Shri Dipakkumar Amrutlal Patel, Surat V. The Income tax Officer,Ward-2(4), Surat

MA 54/AHD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7463 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-01-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 25-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: C K MISHRA

Judgement Text

, , . . , . , ! ! ! ! ' ' ' ' IN THE INCOME TAX APPELLATE TRIBUNAL : B BENCH : AHMEDABAD BEFORE HONBLE SHRI D.K.TYAGI, J.M. & HONBLE SHR I A.MOHAN ALANKAMONY, A.M.) ## ## ## ## (M.A.) NO.54/AHD/2011 : ASSESSMENT YEAR 2006-07 (ARISING OUT OF ITA NO.1340/AHD./2010) DR. DIPAK KUMAR AMRUTLAL PATEL, SURAT .... ( / APPLICANT) -VS- PAN: ABNPP 1078P ITO, WARD-2(4), SURAT ( $%& / RESPONDENT) ' ( /APPLICANT BY : SHRI PRITESH SHAH, A.R. $%& ' ( / RESPONDENT BY : SHRI C.K.MISHRA, SR.D.R. ) * ' +! / DATE OF HEARING : 06/01/2012 ,- ' +! / DATE OF PRONOUNCEMENT : 13/01/2012 . . . . / ORDER PER SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER : THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICAT ION SEEKING RECTIFICATION OF CERTAIN MISTAKES ARISING OUT OF TH E ORDER PASSED BY THE TRIBUNAL DATED 16.12.2010 IN ITA NO.1340/AHD/2010 F OR THE ASSESSMENT YEAR 2006-07. 2. THE ASSESSEE, VIDE HIS M.A. DATED 12.04.2011, HA S STATED AS UNDER: (1) THIS APPLICATION IS PREFERRED AGAINST THE ABOV E-REFERRED ORDER OF THE HONOURABLE ITAT. THE HONOURABLE ITAT HAS IN ITS ABOVE-REFERRED ORDER ON THE BASIS OF WRITTEN SUBMISSION FILED BY T HE APPELLANT. THE HONOURABLE ITAT DISMISSED THE APPEAL OF THE 'A' BY NON CONSIDERING 2 M.A.NO.54-AHD-2011 OR OVERLOOKING THE VITAL AND CRUCIAL FACTS WHICH WE RE SUBMITTED IN THE WRITTEN SUBMISSION. (2) THE HONOURABLE ITAT HAS NOT CONSIDERED OR OVERL OOKED THE FOLLOWING FACTS AND EVIDENCES : 2.1 COPY OF SALE DEED OF AGRICULTURAL LAND. 2.2 ENGLISH TRANSACTION OF THE RELEVANT PAGE OF SAL E DEED. 2.3 THE DATE OF PURCHASE OF AGRICULTURAL LAND. 2.4 SALE OF BILL OF AGRICULTURAL PRODUCTS. 2.5 JUDGEMENT OF GOPALBHAI BHOIWALA V/S. ITO (AHD. I.T. AT). 2.6JUDGEMENT OF BHANUBEN CHIMANLAL MALAVIA V/S. ITO.FRAJKOT). 2.7 ACCOUNTING RESULT OF THE YEAR UNDER CONSIDERATI ON. 2.8 HAVOC FLOOD IN SURAT CITY. THE NECESSARY EVIDENCES AND COPIES WERE ALREADY ENC LOSED WITH WRITTEN SUBMISSION. (3) IT IS SUBMITTED THAT GRAVE INJUSTICE WOULD B E CAUSED TO 'A 1 IF THE ABOVE ORDER OF THE HONOURABLE ITAT IS NOT RECALLED. (4) IT IS THEREFORE, PRAYED THAT THE ABOVE ORDER OF HONOURABLE ITAT DISMISSING THE APPEAL OF THE 'A' MAY KINDLY BE RECA LLED AND THE 'A' MAY PLEASE BE GIVEN ONE OPPORTUNITY TO EXPLAIN HIS CASE . THE 'A' SHALL ALWAYS REMAIN GRATEFUL FOR THE ACT OF KINDNESS . 2.1 THE ASSESSEE FURTHER, VIDE HIS LETTER DATED 10. 06.2011, FILED SOME DOCUMENTS AND RELIED ON SOME JUDICIAL PRONOUNCEMENT S IN SUPPORT OF HIS MISCELLANEOUS APPLICATION UNDER SECTION 254(2). 3. DURING THE COURSE OF HEARING OF MISCELLANEOUS AP PLICATION, THE LD. A.R. VEHEMENTLY ARGUED IN FAVOUR OF THE ASSESSEES CONTENTION AS SUBMITTED IN THE APPLICATION UNDER SECTION 254(2) A ND THE SUBSEQUENT LETTER DATED 10.06.2011. 3 M.A.NO.54-AHD-2011 4. THE LD. D.R. STRONGLY OBJECTED TO THE SUBMISSION S MADE BY THE LD. COUNSEL OF THE ASSESSEE. HE FURTHER SUBMITTED THAT IF THE ASSESSEES MISCELLANEOUS APPLICATION IS ALLOWED, THEN IT WILL TANTAMOUNT TO REVIEW OF THE TRIBUNALS OWN JUDGEMENT. HE THEREFORE, REQUESTED T HAT THE M.A. OF THE ASSESSEE MAY KINDLY BE DISMISSED. 5. ON PERUSING THE ORDER OF THE TRIBUNAL, IT IS EVI DENT THAT THE TRIBUNAL HAS CONSIDERED ALL THE ISSUES ABOVE WHICH WERE ARGU ED BY THE LD. A.R. BEFORE THE TRIBUNAL. THE TRIBUNAL HAD CATEGORICALLY CAME TO A CONCLUSION THAT THE ASSESSEE HAD NOT MAINTAINED ANY ACCOUNTS W ITH RESPECT TO AGRICULTURAL INCOME AND EXPENDITURE AND HAD SHOWN V ERY LOW AGRICULTURAL EXPENSE COMPARING TO THE AGRICULTURAL OPERATIONS. T HEREFORE, THE TRIBUNAL HAD FOLLOWED THE DECISION IN THE CASE OF SHRI DIRUB HAI L. NAROLA & OTHERS. FURTHER, THE DISALLOWANCE OF 20% ON TELEPHONE EXPEN DITURE, CAR PETROL EXPENDITURE AND CELLULAR EXPENDITURE WERE CONFIRMED BY THE TRIBUNAL SINCE THE ASSESSEE HAD NOT MAINTAINED REQUISITE EVIDENCE TO ESTABLISH THESE EXPENDITURES. THEREFORE, THERE IS NO MISTAKE APPARE NT IN THE ORDER OF THE TRIBUNAL. AT THIS JUNCTURE, WE WOULD LIKE TO QUOTE THE DECISION RENDERED BY THE HONBLE APEX COURT IN THE CASE OF CIT VS. KARAM CHAND THAPAR AND BROSS P. LTD., REPORTED IN 176 ITR 535 (SC) HELD TH AT THE DECISION OF THE TRIBUNAL HAS NOT TO BE SCRUTINIZED SENTENCE BY SENT ENCE MERELY TO FIND OUT WHETHER SOME INCIDENTAL FACTS, WHICH APPEAR ON THE RECORD, HAVE NOT BEEN NOTICED BY THE TRIBUNAL IN ITS JUDGMENT. IN OUR OPI NION, THERE IS NO MISTAKE APPARENT FROM RECORD WITHIN THE MEANING OF SECTION 254 (2). HOWEVER, IT IS WELL SETTLED LAW THAT WHAT CAN BE RECTIFIED U/S. 25 4 (2) IS A MISTAKE, WHICH IS APPARENT AND PATENT FROM THE RECORD. UNLESS THERE A RE MANIFEST ERRORS, WHICH ARE OBVIOUS, CLEAR AND SELF-EVIDENT, THE TRIB UNAL CANNOT RECALL ITS PREVIOUS ORDER IN AN ATTEMPT TO REVIEW THE ORDER. T HE MISTAKE HAS TO BE 4 M.A.NO.54-AHD-2011 SUCH FOR WHICH NO ELABORATE REASON OR ENQUIRY IS NE CESSARY. THE POWERS SO CONFERRED U/S. 254 (2) DO NOT CONTEMPLATE REHEARING WHICH WOULD HAVE THE EFFECT OF RE-WRITING AN ORDER AFFECTING THE MERITS OF THE CASE. OTHERWISE THERE WOULD BE NO DISTINCTION BETWEEN THE POWER TO REVIEW AND THE POWER TO RECTIFY A MISTAKE. THE POINT RAISED IN THE MISC. AP PLICATION SUBMITTED BY THE ASSESSEE VIRTUALLY SEEKS A REVIEW OF THE ORDER PASS ED BY THIS TRIBUNAL, WHICH IS CLEARLY BEYOND THE SCOPE OF SECTION 254 (2 ). 5. 1 IN VIEW OF THE ABOVE DECISION RENDERED BY THE HONBLE SUPREME COURT, IT IS A SETTLED LAW THAT POWER UNDER SUB-SEC TION (2) OF SECTION 254 OF THE ACT IS TO RECTIFY THE MISTAKE APPARENT FROM THE RECORD BUT DOES NOT CONFER POWER TO REVIEW OF ITS EARLIER ORDER OR RE-W RITE FRESH JUDGMENT. BY THIS MISCELLANEOUS APPLICATION OF THE ASSESSEE, IT IS AP PARENT THAT THE ASSESSEE IS VIRTUALLY SEEKING REVIEW OF THE ORDER RENDERED B Y THE TRIBUNAL. THEREFORE, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS NOT MAINTAINABLE. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS DISMISSED. / . ' ,- 0 1 13 / 01 /201 2 2 ' * 3 SD/- SD/- (D.K.TYAGI) (A.MOHAN ALANKAMONY) JUDICIAL MEMBER ACCOUNTANT M EMBER DATED : 13/01/2012 5 M.A.NO.54-AHD-2011 . . . . ' '' ' $+ $+ $+ $+# ## # 5#-+1 5#-+1 5#-+1 5#-+1- -- - 1. %& 2. $%& 3. + ); 4. );- - 5. #> $+ , , 3 6. A/ . , B/ D , 3 TALUKDAR/ SR. P.S.