The Mula Pravara Electric Co-Op Society Ltd, Ahmednagar V. DCIT cir, Ahmednagar, Ahmednagar

MA 53/PUN/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9554 (ITAT-PUNE)
• Duration Of Justice: 7 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-11-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 16-04-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S K SINGH
• Assessee Lawyers: S N DOSHI
• Keywords: Recovery proceedings; Tangible material; Difference of opinion; Revised return; Change of opinion; Reassessment proceedings; Ignorance of law
• Section: 143(3); 142(1); 147; 148; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE BEFORE SHRI G.S. PANNU, ACCOUNTANT MMEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER M.A. NO. 53/PN/2012 ARISING OUT OF ITA NO. 1308/PN/2011 (ASSTT. YEAR: 2002-03 ) THE MULA PRAVARA ELECTRIC CO-OP. SOCIETY LTD., BELAPUR ROAD, SHRIRAMPUR TAL. SHRIRAMPUR, DIST. AHMEDNAGAR PAN AAAAT 3301 A APPLICANT VS. DY. CIT AHMEDNAGAR CIRCLE AHMEDNAGAR RESPONDENT APPLICANT BY : SHRI S.N. DOSHI RESPONDENT BY : SHRI S.K. SINGH, ORDER PER G.S. PANNU, A.M .: THE ASSESSEE HAS MOVED THIS MISCELLANEOUS APPLICATI ON AGAINST THE ORDER PASSED BY THE TRIBUNAL IN ITA NO. 1308/PN/201 0 FOR A.Y. 2002-03 DATED 6 TH MARCH 2012 STATING THAT THERE ARE VARIOUS MISTAKE S OF FACTS AND LAW WHICH ARE RECTIFIABLE U/S 254(2) OF THE INCOME-TAX ACT, 1 961 (IN SHORT THE ACT). 2. THE FIRST MISTAKE SOUGHT TO BE POINTED OUT BY TH E ASSESSEE IS WITH REGARD TO ADJUDICATION BY THE TRIBUNAL IN ITS ORDER DATED 6-3-2012 (SUPRA) REGARDING THE VALIDITY OF INITIATION OF ASSESSMENT MADE BY THE ASSESSING OFFICER IN TERMS OF SECTION 147 READ WITH SECTION 1 48 OF THE ACT. IN ORDER TO APPRECIATE THE CASE SOUGHT TO BE MADE BY THE ASSESS EE IN THE PRESENT PETITION, IT WOULD BE APPROPRIATE TO REFER TO THE F OLLOWING BACKGROUND. 3. IN ITS APPEAL BY WAY OF GROUND NOS. 1 AND 2, AS REPRODUCED BY THE TRIBUNAL IN ITS ORDER DATED 6-3-2012 (SUPRA), ASSES SEE HAD CONTENDED THAT THE REOPENING OF THE ASSESSMENT U/S 148 WAS INVALID AND BAD IN LAW ON THE GROUND THAT THE NOTICE U/S 148 WAS ISSUED WITHOUT PROVIDIN G REASONS RECORDED FOR ISSUANCE OF SUCH NOTICE IN THE COURSE OF RE-ASSESSM ENT PROCEEDINGS TILL COMPLETION OF THE ASSESSMENT ORDER. SECONDLY, IT WA S CANVASSED THAT RELEVANT MATERIAL FORMING THE BASIS FOR REOPENING THE ASSESS MENT WAS ALREADY AVAILABLE ON RECORD AND THAT THE RE-ASSESSMENT PROCEEDINGS WE RE THUS INITIATED ON THE BASIS OF A MERE CHANGE OF OPINION. THE TRIBUNAL DE ALT WITH BOTH THE ASPECTS, AS IS EVIDENT FROM THE FOLLOWING DISCUSSION IN PARA 11 OF THE ORDER DATED 6-3- 2012:- 11. SO FAR AS THE CONTENTION OF THE LD. A.R. THAT NOTICE U/S. 148 ALONG WITH REASONS SHOULD HAVE BEEN ISSUED WITHIN 6 YEARS FROM THE A.Y. 2002-03 I.E. BEFORE 31 ST MARCH 2009 IS CONCERNED, WE FULLY AGREE WITH IT THAT THE A.O SHOULD HAVE SUPPLIED T HE REASONS RECORDED AT THE EARLIEST POSSIBLE OPPORTUNITY TO E NABLE THE ASSESSEE TO FILE OBJECTION, IF ANY, THERETO. IN TURN, A.O IS ALSO REQUIRED TO MEET OUT THOSE OBJECTIONS TO JUSTIFY HIS FURTHER PR OCEEDING FOR RE- ASSESSMENT. THE LD. CIT(A) HAS DEALT WITH THIS CON TENTION AT PAGE NO. 18 OF THE FIRST APPELLATE ORDER WITH THIS OBSER VATION THAT VIDE SHOW CAUSE NOTICE DATED 8.12.2009 THE ASSESSEE WAS COMMUNICATED THE REASONS RECORDED AND THE ASSESSEE HAD ALSO RESP ONDED THERETO. ONLY AFTER MEETING THESE OBJECTIONS, THE A.O PROCE EDED FURTHER FOR THE FRAMING OF THE RE-ASSESSMENT. ON PERUSAL OF THE SAID SHOW CAUSE NOTICE DATED 8.12.2009, CONTENTS OF WHICH HAV E BEEN REPRODUCED IN THE FIRST APPELLATE ORDER AND THE REA SONS RECORDED (REPRODUCED AT PAGE NO. 13 & 14) OF THE FIRST APPEL LATE ORDER); WE FIND THAT THE CONTENTS OF REASONS HAVE BEEN REPROD UCED IN THE SHOW CAUSE NOTICE DATED 8.12.2009. THUS, WE PRINCIPALLY AGREE WITH THE FINDING OF THE LD CIT(A) THAT THE REASONS WERE COMM UNICATED TO THE ASSESSEE AND OPPORTUNITY WAS ALSO AFFORDED TO THE A SSESSEE TO RAISE OBJECTION OR TO SHOW CAUSE AS TO WHY THE INCOME TO THE EXTENT OF RS. 548.80 CRORES ESCAPED THE ASSESSMENT SHOULD NOT BE TAXED. IN THIS SHOW CAUSE NOTICE, IT HAS BEEN MENTIONED THAT THE SAID INCOME HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SEC. 1 47 OF THE ACT AND NOTICE U/S. 148 HAS BEEN DULY SERVED UPON THE A SSESSEE IN APRIL 2008. WE ARE STILL OF THE VIEW THAT THE LD CIT(A) WAS NOT JUSTIFIED IN HOLDING THAT REASONS TO BELIEVE RECORDED BY THE A.O FOR INITIATION OF RE-OPENING PROCEEDINGS WAS TECHNICALLY SUPPLIED TO THE ASSESSEE AS PRAYED FOR BY IT BEFORE THE A.O AS REQUIRED UNDE R THE PROVISIONS OF LAW, BUT WE CONCUR WITH HIS FINDING IN THE PRESE NT CASE THAT THE VERY OBJECT OF THE PROVISION I.E. AFFORDING OPPORTU NITY OF BEING HEARD ON THE REASONS RECORDED TO JUSTIFY THE INITIATION OF RE-OPENING PROCEEDINGS, HAS BEEN MET OUT IN THE PRESENT CASE. ADMITTEDLY, COPY OF THE REASONS RECORDED HAS ALSO BEEN SUPPLIED AT THE REQUEST OF THE ASSESSEE BEFORE THE LD CIT(A) ON 19.6.2010, THUS THE DEFECT IF ANY COMMITTED BY THE A.O IN NOT SUPPLYING THE COPY OF REASONS RECORDED TO THE ASSESSEE IN COMPLIANCE OF ITS REQUE ST BEFORE HIM DURING THE COURSE OF ASSESSMENT PROCEEDINGS, HAS B EEN TECHNICALLY CURED. WE THUS DO NOT FIND MUCH SUBSTANCE IN THE C ONTENTION OF THE LD. A.R. THAT THE REASONS SHOULD HAVE BEEN ISSUED O N THE REQUEST OF THE ASSESSEE BY THE A.O DURING THE ASSESSMENT PROCE EDINGS, TO THIS EXTENT THAT IN ABSENCE OF SUCH COMPLIANCE, THE ASS ESSMENT ORDER IN QUESTION BE TREATED AS VOID. THE DECISION OF HON BLE DELHI HIGH COURT IN THE CASE OF HARYANA ACRYLIC MANUFACTURING CO. VS. CIT (SUPRA) ALSO FOLLOWED BY THE DELHI BENCH OF THE TR IBUNAL IN THE CASE OF SHRI BALWANTRAI WADHWA VS. ITO (SUPRA) RELIED UP ON BY THE LD. A.R. HAVING DISTINGUISHABLE FACTS IS NOT HELPFUL TO THE ASSESSEE. IN THAT CASE, EXCEPTION CARVED OUT BY PROVISO TO SEC. 147 CAME INTO PLAY WHEREAS IN THE PRESENT CASE, THE MATTER FALLS IN MAIN PROVISION OF SEC. 147 OF THE ACT. IN THAT CASE BEFORE THE HO NBLE DELHI HIGH COURT, THE ORIGINAL ASSESSMENT WAS COMPLETED U/S. 1 43(3) WHEREAS IN THE PRESENT CASE BEFORE US, THE RETURN WAS PROCE SSED U/S. 143(1)(A) OF THE ACT. AS PER THIS PROVISO TO SEC. 147, WHERE AN ASSESSMENT UNDER SUB-SECTION (3) OF SEC. 143 OR SE C. 147 HAS BEEN MADE FOR THE RELEVANT A.Y, NO ACTION SHALL BE TAKEN UNDER THIS SECTION AFTER THE EXPIRY OF 4 YEARS FROM END OF THE RELEVANT A.Y, UNLESS AN INCOME CHARGEABLE TO TAX HAS ESCAPED ASSE SSMENT FOR SUCH A.Y. BY REASON OR THE FAILURE ON THE PART OF T HE ASSESSEE TO MAKE RETURN U/S. 139 OR IN RESPONSE TO A NOTICE ISS UED UNDER SUB- SECTION (1) OF SEC. 142 OR 148 OR TO DISCLOSE FULLY AND TRULY ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT, FOR TH AT A.Y. THE PROCEEDINGS INITIATED FOR RE-OPENING ALSO CANNOT BE TERMED AS CHANGE OF OPINION IN THE PRESENT CASE AS ADMITTEDLY THERE WAS NO ASSESSMENT U/S. 143(3) OF THE ACT, BUT THE RETURN O RIGINALLY FILED WERE PROCESSED U/S. 143(1)(A) OF THE ACT WHICH CAN NOT BE TERMED AS ASSESSMENT. THE LD CIT(A) WAS THUS JUSTIFIED I N REJECTING SUCH CONTENTION OF THE ASSESSEE RESPECTFULLY FOLLOWING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF ACIT VS. RAJES H JHAVERY STOCK BROKERS (P) LTD., 291 ITR 500 (SC). FOR A RE ADY REFERENCE, THE RELEVANT EXTRACT OF PARA NO. 13 OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF RAJESH JHAVERY STOCK B ROKERS (P) LTD. (SUPRA) IS BEING REPRODUCED HEREUNDER : 13. IN THE SCHEME OF THINGS, AS NOTED ABOVE, THE INTIMATION UNDER SECTION 143(1)(A) CANNOT BE TREATE D TO BE AN ORDER OF ASSESSMENT. THE DISTINCTION IS ALSO WELL BROUGHT OUT BY THE STATUTORY PROVISIONS AS THEY STOOD AT DIFFER ENT POINTS OF TIME. UNDER SECTION 143(1)(A) AS IT STOOD PRIOR TO 1-4-1989, THE ASSESSING OFFICER HAD TO PASS AN ASSESSMENT ORD ER IF HE DECIDED TO ACCEPT THE RETURN, BUT UNDER THE AMENDED PROVISION, THE REQUIREMENT OF PASSING OF AN ASSESS MENT ORDER HAS BEEN DISPENSED WITH AND INSTEAD AN INTIMATION IS REQUIRED TO BE SENT. VARIOUS CIRCULARS SENT BY THE CENTRAL BOARD OF DIRECT TAXES SPELL OUT THE INTENT OF THE L EGISLATURE, I.E., TO MINIMIZE THE DEPARTMENTAL WORK TO SCRUTINI ZE EACH AND EVERY RETURN AND TO CONCENTRATE ON SELECTIVE SC RUTINY OF RETURNS. THESE ASPECTS WERE HIGHLIGHTED BY ONE OF US (D.K. JAIN J) IN APOGEE INTERNATIONAL LTD. V. UNION OF I NDIA [1996] 220 ITR 248 (DELHI_). IT MAY BE NOTED ABOVE THAT U NDER THE FIRST PROVISO TO THE NEWLY SUBSTITUTED SECTION 143 (1), WITH EFFECT FROM 1-6-1999, EXCEPT AS PROVIDED IN THE PR OVISION ITSELF, THE ACKNOWLEDGEMENT OF THE RETURN SHALL B E DEEMED TO BE AN INTIMATION UNDER SECTION 143(1) WHERE (A) EITHER NO SUM IS PAYABLE BY THE ASSESSEE, OR (B) NO REFUND I S DUE TO HIM. IT IS SIGNIFICANT THAT THE ACKNOWLEDGEMENT IS NOT DONE BY ANY ASSESSING OFFICER, BUT MOSTLY BY MINISTERIAL STAFF. CAN IT BE SAID THAT ANY ASSESSMENT IS DONE BY THEM? T HE REPLY IS AN EMPHATIC NO. THE INTIMATION UNDER SECTION 143(1)(A) WAS DEEMED TO BE A NOTICE OF DEMAND UNDER SECTION 1 56, FOR THE APPARENT PURPOSE OF MAKING MACHINERY PROVISION S RELATING TO RECOVERY OF TAX APPLICABLE. BY SUCH A PPLICATION ONLY RECOVERY INDICATED TO BE PAYABLE IN THE INTIMA TION BECAME PERMISSIBLE. AND NOTHING MORE CAN BE INFER RED FROM THE DEEMING PROVISIONS. THEREFORE, THERE BEING NO ASSESSMENT UNDER SECTION 143(1)(A), THE QUESTION O F CHANGE OF OPINION, AS CONTENDED, DOES NOT ARISE.(PA RA 13) THE HONBLE JURISDICTIONAL BOMBAY HIGH COURT IN THE CASE OF DR. AMINS PATHOLOGY LABORATORY VS. JCIT, 252 ITR 683 HAS ALSO BEEN PLEASED TO HOLD AS UNDER : IN THE INSTANT CASE, RETURNS HAD BEEN ACCEPTED UN DER SECTION 143(1)(A). THEREAFTER, THE ASSESSING OFFICE R FOUND THAT UNPAID EXPENSES WHICH OUGHT TO HAVE BEEN DISAL LOWED WERE NOT DISALLOWED. THIS ASPECT WAS OVERLOOKED WH EN THE RETURNS WERE ACCEPTED UNDER SECTION 143(1)(A). THER EFORE, THERE WAS NO QUESTION OF CHANGE OF OPINION AS ALLE GED. THE PROVISO TO SECTION 147 APPLIES ONLY TO CASES WHERE REOPENING IS SOUGHT OF ASSESSMENTS UNDER SECTION 143(3). IN THE INSTANT CASE, THERE WAS NO ASSESSMENT OF THE ASSES SEE UNDER SECTION 143(3) IN RESPECT OF THE RELEVANT ASS ESSMENT YEARS. HENCE, THE PROVISO TO SECTION 147 HAD NO AP PLICATION. IT WAS TRUE THAT AFTER THE RETURNS CAME TO BE ACCEP TED IN RESPECT OF THE ASSESSMENT YEAR 1995-96, FOUR YEA RS HAD ELAPSED. HOWEVER, THERE WAS NO ASSESSMENT UNDER SECTION 143(3). THEREFORE, THE PROVISO TO SECTION 147 HAD NO APPLICATION TO THE FACTS OF THE INSTANT CASE. IN V IEW OF AFORESAID, IT WAS TO BE HELD THAT THE IMPUGNED NOTI CE WAS VALIDLY ISSUED TO THE ASSESSEE FIRM. (EMPHASIS SUP PLIED) UNDER THESE CIRCUMSTANCES, WE DO NOT FIND SUBSTANC E IN GROUND NOS. 1 & 2 AND THUS THE SAME ARE REJECTED. 4. IN THIS BACKGROUND, THE ASSESSEE HAD CONTENDED I N THE PRESENT PETITION THAT THE TRIBUNAL HAS INCORRECTLY HELD THAT THE REA SONS RECORDED FOR INITIATION OF PROCEEDINGS HAVE BEEN COMMUNICATED TO THE ASSESSEE ON 8-12-2009. THE LEARNED COUNSEL FOR THE PETITIONER HAS CONTENDED TH AT THE NOTICE DATED 8-12- 2009 POINTED BY THE ASSESSING OFFICER WAS IN PURSUA NCE TO SECTION 142(1) OF THE ACT AND THAT THE SAME SHOULD NOT BE TAKEN AS FU RNISHING OF REASONS RECORDED SO THAT THE ASSESSEE COULD RAISE OBJECTION BEFORE FINALIZATION OF RE- ASSESSMENT. IN ORDER TO COMPLETE THE POINT SOUGHT TO BE MADE BY THE PETITIONER, THE FOLLOWING EXTRACT FROM THE PETITION IS RELEVANT:- I. IT IS INCORRECT TO HOLD THAT THE REASONS COMMUN ICATED ON 8-12- 2009 ARE SUPPLIED AT THE EARLIEST OPPORTUNITY AND M AXIMUM BEFORE THE LAPSE OF SIX YEARS FROM THE A.Y. 2002-03 I.E. 31-3- 2009. THE HONBLE BENCH HAS FURTHER ERRED IN HOLDING THAT BY SUPPLYING THE COPY OF THE REASONS ON 19-6-2010 THE DEFECT, IF ANY , COMMITTED BY THE ASSESSING OFFICER IS TECHNICALLY CURED OVERLOOKING THE FACT THAT BOTH THE DATES FALL BEYOND THE PERIOD OF SIX YEARS. THE HONBLE BENCH DID REFER THE DECISION OF DELHI H IGH COURT IN THE CASE OF HARYANA ACRYLIC MANUFACTURING CO. VS. CIT 308 IT R 38 AND THE DECISION OF DELHI BENCH TRIBUNAL IN THE CASE OF BAL WANT RAI WADHWA ITA NO. 4860/DEL/2010 DATED 18-1-2011. THE BENCH H AS NOT FOUND ANY DISTINGUISHABLE FACTS AS TO WHY THE SAID RATIO DECI DENDI IS NOT APPLICABLE TO THE APPLICANT AS FAR AS THE REQUIREMENT OF COMMU NICATING THE REASONS WITHIN THE PERIOD OF SIX YEARS IS CONCERNED. THE HONBLE BENCH HAS HOWEVER STATED THAT THE FACTS ARE DISTINGUISHABLE AND NOT HELPFUL TO THE ASSESSEE ON THE GROUND THAT THE CASE OF HARYANA ACRYLIC MANUFACTURING CO. IS COVERE D BY AN EXCEPTION CARVED TO PROVISO TO SECTION 147 WHILE THE APPLICAN TS CASE IS CARVED OUT BY THE MAIN PROVISION OF SECTION 147. THIS DISTINGUISHABLE FACT HAS NOTHING TO DO WITH TH E REQUIREMENT OF SUPPLYING THE REASONS WITHIN THE PERIOD OF SIX YEAR S REGARDLESS OF THE FACT WHETHER THE ORIGINAL ASSESSMENT IS COMPLETED U /S 143(1) OR 143(3). THE HONBLE BENCH HAS NOT CONSIDERED THE FACT THAT IN THE CASE OF BALWANT RAI WADHWA (SUPRA) THE ORIGINAL ASSESSMENT WAS COMPLETED U/S 143(1). IN THAT CASE ALSO THE HONBLE DELHI BE NCH SQUASHED THE REASSESSMENT ORDER AS THE REASONS FOR ISSUANCE OF N OTICE U/ 148 WERE NOT PROVIDED WITHIN THE PERIOD OF SIX YEARS. THE H ONBLE DELHI BENCH DREW SUPPORT FROM THE DECISION OF DELHI HIGH COURT IN THE CASE HARYANA ACRYLIC MANUFACTURING LTD. (SUPRA). THE HONBLE BENCH ALSO DID NOT CONSIDER THE DISCUSS ION AND FINDING GIVEN BY THE DELHI HIGH COURT IN THE CASE OF HARYAN A ACRYLIC MANUFACTURING LTD., DECLARING THE MANDATORY REQUIRE MENT OF SUPPLYING THE REASONS AT THE EARLIEST OPPORTUNITY AND BEFORE THE END OF SIX YEARS (REFER PARA 21 TO 23 OF THE SAID ORDER). THIS DISTINGUISHABLE FACT POINTED OUT BY THE HONBL E BENCH HAS THE RELEVANCE FOR THE PURPOSE OF CONSIDERING THE PERIOD /YEARS WITHIN WHICH THE NOTICE U/S 148 CAN BE ISSUED WITHIN SIX YEARS F ROM THE END OF THE RELEVANT ASSESSMENT. HOWEVER AN EXCEPTION IS CARVED OUT IN A CASE WHERE THE ASSESSMENT IS COMPLETED U/S 143(3) OR U/S 147, IN THAT CASE NO AC TION SHALL BE TAKEN AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, UNLESS ANY INCOME CHARGEABLE TO TAX HAS ESCAP ED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF THE FAILURE ON TH E PART OF THE ASSESSEE TO MAKE A RETURN U/S 139 OR IN RESPONSE TO A NOTICE ISSUED U/S 142(1) OR SECTION 148 OR TO DISCLOSE FULLY AND TRUL Y ALL MATERIAL FACTS NECESSARY, FOR HIS ASSESSMENTS FOR THAT ASSESSMENT YEAR. THEREFORE THE RELIANCE OF THE HONBLE BENCH ON THE ABOVE EXCE PTION CARED OUT TO SECTION 147, IN OUR CONSIDERED OPINION IS MISPLACED . II. THE HONBLE BENCH HAS NOT CONSIDERED THE LEGAL POSITION DECLARED BY THE SUPREME COURT IN THE CASE OF GKN DR IVESHAFTS 259 ITR 19. THE APEX COURT HAS HELD AND DIRECTED T HAT WHEN A NOTICE U/S 148 IS ISSUED AND AN ASSESSEE FILES A RE TURN AND SEEKS THE REASONS THE ASSESSING OFFICER IS BOUND TO FURNISH THE SAME WITHIN A REASONABLE TIME. ON RECEIPT OF THE REASONS THE ASSESSEE IS ENTITLED TO FILE OBJECTIONS TO THE ISSUANCE OF THE NOTICE AND THE AS SESSING OFFICER IS BOUND TO DISPOSE OF THE SAME BY PASSING A SPEAKING ORDER BEFORE COMMENCEMENT OF REASSESSMENT PROCEEDIN GS. THE REASSESSMENT PROCEEDINGS OF THE APPLICANT START ED ON 17- 11-2009 AND THE SHOW CAUSE NOTICE IS ISSUED ON 8-12 -2009 I.E. AFTER THE COMMENCEMENT OF ASSESSMENT PROCEEDINGS. IT IS ALSO EVIDENT FROM THE CONTENTS OF THE SAID SHOW CAUSE NO TICE ITSELF. IT IS AN ADMITTED POSITION; NO REASONS HAVE BEEN FU RNISHED T ALL. OBVIOUSLY THE ASSESSEE COULD NOT RAISE THE OBJECTIO N AND MOST IMPORTANT OF ALL THE ASSESSING OFFICER HAS NOT PASS ED THE SPEAKING ORDER. IT IS ALSO ADMITTED FACT THAT THIS PROCEDURE IS REQ UIRED TO BE STRICTLY FOLLOWED BEFORE THE COMMENCEMENT OF REASSESSMENT PROCEEDINGS. THE LD. DR IN THE COURSE OF HEARING BEFORE THE HON BLE BENCH HAS ADMITTED THAT ASSESSING OFFICER HAS NOT PASSED THE SPEAKING ORDER AND REQUESTED THE BENCH TO SET ASIDE THE MATT ER AND HAS ALSO MENTIONED IN PARA 20 OF HIS WRITTEN NOTE DATED 6-7-2011 (SEE PAGE NO. 1 TO 10 OF PAPER COMPILATION FLAT E ). III. THE HONBLE BENCH HAS ALSO NOT CONSIDERED THE FACT THAT IF AS PER THE ASSESSING OFFICER THE REASONS WERE RECORDED AND APPROVED ON 14-3-2008 WHAT PREVENTED THE ASSESSING OFFICER I N SUPPLYING THE COPY OF REASONS DESPITE SPECIFIC REQUEST MADE O N 21-4-2008. IV. THE APPLICANT DID REPLY TO THE SHOW CAUSE NOTIC E ISSUED U/S 142(1) DATED 8-12-2009 AND PUT ITS SAY OBJECTING T O THE ASSESSING OFFICERS PROPOSAL FOR MAKING AN ADDITION OF THE REBATE ALLOWED U/S 41(1) OF THE ACT. IT IS A COMMON FEATU RE OF THE SCRUTINY PROCEEDINGS IN WHICH THE ASSESSING OFFICER DOES ISSUE SUCH NOTICES PROPOSING TO MAKE CERTAIN DISALLOWANCE OR ADDITIONS ETC. THEREFORE THE HONBLE BENCH HAS ERRED IN HOLDING TH AT THE ASSESSING OFFICER HAS COMMUNICATED THE REASONS VIDE HIS SHOW CAUSE NOTICE DATED 8-12-2009 AND FURTHER ERRED IN H OLDING THAT APPLICANTS RAISED OBJECTIONS ON THE REASONS COMMUN ICATED. V. NON-CONSIDERATION OF THE DECISIONS OF SUPREME CO URT AND DELHI HIGH COURT REFERRED TO ABOVE DOES CONSTITUTE MISTAK E OF LAW/MISTAKE APPARENT FROM RECORD. VI. ATTENTION IS DRAWN TO THE DECISION OF BOMBAY H IGH COURT IN THE CASE OF CIT VS. VIDESH SANCHAR LTD. 340 ITR 66 WHER EIN THE COURT HELD THAT REASSESSMENT ORDER CANNOT BE UPHELD AS THE REASONS RECORDED WERE NOT FURNISHED TILL THE COMPLE TION OF ASSESSMENT. THIS DECISION IS RENDERED ON 20-7-2011 AND REPORTED IN ITR ISSUE DATED 2 ND JANUAR7Y 2012 (SEE PAGE NO. 9 TO 10). THE APPLICANT CAN TAKE SUPPORT OF THIS DECISION IN THIS MISCELLANEOUS APPLICATION TO DEMONSTRATE THAT THE D ECISION OF THIS HONBLE BENCH IS INCORRECT AND CONSTITUTES MIS TAKE OF LAW APPARENT FROM RECORD. THIS PROPOSITION GETS SUPPORT FROM THE DECISION OF SUPREME COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOC K EXCHANGE LTD. 305 ITR 227 (SEE PAGE NO. 11 TO 21). 5. IN SUM AND SUBSTANCE THE PLEA RAISED BY THE ASSE SSEE IN THE PETITION IS THAT THE TRIBUNAL WAS WRONG IN UPHOLDING THE VIEW O F THE CIT(A) THAT VIDE SHOW CAUSE NOTICE DATED 8-12-2009 THE ASSESSEE WAS COMMU NICATED REASONS RECORDED AND THE ASSESSEE ALSO RESPONDED THERETO. IN THIS CONNECTION, WE ARE TEMPLETED TO REPRODUCE THE FOLLOWING PORTION OF THE ORDEROF THE TRIBUNAL:- THE LD. CIT(A) HAS DEALT WITH THIS CONTENTION AT PAGE NO. 18 OF THE FIRST APPELLATE ORDER WITH THIS OBSERVATION THAT VI DE SHOW CAUSE NOTICE DATED 8.12.2009 THE ASSESSEE WAS COMMUNICATE D THE REASONS RECORDED AND THE ASSESSEE HAD ALSO RESPONDE D THERETO. ONLY AFTER MEETING THESE OBJECTIONS, THE A.O PROCE EDED FURTHER FOR THE FRAMING OF THE RE-ASSESSMENT. ON PERUSAL OF THE SAID SHOW CAUSE NOTICE DATED 8.12.2009, CONTENTS OF WHICH HAV E BEEN REPRODUCED IN THE FIRST APPELLATE ORDER AND THE REA SONS RECORDED (REPRODUCED AT PAGE NO. 13 & 14) OF THE FIRST APPEL LATE ORDER); WE FIND THAT THE CONTENTS OF REASONS HAVE BEEN REPROD UCED IN THE SHOW CAUSE NOTICE DATED 8.12.2009. THUS, WE PRINCIPALLY AGREE WITH THE FINDING OF THE LD CIT(A) THAT THE REASONS WERE COMM UNICATED TO THE ASSESSEE AND OPPORTUNITY WAS ALSO AFFORDED TO THE A SSESSEE TO RAISE OBJECTION OR TO SHOW CAUSE AS TO WHY THE INCOME TO THE EXTENT OF RS. 548.80 CRORES ESCAPED THE ASSESSMENT SHOULD NOT BE TAXED. IN THIS SHOW CAUSE NOTICE, IT HAS BEEN MENTIONED THAT THE SAID INCOME HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SEC. 1 47 OF THE ACT AND NOTICE U/S. 148 HAS BEEN DULY SERVED UPON THE A SSESSEE IN APRIL 2008. (UNDERLINED FOR EMPHASIS BY US) 6. THE TRIBUNAL CONFIRMED THE OBSERVATIONS OF THE C IT(A) THAT THE CONTENTS OF THE REASONS WERE REPRODUCED IN THE SHOW CAUSE NO TICE DATED 8-12-2009 AND SUCH AN ACTION AMOUNTED TO COMMUNICATION OF REA SONS TO THE ASSESSEE. THE AFORESAID DECISION OF THE TRIBUNAL IS CLAIMED T O SUFFER FROM A MISTAKE WITHIN THE MEANING OF SECTION 254(2) OF THE ACT ON THE GROUND THAT THE SHOW CAUSE NOTICE DATED 8-12-2009 WAS A NOTICE U/S 142(1 ) OF THE ACT AND THE SAME COULD NOT BE CONSTRUED AS FURNISHING OF REASONS REC ORDED U/S 147 OF THE ACT. 7. IN OUR CONSIDERED OPINION, THE POINT SOUGHT TO B E MADE OUT BY THE ASSESSEE IS BEYOND THE SCOPE AND PURVIEW OF SECTION 254(2) OF THE ACT WHICH ONLY EMPOWERS THE TRIBUNAL TO AMEND ITS ORDER SO AS TO CORRECT ANY MISTAKE APPARENT FROM RECORD. CLEARLY THE POSITION NOW SOU GHT TO BE MADE OUT BY THE ASSESSEE AMOUNTS TO REVIEW OF ITS OWN ORDER BY THE TRIBUNAL WHICH IS IMPERMISSIBLE IN TERMS OF SECTION 254(2) OF THE ACT . THE TRIBUNAL WHILE ADJUDICATING AND AFFIRMING THE ACTION OF THE CIT(A) WAS CONSCIOUS OF THE FACT THAT THE SHOW CAUSE NOTICE DATED 8-12-2009 WAS NOT IN THE FORMAT AS WOULD BE IN A CASE WHEREBY THE REASONS RECORDED ARE TO BE CO MMUNICATED. SO HOWEVER, IT CAME TO THE CONCLUSION THAT WE PRINCIPALLY AGREE WITH THE FINDING OF THE LD. CIT(A) THAT THE REASONS WERE COMMUNICATE D TO THE ASSESSEE AND OPPORTUNITY WAS ALSO AFFORDED TO THE ASSESSEE TO RA ISE OBJECTION OR TO SHOW CAUSE AS TO WHY THE INCOME TO THE EXTENT OF RS. 548 .80 CRORES ESCAPED THE ASSESSMENT SHOULD NOT BE TAXED. MOREOVER IN THE SAID SHOW CAUSE NOTICE IT HAS ALSO BEEN MENTIONED THAT THE INCOME HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 AND THE NOTICE U/S 148 HAS B EEN ISSUED AS HAS BEEN OBSERVED BY THE TRIBUNAL. 8. APART THEREFROM, WE MAY NOTICE HERE THAT IN THE ASSESSMENT ORDER, THE REPLY OF THE ASSESSEE DATED 18-12-2009 TO THE SHOW CAUSE NOTICE DATED 8-12- 2009 HAS ALSO BEEN REPRODUCED. WE REPRODUCE HEREUN DER A PORTION OF THE SAME:- FURTHER WE OBJECT TO THE PROC3EEDINGS UNDER SECTIO N 147, BASED ON FOLLOWING PRECEDENTS/CASE LAWS:- SITA WORLD TRAVEL (I) LTD., VS. CIT 140 (200) 140 T AXMAN 381 (DELHI), WHERE IT WAS CLEAR FROM THE ORIGINAL ASSESSMENT ORD ERS AS WELL AS ORDER MADE BY THE APPELLATE AUTHORITY THAT THE ASSESSING OFFICER WAS WELL AWARE ABOUT THE PRIMARY FACTS, VIZ., THE CLAIM MADE BY THE ASSESSEE, THAT CIRCUMSTANCES UNDER WHICH THE CLAIM WAS MADE, AND THE PROVISIONS OF LAW WHICH COULD BE APPLIED WHILE GRANTING THE BE NEFITS AND THE ASSESSING OFFICER CONSCIOUSLY CONSIDERED THE FACTS AND ARRIVED AT A DECISION, THE ASSESSMENT CANNOT BE REOPENED MERELY BECAUSE SUBSEQUENTLY THE ASSESSING OFFICER CHANGES HIS OPIN ION OR SOME OTHER OFFICER TAKES A DIFFERENT VIEW. A DECISION IS RIGH T OR WRONG IS NONE OF THE CONCERN OF THE SUBSEQUENT OFFICER. IF THE PRIMARY FACTS WERE NOT AVAILABLE OR THERE WAS CONCEALMENT OR THERE WAS NO APPLICATION OF MIND AT ALL, THEN A CASE FOR REOPENING THE ASSESSMENT CO ULD BE MADE OUT. CENTURY ENKA LTD. VS. ITO (1983) 143 ITR 629 (CAL) WHERE THE RELEVANT MATERIALS OR FACTS WERE ADMITTEDLY ALREADY AVAILABLE IN THE CONCERNED ORIGINAL ASSESSMENT PROCEEDINGS AND THERE WERE NO NEW FACTS WHICH CAME TO THE POSSESSION OF THE ASSESSING AUTHORITY, THE SAID OFFICER COULD NOT BE HEARD TO SAY THAT THE LEGAL PO SITION WAS NOT KNOWN TO HIM EVEN THOUGH THE RELEVANT FACTS AND MATERIALS WERE AVAILABLE. IGNORANCE OF LAW WOULD BE NO GROUND OR ANY EXCUSE F OR THE ITO CONCERNED TO REOPEN THE ASSESSMENT. INDRA CO. LTD. VS. ITO (1971) 80 ITR 559 (CAL). TH E IGTO CANNOT SEEK TO REOPEN AN ASSESSMENT UNDER SECTION 147 ON THE BA SIS OF A SUPREME COURT DECISION IN A CASE WHERE THE ASSESSEE HAD DIS CLOSED ALL MATERIAL FACTS. LOKENDRASINGH VS. ITO (1981) 128 ITR 450 (MP) WHEN AT THE TIME OF THE ORIGINAL ASSESSMENT PRIMARY FACTS WERE ALREADY BEFORE THE ITO AND AFTER SOME ROUTINE ENQUIRY THE IGTO COULD HAVE ASSE SSED THE INCOME ON THE BASIS OF SUCH INFORMATION, IT IS NOT OPEN TO HIM TO INVOKE THE PROVISIONS OF SECTION 147 AND REOPEN THE ASSESSMENT EVEN THOUGH HE MAY HAVE OMITTED TO NOTICE THE FACTS MENTIONED IN T HE RETURN BY OVERSIGHT REASSESSMENT CONDITION PRECEDENT IS FAILURE TO DISC LOSE MATERIAL FACTS NECESSARY FOR ASSESSMENT IT WAS FOUND THAT FACTS HAD BEEN DISCLOSED AND ASSESSING OFFICER DISCOVERED SUBSEQUENTLY THAT INCOME HAD BEEN ASSESSED UNDER WRONG HEAD NOTICE AFTER FOUR YEARS UNDER SECTION 148 NOT VALID SECTION 147, 148 GUJARAT FLUOR CHEMIC ALS LTD. VS. DY. CIT (GUJ) 282. IN LIGHT OF ABOVE IT IS REQUESTED THAT NOTICE INITI ATING PROCEEDING UNDER SECTION 147 BE DROPPED. 9. QUITE CLEARLY, IN THE PROCEEDINGS BEFORE THE ASS ESSING OFFICER, ASSESSEE OBJECTED TO THE PROCEEDINGS INITIATED U/S 147 OF THE ACT AND THE ASSESSING OFFICER HAS DEALT WITH THE OBJECTIONS RAI SED BY THE ASSESSEE AGAINST INITIATION OF PROCEEDINGS U/S 147 OF THE ACT. COUP LED WITH THE FACT THAT THE CIT(A) HAD RECORDED A FINDING THAT THE ACTUAL REASO NS RECORDED THOUGH IN A DIFFERENT FORMAT, WERE REPRODUCED IN THE NOTICE DAT ED 8-12-2009, THE SAME IN OUR VIEW SUBSTANTIALLY COMPLIED WITH THE REQUIREMEN T THAT THE REASONS FOR INITIATION OF PROCEEDINGS U/S 147 WERE COMMUNICATED TO THE ASSESSEE AND THE ASSESSEE ALSO AVAILED AN OPPORTUNITY TO RAISE OBJEC TION THERETO, WHICH WERE DEALT WITH BY THE ASSESSING OFFICER IN THE ASSESSME NT ORDER. THEREFORE, FOR ALL THE ABOVE REASONS, WE FIND THAT THE MISTAKE NOW SOU GHT TO BE POINTED OUT IS BEYOND THE SCOPE AND PURVIEW OF SECTION 254(2) OF T HE ACT AS THE SAME AMOUNTS TO SEEKING A REVIEW OF THE EARLIER DECISIO N BY THE TRIBUNAL, WHICH IS IMPERMISSIBLE U/S 254(2) OF THE ACT. 10. THE SECOND MISTAKE SOUGHT TO BE MADE OUT BY THE LEARNED COUNSEL IS THAT THE TRIBUNAL WRONGLY REJECTED THE ASSESSEES C ONTENTION THAT THE RE- ASSESSMENT WAS BASED ON CHANGE OF OPINION. IN THIS CONNECTION ALSO, WE FIND THAT THE RELEVANT DISCUSSION BY THE TRIBUNAL IS CON TAINED IN PARA 11 BASED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE O F ACIT VS. RAJESH JHAVERI STOCK BROKERS (P) LTD. 291 ITR 500 (SC) AND ALSO TH E DECISION OF BOMBAY HIGH COURT IN THE CASE OF DR. AMINS PATHOLOGY LABO RATORY VS. JCIT 252 ITR 683. BEFORE US, THE MISTAKE ON THE SAID ISSUE HAS BEEN SOUGHT TO BE ARTICULATED IN THE FOLLOWING MANNER. THE HONBLE BENCH HAS NOT CONSIDERED THE DECISION OF BOMBAY HIGH COURT IN THE CASE OF VIJAY KUMAR HIRKANDWALA (HUF) 287 ITR 443 AND THE MUMBAI BENCH DECISION IN THE CASE OF PIROJSHAH GODREJ FOUNDATION 113 TTJ 494. THE IDENTICAL ISSUE DECIDED BY THE THIRD MEMBER, MU MBAI BENCH IN THE CASE OF TELCO DADAJI DHAKJEE LTD. ITA NO. 4613/MU M/2005 DECIDED ON 12-5-2010) AS WELL AS THE ANOTHER JUDGMENT OF MU MBAI BENCH IN THE CASE OF HV TRANSMISSION LTD. ITA NO. 2476/MUM/201 0 FOR A.Y. 2001- 02 DATED 7-10-2011 (SEE PAGE NO. 22 TO 29). THE THIRD MEMBER, ON CONSIDERING THE DECISIONS OF S UPREME COURT IN THE CASE OF RAJESH JHAVERI STOCK BROTHERS PVT. LTD. , (SUPRA), KALVINATOR OF INDIA LTD., AND EICHER LTD. 320 ITR 561 HELD THA T REASSESSMENT PROCEEDINGS INITIATED BY THE ASSESSING OFFICER WAS LIABLE TO BE QUASHED WHERE THERE WAS NO FRESH MATERIAL AVAILABLE WITH TH E ASSESSING OFFICER EVEN IN A CASE WHERE ASSESSMENT HAS BEEN COMPLETED ORIGINALLY U/S 143(1). THIRD MEMBER DECISION IS EQUIVALENT TO A SPECIAL BE NCH DECISION AS HELD BY DELHI HIGH COURT IN THE CASE OF P.C. PURI V S. CIT 151 ITR 584 AND THIS DECISION HAS A BINDING FORCE. THOUGH THESE DECISIONS WERE NOT CITED NEED TO BE CO NSIDERED WHILE DECIDING THIS MISCELLANEOUS APPLICATION AND NON-CON SIDERATION OF THESE DECISIONS CONSTITUTES MISTAKE OF LAW/MISTAKE APPARE NT FROM RECORD (REFER ACIT VS. SAURASHTRA KUTCH STOCK LTD. 305 I TR 327). THE HONBLE BENCH HAS NOT TAKEN ANY COGNIZANCE OF T HE FACT THAT ALL THE RELEVANT MATERIALS WERE DISCLOSED IN THE RETURN OF INCOME WITH THE NOTE ATTACHED TO THE RETURN OF A.Y. 2001-02. HENCE NO N EW TANGIBLE MATERIAL IS HELD OR OBTAINED BY ASSESSING OFFICER. THE HON BLE BENCH ALSO DID NOT CONSIDER THE DECISION OF SUPREME COURT IN THE C ASE OF KALVINTOR OF INDIA LTD. 320 ITR 561 (NOTE ENCLOSED AT PAGE NO. 30). 11. IN OUR VIEW, THE PETITIONER DOES NOT HAVE JUSTI FIABLE GROUND WHICH WOULD REQUIRE INTERFERENCE BY US IN TERMS OF THE LIMITED SCOPE AVAILABLE U/S 254(2) OF THE ACT. THE TRIBUNAL HAS ADJUDICATED THE ISSUE BA SED ON THE MATERIAL BEFORE IT AND THE DECISION NOW SOUGHT TO BE CITED BEFORE U S, WERE NOT BEFORE THE TRIBUNAL ORIGINALLY. IN ANY CASE, IF THE PRESENT P LEA IS ENTERTAINED, IT WOULD ONLY AMOUNT TO REVIEW OF ITS OWN ORDER BY THE TRIBU NAL WHICH IS BEYOND THE SCOPE AND PURVIEW OF SECTION 254(2) OF THE ACT. TH EREFORE, ON THIS ASPECT ALSO, ASSESSEE FAILS. 12. THE THIRD MISTAKE SOUGHT TO BE POINTED OUT BY THE LEARNED COUNSEL FOR THE PETITIONER IS THAT THE TRIBUNAL WRONGLY HELD TH AT THE GOVERNMENT RESOLUTION DATED 21-5-1999 ORDERING THE REMISSION OR WAIVER IS A POLICY DECISION APPLICABLE NOT ONLY TO THE ASSESSEE BUT TO OTHER SI MILAR PARTIES ALSO. IN THIS CONNECTION, THE LEARNED COUNSEL SUBMITTED THAT THE SAID GOVERNMENT RESOLUTION IS ONLY AND EXCLUSIVELY APPLICABLE TO TH E APPLICANT SOCIETY. THUS THIS INCORRECT FINDING CONSTITUTES A MISTAKE OF FAC T WHICH IS SOUGHT TO BE RECTIFIED. THE TRIBUNAL HAS DEALT WITH THIS ISSUE V IDE PARA 12 TO 14 AS FOLLOWS: 1 2. IN GROUND NOS. 3 & 4, THE BASIC CONTENTION OF TH E ASSESSEE IS THAT THE INCOME TO THE EXTENT OF RS. 541.80 CRORES IS RELATED TO THE ASSESSMENT YEAR 2000-01 AND THUS THE A.O WAS NOT JU STIFIED IN TREATING THE SAID INCOME AS ESCAPED ASSESSMENT FOR THE A.Y. 2002- 03 TO JUSTIFY HIS ACTION IN ISSUING NOTICE U/S. 148 FOR THE A.Y. UNDER CONSIDERATION AND TO ASSESS THE SAME IN THE A.Y. 20 02-03. THE CONTENTION OF THE LD. A.R REMAINED THAT THE POWER TARIFF FOR THE PERIOD APRIL 1977 TO APRIL 2000 WAS REVIEWED BY TH E MSEB (MAHARASHTRA STATE ELECTRICITY BOARD) WHICH RESULTE D IN REDUCTION OF ARREARS PAYABLE BY THE ASSESSEE TO MSEB TO THE EXTE NT OF RS. 541.80 CRORES. CONSEQUENT TO THE REVISION OF TARIF F AND WAIVER, AND ARREARS AS INFORMED BY THE MSEB VIDE ITS LETTER DAT ED 23 RD MAY 2001, THE ASSESSEE FILED ITS REVISED RETURNS FOR TH E A.YS. 1995-96 TO 2001-02 ON 27.12.2002 ON THE BASIS THAT THE REVISI ON OF TARIFF RELATE TO ALL THESE A.YS. THE LD. A.R. SUBMITTED T HAT IN THE PRESENT CASE, IT IS THE G.R. DATED 21 ST MAY 1999 ISSUED BY GOVERNMENT OF MAHARASHTRA WHICH IS BINDING ON BOTH THE PARTIES. I.E. MSEB AND ASSESSEE THAT HAS CREATED SUCH RIGHT TO RECEIVE CRE DIT BY THE ASSESSEE. HENCE SUCH WAIVER OR REMISSION COULD AT THE MOST BE TAXED U/S. 41(1) IN A.Y. 2000-01 I.E. AS PER RELEV ANT GOVERNMENT G.R. DATED 21 ST MAY 1999 AND NOT DURING A.Y. 2002-03 I.E. AS PER RELEVANT TO MSEB ORDER DATED 23.5.2001 ISSUED AT AS SESSEES REQUEST BECAUSE THE POINT OF ACCRUAL IS GOVERNMENT G.R. DATED 21 ST MAY 1999 AND NOT MSEB LETTER DATED 23/5/2001. THE LD. A.R SUBMITTED THAT THE LETTER DATED 23.5.2011 BY MSEB ADDRESSED TO THE ASSESSEE DOES NOT CREATE ANY RIGHT IN FAVOUR OF THE ASSESSEE. THE LD. A.R. SUBMITTED FURTHER THAT ASSESSEE IS F OLLOWING MERCANTILE SYSTEM OF ACCOUNTING AND THUS THE INCOM E IN QUESTION , IF ANY, HAD ARISEN IN THE YEAR RELEVANT TO THE A.Y . 2000-01. 13. WE DO NOT FIND SUBSTANCE IN THE ABOVE CONTENTI ON OF THE LD. A.R. AS G.R. DATED 21 ST MAY 1999 ISSUED BY THE GOVERNMENT OF MAHARASHTRA REMISSION OF THE TARIFF RESULTING INT O WAIVER OF ARREARS IS A POLICY DECISION APPLICABLE TO THE ASSESSEE AN D OTHER SIMILAR PARTIES BUT IT IS THE LETTER DATED 23.5.2001 ISSUE D BY MSEB TO THE ASSESSEE WHICH SPECIFIES THE BENEFIT OF WAIVER OF ARREARS IN PARTICULAR AMOUNT TO THE ASSESSEE AND THUS THE A.O HAS RIGHTLY HELD THAT THE INCOME ACCRUED TO THE ASSESSEE WAS ON 23/ 5/2001. WE THUS DO NOT FIND INFIRMITY IN THE FIRST APPELLATE O RDER IN THIS REGARD WHICH IS COMPREHENSIVE AND REASONED ONE. WE CONCUR WITH THE OBSERVATION OF THE CIT(A) THAT AS PER THE BLACKS LAW DICTIONARY; THE EXPRESSION REMISSION HAS BEEN DEFINED TO MEAN A RELEASE OR EXTINGUISHMENT OF A DEBT. THEREFORE, THE ACT OF REMISSION IS ATTRIBUTED TO THE CREDITOR AND IT IS A POSITIVE ACT OR CONDUCT ON THE PART OF THE CREDITOR BY WHICH THE LIABILITY OF DEBT OR IS EXTINGUISHED. 14. IN THE PRESENT CASE, THERE IS A SPECIFIC ACT ON THE PART OF THE CREDITOR OF THE ASSESSEE I.E. MSEB IN MAY 2001, WH ICH HAS RESULTED IN EXTINGUISHMENT OF THE LIABILITY OF THE ASSESSEE ON THIS ACCOUNT TO THE EXTENT OF ARREARS WAIVED BY MSEB AND THERE IS REMISSION OF LIABILITY. WE THUS FULLY AGREE WITH THE FINDING OF LD CIT(A) THAT BENEFIT WAS OBTAINED BY THE ASSESSEE BY WAY OF REM ISSION OF POWER CHARGES PURSUANT TO THE LETTER OF CREDITOR, MSEB DA TED 23 RD MAY 2001, I.E. RELEVANT FOR THE A.Y. 2002-03. THE FIRS T APPELLATE ORDER IN THIS REGARD IS THUS UPHELD. THE GROUND NO. 3 & 4 A RE ACCORDINGLY REJECTED 13. IN OUR VIEW, THE PETITIONER DOES NOT HAVE JUSTI FIABLE GROUND WHICH WOULD REQUIRE INTERFERENCE BY US IN TERMS OF LIMITED SCOP E AVAILABLE U/S 254(2) OF THE ACT. THE TRIBUNAL HAS ADJUDICATED THE ISSUE BASED ON THE MATERIAL BEFORE IT. WE THEREFORE, ARE OF THE OPINION, THAT THERE IS NO MISTAKE APPARENT ON THE FACE OF RECORD RECTIFIABLE U/S 254(2) OF THE ACT. THERE FORE, ON THIS ASPECT ALSO, ASSESSEE FAILS. 14. THE NEXT MISTAKE SOUGHT TO BE POINTED OUT BY TH E LEARNED COUNSEL FOR THE ASSESSEE IS THAT THE TRIBUNAL ERRONEOUSLY HELD THAT THE INCOME ACCRUED ON 23-5-2001 AND HENCE THE WAIVER OBTAINED IS CORRECTL Y ASSESSED IN THE A.Y. 2002-03. IT WAS SUBMITTED THAT THE VIEW TAKEN BY TH E TRIBUNAL IS ON INCORRECT FINDING THAT THE GOVERNMENT RESOLUTION DATED 21-5-1 999 IS A POLICY DECISION APPLICABLE TO THE ASSESSEE AND SIMILAR PARTIES. IT IS THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT WAIVER IS OBT AINED ON THE DATE OF GOVERNMENT RESOLUTION DATED 21-5-1999 WHICH IS SUPP ORTED BY SEVERAL AUTHORITIES RELIED UPON BY HIM. IN THE FACTS AND CI RCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT NONE OF THE DECISIONS RELIED U PON BY THE LEARNED COUNSEL FOR THE ASSESSEE ARE APPLICABLE TO THE INSTANT CASE AND THE DECISION OF THE TRIBUNAL IS BASED ON THE MATERIAL ON RECORD. IN THI S VIEW OF THE MATTER, THERE IS NO MISTAKE APPARENT ON THE FACE OF RECORD WHICH REQ UIRES INTERFERENCE AT THIS STAGE. ACCORDINGLY THE ASSESSEE FAILS. 15. ANOTHER MISTAKE THAT IS SOUGHT TO BE POINTED OU T IS NON-CONSIDERATION OF AN ALTERNATE SUBMISSION MADE BY THE ASSESSEE WHILE ADJUDICATING GROUND NO. 4. IN TERMS OF GROUND NO. 4, THE ASSESSEE HAD CONTE NDED THAT THE CIT(A) ERRED IN HOLDING THAT THERE IS A CESSATION OF LIABILITY A MOUNTING TO RS. 541,80 CRORES IN THE ASSESSMENT YEAR 2002-03 WITHIN THE MEANING OF S ECTION 41(1) OF THE ACT. AS PER THE OBJECTION, WHILE ADJUDICATING THE AFORES AID GROUND AGAINST THE ASSESSEE, THE ALTERNATIVE SUBMISSION OF THE ASSESSE E TO THE EFFECT THAT THE LOSS ON ACCOUNT OF EXCESS COST OF ELECTRICITY INCURRED IN ASSESSMENT YEARS 1977-78 TO 1991-92 TOTALLING TO RS. 1,40,46,06,586/- CANNOT BE SAID TO HAVE BEEN ACTUALLY ALLOWED AND THEREFORE ITS WAIVER IN THE A SSESSMENT YEAR 2002-03 CANNOT BE ASSESSED AS INCOME U/S 41(1) OF THE ACT, HAS BEEN LEFT UNADJUDICATED. THE LEARNED COUNSEL REFERRED TO THE COMPILATION OF SUBMISSION FURNISHED AT THE TIME OF REGULAR HEARING AND SUBSTA NTIATED THAT SUCH AN ALTERNATIVE SUBMISSION WAS INDEED RAISED DURING THE COURSE OF HEARING AND THE SAME HAS NOT BEEN ADJUDICATED. 16. ON THIS ASPECT THE LEARNED DR HAD NOT SERIOUSLY CONTESTED, INASMUCH AS, IT IS EVIDENT FROM RECORD THAT SUCH SUBMISSION WAS RAISED IN THE COURSE OF HEARING AND HAS BEEN INADVERTENTLY NOT ADJUDICATED BY THE TRIBUNAL. THE SAID OMISSION TO DEAL WITH A PLEA RAISED BY THE ASSESSEE , IN OUR VIEW, CONSTITUTES A MISTAKE APPARENT FROM THE RECORD WITHIN THE MEANING OF SEC. 254(2) OF THE ACT. IN THIS VIEW OF THE MATTER, WE THEREFORE, DEEM IT F IT AND PROPER TO DIRECT THE REGISTRY TO RE-POST THE ASSESSEES APPEAL BEFORE A REGULAR BENCH FOR THE LIMITED PURPOSE OF CONSIDERING AND DECIDING THE AL TERNATIVE PLEA RAISED IN GROUND NO. 4 WHICH WAS LEFT UNADJUDICATED IN THE EA RLIER ORDER DATED 6-3-2012 (SUPRA). THE REGISTRY IS DIRECTED TO POST THE MATTE R BEFORE THE REGULAR BENCH ON 10 TH JANUARY 2013 AND INFORM THE PARTIES ACCORDINGLY TH US, ON THIS ASPECT, ASSESSEE SUCCEEDS FOR STATISTICAL PURPOSES. 17. IN THE RESULT, THE M.A. OF THE ASSESSEE IS PART LY ALLOWED. DECISION IS PRONOUNCED IN THE OPEN COURT ON 27 TH NOVEMBER 2012. SD/- SD/- (R.S. PADVEKAR) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE, DATED THIS DAY OF 27 TH NOVEMBER 2012. ANKAM COPY TO:- 1) ASSESSEE, 2) DEPARTMENT 3) THE CIT(A)I PUNE 4) CIT, I PUNE 5) DR, B BENCH, I.T.A.T., PUNE. 6) GUARD FILE TRUE COPY BY ORDER SR. PS, ITAT PUNE