Shri Ram Bahadur Khurniya, Kaithal V. ITO, Haryana

MA 590/DEL/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6890 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-09-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: misc
• Appeal Filed On: 06-10-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANUSHA KHURANA
• Assessee Lawyers: S K GOYAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F DELHI BEFORE SHRI C.L. SETHI AND SHRI K.G. BANSAL M.A. NO. 590(DEL)/2010 (ARISING OUT OF IT(SS)A NO. 72(DEL)/2000) BLOCK PERIOD: 01.04.1987 TO 06.06.1997 SHRI RAM BAHADUR KHURANIA, JOIN T COMMISSIONER OF INCOME- C/O AMAR NATH RAJ BAHADUR, VS. TAX, SP ECIAL RANGE, KARNAL. COMMISSION AGENTS, OLD ANAJ MANDI, KAITHAL. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI S.K. G OYAL, CA RESPONDENT BY : SMT. ANUSHA KHURANA, SR. DR DATE OF HEARING : 16.09.2011 DATE OF PRON OUNCEMENT: 16.09.2011 ORDER PER K.G. BANSAL ; AM IN THIS CASE, THE TRIBUNAL HAD PASSED ITS ORDER ON 26.03.2010, IN WHICH THE APPEAL OF THE ASSESSEE WAS PARTLY ALLO WED. THE ASSESSEE FILED A MISCELLANEOUS APPLICATION BEARING NO. 657(DEL)/2 009 STATING INTER-ALIA THAT GROUND NOS. 1 AND 2 OF THE APPEAL WERE DI SMISSED AS NOT PRESSED BY M.A.NO.590(DEL)/2010 2 THE LD. COUNSEL FOR THE ASSESSEE. THIS APPLICATION WAS DISMISSED ON 05.02.2010 BY RECORDING THE FOLLOWING OBSERVATION S:- 3. WE HAVE CONSIDERED THE FACTS OF THE CASE. WE HAVE ALSO CONSULTED THE RECORDS OF THE PROCEEDINGS. IT IS FOUND THAT THE LD. COUNSEL HAD NOT PRESSED GROUND NOS. 1 AN D 2 OF THE APPEAL OF THE ASSESSEE. IN SUCH A CIRCUMSTANCE, THE GROUNDS WERE RIGHTLY DISMISSED AS NOT PRESSED. IT A LSO FOLLOWED THAT THERE COULD HAVE BEEN NO OCCASION FOR THE TRIBUNAL TO CONSIDER THE DECISIONS IN THE CASE OF MANOJ AG GARWAL AND BRAITHWEIT & CO. LTD. (SUPRA). SECTION 254(2) OF THE INCOME- TAX ACT, 1961 EMPOWERS THE TRIBUNAL TO RECTIFY A MISTAKE EITHER OF FACT OR LAW WHICH IS APPARENT FROM RECORD. IN VIEW OF THE FACT THAT THE GROUNDS WERE NOT PRESSED, THERE IS NOTHING ON THE RECORD OF THE TRIBUNAL IN RESPEC T OF THESE GROUNDS AND, THEREFORE, THEY CANNOT BE NOW A DJUDICATED IN THE MISCELLANEOUS APPLICATION AS THERE WAS NO MISTAKE APPARENT FROM RECORD EITHER OF FACT OR LAW IN THE ORDER. 1.1 THE ASSESSEE FILED ONE MORE APPLICATION ON 06.10.2010 STATING INTER-ALIA THAT GROUND NOS. 1 AND 2, BEING LEGAL GROUNDS, DESERVE TO BE ADMITTED, HEARD AND DECIDED AS PER LAW. THE LD . COUNSEL OF THE ASSESSEE DID NOT PRESS THESE GROUNDS DUE TO CONFUSION, OVERSIGHT OR BURDEN OF WORK. ACCORDINGLY, IT IS PRAYED THAT THE ORDERS MAY BE RECALLED FOR THE LIMITED PURPOSE OF DECIDING GROUND NOS. 1 AND 2 ON MERITS. 2. IN THE COURSE OF HEARING BEFORE US, THE LD. COU NSEL FOR THE ASSESSEE ADMITTED THAT GROUND NOS. 1 AND 2 WERE NOT PRESSE D DUE TO INADVERTENCE, M.A.NO.590(DEL)/2010 3 CONFUSION OR BURDEN OF WORK. HOWEVER, THESE GROUNDS ARE LEGAL IN NATURE. SIMILAR GROUNDS HAVE BEEN DECIDED IN FA VOUR OF THE ASSESSEE IN THE CASE OF MANOJ AGGARWAL VS. DY. CIT, (2008) 113 I TD 377(DEL) AND AMAR NATH RAJ BAHADUR, COMMISSION AGENT, KAITHAL I N IT(SS) A. NO. 73(DEL)/2000 DATED 29.05.2009. HE WAS APPRAISED THAT SECTION 254(2) APPLIES IN RELATION TO ORDERS PASSED U/S 254(1) AND NOT ORDERS PASSED U/S 254(2) AND, THEREFORE, THIS APPLICATION IS NOT MA INTAINABLE. HOWEVER, THE LD. COUNSEL PERSISTED WITH THE ARGUMENT THAT T HE ORDER MAY BE RECALLED FOR THE LIMITED PURPOSE OF DECIDING GROUND NOS. 1 AN D 2 ON MERITS. IN REPLY, THE LD. DR SUBMITTED THAT A RECTIFICATION ORD ER IS NOT AMENABLE TO FURTHER RECTIFICATION U/S 254(2) OF THE ACT. 3. WE HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE US. THE ASSESSEE HAD FILED AN APPLICAT ION U/S 254(2) EARLIER, WHICH HAS BEEN DISMISSED AND THE OBSERVATIONS M ADE BY THE TRIBUNAL IN RESPECT OF THAT APPLICATION HAVE ALREADY BEEN REPR ODUCED BY US. SECTION 254(2) PROVIDES THAT THE TRIBUNAL MAY AMEND A MISTAKE APPARENT FROM RECORD IN THE ORDER PASSED U/S 254(1) AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER. IT DOES NOT PROVIDE FO R AMENDMENT OF ORDER U/S M.A.NO.590(DEL)/2010 4 254(2). THEREFORE, THIS APPLICATION IS NOT MAINT AINABLE. ACCORDINGLY, THE SAME IS REJECTED IN LIMINE. SD/- SD/- (C.L. SETHI) (K.G.BANSA L) JUDICIAL MEMBER ACCOUNTANT MEMBER SP SATIA COPY OF THE ORDER FORWARDED TO:- SHRI RAM BAHADUR KHURANIA, KAITHAL. JCIT, SPL. RANGE, KARNAL. CIT(A) CIT THE DR, ITAT, NEW DELHI. ASSISTANT REGISTRAR.