NASREEN AZAM KHAN, V. DCIT CEN CIR 38,

MA 533/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0988 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-08-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 16-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHUTOSH RAJHANS

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE S/SHRI B.R.MITTAL,(JM) AND SANJAY ARORA (AM) . . , , & MISCELLANEOUS APPLICATION NO.533/MUM/2012 (ARISING OUT OF ./I.T.A. NO.3515/MUM/2011 ( / ASSESSMENT YEAR:2008-09) MRS NA S REEN AZAM KHAN, FLAT NO.171, WONDERMERE CO-OP. HSG. SOC. LTD., A-1, OFF. NEW LINK ROAD, NEAR OSHIWARA POLICE STATION, ANDHERI(W), MUMBAI-400053 / VS. DCIT, RANGE, C.C. 38 MUMBAI. ./ ./PAN/GIR NO. : AAPPK 2947 P ( & / APPELLANT) .. ( '(& / RESPONDENT) & / APPELLANT BY : NONE '(& * /RESPONDENT BY : SHRI ASHUTOSH RAJHANS * . / DATE OF HEARING : 2.8.2013 * . /DATE OF PRONOUNCEMENT : 2.8.2013 / O R D E R PER B.R.MITTAL, JM: BY THIS MISCELLANEOUS APPLICATION, ASSESSEE HAS REQUESTED TO RECALL THE ORDER OF THE TRIBUNAL DATED 14.10.2011 PASSED FOR THREE ASSESSMENT YEARS 2005-06, 2007-08 AND 2008-09 IN ITA NOS.5821 & 5822/MUM/2010 AND I TA NO.3515/MUM/2011 RESPECTIVELY. IT IS RELEVANT TO STATE THAT ASSESS EE HAS FILED MISCELLANEOUS APPLICATION ONLY TO RECALL THE ORDER PASSED BY THE TRIBUNAL FO R ASSESSMENT YEAR 2008-09. 2. THE FACTS RELATING TO THIS MISCELLANEOUS APPLICA TION BEING MA NO.533/MUM/2012 ARE THAT THE ASSESSEE EARLIER ALSO FILED MA BEING M A NO.01/MUM/2012 FOR THE SAME PRAYER TO RECALL THE ORDER OF THE TRIBUNAL DATED 14 .10.2012 FOR ASSESSMENT YEAR 2008- 09. THE TRIBUNAL, AFTER HEARING LD. REPRESENTATIV ES OF BOTH PARTIES VIDE ITS ORDER DATED MISCELLANEOUS APPLICATION NO.533/MUM/2012 2 6.7.2012 DISMISSED ASSESSEES MA AND WE STATE THE CONTENTS OF THE SAID ORDER HEREIN BELOW WHICH ARE AS UNDER : BY WAY OF THIS MISCELLANEOUS APPLICATION, THE ASSE SSEE HAS PRAYED TO RECALL ORDER DATED 14.10.2011 PASSED BY THE TRIBUNAL IN RE SPECT OF ASSESSMENT YEAR 2008-09 BEING I.T.A. NO.3515/M/2011 STATING THAT THE TRIBUNAL HAS, DUE TO OVERSIGHT AND WITHOUT CONSIDERING FACTS, DISMISSED THE APPEAL OF THE ASSESSEE INSTEAD OF SETTING ASIDE THE SAME TO LD CIT(A). 2. AT THE TIME OF HEARING, LD A.R. REITERATED THE ABOVE FACTS AND SUBMITTED THAT THE SAID ORDER OF THE TRIBUNAL DT.14.10.2011 F OR ASSESSMENT YEAR 2008-09 BE RECALLED AND APPEAL FILED BY THE ASSESSEE BE DISPOS ED OFF AFTER GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE. 3. LD D.R, ON THE OTHER HAND, SUBMITTED THAT THE RE IS NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL. HE SUBMITTED THAT TH E TRIBUNAL HAS PASSED THE ORDER AS LD A.R. DID NOT MAKE ANY SUBMISSION IN RES PECT OF ISSUES INVOLVED THEREIN. 4. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF LD REPRESENTATIVES OF PARTIES AND ALSO GONE THROUGH THE CONTENTS OF MISCE LLANEOUS APPLICATION AS WELL AS AFFIDAVIT OF THE ASSESSEE PLACED ON RECORD. 5. ON PERUSAL OF THE ORDER OF THE TRIBUNAL, WE FIND THAT THE TRIBUNAL BY A CONSOLIDATED ORDER FOR ASSESSMENT YEARS 2005-06, 20 07-08 AND 2008-09, SET ASIDE THE ORDERS OF LD CIT(A) FOR ASSESSMENT YEARS 2005-06 AND 2007-08 WITH A DIRECTION TO DECIDE THE ISSUES IN RESPECT OF APPEAL S AFRESH AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE PARTIES AS LD CIT(A) DID NOT DECIDE THE APPEALS OF THE ASSESSEE ON MERITS. HOWEVER, FOR ASSESSMENT YE AR 2008-09, WE OBSERVE THAT LD A.R. SUBMITTED THAT THERE IS NO REASONED OR DER BY LD CIT(A) AND, ACCORDINGLY, PRAYED TO RESTORE THE ISSUES TO LD CIT (A) FOR HIS FRESH CONSIDERATION. HOWEVER, THE TRIBUNAL OBSERVED THAT LD CIT(A) PASSE D A REASONED ORDER AND THE CONTENTION OF LD A.R. WAS NOT FACTUALLY CORRECT. S INCE, NO SUBMISSIONS WERE MADE BY LD A.R. TO DISPUTE HIS FINDINGS, THE TRIBUNAL BY ITS IMPUGNED ORDER DATED 14.10.2011 UPHELD THE ORDER OF LD CIT(A) AND REJECT ED GROUNDS OF APPEAL TAKEN BY ASSESSEE. IN THE APPLICATION FILED, NO MISTAKE HAS BEEN POINTED OUT BY THE ASSESSEE NOR LD A.R. COULD POINT OUT ANY MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL SAVE AND EXCEPT TO SUBMIT THAT THE ORDER O F THE TRIBUNAL BE RECALLED TO DECIDE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE AFTE R GIVING OPPORTUNITY OF HEARING TO THE ASSESSEE. IT IS NOT A CASE THAT THE ASSESSEE WAS NOT GIVEN OPPORTUNITY OF HEARING BY THE TRIBUNAL. THE TRIBUN AL CANNOT DIRECT LD REPRESENTATIVES OF PARTIES TO MAKE THEIR SUBMISSION S IN A PARTICULAR MANNER AND WHATEVER SUBMISSIONS ARE MADE, THE TRIBUNAL HAS TO CONSIDER THE SAME IN THE LIGHT OF THE FACTS AND DECIDE THE ISSUES. IF NO SU BMISSIONS WERE MADE AT THE TIME OF HEARING OF APPEAL BY LD A.R. OF THE ASSESSE E AND/OR BY LD D.R., THE TRIBUNAL HAS TO DECIDE THE APPEAL ACCORDINGLY. SUB SEQUENTLY, IF THE SUBMISSION IS MADE THAT EARLIER SUBMISSION MADE BY LD REPRESENTAT IVES OF PARTIES WAS NOT COMPRESSIVE OR NOT MADE CORRECTLY, IT CANNOT BE A G ROUND TO RECALL THE ORDER UNDER SECTION 254(2) OF THE ACT. HENCE, WE DO NOT ANY FIND ANY REASON TO RECALL MISCELLANEOUS APPLICATION NO.533/MUM/2012 3 THE ORDER OF THE TRIBUNAL AS THERE IS NO MISTAKE AP PARENT ON RECORD IN THE ORDER OF THE TRIBUNAL. HENCE, WE REJECT THE APPLICATION FILED BY THE ASSESSEE. 6. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y ASSESSEE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 6 TH JULY,, 2012 3. THE ASSESSEE BY THIS APPLICATION HAS AGAIN REQUE STED TO RECALL THE ORDER OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 2008-09. 4. AT THE TIME OF HEARING, A LETTER DATED 31.7.20 13 WAS PLACED BEFORE US, WHEREIN IT IS STATED THAT THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE BE CONSIDERED TO DISPOSE OFF THIS MA AS HER CHARTERED ACCOUNTANT, WHO HAD AP PEARED IN THE MATTER IS NO MORE REPRESENTING HER. THEREFORE, THE MISCELLANEOUS AP PLICATION OF ASSESSEE BE DECIDED ON THE BASIS OF THE SAID WRITTEN SUBMISSIONS. 5. LD. DR SUBMITTED THAT THE PRESENT MISCELLANEOUS APPLICATION IS THE SECOND MISCELLANEOUS APPLICATION AND AS SUCH IT IS NOT MAI NTAINABLE AS IT AMOUNTS TO RECTIFICATION OF THE ORDER OF THE TRIBUNAL PASSED IN MA NO.01/MUM /2012 VIDE ORDER 6.7.2012, WHICH IS OUTSIDE THE PURVIEW OF SECTION 254(2) OF THE IN COME TAX ACT, 1961. 6. WE HAVE PERUSED THE MATERIAL ON RECORD. WE AGRE E WITH LD. DR THAT THE PRESENT MA FILED BY THE ASSESSEE IS THE SECOND MISCELLANEOU S APPLICATION IN RESPECT OF THE ORDER PASSED BY THE TRIBUNAL DATED 14.10.2011 FOR THE ASS ESSMENT YEAR UNDER CONSIDERATION I.E. ASSESSMENT YEAR 2008-09 ALONG WITH THE APPEALS OF TWO OTHER ASSESSMENT YEARS OF ASSESSEE I.E. ASSESSMENT YEARS 2005-06 AND 2007-0 8. THUS, PRESENT APPLICATION CANNOT BE SAID TO BE AN APPLICATION TO RECTIFY THE ORDER OF THE TRIBUNAL PASSED BY THE TRIBUNAL IN THE APPEAL FILED BY THE ASSESSEE I.E. U /S 254(1) OF THE ACT. THUS, THE PRESENT APPLICATION IS AN APPLICATION FOR RECTIFICA TION OF THE ORDER PASSED BY THE TRIBUNAL U/S 254(2) OF THE ACT DATED 6.7.2012 IN MA NO.01/ MUM/2012. WE MAY STATE THAT THE PRESENT APPLICATION U/S 254(2) IS NOT MAINTAINABLE TO RECTIFY THE ORDER PASSED BY THE TRIBUNAL U/S 254(2) OF THE ACT DATED 6.7.2012 IN M A NO.1/MUM/2012. IN THIS CONNECTION, IT IS PERTINENT TO REFER THE DECISION OF HONBLE ORISSA HIGH COURT IN THE CASE OF CIT V/S ITAT [196 ITR 838,840 (ORI)], WHEREIN I T HAS BEEN HELD AS UNDER :- 'TO ATTRACT APPLICABILITY OF SEC.254(2), THE MISTAK E WHICH IS SOUGHT TO BE RECTIFIED MUST BE APPARENT FROM THE RECORD AND THE SAME MUST BE IN ANY ORDER MISCELLANEOUS APPLICATION NO.533/MUM/2012 4 PASSED UNDER SUB- SEC(1) OF.S. 254. THE ORDER REFER RED TO IN S. 254(1) IS ONE RELATING TO AN APPEAL FILED BY EITHER ASSESSEE OR REVENUE. THE 'APPEAL' REFERRED TO IN THE PROVISION IS ONE FILED UNDER S. 253. THER EFORE, THE ORDER WHICH CAN BE RECTIFIED MUST BE ONE WHICH HAS BEEN PASSED BY THE TRIBUNAL IN AN APPEAL FILED UNDER S. 253. AN ORDER REJECTING AN APPLICATION FOR RECTIFICATION UNDER S. 254(2) CANNOT BE RECTIFIED UNDER S. 254(2). THE SAME MAY R ELATE TO AN APPEAL, BUT IS NOT AN ORDER PASSED BY THE TRIBUNAL UNDER SUB-S. (1) OF S.254. THE ASSESSEE'S APPLICATION FOR RECTIFICATION UNDER S. 254(2) WAS R EJECTED BY THE TRIBUNAL. THE SECOND APPLICATION WAS FOR RECTIFICATION OF SOME AL LEGED MISTAKES IN THE SAID ORDER OF REJECTION. SEC. 254(2) HAD NO APPLICATION TO SUCH AN ORDER. THE TRIBUNAL WAS NOT JUSTIFIED IN PURPORTING TO ACT UNDER S. 254 (2), AND PASSING THE IMPUGNED ORDER. ' 7. IN THIS CONNECTION, WE MAY USEFULLY REFER TO THE RATIO LAID DOWN BY THE HON 'BLE SUPREME COURT IN THEIR DECISION IN THE CASE OF STAT E OF U.P. VS. LABH CHAND. REPORTED IN (1993) 200 ITR 647 (SC) IN RELATION TO EXERCISE OF WRIT JURISDICTION BY A HIGH COURT. IT WAS HELD THAT AFTER A WRIT PETITION HAD BEEN DISMIS SED BY THE HIGH COURT, A SECOND WRIT PETITION ON SAME MATTER COULD NOT BE ENTERTAINED BY THE SAME HIGH COURT. IT WAS OBSERVED, IN THIS CONNECTION, THAT IF A LEARNED SI NGLE JUDGE COULD ENTERTAIN A SECOND WRIT PETITION OF A PERSON RESPECTING A MATTER ON WH ICH HIS FIRST WRIT PETITION WAS DISMISSED IN LIMINE BY ANOTHER LEARNED SINGLE JUDGE OR A DIVISION BENCH OF THE SAME COURT, IT WOULD ENCOURAGE AN UNSUCCESSFUL WRIT PETI TIONER TO GO ON FILING WRIT PETITION AFTER WRIT PETITION IN THE SAME MATTER IN THE SAME HIGH COURT AND HAVE IT BROUGHT UP FOR CONSIDERATION BEFORE ONE SINGLE JUDGE AFTER ANOTHER . SUCH A THING, IF ALLOWED TO HAPPEN, COULD RESULT IN GIVING FULL SCOPE AND ENCOURAGEMEN T TO AN UNSCRUPULOUS LITIGANT TO ABUSE THE PROCESS OF THE HIGH COURT EXERCISING ITS WRIT JURISDICTION UNDER ARTICLE 226 OF THE CONSTITUTION IN THAT ANY ORDER OF ANY BENCH OF SUCH COURT REFUSING TO ENTERTAIN A WRIT PETITION COULD BE IGNORED BY HIM WITH IMPUNIT Y AND RELIEF SOUGHT IN THE SAME MATTER BY FILING A FRESH WRIT PETITION. THIS WOULD ONLY LEAD TO INTRODUCTION OF DISORDER, CONFUSION AND CHAOS RELATING TO EXERCISE OF WRIT J URISDICTION BY JUDGES OF THE HIGH COURT IN THAT THERE WOULD BE NO FINALITY FOR AN ORDER OF THE COURT REFUSING TO ENTERTAIN A WRIT PETITION. 8. IN VIEW OF THE ABOVE AND RESPECTFULLY FOLLOWING THE AFORESAID DECISIONS OF HON 'BLE SUPREME COURT AND ORISSA HIGH COURT, THE IMPUG NED SECOND MISC. APPLICATION TILED BY THE ASSESSEE CAN NOT BE ENTERTAINED. WE FURTHER STATE THAT THE ASSESSEE HAS MISCELLANEOUS APPLICATION NO.533/MUM/2012 5 MISUSED THE PROCESS AND VIOLATED THE ESTABLISHED RULE BY FILING AN INVALID APPLICATION U/S . 254(2) OF THE ACT. WE, THEREFORE, REJECT THE PRES ENT MISC. APPLICATION WITH A COST OF RS.500/- TO BE PAID BY THE ASSESSEE TO THE DEPARTMENT. 9. IN THE RESULT, THE MISC. APPLICATION OF THE ASS ESSEE-APPLICANT IS REJECTED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 ND AUGUST, 2013 . * 3 5 6 2 ND AUGUST, 2013 * SD /- SD/- ( /SANJAY ARORA) ( . . ;( /B.R.MITTAL) / ACCOUNTANT MEMBER 3 / JUDICIAL MEMBER MUMBAI; 6 DATED 02/08/ 07/2013 . . ./ SRL , SR. PS * +, -, / COPY OF THE ORDER FORWARDED TO : 1. & / THE APPELLANT 2. '(& / THE RESPONDENT. 3. < ( ) / THE CIT(A)- 4. < / CIT 5. = '? , . ? , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , / ITAT, MUMBAI