SALE MOHAMMMED PADAMSEE & CO, MUMBAI V. PR.CIT-25, MUMBAI

MA 56/MUM/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5700 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-09-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 05-02-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 254(2)

Judgement Text

MA NO. 56/MUM/2020 ASSESSMENT YEAR: 2009-10 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI G BENCH, MUMBAI [CORAM: PRAMOD KUMAR (VICE PRESIDENT) AND SAKTIJIT DEY (JUDICIAL MEMBER)] MA NO.56/MUM/2020 (ARISING OUT OF ITA NO. 6849/MUM/2018) ASSESSMENT YEAR: 2009-10 SALE MOHAMMED PADAMSEE & CO. .APPLICAN T 4 TH FLOOR, PARMAR GALLERY, 77, SHIVARKAR ROAD, WANAWADI, PUNE, PUNE-411 040 [PAN: ABVFS 7235 F] VS PR. CIT-25 MUMBAI ..........RESPONDENT APPEARANCES BY NONE FOR THE APPLICANT VIJAY KUMAR G AND SUBRAMANYAM FOR THE RESPONDENT DATE OF CONCLUDING THE HEARING : SEPTEMBER 17, 2021 DATE OF PRONOUNCEMENT : SEPTEMBER 17, 2021 ORAL ORDER (DICTATED IN THE OPEN COURT) PER PRAMOD KUMAR, VP: 1. BY WAY OF THIS MISCELLANEOUS APPLICATION, THE AS SESSEE APPLICANT HAS SUBMITTED THAT THE ORDER DATED 11.10.2019 PASSED BY THE TRIBUNAL W AS PASSED EX PARTE WITHOUT AFFORDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. 2. THE APPLICANT FURTHER SUBMITS THAT THE ASSESSEE HAD MOVED AN APPLICATION FOR A LARGER BENCH IN LIGHT OF THE CERTAIN DECISION OF THE CO-OR DINATE BENCHES OF THIS TRIBUNAL. THE APPLICANT HAS, THUS, MOVED A VERY ELABORATE APPLICATION RUNNI NG INTO 18 PAGES, JUSTIFYING AS TO WHY THE MATTER SHOULD HAVE BEEN SENT TO A LARGER BENCH. MA NO. 56/MUM/2020 ASSESSMENT YEAR: 2009-10 PAGE 2 OF 4 3. THIS APPLICATION WAS FIXED FOR HEARING ON A LARG E NUMBER OF OCCASIONS, I.E., ON 02.11.2020, 06.11,2020, 15.01.2021, 09.04.2021, 11. 06.2021, 18.06.2021, 27.08.2021, 03.09.2021 AND FINALLY TODAY ON 17.09.2021. NONE HO WEVER APPEARED FOR THE ASSESSEE. WE, THEREFORE, HAVE NO OPTION, EXCEPT TO DISPOSE OF THE MISCELLANEOUS APPLICATION BASED ON THE MATERIAL ON RECORD. 4. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED THE FACTS OF THE CASE IN LIGHT OF THE APPLICABLE LEGAL POSITION. 5. AS A PLAIN LOOK AT THE ORDER, WHICH IS SOUGHT TO BE SUBJECTED TO THIS RECTIFICATION PROCEEDINGS, WOULD SHOW THAT WHEN THE PRAYER FOR OU T OF TURN HEARING CAME UP BEFORE THIS BENCH OF THE TRIBUNAL ON 12.09.2019, IT WAS POINTED OUT BY THE LD. DR THAT THE APPEAL ITSELF IS NOT MAINTAINABLE. ACCORDINGLY, THE MATTER WAS ADJOU RNED TO 17.09.2019 BY PUTTING THE ASSESSEE TO NOTICE AS TO WHY THE APPEAL SHOULD NOT BE DISMISSED AS NON MAINTAINABLE. THE MATTER WAS ACCORDINGLY ADJOURNED FOR 17.09.2019 FOR REPLY TO THIS REQUISITION. ON THE RESCHEDULED DATE OF THE HEARING, I.E., 17.09.2019, NONE APPEARED FOR THE ASSESSEE ONCE AGAIN, BUT THERE WAS A REQUEST BY THE LD. COUNSEL OF THE A SSESSEE TO REFER THE MATTER TO THE SPECIAL BENCH. THERE WAS NOT EVEN A WHISPER OF THE ARGUMENT ON THE MAINTAINABILITY OF THE APPEAL AND THAT HAS BEEN SO SPECIFICALLY POINTED OUT IN PA RA 4 OF THE ORDER DATED 11.10.2019. IT WAS A CONSCIOUS DECISION OF THE BENCH TO PROCEED WITH THE MATTER, IN THESE CIRCUMSTANCES, ON THE BASIS OF THE MATERIAL AVAILABLE ON RECORD AND IN LI GHT OF THE APPLICABLE LEGAL POSITION. AFTER AN ELABORATE ANALYSIS OF THE LEGAL POSITION, THE BENCH CAME TO THE CONCLUSION THAT THE APPEAL ITSELF IS NOT MAINTAINABLE AND ELABORATE REASONS FO R THIS CONCLUSION WAS SET OUT IN THE ANALYSIS BEGINNING AT PAGE NO. 3 AND CONCLUDING AT PAGE NO. 9, FROM PARA 4 TO 10 OF THE ORDER. IT WAS ALSO A WELL CONSIDERED DECISION OF THE BENCH NOT TO REFER THE MATTER TO THE SPECIAL BENCH, IN VIEW OF THE FACT THAT IN THE CONSIDERED VIEW OF THE BENCH, THE APPEAL ITSELF WAS NOT MAINTAINABLE. 6. IT IS ONLY ELEMENTARY THAT THE POWERS OF THE TRI BUNAL U/S. 254(2) OF THE ACT ARE TO RECTIFY ONLY SUCH ERRORS AS ARE GLARING AND WHICH A RE INHERENTLY INCAPABLE OF THE TWO VIEWS BEING TAKEN IN RESPECT OF THE SAME. THE AUTHORITIES FOR THIS PROPOSITION IS NECESSARY IS CONTAINED IN THE LAND MARK DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF T. S. BALARAM ITO V. VOLKART BROS (1971) 82 ITR 50 (SC). OUR JURISDICTIONAL HIGH COURT IN THE CASE MA NO. 56/MUM/2020 ASSESSMENT YEAR: 2009-10 PAGE 3 OF 4 OF COMMISSIONER OF INCOME TAX VS. RAMESH ELECTRICAL COMPANY LTD. (203 ITR 497) HAS HELD THAT AN ERROR OF JUDGEMENT, EVEN IF ANY, CANNO T BE SUBJECTED TO RECTIFICATION U/S. 254(2) OF THE ACT. IT IS, THUS, CLEAR THAT EVEN IF THERE IS A N ERROR, THOUGH WE DO NOT SEE ANY, EVEN GOING BY THE APPLICANTS ARGUMENT, IS AN ERROR OF JUDGEME NT AND NOT SOMETHING WHICH IS INHERENTLY INCAPABLE OF THE TWO VIEWS BEING TAKEN IN RESPECT O F THE SAME. THE PRAYER BEING SO MADE IN THIS APPLICATION IS, THEREFORE, OUTSIDE THE LIMITED SCOPE OR RECTIFICATION PROCEEDINGS U/S.254(2) OF THE ACT. IT IS QUITE OBVIOUS THAT WHAT THE ASSES SEE SEEKS BY WAY OF THIS APPLICATION, IS A REVIEW OF OUR ORDER DATED 11.10.2019, BUT THEN, AS IS THE SETTLED LEGAL POSITION, IN THE GARB OF THE RECTIFICATION PROCEEDINGS, SUCH REVIEW CANNOT B E DONE. FOR THIS SHORT REASON ALONE, THE APPLICATION BEFORE US, IS DEVOID OF ANY LEGALLY SUS TAINABLE MERITS. IT IS ALSO SIGNIFICANT TO NOTE THAT DESPITE HAVING BEEN GIVEN SEVERAL OPPORTUNITIE S EVEN FOR THIS MISCELLANEOUS APPLICATION, THE ASSESSEE APPLICANT OR HIS REPRESENTATIVES HAVE NOT TURNED UP. MUCH AS WE WAITED FOR THEIR GUIDANCE ON HOW WITHIN OUR LIMITED POWERS U/S. 254( 2) OF THE ACT, THE ISSUES RAISED IN THE PRESENT APPLICATION CAN BE ADDRESSED, WE WERE DEPRI VED OF THE SAME. 7. IN VIEW OF THE ABOVE DISCUSSION AND BEARING THE ENTIRETY OF THE CASE, WE DEEM IT FIT AND PROPER TO REJECT THE PRESENT MISCELLANEOUS APPLICAT ION. DICTATED AND PRONOUNCED IN THE OPEN COURT ON 17 TH DAY OF SEPTEMBER, 2021. SD/- SD/- SAKTIJIT DEY PRAMOD KUMAR (JUDICIAL MEMBER) (VICE PRESIDENT) MUMBAI, DATED THE 17 TH DAY OF SEPTEMBER, 2021 ROSHANI, SR. PS COPIES TO: (1) THE APPLICANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER TRUE COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, MUMBAI