ASST CIT 11(3), V. SURYA J RUPAREELIA,

MA 671/MUM/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6202 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-03-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: misc
• Appeal Filed On: 15-11-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRAVAN KUMAR
• Assessee Lawyers: M SUBRAMANIAM
• Keywords: Retrospective amendment
• Section: 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI R.S.PADVEKAR, JM M.A.NO.671/MUM/2010 (ARISING OUT OF ITA NO.6632/MUM/1994 : ASST. YEAR 1 982-83) THE ASSTT.COMMISSIONER OF INCOME-TAX CIRCLE 11(3) MUMBAI. VS. SURYA J.RUPARELIA BUNGLOW NO.2, CHATRUPA RAMYA JEEVAN SOCIETY MAHAKALI CAVES ROAD, ANDHERI (EAST) MUMBAI 400 069. PAN : 35-063-PZ-9982/BMY (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI SHRAVAN KUMAR RESPONDENT BY : SHRI M.SUBRAMANIAM O R D E R PER R.S.SYAL, AM : THIS MISCELLANEOUS APPLICATION U/S.254(2) OF THE IN COME-TAX ACT, 1961 HAS BEEN MOVED BY THE REVENUE PRAYING FOR THE RECTIFICA TION OF THE ORDER OF THE TRIBUNAL DATED 27 TH SEPTEMBER, 2007 IN ITA NO.6632/MUM/1994. 2. THE LEARNED DEPARTMENTAL REPRESENTATIVE CONTENDE D THAT THE TRIBUNAL ERRED IN HOLDING THAT THE ORDER PASSED U/S.147 WAS INVALI D FOR THE REASON THAT NOTICE WAS GIVEN FOR A PERIOD OF NOT LESS THAN 30 DAYS. HE S UBMITTED THAT THE AMENDMENT WAS CARRIED OUT U/S.148 TO THE EFFECT OF OBLITERATING T HE REQUIREMENT OF FURNISHING A RETURN WITHIN A PERIOD OF NOT LESS THAN 30 DAYS W ITH RETROSPECTIVE EFFECT FROM 01.04.1989. IT WAS STATED THAT SINCE THE NOTICE U/ S.148 WAS ISSUED ON 28.08.1991, THAT IS DATE AFTER THE DATE OF AMENDMENT COMING INT O FORCE, THE TRIBUNAL OUGHT NOT TO HAVE ACCEPTED ASSESSEES CLAIM ON THIS POINT. IN THE OPPOSITION, THE LEARNED A.R. INVITED OUR ATTENTION TO PARAS 8 TO 10 OF THE TRIBU NAL ORDER, IN WHICH SUCH CONTENTION HAS BEEN DEALT WITH. MA NO.671/MUM/2010 SURYA J.RUPARELIA. 2 3. HAVING HEARD BOTH THE PARTIES AND PERUSED THE RE LEVANT MATERIAL ON RECORD IT IS NOTICED THAT NOTICE U/S.148 WAS ISSUED ON 28.8.1 991 IN RELATION TO ASSESSMENT YEAR 1982-83. THE OMISSION OF THE WORDS NOT LESS T HAN 30 DAYS HAS TAKEN PLACE IN SECTION 148 BY THE FINANCE (NO.2) ACT, 1996 WITH RE TROSPECTIVE EFFECT FROM 1.4.1989. THIS ASPECT OF THE MATTER HAS BEEN DEALT WITH BY THE TRIBUNAL IN PARAS 9 AND 10. AFTER CONSIDERING ANOTHER ORDER PASSED BY T HE TRIBUNAL ON THIS ISSUE, THE BENCH WAS HELD THAT THE REASSESSMENT WAS INVALID. F ROM THE ABOVE NARRATION OF FACTS IT IS APPARENT THAT THE ISSUE OF THE AMENDMEN T COMING INTO FORCE FROM THE DATE ON WHICH SUCH AMENDMENT WAS MADE OR FROM THE START OF THE RELEVANT ASSESSMENT YEAR FROM THAT DATE IS NOT FREE FROM DOUBT. IN ANY CASE SINCE THIS ISSUE IS DEBATABLE HENCE IT CANNOT BE COVERED WITHIN THE PURVIEW OF MI SCELLANEOUS PETITION U/S.254(2) OF THE ACT. WHEN ONE OF THE POSSIBLE VIEWS HAS BEEN TAKEN BY THE TRIBUNAL, WHICH IN THIS CASE IS BASED ON AN ANOTHER ORDER PASSED BY THE TRIBUNAL, THAT HAS NOT BEEN SHOWN TO HAVE BEEN SET ASIDE OR MODIFIED BY THE HON BLE HIGH COURT, THE ISSUE CANNOT BE SAID TO BE OUTSIDE THE AMBIT OF DEBATE. W E, THEREFORE, REJECT THIS MISCELLANEOUS APPLICATION. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED ON THIS 04 TH DAY OF MARCH, 2011. SD/- SD/- (R.S.PADVEKAR) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 04 TH MARCH, 2011. DEVDAS* MA NO.671/MUM/2010 SURYA J.RUPARELIA. 3 COPY TO : 1. THE APPLICANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) -XXX, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.