Income Tax Officer Ward-3, Tumkur V. M/s Sacred Heart Souhard Credit Co-operative Ltd , Tumkur

MA 55/BANG/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6586 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-08-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 27-02-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K LAKSHMI
• Assessee Lawyers: S RAMASUBRAMANIAM
• Keywords: Audit objection; Tax effect; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, BANGALORE BEFORE SHRI. JASON P. BOAZ, ACCOUNTANT MEMBER AND SHRI. PAVAN KUMAR GADALE, JUDICIAL MEMBER [MP NO. 55/BANG/2018 (IN ITA NO. 2 8 0 /B ANG /201 7 )] (ASSESSMENT YEAR: 20 0 9 - 1 0 ) THE INCOME TAX OFFICER, WARD - 3, TUMKUR. VS. M/S. SACRED HEART SOUHARDA CREDIT CO-OPERATIVE LTD., OUR LADY OF LOUDERS CHURCH HOSPET, TUMKUR 572 102. PAN : AAAJS 3139 G APPELLANT RESPONDENT REVENUE BY : SMT. K. LAKSHMI, JCIT ASSESSEE BY : SHRI. S. RAMASUBRAMANIAM , CA DATE OF HEARING : 02 .0 8 .201 9 DATE OF PRONOUNCEMENT : 02 .0 8 .201 9 O R D E R PER JASON P. BOAZ, AM : THIS MISCELLANEOUS APPLICATION (MP) FILED BY THE REVENUE IS IN RESPECT OF TRIBUNALS ORDER IN ITA NO.280/BANG/2017 DISMISSING REVENUES APPEAL IN THE CASE ON HAND FOR ASSESSMENT YEAR 2009-10 VIDE ORDER DATED 03.08.2018 ON ACCOUNT OF THE TAX EFFECT BEING BELOW THE PRESCRIBED MONETARY LIMITS AS PRESCRIBED BY CBDT CIRCULAR NO.3/2018 DATED 11.07.2018. 2. IN THIS MP, REVENUE CONTENDS AS UNDER:- MP NO. 55/BANG/2018 (IN ITA NO.280/BANG/2017) PAGE 2 OF 5 2.2 THE LEARNED DR FOR REVENUE WAS HEARD IN THE MATTER. IT WAS PRAYED THAT IN VIEW OF THE ABOVE SUBMISSIONS IN THE MP (SUPRA), THE TRIBUNALS ORDER IN ITA NO.280/BANG/2017 DATED 03.08.2018 BE RECALLED IN TERMS OF PARA 10(C) OF THE CBDT CIRCULAR NO.3/2018 DATED 11.07.2018; WHICH TRIBUNAL OMITTED TO CONSIDER WHEN PASSING THE IMPUGNED ORDER. IT IS SUBMITTED THAT THE TRIBUNAL RELIED ON THIS CBDT CIRCULAR (SUPRA), FILED BEFORE IT, TO DISMISS REVENUES APPEAL AS THE TAX EFFECT INVOLVED IN THE CASE ON HAND WAS BELOW THE PRESCRIBED MONETARY LIMITS AS PRESCRIBED THEREIN. HOWEVER, IN DOING SO, THE TRIBUNAL DID NOT APPLY PARA 10(C) THEREOF AND CONSEQUENTLY OUGHT NOT TO HAVE DISMISSED THE APPEAL, SINCE WHEN MP NO. 55/BANG/2018 (IN ITA NO.280/BANG/2017) PAGE 3 OF 5 REVENUE AUDIT OBJECTION HAS BEEN ACCEPTED AS IN THE CASE ON HAND; REVENUE HAS TO BE ALLOWED TO CONTEST THE APPEAL ON MERITS IRRESPECTIVE OF THE TAX EFFECT INVOLVED. IT IS CONTENDED THAT SINCE THIS OMISSION TO APPLY PARA 10(C) OF THE CBDTS CIRCULAR NO.3/2018 DATED 11.07.2018 CONSTITUTES A MISTAKE APPARENT FROM THE FACE OF THE RECORD AS PER THE PROVISIONS OF SECTION 254(2) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT), THE IMPUGNED ORDER MAY BE RECALLED AND THE APPEAL FOR ASSESSMENT YEAR 2009-10 BE FIXED FOR CONSIDERATION AND ADJUDICATION ON MERITS. 2.3 PER CONTRA, THE LEARNED AR FOR THE ASSESSEE OPPOSED THE RECALL OF THE IMPUGNED ORDER IN ITA NO.280/BANG/2017 DATED 03.08.2018 FOR ASSESSMENT YEAR 2009-10. IN THIS REGARD, THE LEARNED AR PLACED RELIANCE ON THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. SUMAN TEA AND PLYWOOD INDUSTRIES (P.) LTD., (1997) 226 ITR 34 (CAL), SUBMITTING THAT SINCE THE CONCERNED DOCUMENT WAS NOT PLACED BEFORE THE TRIBUNAL, RECTIFICATION ON THE BASIS OF THE DOCUMENT, NOW PUT FORTH, IS NOT PERMISSIBLE, AS THERE WAS NO MISTAKE APPARENT FROM THE RECORD. THE LEARNED AR SUBMITTED THAT IN VIEW OF THE ABOVE REVENUES MP OUGHT TO BE DISMISSED. 3.1 WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD; INCLUDING THE JUDICIAL PRONOUNCEMENTS CITED. IT IS A MATTER OF RECORD THAT REVENUES APPEAL FOR ASSESSMENT YEAR 2009-10 IN THE CASE ON HAND WAS DISMISSED VIDE THE TRIBUNALS ORDER IN ITA NO.280/BANG/2017 DATED 03.08.2018 BY RELYING ON THE CBDT CIRCULAR NO.3/2018; THAT THE TAX EFFECT INVOLVED IN THE APPEAL WAS BELOW THE MONETARY LIMITS PRESCRIBED THEREIN. WHILE DOING SO, THE TRIBUNAL WAS DEALING WITH A CLUSTER OF 25 CASES COMPRISING 28 MP NO. 55/BANG/2018 (IN ITA NO.280/BANG/2017) PAGE 4 OF 5 APPEALS; AND INADVERTENTLY, WHILE DISPOSING OFF THE 28 APPEALS, FAILED TO NOTE THAT AS PER PARA 10(C) OF THE SAID CBDT CIRCULAR (SUPRA), REVENUE WOULD CONTEST APPEALS IN RESPECT OF ORDERS WHICH WERE THE RESULT OF THE DEPARTMENTS ACCEPTANCE OF REVENUE AUDIT OBJECTIONS, EVEN IF THE TAX EFFECT IN SUCH APPEAL IS LOWER THAN THE PRESCRIBED LIMIT; AS IS THE POSITION IN THE CASE ON HAND. IN THESE FACTUAL CIRCUMSTANCES, AS LAID OUT ABOVE, WE ARE OF THE VIEW THAT AN ERROR HAS INADVERTENTLY CREPT INTO THE TRIBUNALS ORDER DATED 03.08.2018 FOR ASSESSMENT YEAR 2009-10 IN THE CASE ON HAND, WHICH IS A MISTAKE APPARENT FROM THE FACE OF THE RECORD BEFORE US AND IS RECTIFIABLE UNDER SECTION 254(2) OF THE ACT. WE HAVE CAREFULLY PERUSED THE JUDICIAL DECISION CITED BY THE LEARNED AR FOR THE ASSESSEE I.E., OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. SUMAN TEA AND PLYWOOD INDUSTRIES (P.) LTD., AND HUMBLY, WITH DUE RESPECT, WE ARE OF THE OPINION THAT THE FACTS THEREIN ARE NOT APPLICABLE TO THE CASE ON HAND AS IN THE CITED CASE THE DOCUMENT ON THE BASIS OF WHICH RECTIFICATION WAS CANVASSED WAS NEVER PLACED BEFORE THE TRIBUNAL IN THE APPELLATE PROCEEDINGS. HOWEVER, IN THE CASE ON HAND, THE VERY BASIS OF THE DISMISSAL OF REVENUES APPEAL FOR TAX EFFECT BELOW THE PRESCRIBED MONETARY LIMIT IN THE IMPUGNED ORDER OF THE TRIBUNAL WAS THE CBDT CIRCULAR NO.3/2018; WHICH WAS PLACED BEFORE THE TRIBUNAL IN THE COURSE OF PROCEEDINGS. HAVING CONSIDERED THE ABOVE CBDT CIRCULAR (SUPRA), PARTLY, AN ERROR HAS INADVERTENTLY CREPT INTO THE IMPUGNED ORDER OF THE TRIBUNAL FOR NOT HAVING TAKEN COGNIZANCE OF PARA 10(C) THEREOF WHICH, IN OUR VIEW, IS RECTIFIABLE UNDER SECTION 254(2) OF THE ACT AS IT IS A MISTAKE APPARENT FROM THE RECORD. IN THIS VIEW OF THE MATTER, WE SET ASIDE AND RECALL THE IMPUGNED ORDER OF THE TRIBUNAL IN ITA NO.280/BANG/2017 DATED 03.08.2018 FOR ASSESSMENT YEAR 2009-10 FOR CONSIDERATION AND ADJUDICATION OF THE ISSUES MP NO. 55/BANG/2018 (IN ITA NO.280/BANG/2017) PAGE 5 OF 5 RAISED IN THE GROUNDS OF APPEAL PUT FORTH BY REVENUE. WE HOLD AND DIRECT ACCORDINGLY. 4. THE REGISTRY IS DIRECTED TO FIX REVENUES APPEAL IN ITA NO.280/BANG/2017 FOR ASSESSMENT YEAR 2009-10 IN DUE COURSE BY ISSUE OF NOTICES TO THE PARTIES. 5. IN THE RESULT, REVENUES MISCELLANEOUS PETITION FOR ASSESSMENT YEAR 2009-10 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 02 ND AUGUST, 2019. SD/- SD/- ( PAVAN KUMAR GADALE ) (JASON P BOAZ) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE : BANGALORE DATED : 02/08/2019 /NS/* COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) - II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.