST FOR RECALLING OF THE EARLIER MISCELLANEOUS APPLICATIONS . THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THERE WAS A BONAFIDE REASON FOR NON-APPEARANCE ON EARLIER OCCAS ION WHEN THE MISCELLANEOUS APPLICATIONS WERE LISTED FOR HEARING. 4. THE LEARNED D.R. REQUESTED FOR NOT TO RECALL TH E MISCELLANEOUS APPLICATIONS AS THERE WAS FAULT ON TH E PART OF THE ASSESSEE, INSPITE OF GIVING A NUMBER OF OPPORTUNITIES, HE DID NOT APPEAR. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS. THE ISSUE BEFORE US IS THAT WHETHER AN ORDER PASSED UNDER SEC TION 3 254(2), I.E. ON A MISCELLANEOUS APPLICATION CAN BE RECALLED ON A FURTHER APPLICATION MADE BY EITHER OF THE PART IES. THE PROVISIONS OF SECTION 254 OF THE ACT, TO THE EX TENT RELEVANT, READ AS UNDER : 254. (1) THE APPELLATE TRIBUNAL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, P ASS SUCH ORDERS THEREON AS IT THINKS FIT. (1A) [***] (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN FOUR YE ARS FROM THE DATE OF THE ORDER, WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PA SSED BY IT UNDER SUB-SECTION (1), AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER : 6. FROM THE PERUSAL OF ABOVE, IT IS QUITE CLEAR T HAT AN ORDER UNDER APPEAL IS PASSED UNDER SECTION 254(1 ) OF THE ACT, BY THE I.T.A.T., AFTER GIVING AN OPPORTUNI TY OF BEING HEARD TO BOTH THE PARTIES. SECTION 254(2) OF THE ACT GIVES POWER TO THE I.T.A.T. TO RECTIFY A MISTAKE AP PARENT FROM RECORD, HAVING BEEN CREPT IN AN ORDER MADE UND ER SECTION 254(1) OF THE ACT. NOWHERE THE PROVISIONS GIVE POWER TO THE I.T.A.T. TO RECTIFY A MISTAKE CREEPING IN AN ORDER MADE UNDER SECTION 254(2) OF THE ACT. IN A JUDGMENT OF THE HON'BLE ORISSA HIGH COURT IN THE CA SE OF CIT & ANR. VS. PRESIDENT, I.T.A.T. & ORS. REPORTED IN (1992) 196 ITR 838 (ORI), THE HON'BLE HIGH COURT AT PARA 4 OBSERVED AS UNDER : 4 SECTION 254(2) EMPOWERS THE TRIBUNAL TO AMEND ANY OR DER PASSED BY IT UNDER SUB-SECTION (1) WITH A VIEW TO RECTI FY ANY MISTAKE APPARENT FROM THE RECORD AT ANY TIME WITHIN F OUR YEARS FROM THE DATE OF THE ORDER THEREFORE, TO ATTRA CT THE APPLICABILITY OF SECTION 254(2),THE MISTAKE WHICH IS S OUGHT TO BE RECTIFIED MUST BE APPARENT FROM THE RECORD, AND T HE SAME MUST BE IN ANY ORDER PASSED UNDER SUB-SECTION (1) OF SECTION 254 THE ORDER REFERRED TO IN SECTION 254(1) IS THE O NE RELATING TO AN APPEAL FILED BY EITHER THE ASSESSEE OR THE REVEN UE SECTION 254(1) READS AS FOLLOWS : THE APPELLATE TRIBUNAL MAY, AFTER GIVING BOTH THE PART IES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH OR DERS THEREON AS IT THINKS FIT THE APPEAL REFERRED TO IN THE PROVISION IS ONE FILE D UNDER SECTION 253 THEREFORE, THE ORDER WHICH CAN BE RECTIF IED MUST BE ONE WHICH HAS BEEN PASSED BY THE TRIBUNAL IN AN A PPEAL FILED UNDER SECTION 253 IN OUR VIEW, AN ORDER REJECT ING AN APPLICATION FOR RECTIFICATION UNDER SECTION 254(2) I S NOT AVAILABLE TO BE RECTIFIED UNDER SECTION 154(2) THE SA ME MAY RELATE TO AN APPEAL, BUT IT IS NOT AN ORDER PASSED B Y THE TRIBUNAL UNDER SUB-SECTION (1) OF SECTION 254 AS INDI CATED ABOVE, THE ASSESSEES APPLICATION FOR RECTIFICATION U NDER SECTION 254(2) WAS REJECTED BY THE TRIBUNAL THE SECON D APPLICATION WAS FOR RECTIFICATION OF SOME ALLEGED MIS TAKES IN THE SAID ORDER OF REJECTION SECTION 254(2) HAD NO AP PLICATION TO SUCH AN ORDER THE TRIBUNAL WAS NOT JUSTIFIED IN PURP ORTING TO ACT UNDER SECTION 254(2) AND PASSING THE IMPUGNED ORD ER IN VIEW OF THIS, WE DO NOT THINK IT NECESSARY TO DEAL WITH THE SUBMISSIONS RELATING TO THE DISPUTE WHETHER THERE W AS ANY RECTIFIABLE MISTAKE APPARENT FROM THE RECORD OR NOT. 7. FROM THE ABOVE, IT IS VERY CLEAR THAT THE MISCELLANEOUS APPLICATIONS REQUESTING FOR RECALL OF AN ORDER MADE UNDER SECTION 254(2() OF THE ACT IS NOT MAINTAINABLE. IN THE PRESENT CASE, THE REQUEST BEF ORE US 5 IS TO RECALL THE ORDER IN MISCELLANEOUS APPLICATION NOS.185, 186 & 187/CHD/2008, DATED 24.5.2013, WHICH ARE EX-PARTE ORDERS DISMISSING THE MISCELLANEOUS APPLICATIONS IN LIMINE. THIS ORDER IS UNDOUBTEDLY THE ORDER MADE UNDER SECTION 254(2) OF THE ACT. 8. IN VIEW OF THE ABOVE, THE PRESENT MISCELLANEOUS APPLICATIONS ARE DISMISSED AS NOT BEING MAINTAINABL E. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 4 TH DAY OF JANUARY, 2016. SD/- SD/- (BHAVNESH SAINI) (RANO JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 4 TH JANUARY, 2016 *RATI* COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT(A)/THE CIT/THE DR. ASSISTANT REGISTRAR, ITAT, CHANDIGARH 6