Devi Ram Goyal, New Delhi V. ITO, New Delhi

MA 497/DEL/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9704 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 19-10-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SATPAL SINGH
• Assessee Lawyers: DEEPAK OSWAL
• Section: 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E NEW DELHI) BEFORE SHRI C.M. GARG, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER MISC. APPLICATION NO.497/DEL/2010 IN I.T.A. NO.646/DEL/2010 ASSESSMENT YEAR : 2002-03 SHRI DEVI RAM GOYAL, ITO, H-16/332, BAPA NAGAR, WARD-33 (1), KAROL BAGH, N. DELHI. V. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DEEPAK OSWAL, FCA. RESPONDENT BY : SHRI SATPAL SINGH, SR. DR. ORDER PAN NO. AAHPG-5959-P PER TS KAPOOR, AM: BY MEANS OF THIS MISCELLANEOUS APPLICATION, THE ASSESSEE SEE KS TO GET RECALLED THE ORDER OF THIS BENCH IN I.T.A. NO .646/DEL/2010 ON THE GROUND THAT FINDING IN PARA 6 OF TRIBUNALS ORDER IS INCORRECT BOTH IN FACTS AND IN LAW BECAUSE THE NOTICE DATED 25.5.2007 W AS NOT A VALID NOTICE IN LAW AND AS PER SECTION 149(1B) OF THE ACT, THE NOTICE CAN BE ISSUED AFTER THE EXPIRY OF FOUR YEARS ONLY IF THE AMO UNT OF ESCAPED INCOME IS ` .1 LAKH OR MORE. 2. THE LD COUNSEL FOR THE ASSESSEE WHILE REITERATING THE SUBMISSIONS AS MADE IN THE APPLICATION HAS SUBMITTED THAT THE CASE OF THE ASSESSEE WAS REOPENED ON AN ESCAPED INCOME OF ` .50,000/- WHICH WAS LESS THAN ` .1 LAKH AND THE CASE WAS REOPENED AFTER A PERIOD OF F OUR YEARS WHICH MA NO.497 IN ITA NO646/DEL/10 2 WAS NOT VALID AS PER REQUIREMENT OF SECTION 149(1B) OF THE ACT. IT WAS ALSO SUBMITTED BY THE LD COUNSEL THAT NOTICE DATED 25. 5.2007 WAS BARRED BY LIMITATION AND HE HAD NOT ACCEPTED DURING PROCEEDINGS BEFORE HON'BLE TRIBUNAL THAT IT WAS WITHIN LIMITATIO N AND STATED THAT THE FINDING OF THE TRIBUNAL AT PARA 6 WAS NOT CORRECT. HE FURTHER ARGUED THAT EVEN IF DURING APPELLATE PROCEEDINGS BEFORE THE TRIBUNAL, IT WAS ACCEPTED BY THE LD AR THAT NOTICE DATED 25.5.2007 W AS NOT TIME BARRED BY LIMITATION EVEN THEN THE COMPETENT AUTHOR ITY BASED UPON THE CORRECT FACTUAL AND LEGAL POSITION AND BY REFER ENCE TO RECORD WAS DULY BOUND TO WHETHER THE NOTICE WAS VALID OR NOT AS PER PROVISIONS OF THE ACT. 3. THE LD DR, ON THE OTHER HAND, ARGUED THAT ASSESSEE H AD PARTICIPATED IN PROCEEDINGS STARTING FROM ASSESSING OFFIC ER TO HON'BLE TRIBUNAL AND HAD NOT OBJECTED TO POINT OF LIMITATIO N ON ACCOUNT OF ` .1 LAKH STIPULATION IN SECTION 149(1B) OF THE ACT. THER EFORE, AT THIS STAGE, THE RECTIFICATION APPLICATION FILED BY THE ASSESSEE CAN NOT BE ACCEPTED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PAR TIES AND HAVE GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. THE BRIEF FACTS OF THE CASE ARE THAT THE CASE OF THE ASSESSEE RELATING TO A SSESSMENT YEAR 2002-03 WAS REOPENED U/S 147/148 ON A REPORT FROM DIT (INV.) WHEREIN IT WAS MENTIONED THAT THE ASSESSEE HAD TAKEN ACCOMMODATI ON ENTRY OF ` .50,000/-. IN ASSESSMENT ORDER, THE ASSESSING OFFICER HAS M ENTIONED THAT NOTICE U/S 147/148 WAS ISSUED ON 29.3.2007 BUT ASSESSE E TOOK ONE OF THE GROUNDS BEFORE LD CIT(A) THAT NOTICE WAS N OT SERVED PROPERLY ON 29.3.2007. THE LD CIT(A) HELD THAT PROC EEDINGS U/S 147/148 WAS NOT LAW FULL AS PROOF OF SERVICE OF NOTIC E WAS NOT THERE AND HELD THAT SERVICE OF NOTICE THROUGH AFFIXTURE ON 29.3.2007 WAS NOT VALID. ON APPEAL FILED BY THE REVENUE, THE HON'BLE TRIBUNAL VIDE ORDER MA NO.497 IN ITA NO646/DEL/10 3 DATED 12.6.2010 MADE A FINDING OF THE FACT THAT EVE N IF THERE WAS NO SERVICE OF NOTICE DATED 29.3.2007, THE ASSESSEE HAD RECE IVED NOTICE DATED 25.5.2007 AND LD AR HAD CONCEDED THAT NOTICE DATED 25.5.2007 INDEED WAS RECEIVED AND WAS REPLIED TO AND THE SAME WA S NOT TIME BARRED. WE FURTHER FOUND FROM THE ORDER OF LD CIT( A) AND THAT OF HON'BLE TRIBUNAL THAT THE ISSUE OF VALIDITY OF NOTICE IN VIOLATION OF PROVISIONS OF SECTIONS 149(1)(B) OF THE ACT WAS NOT TAKE N BY LD COUNSEL. THE RELEVANT PARA 6 OF TRIBUNALS ORDER IS R EPRODUCED BELOW: WE HAVE HEARD THE RIVAL SUBMISSIONS AND GONE THROUGH T HE MATERIAL AVAILABLE ON RECORD. WE FIND THAT IN A LET TER DATED 19.6.2007 WAS SUBMITTED BY THE ASSESSEE TO THE ASSESSING OFFICER AND COPY OF WHICH WAS FURNISHED BEFORE US. WE FIND THAT IT HAS BEEN CLEARLY STATED BY THE ASSESSEE IN THIS LETTER TH AT THIS LETTER IS WRITTEN IN REPLY TO NOTICE DATED 25.5.2007 U/S 148 OF THE INCOME TAX ACT, 1961 AND HENCE, IT GOES TO SHOW THAT EVEN IF THERE IS NO SERVICE OF NOTICE DATED 29.3.2007, THE ASSE SSEE HAS RECEIVED THE NOTICE DATED 25.5.2007 ISSUED BY THE ASSE SSING OFFICER U/S 148 OF THE INCOME TAX ACT, 1961 . A SPECI FIC QUERY WAS RAISED BY THE BENCH FROM THE LD AR OF THE ASSESSEE AS TO WHETHER THIS NOTICE DATED 25.5.2007 U/S 148 IS TIME BA RRED OR NOT AND IN REPLY IT HAS BEEN FAIRLY CONCEDED BY THE LD AR OF THE ASSESSEE THAT THE SAME IS NOT TIME BARED. WE ALSO FIND TH AT THE ASSESSMENT YEAR INVOLVED IS ASSESSMENT YEAR 2002-03 AND HENCE NOTICE DATED 25.5.2007 IS ALSO NOT TIME BARRED AND SINCE IT IS ADMITTED BY THE LD AR OF THE ASSESSEE ALSO IN HIS LETTE R DATED 19.6.2007 THAT NOTICE U/S 148 DATED 25.5.2007 WAS REC EIVED BY THE ASSESSEE, WE ARE NOT IN AGREEMENT WITH LD CIT(A) TH AT REOPENING OF THE ASSESSMENT U/S 147 IS NOT LAWFUL. WE H OLD SO BECAUSE THE ONLY BASIS GIVEN BY THE LD CIT(A) IS THAT N OTICE MA NO.497 IN ITA NO646/DEL/10 4 DATED 29.3.207 WAS NOT SERVED ON THE ASSESSEE AND THE SE RVICE OF THAT NOTICE BY AFFIXTURE IS NOT AS PER LAW BUT HE HAS NOT EXAMINED THE FACTS REGARDING SERVICE OF NOTICE DATED 25.5.2007 ISSUED BY THE ASSESSING OFFICER U/S 148 AND IN REPLY TO T HAT NOTICE THE ASSESSEE HAS FILED A LETTER DATED 19.6.2007 TO THE ASSESSING OFFICER AND IN THE SAID LETTER, THE ASSESSEE HAS REQUESTED THE ASSESSING OFFICER TO TREAT THE RETURN FILED BY HIM EARL IER AS A RETURN FILED IN RESPONSE TO THIS NOTICE U/S 148 AND A LSO REQUESTED THE ASSESSING OFFICER TO FURNISH THE REASONS RECORDED BY T HE ASSESSING OFFICER BUT IN THE LIGHT OF THESE FACTS, WE HOL D THAT THE PROCEEDINGS INITIATED BY THE ASSESSING OFFICER U/S 147 A RE VALID AND ON THIS ASPECT, WE REVERSE THE ORDER OF LD CIT(A). 5. THE QUESTION OF VALIDITY OF NOTICE DATED 25.5.200 7 HAS NOW BEEN CHALLENGED IN THIS MISC. APPLICATION IN WHICH RELIANC E HAS BEEN PUT ON THE PROVISIONS OF SECTION 149(1)(B) WHICH STATES THAT RE OPENING OF THE CASE CAN BE INITIATED AFTER A PERIOD OF FOUR YEARS ON LY IF THE AMOUNT OF ESCAPED INCOME IS MORE THAN ` .1 LAKH WHICH IS ALTOGETHER A FRESH ARGUMENT OF THE ASSESSEE AND RAISING OF FRESH GROUND AT THIS STAGE IS NOT JUSTIFIED AS THAT WILL INVOLVE REVIEW OF TRIBUNA LS ORDER WHICH IS NOT PERMITTED BY THE PROVISIONS OF SECTION 254(2) OF THE A CT. 6. IN ORDER TO ATTRACT THE PROVISIONS IN SECTION 254(2 ) A MISTAKE MUST EXIST AND THE SAME MUST BE APPARENT FROM RECORD. T HE POWER TO RECTIFY THE MISTAKE HOWEVER DOES NOT COVER CASES WHERE A REVISION OR REVIEW OF THE ORDER IS INTENDED. MISTAKE MEANS TO TAKE OR TO UNDERSTAND WRONGLY OR INACCURATELY; TO MAKE AN ERROR IN INTERPRETING. IT IS AN ERROR, A FAULT, A MISUNDERSTANDING OR MISCONCEP TION. APPARENT BEING VISIBLE, CAPABLE OF BEING SEEN, EASILY SEEN, OBVI OUS, PLAIN, A MISTAKE WHICH CAN BE RECTIFIED U/S 254(2) IS ONE WHICH IS PATENT, WHICH MA NO.497 IN ITA NO646/DEL/10 5 IS OBVIOUS AND WHOSE DISCOVERY IS NOT DEPENDENT ON ARGUM ENT OR ELABORATION. THE LANGUAGE USED IN SECTION 254(2) IS P ERMISSIBLE WHERE IT IS BROUGHT TO THE NOTICE OF THE TRIBUNAL THAT THE RE IS ANY MISTAKE APPARENT FROM RECORD. ACCORDINGLY THE AMENDMENT IN AN ORDER DOES NOT MEAN OBLITERATION OF THE ORIGINAL ORDER TESTED A ND ITS SUBSTITUTION BY A NEW ORDER WHICH IS NOT PERMISSIBLE UNDER THE PROV ISIONS OF SECTION 254(2) OF THE ACT. FURTHER, WE PLACE RELIANCE UPON THE HON'BLE' DELHI HIGH COURT EXPOSITION ON THE SCOPE OF RECTIFICATION U /S 254(2) AS REPORTED IN THE CASE OF RAS BIHARI BANSAL V. CIT (2007 ) 293 ITR 365 AS UNDER:- SECTION 254 OF THE INCOME TAX ACT, 1961 ENABLES THE CONCERNED AUTHORITY TO RECTIFY ANY MISTAKE APPARENT FROM THE R ECORD. IT IS WELL SETTLED THAT AN OVERSIGHT OF A FACT CANNOT CONSTI TUTE AN APPARENT MISTAKE RECTIFIABLE UNDER THIS SECTION. SIMI LARLY, FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY OR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE MERE F ACT THAT THE TRIBUNAL HAD NOT ALLOWED A DEDUCTION, EVEN IF THE C ONCLUSION IS WRONG, WILL BE NO GROUND FOR MOVING AN APPLICATION U/S 254(2) OF THE ACT. FURTHER, IN THE GARB OF AN APPLICATION FOR RECTIFICATION, THE ASSESSEE CANNOT BE PERMITTED TO REOPEN AND RE-ARGUE THE WHOLE MATTER, WHICH IS BEYOND THE SCOPE OF THE SECTION. THEREFORE, IN VIEW OF THE ABOVE FACTS AND CIRCUMSTAN CES AND IN THE LIGHT OF RATIO OF DECISIONS CITED AND DISCUSSED AS HELD A BOVE, WE DO NOT FIND ANY SUBMISSIONS IN THE MISCELLANEOUS APPLICATION OF THE ASSESSEE AND DISMISS THE SAME. MA NO.497 IN ITA NO646/DEL/10 6 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. 8. ORDER PRONOUNCED IN THE OPEN COURT ON 20TH DAY O F DECEMBER, 2012. SD/- SD/- (C.M. GARG) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DT.20.12.2012. HMS COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). DATE OF HEARING 26.10.2012 DATE OF DICTATION 19.12.2010 DATE OF TYPING 19.10.2012 DATE OF ORDER SIGNED BY 20.12.2012 BOTH THE MEMBERS & PRONOUNCEMENT. DATE OF ORDER UPLOADED ON NET 21.12.2012 & SENT TO THE BENCH CONCERNED.