Raju Sebastian, Kottayam V. The DCIT, Kottayam

MA 63/COCH/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2290 (ITAT-COCHIN)
• Duration Of Justice: 1 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 05-09-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 17-07-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: LATHA V KUMAR
• Assessee Lawyers: K I JOHN
• Section: 147; 148

Judgement Text

1 ITA NO.63/COCH/2014 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI CHANDRA PO OJARI (AM) M.A. NO.63/COCH/2014 (ARISING OUT OF I.T.A NO. 89/COCH/2014) (ASSESSMENT YEAR 2007-08) SHRI RAJU SEBASTIAN VS THE DY.CIT, CIR.1 POOVELI HOUSE KOTTAYAM KOTTAYAM PAN : AIGPR1170A (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI K.I. JOHN RESPONDENT BY : SMT. LATHA V KUMAR, JR DR DATE OF HEARING : 05-09-2014 DATE OF PRONOUNCEMENT : 12-09-2014 O R D E R PER N.R.S. GANESAN (JM) THE ASSESSEE FILED THE PRESENT MISCELLANEOUS APPLI CATION ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL DATED 09-05-2014. 2. SHRI K.I. JOHN, THE LD.REPRESENTATIVE FOR THE AS SESSEE SUBMITTED THAT DURING THE COURSE OF ARGUMENTS, THE ASSESSEE PLACED RELIANCE ON THE JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN CIT VS KESAVA REDDIAR 178 ITR 457 (KER) AND THE JUDGMENT OF THE APEX COURT IN V J AGANMOHAN RAO AND OTHERS VS CIT 75 ITR 373 (SC). ACCORDING TO THE LD .REPRESENTATIVE, WHEN 2 ITA NO.63/COCH/2014 THE NOTICE WAS ISSUED U/S 147 OF THE ACT FOR REOPEN ING OF THE ESCAPED INCOME, THE ENTIRE ASSESSMENT MADE BY THE ASSESSING OFFICER STANDS VACATED AND, THEREFORE, HE CANNOT LEVY ANY TAX ON T HE BASIS OF THE ORDER ALREADY PASSED. THIS SUBMISSION OF THE ASSESSEE DU RING THE COURSE OF ARGUMENTS WAS NOT CONSIDERED BY THIS TRIBUNAL. THE LD.REPRESENTATIVE FURTHER SUBMITTED THAT THIS TRIBUNAL BY REFERRING T O THE JUDGMENT OF THE APEX COURT IN THE CASE OF JAGANMOHAN RAO & ORS (SUPRA) A DMITTED THAT ONCE THE ASSESSMENT WAS REOPENED, THE PREVIOUS ORDER OF ASSESSMENT IS SET ASIDE AND THE WHOLE ASSESSMENT PROCEEDINGS STARTS A FRESH. 3. THE LD.REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THIS TRIBUNAL OBSERVED THAT ONCE THE NOTICE ISSUED U/S 148 IS WIT HDRAWN THERE IS NO SUBSEQUENT ORDER OF ASSESSMENT, HENCE, THE ASSESSME NT ORDER PASSED EARLIER WOULD GET VACATED. ACCORDING TO THE LD.REP RESENTATIVE, THE ASSESSING OFFICER HAS NO POWER TO WITHDRAW THE NOTI CE ISSUED U/S 148. NO IMPLIED POWER IS CONFERRED ON THE ASSESSING OFFICER TO WITHDRAW THE NOTICE ISSUED FOR REOPENING THE CASE. THEREFORE, THE OBSE RVATION MADE BY THIS TRIBUNAL IS ERRONEOUS. ACCORDING TO THE LD.REPRESE NTATIVE, THE NON CONSIDERATION OF THE SUBMISSIONS MADE BY THE ASSESS EE WOULD VITIATE THE ORDER OF THE TRIBUNAL, THEREFORE, IT NEEDS TO BE RE CALLED. 3 ITA NO.63/COCH/2014 4. WE HEARD SMT. LATHA V KUMAR, THE LD.DR. THE LD. DR SUBMITTED THAT THERE IS NO ERROR IN THE ORDER OF THIS TRIBUNAL. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. THIS TRI BUNAL, AFTER CONSIDERING THE SUBMISSIONS OF THE LD.REPRESENTATIVE FOR THE AS SESSEE THAT THE ORDER OF THE ASSESSING OFFICER GETS VACATED AS SOON AS THE N OTICE U/S 147 WAS ISSUED FOR REOPENING THE ASSESSMENT REJECTED THE SM E AFTER PLACING RELIANCE ON THE JUDGMENT OF THE APEX COURT IN THE C ASE OF SUN ENGINEERING WORKS P LTD (1992) (198 ITR 297) AND ALAGENDRAN FIN ANCE LTD 293 ITR 1. THEREFORE, IT IS NOT CORRECT TO SAY THAT THE SUBMIS SION OF THE LD.REPRESENTATIVE FOR THE ASSESSEE WAS NOT CONSIDER ED. THIS TRIBUNAL EXAMINED THE ISSUE ELABORATELY AND IN VIEW OF THE J UDGMENT OF THE APEX COURT AND THE PHRASEOLOGY OF SECTION 147 THE SUBMIS SIONS OF THE LD.REPRESENTATIVE WAS NOT ACCEPTABLE. IN FACT, ALL THE JUDGMENTS REFERRED BY THE LD.COUNSEL WERE REFERRED TO. REFERRING TO THE SUBMISSIONS OF THE LD.REPRESENTATIVE FOR THE ASSESSEE THAT THE ASSESSI NG OFFICER HAS NO POWER TO WITHDRAW THE NOTICE ISSUED U/S 148, THIS TRIBUNA L IN VIEW OF THE JUDGMENT OF THE APEX COURT IN GKN DRIVESHAFTS INDIA LTD VS I TO 259 ITR 19 (SC) FOUND THAT ONCE THE NOTICE WAS ISSUED IT WAS OPEN T O THE ASSESSEE TO FILE RETURN OF INCOME AND ASK FOR REASONS FOR REOPENING. IT IS ALSO OPEN TO THE ASSESSEE TO FILE OBJECTIONS WITH REGARD TO REOPENIN G OF THE ASSESSMENT. 4 ITA NO.63/COCH/2014 ONCE THE OBJECTION IS FILED, THE ASSESSING OFFICER SHALL DISPOSE OF THE SAME BY SPEAKING ORDER. THEREFORE, IT IS OBVIOUS THAT T HE SUPREME COURT IN THE CASE OF GKN DRIVESHAFTS INDIA LTD (SUPRA) FOUND THA T THE ASSESSING OFFICER CAN WITHDRAW THE NOTICE ISSUED U/S 148 IF HE IS SAT ISFIED ON THE BASIS OF THE OBJECTIONS RAISED BY THE ASSESSEE. THEREFORE, THE CONTENTION OF THE ASSESSEE THAT THERE IS NO INHERENT POWER FOR THE AS SESSING OFFICER TO RECALL THE NOTICE IS NOT CORRECT. 6. THE OTHER CONTENTION RAISED BY THE ASSESSEE ONLY AMOUNTS TO REVIEW OF THE ORDER PASSED BY THE TRIBUNAL. IT IS SETTLED PRINCIPLES OF LAW, THIS TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER. WHA T IS PERMISSIBLE U/S 254(2) IS TO RECTIFY AN ERROR WHICH IS PRIMA FACIE ON RECORD. THIS TRIBUNAL CANNOT REAPPRAISE THE MATERIAL ON RECORD IN A PROCE EDING U/S 254(2) OF THE ACT. THIS TRIBUNAL IS NOT JUSTIFYING THE CORRECTNE SS OF ITS ORDER. WHAT WE ARE TRYING TO SAY IS REAPPRAISAL OF EVIDENCE IS BEY OND THE SCOPE OF SECTION 254(2). THEREFORE, IF AT ALL THE ASSESSEE FEELS AG GRIEVED BY THE ORDER OF THIS TRIBUNAL, IT IS OPEN TO THE ASSESSEE TO MOVE T HE APPROPRIATE FORUM FOR NECESSARY REDRESSAL OF THE GRIEVANCE IN ACCORDANCE WITH LAW. 7. IN VIEW OF THE ABOVE, THIS TRIBUNAL IS OF THE CO NSIDERED OPINION THAT THE ASSESSEES APPLICATION HAS NO MERIT AT ALL. AC CORDINGLY, THE MISCELLANEOUS APPLICATION IS DISMISSED. 5 ITA NO.63/COCH/2014 ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 TH SEPTEMBER, 2014. SD/- SD/- (CHANDRA POOJARI) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 12 TH SEPTEMBER, 2014 PK/- COPY TO: 1. SHRI RAJU SEBASTIAN, POOVELI HOUSE, KOTTAYAM 2. THE DCIT, CIR.1, KOTTAYAM 3. THE COMMISSIONER OF INCOME-TAX, KOTTAYAM 4. THE COMMISSIONER OF INCOME-TAX(A)-IV, KOCHI 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH