ITO, Jaipur V. ID. MOHD. NIZAMUDDIN, Jaipur

MA 61/JPR/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5884 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-10-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2008-2009
• Appeal Filed On: 25-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S L CHANDEL CIT DHK
• Assessee Lawyers: MAHENDRA GARGIA
• Keywords: Period of limitation
• Section: 147; 148

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ M.A NO. 85 /JP/2017 (ARISING OUT OF ITA NO. 394/JP/2016) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 M/S ID.MOHD. NIZAMUDDIN, SUBHASH BAZAR, TONK. CUKE VS. THE ITO, TDS-3, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAAFI 4581 L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ M.A NO. 61/JP/2017 (ARISING OUT OF ITA NO. 394/JP/2016) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09 THE ITO, TDS-3, JAIPUR CUKE VS. M/S ID.MOHD. NIZAMUDDIN, SUBHASH BAZAR, TONK LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAAFI 4581 L VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MAHENDRA GARGIA (ADVOCATE) JKTLO DH VKSJ LS@ REVENUE BY : SHRI S.L CHANDEL (ADDL. CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 04.08.2017. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 27.10.2017. VKNS'K@ ORDER PER SHRI KUL BHARAT, JM . THIS MISCELLANEOUS APPLICATIONS ONE BY THE REVENUE I.E M.A. NO. 61/JP/2017 AND OTHER BY THE ASSESSEE I.E M.A . NO. 85/JP/2017 ARISES OUT OF THE ORDER OF THE TRIBUNAL IN ITA NO. 394/JP/2016 FO R A.Y. 2008-09, SEEKING RECTIFICATION OF THE TRIBUNALS ORDER DATED 27 OCTO BER, 2016. 2 M.A. NO. 85 & 61/JP/2017. M/S ID. MOHD. NIZAMUDDIN, TONK. M.A. NO. 61/JP/2017 2. FIRST WE TAKE UP REVENUES MISCELLANEOUS APPLICA TION I.E. M.A. NO. 61/JP/2017. 2.1 THE LD. D/R REITERATED THE SUBMISSIONS AS MADE IN THE MISCELLANEOUS APPLICATION. FOR THE SAKE OF CLARITY THE CONTENTS O F THE APPLICATION ARE REPRODUCED AS UNDER:- THE HON'BLE ITAT VIDE ITS ORDER IN ITA NO. 394/JP R/ DATED 27.10.2016 IN THE CASE OF M/S ID MOHD. NIZAMUDDIN, SUBHASH BAZAR, TANK, RECEI VED IN THE OFFICE OF THE CIT (TDS), JAIPUR ON 04.01.2017, HAS ALLOWED THE APPEAL OF THE ASSESSEE AND QUASHED THE ORDER OF THE AO FOR THE AY 2008-09 ON 31.03.2015 ON THE GROUND THAT ACTION TAKEN BY THE AO SUFFERS FROM DELAY AND LATCHES AND THE REVEN UE HAS NOT EXPLAINED THE CAUSE OF SUCH DELAY. THE HONBLE ITAT HAS DECIDED ISSUE I N PARA 6.2. OF ITS ORDER, WHICH IS REPRODUCED AS UNDER :- WE HAVE HEARD RIVAL CONTENTIONS, PERUSED THE MATER IAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE UN DISPUTED FACTS ARISE ARE THAT THE IMPUGNED ORDER DECLARING THE ASSESSEE AS ASSESSEE I N DEFAULT WAS PASSED ON 31.03.2015 IN RESPECT OF THE TAX NOT COLLECTED PERT AINING TO FINANCIAL YEAR 2007-08. THE CONTENTION OF THE ASSESSEE IS THAT THE ACT DOES NOT GIVE UNFETTERED POWER TO THE AO FOR TAKING ACTION UNDER SECTION 206C OF THE ACT. THE AO HAS TO INITIATE ACTION WITHIN A REASONABLE TIME. MERELY BECAUSE LIMITATION IS PRESCRIBED THAT DOES NOT MEAN THAT THE ACTION CAN BE TAKEN AT ANY POINT OF TIME. RELIANCE IS PLACED ON THE DECISION OF COORDINATE BENCH IN THE CASE OF STATE BANK OF INDIA