Addl.CIT, Bangalore V. M/s ABB Ltd., Bangalore

MA 52/BANG/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6000 (ITAT-BANGALORE)
• Duration Of Justice: 8 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-01-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-01-2011
• Assessment Year: misc
• Appeal Filed On: 07-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M V SESHACHALA
• Assessee Lawyers: P J PARDIWALLA
• Keywords: Rectification of order
• Section: 148; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE S MT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER M.P. NO.52/BANG/2010 (ARISING OUT OF ITA NO. 169/ MUM/2003 ) ASSESSMENT YEAR : 1987 - 8 8 THE ADDL. COMMISSIONER OF INCOME TAX (LTU), BANGALORE. : APPLICANT VS. M/S. ABB LTD., KHANIJA BHAVAN, 49, RACE COURSE ROAD, II FLOOR, EAST WING, BANGALORE 560 001. : RESPONDENT APPLIC A NT BY : SHRI M.V. SESHACHALA, ADVOCATE & STA NDING COUNSEL RESPONDENT BY : SHRI P.J. PARDIWALLA, SR. ADVOCATE O R D E R PER A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER THIS MISCELLANEOUS PETITION IS FILED BY THE REVENUE FOR RECTIFICATION OF MISTAKE APPARENT ON THE RECORD U/S. 254(2) OF THE ACT ON THE ORDER OF THE TRIBUNAL DATED 16.2.2010. MP NO.52/BANG/10 PAGE 2 OF 4 2. IN THE PETITION, IT IS SUBMITTED AS UNDER : COMBINING THE APPEALS OF THE ASSESSEE AND THE REVENUE, THE TRIBUNAL HAS PASSED A SINGLE ORDER. IN ITAT NO.7433/MUM/2002 DT 16/2/2010, THE ITAT HAS ALLOWED THE ASSESSE E S APPEAL AND HELD THAT THE ORDER OF REOPENING BY THE AO IS BAD IN LAW. IN ITA NO.169/MUM/2003 DT. 16/02/2010, THE ITAT HAS DISMISSED THE APPEAL BY REVENUE HAS INFRUCTUOUS SINCE THE ITAT HAS HELD THAT REOPENING ITSELF IS BAD IN LAW. RELYING ON THE DECISI ON OF THE HON BLE MADRAS HIGH COURT IN THE CASE OF RAMACHANDRA HATCHERIES (305 ITR 119), THE TRIBUNAL HAS HELD THAT NO FRESH MATERIAL HAS COME TO THE POSSESSION OF REVENUE TO FORM A DIFFERENT OPINION BY THE AO. THE TRIBUNAL HAS STATED THAT THE AO HAD NOT FORMED AN INDEPENDENT OPINION WHICH IS VERY ESSENTIAL FOR REOPENING SINCE THE OPINION OF CIT ON WHICH PROCEEDINGS U/S. 263 WERE INITIATED AND THEN DROPPED HAS BEEN SUBSTITUTED BY THE AO WHO IS NOT FORMING AN INDEPENDENT OPINION ON THE BASIS OF ANY NEW MATE RIALS, EXCEPT WRITING FOR THE SAME POINTS AS PER NOTICE U/S. 263 ACTUALLY, THE A.O. HAS INDEPENDENTLY RECORDED HIS REASONS AND THEREAFTER ISSUED NOTICE U/S. 148 OF THE ACT AS VERIFIED FROM THE ORIGINAL RECORDS. THE NOTINGS IN THE NOTICE U/S. 148 DATED: 27.03.1991 AT PAGE 15 OF THE PAPER BOOK PRODUCED BY THE ASSE SSEE ON WHICH THE HON BLE ITAT HAS RELIED UPON, IS NOT OF THE A.O., BUT OF THE ASSESSEE. THE TRIBUNAL IS CONVINCED THAT THE A.O. HAD RECORDED SEPARATE REASONS FOR REOPENING ASSESSMENT FOR THE SU BSEQUENT ASSESSMENT YEAR FOR WHICH A SIMILAR CONTENTION HAS BEEN TAKEN BY THE DEPARTMENTAL REPRESENTATIVE BEFORE THE TRIBUNAL. IN VIEW OF THE FACTS, MENTIONED ABOVE, IT IS SUBMITTED THAT THERE IS A MISTAKE APPARENT FROM THE RECORDS WHICH IS TO BE RECTIFIE D U/S. 254(2) BY MODIFYING ITS ORDER DATED 16 - 02 - 2010 . 3. AT THE TIME OF HEARING, T HE LD. DR REFERRED TO THE ORDER OF THE TRIBUNAL DATED 16.2.2010 AND POINTED OUT TO THE LAST BUT ONE SENTENCE FROM THE END OF PARA 16 AT PAGE 14, WHICH READS AS UNDER: THIS I NDICATES THAT THE OPINION OF THE CIT IS SUBSTITUTED BY THE ASSESSING OFFICER AND HE IS NOT FORMING ANY INDEPENDENT OPINION MP NO.52/BANG/10 PAGE 3 OF 4 ON THE BASIS OF ANY NEW MATERIALS, EXCEPT WRITING FOR THE SAME POINTS AS PER NOTICE U/S. 263 . AND SUBMITTED THAT THE WORDS IN TH E ORDER OF THE TRIBUNAL STATING EXCEPT WRITING FOR THE SAME POINTS AS PER NOTICE U/S. 263 IS A MISTAKE APPARENT ON THE RECORD AS THE WORDS FOR THE SAME POINTS AS PER NOTICE U/S. 263 WAS NOT EMANATING FROM THE RECORDS. HE THEREFORE PRAYED THAT THES E WORDS MAY BE DELETED AND ORDER OF THE TRIBU NAL BE RECTIFIED. THE LD. AR MAGNANIMOUSLY AGREED TO THE PRAYER OF THE LD. DR. 4. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE FIND THE SUBMISSION OF THE REVENUE THAT THE WORDS FOR THE SA ME POINTS AS PER NOTICE U/S. 263 IN THE ORDER OF THE TRIBUNAL WAS NOT EMANATING FROM THE RECORDS. W E ACCEP T THE CONTENTION OF THE REVENUE. IN ORDER TO RECTIFY THE MISTAKE, LAST BUT ONE SENTENCE FROM THE END OF THE PARA 16 AT PAGE 14 OF THE ORDER OF TH E TRIBUNAL DATED 16.02.2010 IS HEREBY MODIFIED BY DELETING THE WORDS EXCEPT WRITING FOR THE SAME POINTS AS PER NOTICE U/S. 263 , AS A RESULT OF WHICH NOW THE ABOVESAID SENTENCE WILL READ AS UNDER: THIS INDICATES THAT THE OPINION OF THE CIT IS SUBSTIT UTED BY THE ASSESSING OFFICER AND HE IS NOT FORMING ANY INDEPENDENT OPINION ON THE BASIS OF ANY NEW MATERIALS. 5. EXCEPT FOR THE ABOVE MODIFICATION, THE REST ORDER OF THE TRIBUNAL DATED 16.2.2010 REMAINS UNCHANGED. 6. IN THE RESULT, THE MISCELLANEOUS PETITION F ILED BY THE REVENUE IS ALLOWED. MP NO.52/BANG/10 PAGE 4 OF 4 PRONOUNCED IN THE OPEN COURT ON THIS 25 TH DAY OF JANUARY, 2011 . SD/ - SD/ - ( SMT. P. MADHAVI DEVI ) ( A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 25 TH JANUARY, 2011 . DS/ - COPY TO: BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE. 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE