Sri Venkata Sai Educational Society, Hyderabad V. ACIT., Central Circle-1, Hyderabad, Hyderabad

MA 5/HYD/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2980 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-04-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 19-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAMAKRISHNA BANDI
• Assessee Lawyers: V RAGHAVENDRA RAO
• Keywords: Depreciation; Search and seizure
• Section: 153A; 11

Judgement Text

MA NOS.4 5 AND 6 OF 2015 SRI VENKATA SAI EDUCATIONA L SOCIETY HYD. PAGE 1 OF 6 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD A BENCH, HYDERABAD BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER & SMT.ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER M.A.NOS. 4 TO 6/HYD/2015 (ARISING OUT OF ITA NOS.1440, 1441 & 1442/HYD/2011 (ASSESSMENT YEARS: 2003-04, 2004-05 & 2006-07) SRI VENKATA SAI EDUCATIONAL SOCIETY, HYDERABAD PAN- AABTS 9158 C VS. ACIT, CENTRAL CIRCLE 1 HYDERABAD (APP LICANT ) (RESPONDENT) FOR ASSESSEE : SHRI V. RAGHAVENDRA RAO FOR REVENUE : SHRI RAMAKRISHN A BANDI, DR DATE OF HEARING : 20/02/2015 DATE OF PRONOUNCEMENT : 08 /04/2015 O R D E R PER SMT. ASHA VIJAYARAGHAVAN, J.M. BY THIS MISCELLANEOUS APPLICATIONS, ASSESSEE HAS B ROUGHT TO THE NOTICE OF THE ITAT AS FOLLOWS: 1 T HAT A COMMON ORDER WAS PASSED BY THE BENCH IN THE CASE OF NINE DIFFERENT ASSESSEES IN WHICH THE DEPARTMENTAL APPEALS IN THE CASE OF THE APPLICANT - ASSESSEE (HEREINAFTER REFERRED TO AS ASSESSEE) WERE ALSO DECIDED FOR THREE ASSESSMENT YEARS 2003-04, 2004-05 AND 2006-07. IT IS FURTHER BROUGHT TO THE KIND NOTICE OF THE HON'BLE BENCH THAT ERRORS HAVE CREPT INTO THE ORDERS OF THE HON'BLE BENCH IN SO FAR AS THE APPEALS OF THE ASSESSEE ARE CONCERNED. THE ASSESSEE IS FILING SEPARATE MISCELLANEOUS APPLICATIONS FOR SEPARATE ASSESSMENT YEARS. MA NOS.4 5 AND 6 OF 2015 SRI VENKATA SAI EDUCATIONA L SOCIETY HYD. PAGE 2 OF 6 2. FOR THE ASSESSMENT YEAR 2004-05 THERE WAS AN EARLIER ORDER OF THE SAME BENCH NAMELY HYDERABAD BENCH 'A' IN ITA NO. 937/HYD/2007 PASSED ON 10-10- 2008 ON THE VERY SAME ISSUE NAMELY WHETHER THE ASSESSEE CAN CLAIM EXEMPTION UNDER EITHER SEC 10(23C) OR U/S 11 OF THE IT ACT. AFTER THE ORDER WAS PASSED BY THE HON'BLE HYDERABAD BENCH 'A' THERE WERE SEARCH AND SEIZURE OPERATIONS IN THE CASE OF THE ASSESSEE AND ASSESSMENT ORDERS WERE PASSED U/S 153A OF THE IT ACT INCLUDING FOR THE CURRENT ASSESSMENT YEAR 2004-05. THE SAME ISSUE OF EXEMPTION U/ S 10(23C) OR SEC 11 AROSE. THE ASSESSING OFFICER (AO) TOOK THE SAME STAND AS IN THE ASSESSMENT ORDER BEFORE THE ADVENT OF THE SEARCH. ON APPEAL AGAINST THE ORDER U/S 153A R.W.S 143(3), THE CIT(A) - I, HYDERABAD HAS FOLLOWED THE DECISION OF THE HON'BLE TRIBUNAL AS IN THE ORDERS PASSED BEFORE THE SEARCH VIZ.,ORDER OF 'A' BENCH IN ITA NO 937 JHYDJ2007. ON DEPARTMENTAL APPEAL AGAINST THE ORDER OF CIT(A), HONBLE BENCH PASSED THE INSTANT ORDER REFERRED TO ABOVE. 3. AN ERROR OCCURRED IN THE ORDER (COMMON ORDER FOR 2003-04, 2004-05 AND 2006-07) OF THE HONBLE BENCH FOR THE ASSESSMENT YEAR 2004-05 IN SO FAR AS THE EARLIER ORDER OF THE SAME BENCH IN OWN CASE OF THE ASSESSEE ON THE SAME FACTS AND LEGAL PROVISIONS WAS NOT FOLLOWED. THE HONBLE BENCH HOWEVER REFERRED TO ORDERS PASSED IN THE CASE OF VASAVI ACADEMY OF EDUCATION AND APPLIED THE SAME TO THE DEPARTMENTAL APPEAL. AS THERE IS AN ORDER IN ASSESSEE'S OWN CASE ON THE SAME ISSUE BEFORE AND THERE IS NO DIFFERENCE IN THE FACTS, THE HON'BLE TRIBUNAL HAS TO FOLLOW THEIR OWN ORDERS IN THE ABSENCE OF ANY DIFFERENT FACTS. MA NOS.4 5 AND 6 OF 2015 SRI VENKATA SAI EDUCATIONA L SOCIETY HYD. PAGE 3 OF 6 4. IN REGARD TO THE APPLICATION OF THE DECISIONS OF THE SUPREME COURT IN THE CASE OF ISLAMIC ACADEMY OF EDUCATION AND ANOTHER VS STATE OF KARNATAKA AND ANOTHER AND OF TMA PAI FOUNDATION AND OTHERS VS STATE OF KARNATAKA AND OTHERS REFERRED TO IN THE INSTANT ORDER, IT IS SUBMITTED THAT THEY WERE IN EXISTENCE EVEN BEFORE THE ORDERS PASSED BY THE HON 'BLE TRIBUNAL BEFORE THE SEARCH PROCEEDINGS UJ S 153A, IN ASSESSEE'S OWN CASE. THE JUDGEMENTS OF SUPREME COURT DID NOT THEREFORE CONSTITUTE FRESH FACTS. THUS THERE OCCURRED AN ERROR IN NOT FOLLOWING THE ORDERS OF THE SAME BENCH IN THE SAME CASE FOR THE SAME YEAR ON THE SAME SET OF FACTS. 5. SECONDLY, IN THE EARLIER ORDER BEFORE THE PROCEEDINGS U/S 153A, THE HONBLE BENCH DIRECTED THE ALLOWANCE OF DEPRECIATION ON THE DEPRECIABLE ASSETS EVEN THOUGH THE EXPENDITURE ON THE ASSETS HAD BEEN CONSIDERED AS APPLICATION OF INCOME. THERE OCCURRED AN ERROR IN NOT ALLOWING THE DEPRECIATION IN THE PRESENT ORDER OF THE HON'BLE TRIBUNAL ALTHOUGH THE EARLIER ORDER ALLOWED THE DEPRECIATION. 6. INCIDENTALLY, IT MAY BE BROUGHT TO THE KIND NOTICE OF THE HON'BLE BENCH THAT IN PARA 3 OF THE ORDER THERE OCCURRED AN ERROR IN STATING THAT THE ASSESSEE RAISED ELABORATE GROUNDS, BECAUSE THE APPEAL WAS FILED BY THE REVENUE. IT IS STATED ALSO IN THE ORDER THAT WRITTEN SUBMISSIONS WERE FILED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE BESIDES THE DECISIONS OF THE TRIBUNAL IN SIMILAR MATTERS. THE ASSESSEE'S COUNSEL IS NOT AWARE OF ANY MA NOS.4 5 AND 6 OF 2015 SRI VENKATA SAI EDUCATIONA L SOCIETY HYD. PAGE 4 OF 6 WRITTEN SUBMISSIONS FILED BY THE REVENUE. IN THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE'S COUNSEL, THE ORDERS OF THE HONBLE TRIBUNAL IN THE CASE OF THE ASSESSEE IN THE SAME YEAR ON THE SAME ISSUE HAVE BEEN REFERRED TO AND COPY OF THE EARLIER COMMON ORDER FOR ASSESSMENT YEARS 2003-04 AND 2004-05 HAS BEEN FILED. 7. IT IS PRAYED THAT THE ABOVE ERRORS WHICH HAVE CREPT INTO THE ORDER OF THE HON'BLE BENCH INADVERTENTLY MAY KINDLY BE AMENDED. IT IS ALSO PRAYED THAT THE ORDER MAY BE PASSED IN CONFORMITY WITH THE ORDER OF THE HYDERABAD BENCH 'A' IN THE OWN CASE OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2004-05 FOR THE SAME ASSESSMENT YEAR ON THE SAME SET OF FACTS. 2. THE PETITIONER ALSO RELIED ON THE DECISION IN TH E CASE OF LEKSHMI VILAS BANK VS. CIT (264 ITR 293)(MAD.) 3. WE HAVE PERUSED THE MISCELLANEOUS PETITIONS AND HEARD THE ARGUMENTS OF BOTH THE PARTIES. WE FIND THAT OUR ORD ER DATED 09.04.2012 HAS BEEN CONSCIOUSLY PASSED NOT FOLLOWIN G EARLIER ORDER OF THE SAME BENCH IN THE ASSESSEES OWN CASE ON THE SAME FACTS. SINCE THE HON'BLE SUPREME COURT DECISION IN THE CASE OF ISALAMIC ACADEMY OF EDUCATION AND ANOTHER VS. STATE OF KARNATAKA & ANOTHER (2003) 6 SCC 697 AND IN THE CAS E OF T.M.A. PAI FOUNDATIONS AND OTHERS VS. STATE OF KARNATAKA & OTHERS (2002) 8 SCC 481 HAVE NOT BEEN FULLY CONSIDERED IN AS MUCH AS NOT APPLIED IN THE EARLIER ORDER OF THE TRIBUNAL. I T IS JUDICIAL MA NOS.4 5 AND 6 OF 2015 SRI VENKATA SAI EDUCATIONA L SOCIETY HYD. PAGE 5 OF 6 DISCIPLINE THAT THE APEX COURTS DECISION HAS TO BE FOLLOWED BEING THE ULTIMATE AND FINAL DECISION. 4. HENCE THE ORDER DATED 9.4.2012, DOES NOT SUFFER OF ANY MISTAKE APPARENT FROM THE RECORD IN AS MUCH AS THE MATTER HAD BEEN SET ASIDE TO ADJUDICATE IN THE LIGHT OF THE SU PREME COURT DECISION. DIFFERENT VIEWS HAVE BEEN TAKEN ON THE IS SUE BY DIFFERENT BENCHES AND THE MATTER HAS BEEN REFERRED TO THE SPECIAL BENCH IN THE CASE OF MATHRUSRI EDUCATIONAL SOCIETY. THE VERY FACT THAT DECISIONS HAVE BEEN TAKEN DIFFERENTLY BY COORDINATE BENCHES AND THE MATTER IS PENDING BEFORE THE SPECIA L BENCH IS SUFFICIENT TO ESTABLISH THAT THE MISTAKE IS NOT APP ARENT FROM RECORD AND REQUIRES LONG DRAWN DISCUSSION AND APPLI CATION OF MIND. 5. FURTHER IN THE CASE OF CIT VS. HINDUSTAN COCA CO LA BEVERAGES (P) LTD. (2007) 207 CTR (DEL) 119; (2007) 293 ITR 163 (DEL), THEIR LORDSHIPS WHILE CONSIDERING THE POWERS OF THE TRIBUNAL UNDER S. 254(2) OF THE IT ACT, 1961 OBSERV ED AS UNDER: UNDER SECTION 254(2) OF THE IT ACT, 1961, THE TRIBUNAL HAS THE POWER TO RECTIFY MISTAKES IN ITS ORDER. HOWEVER, IT IS PLAIN THAT THE POWER TO RECTIFY A MISTAKE IS NOT EQUIVALENT TO A POWER TO REVIEW OR RECALL THE ORDER SOUGHT TO BE RECTIFIED. RECTIFICATION IS A SPECIES OF THE LARGER CONCEPT OF REVIEW. ALTHOUGH IT IS POSSIBLE THAT THE PRE- REQUISITE FOR EXERCISE OF EITHER POWER MAY BE SIMILAR (A MISTAKE APPARENT FROM THE RECORD), BY ITS VERY NATURE THE POWER TO RECTIFY A MISTAKE CANNOT RESULT IN THE RECALL AND REVIEW OF THE ORDER SOUGHT TO BE RECTIFIED. MA NOS.4 5 AND 6 OF 2015 SRI VENKATA SAI EDUCATIONA L SOCIETY HYD. PAGE 6 OF 6 6. HOWEVER, AN ERROR HAS OCCURRED IN PARA NO.3 OF T HE ORDER IN STATING THAT ASSESSEE HAS FILED ELABORATE GROUNDS. AT PARA NO.3 OF THE ORDER DATED 9 TH APRIL, 2012, IT SHOULD BE SUBSTITUTED AS REVENUE INSTEAD OF ASSESSEE. SIMILARLY, ANOTHER E RROR HAS OCCURRED IN STATING THAT WRITTEN SUBMISSIONS HAVE B EEN FILED BY DEPARTMENTAL REPRESENTATIVE VIDE ORDER DATED 9 TH APRIL, 2012. IT IS NOW CORRECTED BY THIS M.A TO SUBSTITUTE ASSESSE ES COUNSEL IN THE PLACE OF DEPARTMENTAL REPRESENTATIVE AT PARA NO.4. 7. HENCE, THE MISCELLANEOUS PETITIONS FILED BY THE ASSESSEE ARE PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH APRIL, 2015. SD/ - SD/ - (P.M. JAGTAP) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED 8 TH APRIL, 2015. VNODAN/SPS COPY TO: 1. SRI VENKATA SAI EDUCATIONAL SOCIETY, HYDERABAD 2. ACIT, CENTRAL CIRCLE (1) HYDERABAD 3. THE CIT(A) I HYDERABAD 4. THE CIT (CENTRAL) HYDERABAD 5. THE DR, ITAT, HYDERABAD 6. GUARD FILE BY ORDER