VS. ITO IN ITA NO. 438,437 & 439/LKW/2012 WHEREIN THE COORDINATE BENCH AFTER CON SIDERING THE VARIOUS DECISIONS IN PARA 10 TO 11 HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE HOLDING THAT THE ORDERS UNDER SECTION 201(1),201(1A) AND 206C(7) OF THE ACT ARE TO BE PASSED WITHIN A REASONABLE TIME I.E. AT LEAST WITHIN 6 YEARS FROM T HE END OF THE ASSESSMENT YEAR. FURTHER RELIANCE IS PLACED UPON THE JUDGMENT OF THE HON'BLE ANDHRA PRADESH HIGH COURT WHEREIN THE HON'BLE HIGH COURT AFTER CONSIDER ING THE VARIOUS CASE LAWS HELD 3 M.A. NO. 85 & 61/JP/2017. M/S ID. MOHD. NIZAMUDDIN, TONK. THAT THE REVENUE AUTHORITIES ARE BOUND TO EXERCISE THE POWERS WITHIN A REASONABLE TIME. IT WAS HELD THAT A PERIOD FOUR YEARS CONSTITU TE A REASONABLE TIME. AFTER TAKING INTO ACCOUNT THE VARIOUS PERIOD OF LIMITATION WHICH RANGES FROM 2 TO 4 YEARS EXCEPT IN EXCEPTIONAL CASE, IT WAS HELD THAT INTENTION OF THE PARLIAMENT NOT TO PRESCRIBE LIMITATION HAS NOT GIVEN LICENSE TO THE AO TO HOLD THE ASSESSEE TO RANSOM FOR ALL TIME TO COME BUT TO ENSURE THAT ALL PRE-ASSESSMENT TAXES ARE COLLECTED PROMPTLY AND SUCH PROCEEDINGS ARE FINALIZED MUCH BEFORE TAKING UP THE REGULAR ASSESSMENT PROCEEDINGS. RELIANCE IS ALSO PLACED ON THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF VODAFONE ESSAR MOBILE SERVICES LTD. VS. UOI & ORS(S UPRA). THE HON'BLE HIGH COURT AFTER CONSIDERING THE JUDGMENT IN THE CASE OF CIT V S. CALCUTTA KANITWEARS (2014) 362 ITR 673 OF THE HON'BLE SUPREME COURT AND ALSO THE J UDGMENT RENDERED IN THE CASE OF CIT VS. NHK JAPAN BROADCASTING CORPORATION, (2008) 305 ITR 137 (DELHI) HELD THAT THE AFOREMENTIONED DECISIONS SETTLED THE POSITION WHETH ER TO DECLARE AN ASSESSEE TO BE AN ASSESSEE IN DEFAULT UNDER SECTION 201 OF THE ACT COULD BE INITIATED FOR A PERIOD EARLIER THAN FOUR YEARS PRIOR TO MARCH 31.2001. RE LIANCE IS ALSO PLACED BY THE ASSESSEE ON THE JUDGMENT OF THE HON'BLE DELHI HIGH COURT RENDERED IN THE CASE OF TATA TELESERVICES VS. UOI & ANR (2016) 385 ITR 497 (DEL.). WE FIND THAT LD. CIT (A) ALSO HAS DECIDED THE ISSUE IN PARA 4.3 OF HIS ORDER BY OBSERVING AS UNDER:- '4.3 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS OF THE APPELLANT AND THE CASE LAWS CITED. THE PROVISIONS CONTAINED U/S 206C OF THE AC T DO NOT PRESCRIBE ANY TIME-LIMIT FOR THE INITIATION OF THE PROCEEDINGS OR FOR PASSIN G ANY ORDER THERE UNDER. THE CASE LAW CITED BY THE LD. AR, HAVE BEEN RENDERED UNDER D IFFERENT CONTEXT AND ACTS AND HENCE THE SAME ARE NOT FOUND APPLICABLE ON THE FACT S OF THE PRESENT CASE. THEREFORE, THE GROUNDS OF APPEAL RAISED BY THE APPELLANT IS NO T ACCEPTABLE AND THE SAME IS DISMISSED.' FROM THE ABOVE FINDING OF THE LD. CIT (A), IT IS CL EAR THAT LD. CIT (A) HAS NOT CONSIDERED THE CASE LAWS AND HAS MERELY REJECTED THE GROUND BY OBSERVING THAT THE PROVISIONS CONTAINED IN SECTION 206C OF THE ACT DO NOT PRESCRI BE ANY TIME LIMIT FOR INITIATING THE PROCEEDINGS OR FOR PASSING THE ORDER THERE UNDER. THE ABOVE FINDING OF THE LD. CIT (A) IS CONTRARY TO THE CASE LAWS AS RELIED BY THE LD. C OUNSEL FOR THE ASSESSEE. IN THE 4 M.A. NO. 85 & 61/JP/2017. M/S ID. MOHD. NIZAMUDDIN, TONK. PRESENT CASE THE ORDER HAS BEEN PASSED BEYOND 6 YEA RS FROM THE DATE OF ASSESSMENT IS UNDER CHALLENGE. THEREFORE, RESPECTFULLY FOLLOW ING THE DECISION OF THE COORDINATE BENCH RENDERED IN THE CASE OF STATE BANK OF INDIA V . ITO (SUPRA) WHEREIN THE HON'BLE COORDINATE BENCH HAS CONSIDERED THE CONFLICTING VIE W AND APPLIED THE JUDGMENT OF THE HON'BLE APEX COURT IN THE CASE OF CIT VS. VEGET ABLE PRODUCTS, 88 ITR 192 (SC), WE HEREBY QUASH THE ORDER DECLARING ASSESSEE IN DEFAUL T ON THE GROUND THAT ACTION TAKEN BY AO SUFFERS FROM DELAY AND LATCHES AND THE REVENU E HAS NOT EXPLAINED THE CAUSE OF SUCH DELAY.' IT IS APPARENT FROM THE FINDING OF THE HON'BLE ITAT REPRODUCED AS ABOVE THAT THE HON'BLE ITAT HAS RELIED ON THE DECISION OF THE HON'BLE LUCKNOW BENCH IN THE CASE OF STATE BANK OF INDIA V. ITO IN ITA NO. 438, 437 & 439/LKW/2012 DATED 25.04.2013 WHEREIN THE CO-ORDINATE BENCH AFTER CONSIDERING THE VARIOUS DECISION IN PARA 10 TO 11 HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE HOL DING THAT ORDER UNDER SECTION 201 (1), 201 (1A) AND 206C (6) OF THE ACT ARE TO BE PAS SED WITHIN A REASONABLE TIME I.E AT LEAST WITHIN 6 YEARS FROM THE END OF THE ASSESSMENT YEAR. IN THE CASE OF THE ASSESSEE, ORDER U/S 206 C (6)/20 6C (7) FOR THE ASSESSMENT YEAR 2008-09 WAS PASSED ON 31.03.2015 I.E WITHIN 6 YEARS FROM THE END OF THE ASSESSMENT YEAR. THE HON'BLE ITAT HAS ERRONEOUSLY HELD THAT ORDER OF THE ASSESSEE WAS PASSED BEYOND SIX YEARS. THEREFORE, THERE IS M ISTAKE APPARENT FROM RECORD, WHICH DESERVES TO BE RECTIFIED U/S 254 (2) OF THE I T, ACT, 1961 AND THE ASSESSEE'S APPEAL IS LIABLE TO BE DISMISSED. 2.2 LD. D/R SUBMITTED THAT THERE IS MISTAKE IN HOLD ING THAT THE ORDER U/S 206(VI)/206C(VII) FOR THE ASSESSMENT YEAR 2008-09 W AS PASSED ON 31/3/2015 WITHIN 6 YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEA R. HE SUBMITTED THAT THEREFORE THE MISTKE IS APPARENT FROM RECORD WHICH DESERVES T O BE RECTIFIED. 2.3 LD. COUNSEL FOR THE ASSESSEE OPPOSED THE SUBMIS SIONS AND SUBMITTED THAT THE LEGISLATION HAS NOT PRESCRIBED ANY LIMITATION THAT DOES NOT MEAN THAT THE ASSESSING OFFICER CAN MAKE ORDER AS PER HIS WHIMS AND FANCIES . 5 M.A. NO. 85 & 61/JP/2017. M/S ID. MOHD. NIZAMUDDIN, TONK. LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISS IONS AS MADE IN THE WRITTEN SUBMISSIONS:- IN THIS APPEAL FILED BY THE ASSESSEE, THE IMPUGNED ORDER PASSED U/S 206C(6)/206C(7) ON DATED 31.03.2015, WAS UNDER CHAL LENGE AND THE SAID APPEAL IN ITA NO.394/JP/16 WAS DECIDED BY THE HON'B LE ITAT VIDE ORDER DATED 27.10.2016, AGAINST WHICH, THE PRESENT MA HAS BEEN FILED BY THE REVENUE AFTER REPRODUCING PARA 6.2 FROM THE ITAT OR DER. IN THE LAST BUT SECOND PARA, THE REVENUE HAS READ & UNDERSTOOD THE SAID ITAT ORDER TO THE EFFECT THAT '----- ORDER UNDER SECTION 201(1), 201( 1A) AND 206C(6) OF THE ACT ARE TO BE PASSED WITHIN A REASONABLE TIME I.E. AT L EAST WITHIN 6 YEARS FROM THE END OF THE ASSESSMENT YEAR '. FURTHER THE REVENUE ALSO MISREAD AND MISUNDERSTOOD THE SUBJECTED ITAT ORDER AS IF THE HO N'BLE ITAT HAS SOLELY RESTED ITS DECISIONS BASED ONLY ON THE CASE OF STAT E BANK OF INDIA VS. ITO IN ITA NOS. 438, 437 & 439/LKW/2012. HOWEVER, THE REVE NUE'S MA IS OBJECTED ON THE FOLLOWING GROUNDS: A. FIRSTLY, THE REVENUE HAS CLEARLY MISREAD THE ITAT ORDER IN AS MUCH AS: 1. THE HON'BLE ITAT HAS NOT MERELY RELIED UPON SBI (SUPRA) BUT AS MANY AS FOUR HIGH COURT DECISIONS WERE MENTIONED AT PAGE 3 AND THERE FROM IT WAS INFERRED THAT REASONABLE PERIOD OF RANGES FROM 2 TO 4 YEARS. 2. THE HON'BLE ITAT HAS NOT HELD THAT THE IMPUGNED ORDER SHOULD HAVE BEEN PASSED '---- AT LEAST WITHIN 6 YEARS FROM THE END OF THE ASSESSMENT YEAR ----' BUT MERELY OBSERVED THAT '---- IN THE PRESENT CASE THE ORDER HAS BEEN PASSED BEYOND 6 YEARS FROM THE DATE OF ASSESSMENT IS UNDER CHALLENGE .----'. HOWEVER, FINALLY THE HON'BLE ITAT HAS HELD AS UNDER : 6 M.A. NO. 85 & 61/JP/2017. M/S ID. MOHD. NIZAMUDDIN, TONK. '----WE HEREBY QUASH THE ORDER DECLARING ASSESSEE IN DEFAULT ON THE GROUND THAT ACTION TAKEN BY AO SUFFERS FROM DELAY AND LATCHES AND THE REVENUE HAS NOT EXPLAINED THE CAUSE OF SUCH DEL AY.---' B. SECONDLY, THE REVENUE HAS CLEARLY MISREAD THE DECISION OF SBI (SUPRA) IN AS MUCH AS: 3.1 IN THE CASE OF SBI (SUPRA) IN PARA 10 & 11, RELIAN CE WAS PLACED ON A DECISION OF DI V/S MAHINDRA & MAHINDRA WHICH HAS HE LD A PERIOD OF SIX YEARS FROM THE END OF RELEVANT ASSESSMENT YEAR TO BE A RE ASONABLE PERIOD BASED ON THE ASSESSMENT PROCEEDINGS U/S 147 & 148 OF THE ACT . THE HONBLE ITAT IN THE PRESENT CASE THOUGH HAS NOT REFERRED TO AND REL IED UPON THE SAID DECISION IN THE CASE OF MAHINDRA AND MAHINDRA (SUPRA) BUT AT THE SAME TIME HAS COMPLETELY IGNORED THE LEGAL & FACTUAL POSITION THA T THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. NHK JAPAN BROADCASTING CORPORATION, (2008) 305 ITR 137 (DELHI), HAS HELD THAT THE PROVISIONS OF REASSESSMENT ARE UNDER SS. 147 A ND 148 OF THE ACT AND THEY ARE ON A COMPLETELY DIFFERENT FOOTING AND, THE REFORE, DO NOT MERIT CONSIDERATION FOR THE PURPOSES OF THIS CASE NOTABLY, NHK JAPAN (SUPRA) HAS BEEN SPECIFICALLY RE LIED UPON BY THIS HONBLE ITAT AT PAGE 4 PARA 6.2 OF THE ORDER. THUS, THE DECISION OF COORDINATE BENCH IN SBI (SUPR A) HOLDING A PERIOD OF SIX YEARS BASED ON THE DECISION OF MAHINDRA AND MAHINDR A (SUPRA) COULD NOT HAVE BEEN READ BY THE REVENUE (IN THE CONTEXT OF TH E PRESENT CASE), HOLDING THAT THIS HON'BLE ITAT HAS HELD THE REASONABLE PERI OD AS WITHIN 6 YEARS FROM THE END OF THE ASSESSMENT YEAR, MORE PARTICULARLY WHEN THE HONBLE DELHI HIGH COURT (BEING A SUPERIOR AUTHORITY) HAS IMPLIED LY DISAGREED WITH THE VIEW TAKEN IN MAHINDRA AND MAHINDRA (SUPRA). 7 M.A. NO. 85 & 61/JP/2017. M/S ID. MOHD. NIZAMUDDIN, TONK. 3.2 OTHERWISE ALSO SBI (SUPRA), WAS A CASE WHERE THE SU BJECTED ORDER WAS PASSED AFTER A LAPSE OF MORE THAN 10 YEARS AND IN V IEW OF THAT FACT, THE ITAT CONSIDERED SIX YEARS TO BE REASONABLE. HOWEVER, THE SE ARE NOT THE FACTS OF THE PRESENT CASE. 3.3 MOREOVER, THE CASE OF SBI (SUPRA), THE HONBLE ITA T, LUCKNOW HAS REFERRED TO A DECISION IN THE CASE OF CIT VS. VEGET ABLE PRODUCTS, 88 ITR 192 (SC) BECAUSE CONFLICTING VIEWS WERE AVAILABLE BEFOR E THEM. HOWEVER, IN THE PRESENT CASE, NO CONTRARY DECISION WAS CITED OR WAS AVAILABLE BEFORE THE HONBLE ITAT SO AS TO SAY THAT THE ISSUE WAS DEBATA BLE. IN FACT, IN VIEW OF THE SEVERAL HIGH COURT DECISIONS AND ALL BEING IN FAVOU R OF THE ASSESSEE TAKING A VIEW OF FOUR YEARS FROM THE END OF THE RELEVANT FIN ANCIAL YEAR [AND THREE YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR] TO BE A REASONABLE PERIOD, THERE WAS NO DEBATE AS SUCH. HENCE, THE REVENUE HAS WRONGLY READ AND UNDERSTOOD THE RATIO OF SBI (SUPRA), IN THE SUBJECT ED ITAT ORDER. 3.4 THE HON'BLE ITAT HAS NOT SPECIFICALLY MENTIONED THE PERIOD OF SIX YEARS AS WRONGLY READ BY THE REVENUE. 3.5 NOTABLY, THE REVENUE HAS ITSELF ADMITTED THAT THE HON'BLE ITAT HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. 4. NEEDLESS TO SAY THAT THE DECISION RENDERED ITAT HA S TO BE READ IN THE LIGHT OF THE GROUND RAISED BY THE PARTY WHICH, IN THE PRE SENT CASE HAS SPECIFICALLY MENTIONED/CONTENDED THAT '------ THE IMPUGNED ORDER SO PASSED ON DATED 31.03 .2015 I.R.T. FY 2007-08 AFTER A LAPSE OF A LONG PERIOD OF ALMOST SEVEN YEARS , IS CONTRARY TO THE INTENTION OF THE LEGISLATURE AND TO THE VARIOUS JUDICIAL PRONOUNCEMENTS AND HENCE, IS CERTAINLY BARRED BY LIMITATION AND THEREFORE, THE SAME KINDLY BE QUASHED IN LIMINE.' THEREFORE, WHAT COMES OUT FROM A COMPLETE READING O F THE SUBJECTED ITAT ORDER IS THAT THE IMPUGNED ORDER DATED 31.03.2 015 HAS BEEN 8 M.A. NO. 85 & 61/JP/2017. M/S ID. MOHD. NIZAMUDDIN, TONK. QUASHED AND THAT THE REASONABLE PERIOD OF LIMITATIO N HAS BEEN HELD TO BE THE MAXIMUM PERIOD OF FOUR YEARS FROM THE END OF THE RELEVANT FINANCIAL YEAR. 5. IN THE LIGHT OF THE ABOVE SUBMISSIONS ITSELF, IT IS CLEAR THAT WHAT THE REVENUE HAS POINTED OUT IS NOT A MISTAKE APPARENT/GLARING/P ATENT EVEN REMOTELY AND IT IS MORE A PRAYER FOR REVIEW WHICH IS BEYOND THE SCO PE OF SEC.254(2) OF THE ACT. 2.4 WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED TH E MATERIAL AVAILABLE ON RECORD THAT THIS TRIBUNAL FOLLOWING THE DECISION OF THE CO -ORDINATE BENCH IN THE CASE OF STATE BANK OF INDIA VS. ITO IN ITA NO. 438,437 & 439/LKW/ 2012 WHICH WAS RELIED BY THE LD. A/R WHEREIN CO-ORDINATE BENCH AFTER CONSIDERING THE VARIOUS CASE LAWS HELD THAT THE ORDER U/S 201(1), 201(1A) AND 206(C)(6) OF THE ACT ARE TO BE PASSED WITHIN A REASONABLE TIME AT LEAST WITHIN 6 YEARS FROM THE EN D OF THE ASSESSMENT YEAR. NOW, REVENUE IS CONTENDING THAT THE ORDER U/S 206 C (6)/ 207C (7) FOR THE AY 2008-09 WAS PASSED ON 31/3/2015 WITHIN 6 YEARS FROM THE END OF THE ASSESSMENT YEAR. LD. A/R STATES THAT THERE ARE OTHER JUDGMENTS BY THE HONBL E HIGH COURTS THAT PRESCRIBES LIMITATION AS FOUR YEARS. AFTER CONSIDERING THE TOT ALITY OF THE FACT AND THE SUBMISSIONS MADE BY THE PARTIES. WE RECALL OUR ORDER DATED 27/ 10/2016 TO BE FIXED FOR HEARING AFRESH, FOR CONSIDERING THE ISSUE OF LIMITATION AFR ESH. REGISTRY TO FIX HEARING OF APPEAL IN DUE COURSE. M.A. NO. 85/JP/2017. 3. NOW, COMING TO THE MISCELLANEOUS APPLICATION OF THE ASSESSE I.E. M.A. NO. 85/JP/2017. 9 M.A. NO. 85 & 61/JP/2017. M/S ID. MOHD. NIZAMUDDIN, TONK. 3.1 THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN SYNOPSIS. FOR THE SAKE OF CLARITY THE CON TENTS OF THE SAME ARE REPRODUCED HEREIN BELOW: 1. IN HONDA SIEL PRODUCT LTD. V/S CIT (2007) 295 ITR 466 (SC) (DPB 1-5) , IT WAS HELD THAT WHEN PREJUDICE RESULT FROM AN ORDE R ATTRIBUTABLE TO THE TRIBUNALS MISTAKE, ERROR OR OMISSION, THEN IT IS T HE DUTY OF THE TRIBUNAL TO SET IT RIGHT. ATONEMENT TO THE WRONG PARTY BY THE COURT OR TRIBUNAL FOR THE WRONG COMMITTED BY IT HAS NOTHING TO DO WITH THE CONCEPT OF INHERENT POWER REVIEW. IN THE PRESENT CASE, THE TRIBUNAL WAS JUSTIFIED IN EXERCISING ITS POWER UNDER SEC.254(2)WHEN IT WAS POINTED OUT TO THE TRIBUNAL T HAT THE DECISION OF THE CO- ORDINATE BENCH WAS PLACED BEFORE THE TRIBUNAL WHEN THE ORIGINAL ORDER CAME TO BE PASSED BUT IT HAD COMMITTED A MISTAKE IN NOT CONSIDERING THE MATERIAL WHICH WAS ALREADY ON RECORD. THE TRIBUNAL HAS ACKNO WLEDGED ITS MISTAKE, IT HAS ACCORDINGLY RECTIFIED ITS ORDER. 2. IN THE CASE OF CHAMPA LAL CHOPRA (2002) 257 ITR 74 (RAJ) (DPB 6-8 ), IT WAS HELD THAT HOWEVER, IN A GIVEN CASE WHERE THE FA CTUAL MISTAKE IS SO APPARENT THAT IT BECOMES NECESSARY TO CORRECT THE S AME, THE TRIBUNAL WOULD BE JUSTIFIED IN NOT ONLY CORRECTING THE SAID MISTAK E BY WAY OF RECTIFICATION BUT IF THE JUDGMENT HAS PROCEEDED ON THE BASIS OF THAT FAC T, IT WOULD BE JUSTIFIED IN RECALLING SUCH ORDER. 3. IN THE CASE OF ACIT V/S SAURASHTRA KUTCH STOCK EXCHANGE LTD. (2008 ) 219 CTR 90/305 ITR 227(SC) (DPB 9-17) HELD THAT: 45.RECTIFICATION OF AN ORDER STEMS FROM THE FUNDAME NTAL PRINCIPLE THAT JUSTICE IS ABOVE ALL. IT IS EXERCISED TO REMOVE THE ERROR AND TO DISTURB THE FINALITY. 46. IN S. NAGARAJ & ORS. VS. STATE OF KARNATAKA, 1993 SUPP (4) SCC SAHAI J. STATED : 10 M.A. NO. 85 & 61/JP/2017. M/S ID. MOHD. NIZAMUDDIN, TONK. 'JUSTICE IS A VIRTUE WHICH TRANSCENDS ALL BARRIERS. NEITHER THE RULES OF PROCEDURE NOR TECHNICALITIES OF LAW CAN STAND IN IT S WAY. THE ORDER OF THE COURT SHOULD NOT BE PREJUDICIAL TO ANYONE. RULE OF STARE DECISIS IS ADHERED FOR CONSISTENCY BUT IT IS NOT AS INFLEXIBLE IN ADMINISTRATIVE LAW AS IN PUBLIC LAW. EVEN THE LAW BENDS BEFORE JUSTICE . ENTIRE CONCEPT OF WRIT JURISDICTION EXERCISED BY THE HIGHER COURTS IS FOUNDED ON EQUITY AND FAIRNESS. IF THE COURT FINDS THAT THE ORDER WAS PAS SED UNDER A MISTAKE AND IT WOULD NOT HAVE EXERCISED THE JURISDICTION BU T FOR THE ERRONEOUS ASSUMPTION WHICH IN FACT DID NOT EXIST AND ITS PERP ETRATION SHALL RESULT IN MISCARRIAGE OF JUSTICE THEN IT CANNOT ON ANY PRINCI PLE BE PRECLUDED FROM RECTIFYING THE ERROR. MISTAKE IS ACCEPTED AS VALID REASON TO RECALL AN ORDER. DIFFERENCE LIES IN THE NATURE OF MISTAKE AND SCOPE OF RECTIFICATION, DEPENDING ON IF IT IS OF FACT OR LAW. BUT THE ROOT FROM WHICH THE POWER FLOWS IS THE ANXIETY TO AVOID INJUSTICE. IT IS EITH ER STATUTORY OR INHERENT. THE LATTER IS AVAILABLE WHERE THE MISTAKE IS OF THE COURT. IN ADMINISTRATIVE LAW, THE SCOPE IS STILL WIDER. TECHN ICALITIES APART IF THE COURT IS SATISFIED OF THE INJUSTICE THEN IT IS ITS CONSTITUTIONAL AND LEGAL OBLIGATION TO SET IT RIGHT BY RECALLING ITS ORDER'. 4. IN A RECENT DECISION IN RELIANCE COMMUNICATION LTD. V/S DDIT (2017) 183 TTJ 388 (MUM) (DPB 18-31) , IT WAS HELD THAT ------ MISREADING OF DECISION OF A HIGH COURT WOULD ALSO R ESULT IN A MISTAKE APPARENT FROM RECORD WARRANTING RECALL OF THE ORDER. ASSESSEES HAVE SUBMITTED THAT THE SOFTWARE PURCHAS ED BY THEM IS SPECIFIC TO RUN THE HARDWARE AND HENCE IT WAS NOT A CASE OF SHRINK- WRAPPED SOFTWARE. FURTHER, DELHI HIGH COURT HAS HEL D IN THE CASE OF ERICSON (SUPRA) THAT THE SOFTWARE WOULD NOT ROYALTY , EVEN IT WAS SUPPLIED SEPARATELY. ALL THESE POINTS SUPPORT THE C ASE OF ASSESSEE THAT THE TRIBUNAL HAS MISREAD THE DECISION RENDERED BY T HE DELHI HIGH COURT IN THE CASE OF ERICSON (SUPRA). TRIBUNAL HAS ALSO COMMITTED AN ERROR IN NOT APPRECIATING THE FACTS PREVAILING IN T HE INSTANT CASES. HENCE, THERE IS MERIT IN THE CONTENTIONS OF THE ASS ESSEES THAT THE 11 M.A. NO. 85 & 61/JP/2017. M/S ID. MOHD. NIZAMUDDIN, TONK. IMPUGNED ORDER OF THE TRIBUNAL SUFFERS FROM MISTAKE APPARENT FROM RECORD. IN VIEW OF THE FOREGOING REASONS ALONE, THE IMPUGNED ORDERS PASSED IN ASSESSEES CASES ARE RECALLED. ---- CIT VS. QUALITY STEEL TUBES LTD. (2012) 253 CTR 298 (ALL) : (2012) 76 DTR 457 (ALL) AND PLAZA INVESTMENTS (P) LTD. VS. ITO (2006) 104 TTJ 0 098 (MUM) : (2007) 108 ITD 0239 (MUM) FOLLOWED . (PARAS 19 & 20) 5. CIT VS. QUALITY STEEL TUBES LTD. (2012) 253 CTR 0298/76 DTR 0457 (ALL HC) (DPB 32-38) 6. IN GEHNA V/S ITO (2011) 137 TTJ 0017 (UO) (JP) (DPB 39 -52) THAT APPEAL (TRIBUNAL)RECTIFICATION UNDER S. 254(2)NO N-CONSIDERATION OF SUBMISSIONS AND DECISIONSDURING THE APPELLATE P ROCEEDINGS BEFORE THE TRIBUNAL AT THE TIME OF HEARING OF APPEA LS OF THE DEPARTMENT AND ASSESSEE, DETAILED WRITTEN SUBMISSIONS WERE FIL ED BEFORE THE TRIBUNAL IN SUPPORT OF THE ORDER OF CIT(A)HOWEVER, WHILE TAKING A VIEW AGAINST THE FINDING OF CIT(A), THE FINDING OF CIT(A) HAD NOT BEEN TAKEN INTO CONSIDERATION BY THE TRIBUNALTHERE IS N O WHISPER IN RESPECT TO THE DECISIONS RELIED UPON BY COUNSEL OF THE ASSESSEE DURING THE HEARING OF THE APPEAL BEFORE THE TRIBUNALA MIS TAKE HAS BEEN CREPT IN THE ORDER OF THE TRIBUNAL BY NOT TAKING IN TO CONSIDERATION THE VITAL ASPECT OF THE CASE AND VARIOUS CASE LAWSORDE R OF THE TRIBUNAL IS RECALLED IN TOTO TO DECIDE THE SAME AFRESH THIS DECISION HAS RECENTLY THE HON'BLE RAJASTHAN HI GH COURT HAS AFFIRMED THE ABOVE ORDER IN DB CWP 26/11 VIDE ORDER DATED 10.05.2017 (DPB 53-60). 7. THE DECISION OF THE SPECIAL BENCH ONLY RESOLVES THE ISSUE ARISING FROM THE CONTRARY VIEWS TAKEN BY DIFFERENT BENCHES OF THE TR IBUNAL. SUCH DECISION IS BINDING ON THE BENCHES OF THE TRIBUNAL ACROSS THE C OUNTRY IN THE ABSENCE OF HIGH COURT DECISION. HOWEVER, IT CANNOT PREVAIL OVE R THE DECISION OF A HIGH 12 M.A. NO. 85 & 61/JP/2017. M/S ID. MOHD. NIZAMUDDIN, TONK. COURT EVEN NON-JURISDICTIONAL ONE. IN THE ABSENCE O F A DECISION OF JURISDICTIONAL HIGH COURT, THE DECISION OF A HIGH COURT COMMANDS G REATER RESPECT BEING OF HIGHER WISDOM AS HELD IN CASE OF CIT V. GODAVARI DEVI SARAF (SMT.) (1978) 113 ITR 589 (BOM). 8. IN ACIT V/S ITAT (1983) 139 ITR 615 (AP) IT WAS HELD THAT TRIBUNAL CAN RECTIFY TYPOGRAPHICAL MISTAKES IN ITS ORDER WITHOUT NOTICE TO THE PARTIES TO APPEAL. 3.2 ON THE CONTRARY, LD. D/R OPPOSED THE SUBMISSION S AND SUBMITTED THAT THE LUCKNOW BENCH OF THE TRIBUNAL IN THE CASE OF SBI VS . ITO (SUPRA) HAS CONSIDERED ALL THE JUDGMENTS. 3.3 WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED TH E MATERIAL AVAILABLE ON RECORD. THE CO-ORDINATE BENCH OF THIS TRIBUNAL HAS CONSIDERED ALL THE JUDGMENTS HAS RELIED BY THE LD. COUNSEL FOR THE ASSESSEE HAS HELD AS UNDER:- 11. THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. HUTCHISON ESSAR TELECOM LTD. [2010] 323 ITR 230 (DELHI) HELD THAT T HE PROCEEDINGS U/S 201 / 201(1A) COULD BE INITIATED ONLY WITHIN FOUR YEARS F ROM THE END OF THE RELEVANT FINANCIAL YEAR. THE PROCEEDINGS U/S 201/201(1A) WE RE ADMITTEDLY INITIATED BEYOND THE PERIOD OF THREE YEARS FROM THE END OF TH E RELEVANT ASSESSMENT YEAR AS ALSO BEYOND THE PERIOD OF FOUR YEARS FROM T HE END OF THE FINANCIAL YEAR. CONSEQUENTLY, THE TRIBUNAL HAD CORRECTLY CONC LUDED THAT THE PROCEEDINGS WERE BEYOND TIME. 1. WE HAVE ALSO EXAMINED THE JUDGMENT OF THE HONBLE P UNJAB AND HARYANA HIGH COURT IN THE CASE OF CIT (TDS) VS. H.M.T. LTD. 340 ITR 219 (P&H) AND HONBLE CALCUTTA HIGH COURT IN THE CASE OF BHUR A EXPORT LTD. VS. ITO (TDS) [2012] 202 TAXMAN 8 AND NOTICED THAT IN THESE JUDGMENTS IT HAS BEEN HELD THAT THE ORDER PLACED BY THE AO U/S 20191 ) AND 201(1A) O THE ACT COULD NOT BE ANNULLED ON THE GROUND OF DELAY AN D LATCHES. 13 M.A. NO. 85 & 61/JP/2017. M/S ID. MOHD. NIZAMUDDIN, TONK. 2. WE FIND THAT TWO DIVERGENT VIEWS HAVE BEEN EXPRESSE D BY THE DIFFERENT HIGH COURT ON THE IMPUGNED ISSUE. IN THE LIGHT OF THE JUDGMENT OF THE HONBLE APEX COURT IN THE CASE OF CIT VS. VEGETABLE PRODUCT, 88 ITR 192 (SC), THE JUDGMENT WHICH IS IN FAVOUR OF THE ASSESS EE SHOULD BE ACCEPTED. WE, THEREFORE, HAVE NO OPTION BUT TO FOLLOW THE JUD GMENT PASSED BY THE HONBLE DELHI HIGH COURT AND THE ORDER OF THE SPECI AL BENCH OF THE TRIBUNAL WHICH ARE IN FAVOUR OF THE ASSESSEE. ACCO RDINGLY WE HOLD THAT THE IMPUGNED ORDERS U/S 201(1), 201(1A) AND 206C(7) OF THE ACT ARE TO BE PASSED WITHIN A REASONABLE TIME I.E AT LEAST WITHIN SIX YEARS FROM THE END OF THE A.Y. SINCE THE IMPUGNED ORDERS IN ALL THE C ASES ARE PASSED AFTER MORE THAN 10 YEARS FROM THE END OF THE A.Y, THEY AR E CERTAINLY BEYOND THE REASONABLE TIME. THEREFORE, WE HAVE NO HESITATION IN HOLDING THEM TO BE CARRIED BY LIMITATION AND ACCORDINGLY WE ANNUAL THE SAME. ACCORDINGLY THE ASSESSEES APPEALS IN ITA NOS. 437, 438 & 439/LKW/2 012 STAND ALLOWED AND THE REVENUES APPEALS IN ITA NOS. 476,477,479. 480 AND 481/LKW/2012 STAND DISMISSED. 3.4 SINCE WE HAVE RECALLED OUR ORDER DATED 27.10.20 16, THE APPEAL HAS BEEN FIXED FOR HEARING AFRESH IN THE MISCELLANEOUS APPLICATION OF THE REVENUE NO. 61/JP/2017. THE AVERMENTS MADE IN THIS APPLICATION WOULD BE CON SIDERED AT THE TIME OF HEARING OF APPEAL. THIS APPLICATION OF THE ASSESSEE IS DISP OSED OF IN THE TERMS INDICATED HEREINABOVE. 4. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIO NS OF THE ASSESSEE ARE DISPOSED OF. ORDER PRONOUNCED IN THE OPEN COURT ON FRIDAY, THE 27 TH DAY OF OCTOBER 2017. SD/- SD/- FOE FLAG ;KNO ( DQY HKKJR ) (VIKRAM SINGH YADAV) ( KUL BHARAT ) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER 14 M.A. NO. 85 & 61/JP/2017. M/S ID. MOHD. NIZAMUDDIN, TONK. JAIPUR DATED:- 27/10/2017 POOJA- VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- M/S ID. MOHD. NIZAMUDDIN, TONK. 2. THE RESPONDENT- THE ITO, TDS-3, JAIPUR. 3. THE CIT, 4. THE CIT (A) 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (MA NO. 85 & 61/JP/2017) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR