INCOME TAX OFFICER, WARD-1(2) JAMMU V. SMT. KIRAN MAHAJAN, Jammu

MA 49/ASR/2017

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 5494 (ITAT-AMRITSAR)
• Duration Of Justice: 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-11-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 23-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S KANWAL
• Assessee Lawyers: P N ARORA
• Keywords: Application of stay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR BEFORE SH. T. S. KAPOOR, ACCOUNTANT MEM BER AND SH.N. K. CHOUDHRY, JUDICIAL MEMBER M. A. NO. 49/(ASR)/2017 (ARISING OUT OF S. A. NO. 15/(ASR)/2017) ASSESSMENT YEAR: 2012-13 PAN: AJFPM5132R INCOME TAX OFFICER, WARD- 1 (2), JAMMU VS. SMT. KIRAN MAHAJAN, D/O SH. JOGINDER PAL GUPTA RISHAV ENTERPRISES, BARI BRAHAMANA, JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. S. S. KANWAL (D.R. ) RESPONDENT BY: SH. P. N. ARORA (ADV .) DATE OF HEARING: 27.10.2017 DATE OF PRONOU NCEMENT: 01.11.2017 ORDER PER T. S. KAPOOR (AM): THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY RE VENUE AGAINST INTERIM ORDER DATED 20.10.2017 PASSED BY AMRITSAR B ENCH OF HON'BLE TRIBUNAL. 2. AT THE OUTSET, THE LD. AR SUBMITTED THAT HE HAS A PRELIMINARY OBJECTION TO THE MISCELLANEOUS APPLICATION FILED BY REVENUE AND WHICH NEEDS TO BE DISMISSED IN VIEW OF THE VARIOUS JUDGME NTS WHERE HON'BLE TRIBUNAL HAS HELD THAT THE MISCELLANEOUS APPLICATIO N HAS TO BE SIGNED BY ASSESSING OFFICER AND CANNOT BE SIGNED BY THE DEPAR TMENTAL REPRESENTATIVE AND RELIANCE IN THIS RESPECT WAS PLA CED ON AN ORDER OF ITAT AHMEDABAD BENCH REPORTED AT 63 TTJ AHD. 189 3. THE LD. DR ON THE OTHER HAND SUBMITTED THAT THER E WAS AN URGENCY IN FILING THE MISCELLANEOUS APPLICATION AS THE ORDER PASSED BY HON'BLE. TRIBUNAL GRANTING INTERIM PROTECTION TO TH E ASSESSEE WAS NOT MA NO. 49 (ASR)/2017 ARISING OUT OF S. A. NO.15 /(ASR)/2017 ASST. YEAR:2012-13 2 CLEAR AS DURING ARGUMENTS, THE ASSESSEE WAS ASKED T O FILE LATEST TRIAL BALANCE WHICH DOES NOT FIND MENTIONED IN THE ORDER. 4. THE LD. AR IN THIS RESPECT SUBMITTED THAT THE NE CESSARY TRIAL BALANCE HAS BEEN FILED AND EVEN A FURTHER AMOUNT OF RS.50,000/- HAS BEEN DEPOSITED AND THEREFORE THE GRIEVANCE OF REVEN UE IS NOT JUSTIFIED. 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT ASSESSEE HA D FILED AN APPLICATION FOR STAY OF DEMAND WHICH THE HON'BLE TRIBUNAL HAD C ONSIDERED ON 20.10.2017 AND ON THAT DATE THE STAY APPLICATION WA S NOT CONSIDERED BUT THE APPEAL OF THE ASSESSEE WAS FIXED FOR HEARING 07 .11.2017 AND ASSESSING OFFICER WAS DIRECTED NOT TO TAKE COERCIVE MEASURES TILL 07.11.2017. THE ASSESSEE WAS ALSO DIRECTED TO FILE LATEST TRIAL BALANCE WHICH SKIPPED ITS MENTION IN THE ORDER HOWEVER WHIC H HAS BEEN FILED BY THE ASSESSEE NOW. WITHOUT GOING INTO THE MERITS OF THE APPLICATION FILED BY LD. DR, WE ARE IN AGREEMENT WITH THE ARGUMENT OF LD. AR THAT THE APPLICATION FILED BY LD. DR WAS NOT MAINTAINABLE AS IT HAS NOT BEEN SIGNED BY THE APPROPRIATE AUTHORITY. THE HON'BLE AH MEDABAD ITAT IN ITS ORDER DATED 12 TH JULY, 1998 REPORTED AT 63 TTJ AHD. 189 UNDER SIMIL AR CIRCUMSTANCES HAS HELD AS UNDER: 4. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MA TERIALS ON RECORD. BEFORE DEALING WITH THE CASE ON MERIT, WE WOULD LIK E TO DECIDE THE MAINTAINABILITY OF THE PRESENT APPLICATION FIRST. T HERE IS NO DISPUTE THAT THE PRESENT APPLICATION UNDER SECTION 254(2) OF THE ACT HAS BEEN FILED BY SENIOR AUTHORIZED REPRESENTATIVE OF THE INCOME-TAX DEPARTM ENT. THE RELEVANT PROVISION OF SECTION 254(2) OF THE ACT IS AS FOLLOW S: '254(2) THE TRIBUNAL MAY AT ANY TIME WITHIN FOUR YE ARS FROM THE DATE OF THE ORDER, WITH A VIEW TO RECTIFYING ANY MISTAKE AP PARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1), AND SHALL MAKE SUCH MA NO. 49 (ASR)/2017 ARISING OUT OF S. A. NO.15 /(ASR)/2017 ASST. YEAR:2012-13 3 AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE B Y THE ASSESSEE OR THE ASSESSING OFFICER. (3) THE TRIBUNAL SHALL SEND A COPY OF ANY ORDERS PA SSED UNDER THIS SECTION TO THE ASSESSEE AND TO THE ASSESSEE AND TO THE COMM ISSIONER' FROM PERUSAL OF THE AFORESAID PROVISION, WE FIND TH AT THE STATUTE HAS GIVEN SPECIFIC POWER FOR FILING APPLICATION UNDER SECTION 254(2) OF THE ACT EITHER TO THE ASSESSEE OR TO THE ASSESSING OFFICER. UNDER SEC TION 254(3) OF THE ACT, A COPY OF THE ORDER PASSED UNDER SECTION 254 OF THE A CT SHOULD BE SENT TO THE COMMISSIONER. FURTHER WE FIND THAT UNDER SECTION 25 6(1) OF THE ACT AN APPLICATION FOR REFERENCE CAN BE FILED BEFORE THE T RIBUNAL BY THE ASSESSEE OR THE COMMISSIONER WITHIN A PRESCRIBED TIME. THEREFOR E, ON CONSIDERATION OF THE AFORESAID PROVISIONS, WE FIND THAT THE PARLIAME NT HAS PRESCRIBED DIFFERENT AUTHORITIES FOR FILING APPLICATIONS UNDER SECTIONS 254(2) AND 256(1) OF THE ACT ON BEHALF OF THE REVENUE. IT IS AN ADMIT TED FACT THAT WE HAVE BEEN RECEIVING REFERENCE APPLICATIONS FILED BY THE COMMISSIONER, UNDER SECTION 256(1) OF THE ACT. IN THE PRESENT APPLICATI ON UNDER SECTION 254(2) OF THE ACT, IT HAS NOT BEEN MENTIONED EVEN THAT THE AS SESSING OFFICER HAS INSTRUCTED THE LEARNED DEPARTMENTAL REPRESENTATIVE TO FILE THE PRESENT APPLICATION. THEREFORE, IN OUR OPINION, THE PRELIMI NARY OBJECTION RAISED ON BEHALF OF THE ASSESSEE IS JUSTIFIED. ACCORDINGLY, W E HOLD THAT THE PRESENT APPLICATION FILED UNDER SECTION 254(2) OF THE ACT B Y THE SENIOR DEPARTMENTAL REPRESENTATIVE IS NOT MAINTAINABLE. HENCE IT IS REJ ECTED. SINCE THE APPLICATION ITSELF IS NOT MAINTAINABLE, WE ARE NOT INCLINED TO GO INTO THE MERIT OF THE CASE. LET A COPY OF THE ORDER BE SENT TO THE COMMISSIONER UNDER SECTION 254(3) OF THE ACT. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS REJECTED. IN THE PRESENT CASE ALSO WE FIND THAT THE APPLICAT ION HAS BEEN SIGNED BY LD. DEPARTMENTAL REPRESENTATIVE AND THERE FORE IT IS NOT MAINTAINABLE AND THEREFORE WITHOUT GOING INTO THE M ERITS OF THE APPLICATION, THE SAME IS REJECTED. 6. IN NUTSHELL, THE MISCELLANEOUS APPLICATION FILED BY REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 01.11. 2017. SD/- SD/- (N. K. CHOUDHRY) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED 01 /11/2017 GP/SR./PS MA NO. 49 (ASR)/2017 ARISING OUT OF S. A. NO.15 /(ASR)/2017 ASST. YEAR:2012-13 4 COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER