Ravi Dubey, Agra V. I.T.O.-1(3), Agra

MA 5/AGR/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7940 (ITAT-AGRA)
• Duration Of Justice: 3 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-05-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 18-05-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 17-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUHAIL AKHTAR
• Keywords: Business income
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER M.A. NO. 05/AGRA/2012 (IN ITA NO. 228/AGRA/2010) ASSTT. YEAR : 2006-07 SHRI RAVI DUBEY, VS. INCOME-TAX OFFICER, 117-B, NEHRU NAGAR, AGRA. 1(3), AGRA. (PAN : AFWPD 8351 C) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJESH MALHOTRA, C.A. RESPONDENT BY : SHRI SUHAIL AKHTAR, JR. D.R. DATE OF HEARING : 18.05.2012 DATE OF PRONOUNCEMENT OF ORDER : 18.05.2012 ORDER PER BENCH : THIS MISCELLANEOUS APPLICATION IS FILED BY THE AS SESSEE AGAINST THE ORDER OF THE TRIBUNAL DATED 21.11.2011 IN ITA NO. 2 28/AGRA/2010. THE TRIBUNAL WHILE DECIDING THE DEPARTMENTAL APPEAL, AL LOWED GROUND NO. 2 OF THE DEPARTMENTAL APPEAL REGARDING THE ADDITION MADE WITH THE HELP OF SECTION 40(A)(IA) OF THE IT ACT. THE TRIBUNAL CONSIDERING T HE SUBMISSIONS OF BOTH THE PARTIES, FACTS OF THE CASE AND MATERIAL ON RECORD, BY SPEAKING ORDER, DECIDED THE ISSUE IN FAVOUR OF THE REVENUE AND GROUND NO. 2 OF THE DEPARTMENTAL APPEAL WAS ALLOWED. M.A. NO. 05/AGRA/2012 2 2. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TRIBUNAL IN PARA 3 OF THE ORDER MENTIONED THAT THIS WAS THE FIRST YEAR OF THE BUSINESS OF ASSESSEE. HE HAS ALSO REFERRED TO PAGE 2 OF THE PAPER BOOK, W HICH IS AUDIT REPORT IN WHICH IN COLUMN NO. 11, THE AUDITOR HAS MENTIONED T HE BUSINESS OF THE ASSESSEE AS NEW BUSINESS AND HENCE, THAT CLAUSE WAS NOT APPLICABLE. THE LD. COUNSEL FOR THE ASSESSEE, THEREFORE, SUBMITTED THAT THE MISTAKE CREPT IN THE ORDER OF THE TRIBUNAL BECAUSE THESE PROVISIONS ARE NOT APPLICABLE AGAINST THE ASSESSEE. THEREFORE, THE ORDER OF THE TRIBUNAL MAY BE RECTIFIED AND MISCELLANEOUS APPLICATION MAY BE ALLOWED. THE LD. D R, HOWEVER, SUBMITTED THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER. THEREFORE, THE MISCELLANEOUS APPLICATION SHOULD BE DISMISSED. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. HONBL E CALCUTTA HIGH COURT IN THE CASE OF HINDUSTAN LEVER LTD VS. JCIT, 284 ITR 42 HELD SUB-SECTION (1) OF SECTION 154 OF THE INCOME-TAX A CT, 1961 CLEARLY STATES THE CIRCUMSTANCES UNDER WHICH T HE RECTIFICATION CAN BE MADE. A MISTAKE MUST BE APPARE NT FROM THE RECORD, MEANING THEREBY NO EXTERNAL HELP EITHER ON FACT OR IN LAW IS REQUIRED TO DETECT SUCH MISTAKE. THE MISTAKE MUST BE SO OBVIOUS THAT IT CAN EASILY BE CORRECTED, TO WIT AN ARITHMETICAL MISTAKE, A WRONG QUOTATION OF SECTION, ETC. THE QUE STION WHETHER INTERPRETATION OF A PROVISION OF LAW IS RIG HT OR WRONG IS PER SE A DEBATABLE ISSUE. THIS ISSUE CANNOT BE RESO LVED BY THE M.A. NO. 05/AGRA/2012 3 OFFICIAL HAVING CO-ORDINATE JURISDICTION UNDER SECT ION 154 OF THE ACT AS IT COULD NOT BE TERMED TO BE APPARENT FROM T HE RECORD. IT WAS FURTHER HELD HELD, THAT ORIGINALLY THE ASSESSING OFFICER HAD AP PLIED SECTION 32, SUB-SECTION (1), THIRD PROVISO. WHETHER THIS PROVISION HAD BEEN CORRECTLY APPLIED OR NOT WAS A D EBATABLE ISSUE. THE NOTICE WAS ULTRA VIRES THE PROVISION OF SECTION 154 AND THE ORDER PASSED PURSUANT TO THE NOTICE WAS NOT SUSTAINABLE IN LAW. 3.1 HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. ANAMIKA BUILDERS PVT. LTD., 251 ITR 585 HELD THAT THE TRIBUNAL SHOUL D NOT CHANGE ITS VIEW ALREADY TAKEN IN THE MATTER. IT IS WELL SETTLED LA W THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER ALREADY PASSED ON MERITS. WE ARE FORTIFIED IN OUR VIEW BY THE DECISION OF HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF CIT VS. IDEAL ENGINEERS, 251 ITR 743, THE DECISION OF HONBLE M.P. HIGH COURT IN THE CASE OF AGARWAL WAREHOUSING, 257 ITR 2 35 (MP) AND OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. AD YAR GATE HOTEL LTD., 294 ITR 155 IN WHICH HONBLE MADRAS HIGH COURT ALSO HELD THAT THE MISCELLANEOUS APPLICATION SHOULD NOT BE CONSIDERED ON THE DEBATABLE ISSUE. IN VIEW OF THE SETTLED POSITION OF LAW, THE DECISIO N CITED BY THE LD. COUNSEL FOR THE ASSESSEE IN THE CASE OF CIT VS. SUNDARAM TE XTILES LTD, 149 ITR 525 (MAD.) CANNOT BE CONSIDERED IN FAVOUR OF THE ASSESS EE. FURTHER ON GOING M.A. NO. 05/AGRA/2012 4 THROUGH THE ORDER OF THE TRIBUNAL, WE FIND THAT THE TRIBUNAL CONSIDERED THE ISSUE ON MERITS AND AFTER REFERRING TO THE DECISION OF THE JURISDICTIONAL HIGH COURT AND THE JUDGMENT OF HONBLE SUPREME COURT, FO UND THAT THE RELIEF ALREADY GRANTED BY THE LD. CIT(A) WAS NOT IN ACCORD ANCE WITH LAW. THEREFORE, THE ORDER OF THE LD. CIT(A) WAS REVERSED AND THE ORDER OF THE AO IN MAKING THE ADDITION WAS RESTORED. THE MAIN CONTE NTION OF THE LD. COUNSEL FOR THE ASSESSEE HAD BEEN THAT SINCE IT WAS A FIRST YEAR OF THE BUSINESS OF ASSESSEE, THEREFORE, THE ABOVE PROVISIONS WILL NOT APPLY. HOWEVER, THE LD. CIT(A) ON PAGE 19 OF THE APPELLATE ORDER HAS REJECT ED THE CONTENTION OF THE ASSESSEE BY HOLDING THAT IT WAS NOT THE FIRST YEAR OF THE BUSINESS OF ASSESSEE AS CLAIMED BY ASSESSEE BECAUSE IN THE PRECEDING ASS ESSMENT YEAR 2005-06, THE ASSESSEE FILED RETURN OF INCOME ON 12.09.2005 D ECLARING INCOME THEREIN, WHICH HAS BEEN ACCEPTED U/S. 143(1) OF THE IT ACT. THE FINDING OF FACT RECORDED BY THE LD. CIT(A) HAS NOT BEEN DISPUTED BY THE LD. COUNSEL FOR THE ASSESSEE. HOWEVER, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT NATURE OF BUSINESS INCOME WAS DIFFERENT IN THE EARLIER YEAR. THIS IS A HIGHLY DEBATABLE POINT, WHICH REQUIRES RE-APPRAISAL AND RECONSIDERAT ION OF FACTS, WHICH IS NOT PERMISSIBLE U/S. 254(2) OF THE IT ACT. WE MAY ALSO POINT OUT THAT ALL THE FACTS MENTIONED IN THE PAPER BOOK HAVE ALREADY BEEN TAKEN INTO CONSIDERATION BY THE TRIBUNAL WHILE DISPOSING OF THE ISSUE. WE ARE, THEREFORE, OF THE VIEW THAT M.A. NO. 05/AGRA/2012 5 THERE IS NO MISTAKE APPARENT ON RECORD. THEREFORE, THE MISCELLANEOUS APPLICATION HAS NO MERIT AND THE SAME IS, ACCORDING LY DISMISSED. 4. IN THE RESULT, THE M.A. FILED BY ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18.05.2012. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY