Shri Karangiya Vejanand Gigabhai, JUNAGADH V. The Income Tax Officer, Ward 2(1), JUNAGADH

MA 628/RJT/2009

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6478 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 6 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 29-04-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 06-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SAMIR DIVETIA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT. BEFORE SHRI A. L. GEHLOT (AM )AND SHRI N.R.S. GANE SAN(JM) M.A. NO.628/RJT/09 ( ARISING OUT OF ORDER IN ITANO.246/RJT/08.) (ASSESSMENT YEAR 2004-05) SHRI KARANGIYA VEJANAND, VS ITO WD..2(1) GIGABHAI VANTHALI,JUNAGADH. JUNAGADH. PAN: ADAPK5352Q (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SAMIR DIVETIA. RESPONDENT BY: SHRI JAI RAJ KUMAR. O R D E R PER A.L. GEHLOT (AM) THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE WHEREIN IT IS POINTED THAT THE ASSESSEE CH ALLENGED THE ADDITION OF RS.2.0 LACS U/S.69 OF THE ACT. DURING THE COURSE O F HEARING OF THE APPEAL BEFORE THE TRIBUNAL, THE ASSESSEE FILED A PAPER BO OKS AND WRITTEN SUBMISSION ALONG WITH A COPY OF AFFIDAVIT DATED 13-05-2009 OF SHRI MAHENDRA KAKUBHAI SODHA, PROPRIETOR OF RAGHUVIR TRADING CO. WHEREIN, IT IS STATED THAT RS.2.0 LACS WAS TAKEN FROM THE ASSESSEE ON 4 TH NOVEMBER, 2002. IT IS FURTHER SUBMITTED IN THE MISCELLANEOUS APPLICATION THAT THE ITAT WHILE DECIDING THE ISSUE HAS NOT CONSIDERED THE WRITTEN SUBMISSIONS MA DE ALONG WITH THE ABOVE AFFIDAVIT WHICH MAY BE DUE TO OVERSIGHT OF THE ITAT . 2. THE LEARNED A.R. SUBMITTED THAT ONE OF THE CONT ENTIONS OF THE ASSESSEE BEFORE THE ITAT WAS THAT IMPUGNED AMOUNT O F RS.2.0 LACS IS PERTAINING TO THE ASSESSMENT YEAR 2003-04 AND NOT 2 004-05. THIS FACT IS SUPPORTED BY THE AFFIDAVIT OF MAHENDRA K. SODHA FIL ED BEFORE THE ITAT. THE LD. A.R. SUBMITTED THAT THE ITAT HAS TO EXERCISE IT S POWER OF RECTIFICATION M.A.NO.628/RJT/09 A.Y.2004-05. 2 WHEN THE ORDER HAS BEEN PASSED UNDER A FACTUAL MIST AKE APART FROM DOING JUSTICE TO THE PARTIES. THE LD. A.R. IN SUPPORT O F HIS CONTENTION RELIED UPON A JUDGMENT OF SUPREME COURT IN THE CASE OF S. NAGARAJ VS. STATE OF KARNATAKA (1993) [SUPP.) 4 SCC 595, 618. HE HAS ALSO RELIED UPON A RECENT DECISION OF DELHI HIGH COURT IN THE CASE OF LACHMAN DASS BHATIA HINGALA P. LTD. VS. A.C.I.T. 330 ITR 243 (DEL FB) WHEREIN, IT HAS BEEN HELD THAT THE TRIBUNAL CAN RECALL ITS ORDER ENTIRETY IF IT IS SATISFIED TH AT PREJUDICE HAS RESULTED TO THE PARTY DUE TO ITS MISTAKE, ERROR OR OMISSION AND SUC H ERROR IS MANIFEST ERROR AND IT HAS NOTHING TO DO WITH THE DOCTORING OF INHE RENT POWER OF REVIEW. 3. THE LD. D.R., ON THE OTHER HAND, SUBMITTED THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD WHICH CAN BE RECTIFIED U/S .254(2) OF THE ACT. HE RELIED UPON FOLLOWING DECISIONS :- (1) 182 ITR 361-C.I.T. VS. K. L. BHATIA (DELHI), (2) 229 ITR 651- I.T.O. VS. I.T.A.T. (PATNA). 4. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES, PERUSED RECORD. WE FIND THAT THE AFFIDAVIT DATED 13-05-2009 IS ON RECORD. IT APPEARS FROM THE ORDER OF THE ITAT THAT THE SAID AFFIDAVIT HAS NOT BEEN CONSIDERED WHILE DECIDING THE ISSUE. NON-CONSIDERATION OF AFFI DAVIT FILED BY THE ASSESSEE IS APPARENT FROM THE RECORD AND ORDER IS RECTIFIABL E U/S.254(2) OF THE ACT. THE DECISIONS CITED BY THE LD. D.R. ARE DISTINCTABL E ON FACTS. THE JUDGMENT OF THE DELHI HIGH COURT IN THE CASE OF C.I.T. VS. K . L. BHATIA 182 ITR 361 HAS BEEN OVERRULED BY THE DELHI HIGH COURT ITSELF I N ANOTHER JUDGMENT IN THE CASE OF LACHMAN DASS BHATIA HINGALA P. LTD. (SUPP), A JUDGMENT OF FULL BENCH. WE AGREE WITH THE RATIO LAID DOWN BY THE PAT NA HIGH COURT IN THE CASE OF I.T.O. VS. I.T.A.T. THAT TRIBUNAL HAS NO PO WER TO REVIEW ITS ORDER BUT IN THE CASE UNDER CONSIDERATION, IT IS NOT A CASE O F REVIEW BUT IT IS A CASE OF M.A.NO.628/RJT/09 A.Y.2004-05. 3 MISTAKE APPARENT ON RECORD WHICH IS RECTIFIABLE U/S .254(2) OF THE ACT. IN THE LIGHT OF THE FACT, WE RECALL THE ORDER OF THE ITAT DATED 24 TH JULY,2009. THE REGISTRY IS DIRECTED TO FIX THE CASE IN DUE COURSE. 5. MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 06-05-2011. SD/- SD/- (N.R.S.GANESAN) (A.L.GEHL OT) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT. DATED:-06- 05-2011. NVA/ COPY TO: 1. KARANGIYA VEJANAND GIGABHAI,JUNAGADH. 2. ITO WD.2(1) JUNAGADH. 3.THE C.I.T.(A)-III,RAJKOT. 4.THE C.I.T.-III, RAJKOT. 5.THE D.R., I.T.A.T., RAJKOT. TRUE COPY. BY ORDER ASSTT.REGISTRAR. ITAT, RAJKOT.