Gowda saraswath mahila vrinda, Bangalore V. Director of income tax(Exemptions), Bangalore

MA 63/BANG/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4639 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-08-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 07-06-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: R CHANDRASHEKAR
• Keywords: Rectification of order
• Section: 12AA; 154; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE S MT. ASHA VIJAYARAGAHVAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER MISC.PETN.NO. 63 /BANG/20 16 (IN ITA NO. 820 / BANG/20 14 ) GOWDA SARASWATH MAHILA VRINDA, NO.8 , ASHWINI, 8 TH MAIN, RMV EXTENSION, BANGALORE - 560080. PA NO.AAATG 9767 E PETITIONER VS . THE DIRECTOR OF INCOME - TAX (EXEMPTION) BANGALORE. RESPONDENT PETITIONER BY: SHRI R.CHANDRASHEKAR, ADVOCATE. RESPONDENT BY: SHRI SUN IL KUMAR AGARWAL, ADDL.CIT(DR) DATE OF HEARING : 08/07/2016 DATE OF PRONOUNCEMENT: 26 /08/2016 O R D E R PER INTURI RAMA RAO , AM : THE PRESENT MISCELLANEOUS PETITION IS FILED BY THE ASSESSEE ALLEGING THAT THIS TRIBUNAL, WHILE PASSING THE ORD ER IN ITA NO.820/BANG/2014 DATED 20/ 0 1/2016, HAD NOT ADJUDICATED THE SUBMISSION OF THE ASSESSEE THAT AT THE TIME OF GRANT OF REGISTRATION U/S 12AA OF THE INCOME - TAX ACT, 1961, THE DIRECTOR OF INCOME - TAX (EXEMPTION) SHOULD NOT CONSIDER APPLICABILITY OF THE MP NO . 63 /BANG/20 16 PAGE 2 PROVISIONS OF SECTION 13(1)(B) OF THE ACT. THEREFORE, IT IS PRAYED THAT THE ORDER PASSED BY THE TRIBUNAL MAY BE RECALLED. 2. WE HEARD RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. ON PERUSAL OF THE MEMO OF APPEAL AND GROUNDS OF APPEAL, IT IS CLEA R THAT THE ASSESSEE - SOCIETY HAD NEITHER RAISED GROUND TO THE EFFECT THAT REGISTRATION U/S 12AA CANNOT BE DENIED, CONSIDERING THE PROVISIONS OF SECTION 13(1)(B) OF THE ACT, NOR THE ASSESSEE - SOCIETY HAS FILED ANY EVIDENCE THAT PLEADING WAS MADE TO THIS EFFEC T. THE PROVISIONS OF SECTION 254(2) CANNOT BE EXERCISED TO RE - ARGUE THE MATTER AFRESH ON DIFFERENT GROUNDS OR REASONING. IN THIS CONTEXT, IT IS RELEVANT TO QUOTE FROM THE JUDGMENT OF THE HON BLE MADRAS HIGH COURT IN THE CASE OF EXPRESS NEWSPAPERS LTD. VS . DCIT (2010)(320 ITR 12)(MAD) AS UNDER: 9. THE SCOPE AND AMPLITUDE OF S. 254(2) AND THE ANALOGOUS PROVISION S. 154 OF THE ACT HAVE BEEN CONSIDERED BY CATENA OF DECISIONS OF THE APEX COURT AND OTHER HIGH COURTS. THE UNIFORM OPINION OF THE COURTS OF SUPERI OR JURISDICTION IS THAT A PATENT, MANIFEST AND SELF - EVIDENT ERROR WHICH DOES NOT REQUIRE ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENT TO ESTABLISH IT, CAN BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORD AND CAN BE CORRECTED UNDER S. 254(2). AN ER ROR CANNOT BE SAID TO BE APPARENT ON THE FACE OF THE RECORD IF ONE HAS TO TRAVEL BEYOND THE RECORD TO SEE WHETHER THE JUDGMENT IS CORRECT OR NOT. AN ERROR APPARENT ON THE RECORD MEANS AN ERROR WHICH STRIKES ONE ON MERE LOOKING AND DOES NOT NEED A LONG DRAW N OUT PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. THE ERROR SHOULD NOT REQUIRE ANY EXTRANEOUS MATTER TO SHOW ITS INCORRECTNESS. TO PUT IT DIFFERENTLY, IT SHOULD BE SO MANIFEST AND CLEAR THAT NO COURT WOULD PERMIT IT TO RE MAIN ON RECORD. IF THE VIEW ACCEPTED BY THE COURT IN THE ORIGINAL JUDGMENT IS ONE OF POSSIBLE VIEWS, THE CASE CANNOT BE SAID TO BE COVERED BY AN ERROR APPARENT ON THE FACE OF THE RECORD. SEC. 254(2) SPECIFICALLY EMPOWERS THE TRIBUNAL TO AMEND AT MP NO . 63 /BANG/20 16 PAGE 3 ANY TIME W ITHIN FOUR YEARS FROM THE DATE OF AN ORDER, ANY ORDER PASSED BY IT UNDER S. 254(1) WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD EITHER SUO MOTU OR ON AN APPLICATION. IN ORDER TO ATTRACT THE APPLICATION OF S. 254(2), THE MISTAKE MUST EXIST AN D THE SAME MUST BE APPARENT FROM THE RECORD. THE EXPRESSION 'MISTAKE APPARENT FROM THE RECORD' CONTAINED IN SS. 154 AND 254(2) HAS WIDER CONTENT THAN THE EXPRESSION 'ERROR APPARENT ON THE FACE OF THE RECORD' OCCURRING IN ORDER 47 R. 1 OF CPC. THE RESTRICTI ONS ON THE POWER OF REVIEW UNDER ORDER 47 R. 1 OF CPC DO NOT HOLD GOOD IN THE CASES OF SS. 254(2) AND 154 OF THE ACT. SEC. 254(2) DOES NOT CONFER POWER ON THE TRIBUNAL TO REVIEW ITS EARLIER ORDER. UNDER THE GARB OF RECTIFICATION OF MISTAKE IT IS NOT POSSIB LE FOR A PARTY TO TAKE FURTHER CHANCE OF RE - ARGUING THE APPEAL ALREADY DECIDED. WHAT CAN BE RECTIFIED UNDER S. 254(2) IS A MISTAKE WHICH IS APPARENT AND PATENT. THE MISTAKE HAS TO BE SUCH FOR WHICH NO ELABORATE REASONS OR ENQUIRY IS NECESSARY. WHERE TWO OP INIONS ARE POSSIBLE THEN IT CANNOT BE SAID TO BE A MISTAKE APPARENT ON THE RECORD. WHEN PREJUDICE RESULTING FROM AN ORDER IS ATTRIBUTABLE TO THE TRIBUNAL S MISTAKE, ERROR OR OMISSION, IT IS ITS BOUNDEN DUTY TO SET IT RIGHT. THE PURPOSE BEHIND THE ENACTMENT OF S. 254(2) OF THE ACT TO AMEND ANY ORDER PASSED UNDER SUB - S. (1), IF ANY MISTAKE APPARENT FROM THE RECORDS IS BROUGHT TO THE NOTICE OF THE TRIBUNAL, IS BASED ON THE FUNDAMENTAL PRINCIPLE THAT NO PARTY APPEARING BEFORE THE TRIBUNAL, BE IT AN ASSESSEE OR THE DEPARTMENT, SHOULD SUFFER ON ACCOUNT OF ANY MISTAKE COMMITTED BY THE TRIBUNAL. THIS FUNDAMENTAL PRINCIPLE HAS NOTHING TO DO WITH THE INHERENT POWER OF THE TRIBUNAL. IF PREJUDICE IS RESULTED TO THE PARTY, WHICH PREJUDICE IS ATTRIBUTABLE TO THE TRIBUNAL S MISTAKE, ERROR OR OMISSION AND WHICH ERROR IS A MANIFEST ERROR, THEN THE TRIBUNAL WOULD BE JUSTIFIED IN RECTIFYING ITS MISTAKE. RECTIFICATION CAN BE MADE ONLY WHEN A GLARING MISTAKE OF FACT OR LAW COMMITTED BY THE OFFICER PASSING THE ORDER BECOMES APPARE NT FROM THE RECORD. THE RECTIFICATION IS NOT POSSIBLE IF THE QUESTION IS DEBATABLE. A POINT WHICH WAS NOT EXAMINED ON FACTS OR IN LAW CANNOT BE DEALT WITH AS A MISTAKE APPARENT FROM THE RECORD. NO ERROR CAN BE SAID TO BE APPARENT ON THE FACE OF THE RECORD IF IT IS NOT MANIFEST OR SELF - EVIDENT AND REQUIRES AN EXAMINATION OR ARGUMENT TO ESTABLISH IT. WHERE WITHOUT ANY ELABORATE ARGUMENT ONE COULD POINT TO THE ERROR AND SAY HERE IS A SUBSTANTIAL POINT OF LAW WHICH STARES ONE IN THE FACE, AND THERE COULD REASON ABLY BE NO TWO OPINIONS ENTERTAINED ABOUT IT, IS A CLEAR CASE OF ERROR APPARENT ON THE FACE OF THE RECORD. MP NO . 63 /BANG/20 16 PAGE 4 VIDE ASSTT. CIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. (2008) 219 CTR (SC) 90 : (2008) 12 DTR (SC) 346 : (2008) 305 ITR 227 (SC), HONDA SIEL POWER PRODUCTS LTD. VS. CIT (2007) 213 CTR (SC) 425 : (2007) 295 ITR 466 (SC), HARI VISHNU KAMATH VS. AHMAD ISHAQUE (1955) 1 SCR 1104, CIT VS. KESHRI METAL (P) LTD. (1999) 155 CTR (SC) 531 : (1999) 237 ITR 165 (SC), DEVA METAL POWER (P) LTD. VS. CIT 2008 (2) SCC 439, CIT VS. HERO CYCLES (P) LTD. (1997) 142 CTR (SC) 122 : (1997) 228 ITR 463 (SC), SATYANARAYAN LAXMINARAYAN HEGDE VS. MALLIKARJUN BHAVANAPPA TIRUMALE (1960) 1 SCR 890, THUNGABHADRA INDUSTRIES LTD. VS. GOVERNMENT OF ANDHRA PRADESH, REP. BY THE DY. CCT A IR 1964 SC 1372, BATUK K. VLYAS VS. SURAT BOROUGH MUNICIPALITY ILR 1953 BOM 191, MRS. K.T.M.S. UMMA SALMA VS. CIT (1983) 144 ITR 890, 895 (MAD), KIL KOTAGIRI TEA & COFFEE ESTATES CO. LTD. VS. ITAT (1989) 75 CTR (KER) 115 : (1988) 174 ITR 579 (KER), CIT VS. R. CHELLADURAI (1979) 11 CTR (MAD) 157 : (1979) 118 ITR 108 (MAD), STATE OF TAMIL NADU VS. THAKOREBHAI & BROS. (1983) 52 STC 104 (MAD), JAINARAIN JEEVRAJ VS. CIT (1979) 13 CTR (RAJ) 342 : (1980) 121 ITR 358, 363 (RAJ), CIT VS. VARDHMAN SPINNING (1997) 139 CTR (P&H) 322 : (1997) 226 ITR 296, 302 (P&H), BATA INDIA LTD. VS. DY. CIT (1996) 217 ITR 871 (CAL) AND CIT VS. PRAHLAD RAI TODI (2001) 171 CTR (GAU) 537 : (2001) 251 ITR 833 (GAU). 10. FROM THE VARIOUS JUDGMENTS OF THE SUPREME COURT ABOVE REFERRED TO AND OTHER HIGH COURTS, IT IS CLEAR THAT THE TRIBUNAL S POWER UNDER S. 254(2) IS NOT TO REVIEW ITS EARLIER ORDER BUT ONLY TO AMEND IT WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD. WHAT CAN BE TERMED AS 'MISTAKE APPARENT ?'. 'MISTAKE' IN GENERAL MEANS TO TAKE OR UNDERSTAND WRONGLY OR INACCURATELY; TO MAKE AN ERROR IN INTERPRETING; IT IS AN ERROR; A FAULT, A MISUNDERSTANDING, A MISCONCEPTION. MISTAKE IN TAXATION LAWS HAS A SPECIAL SIGNIFICANCE. IT IS MOSTLY SUBJECTIVE AND THE DIVIDING LINE IS THIN AND INDISCERNIBLE. 'APPARENT' MEANS VISIBLE, CAPABLE OF BEING SEEN, EASILY SEEN, OBVIOUS PLAIN, OPEN TO VIEW, EVIDENT, APPEARS, APPEARING AS REAL AND TRUE, CONSPICUOUS, MANIFEST, SEEMING. THE PLAIN MEANING OF THE WORD 'APPARENT' IS THAT IT MUST BE SOMETHIN G WHICH APPEARS TO BE EX FACIE AND INCAPABLE OF ARGUMENT AND DEBATE. IF SUCH A 'MISTAKE APPARENT ON THE FACE OF RECORD' IS BROUGHT TO THE NOTICE, S. 254(2) EMPOWERS THE TRIBUNAL TO AMEND THE ORDER PASSED UNDER S. 254(1). AMENDMENT OF AN ORDER DOES NOT MEAN OBLITERATION OF THE ORDER ORIGINALLY PASSED AND ITS SUBSTITUTION BY A NEW ORDER. WHAT IS MP NO . 63 /BANG/20 16 PAGE 5 MISTAKE APPARENT ON THE FACE OF THE RECORD OR WHERE DOES A MISTAKE CEASE TO BE MERE MISTAKE, AND BECOME MISTAKE APPARENT ON THE FACE OF THE RECORD IS RATHER DIFFICULT TO DEFINE PRECISELY, SCIENTIFICALLY AND WITH CERTAINTY. AN ELEMENT OF INDEFINITENESS INHERENT IN ITS VERY NATURE AND IT MUST BE DISCERNIBLE FROM THE FACTS OF EACH CASE BY JUDICIOUSLY TRAINED MIND. MERE EXISTENCE OF A MISTAKE OR ERROR WOULD NOT PER SE REND ER THE ORDER AMENABLE FOR RECTIFICATION, BUT SUCH A MISTAKE MUST BE ONE WHICH MUST BE MANIFEST ON THE FACE OF THE RECORD. APPLYING THE ABOVE PRINCIPLES TO THE FACTS OF THE CASE, THE PRESENT MISCELLANEOUS PETITION IS PREMISED ON THE MATERIAL WHICH IS NOT PART OF THE RECORD OF THE CASE. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE PRESENT MISCELLANEOUS PETITION IS NOT MAINTAINABLE AS THE ASSESSEE HAD FAILED TO MAKE OUT ANY MISTAKE WHICH IS APPARENT FROM RECORD WHICH IS CAPABLE OF BEING RECTIFIED UND ER THE PROVISIONS OF SECTION 254(2) OF THE ACT. 3. IN THE RESULT, THE MISCELLANEOUS PETITION IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 26 TH AUGUST , 2016 . SD/ - SD/ - ( (ASHA VIJAYARAGHAVAN ) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT ME MBER PLACE : BANGALORE D A T E D : 26 /08/2016 E KSRINIVASULU ,SPS COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INC OME - TAX APPELLATE T RIBUNAL BANGALORE