The ACIT, 1 (2), Bhopal V. M/s Enbee Resourts Ltd, Bhopal

MA 68/IND/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8693 (ITAT-INDORE)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-07-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 1998-1999
• Appeal Filed On: 04-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KESHAV SAXENA
• Section: 260A

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER M.A. NO. 68/IND/2012 (ARISING OUT OF ITA NO. 221/IND/2008) AY: 1998-99 ACIT 1(2), BHOPAL :: APPLICANT VS M/S. ENBEE RESORTS LTD BHOPAL :: RESPONDENT M.A. NO. 69/IND/2012 (ARISING OUT OF ITA NO. 215/IND/2008) AY: 1998-99 ACIT 1(2), BHOPAL :: APPLICANT VS M/S. ENBEE REALTORS PVT. LTD. BHOPAL :: RESPONDENT M.A. NO. 70/IND/2012 (ARISING OUT OF ITA NO. 216/IND/2008) AY: 1998-99 ACIT 1(2), BHOPAL :: APPLICANT VS M/S. AMARKANTAK GARDENS PVT. LTD. BHOPAL :: RESPONDENT 2 M.A. NO. 71/IND/2012 (ARISING OUT OF ITA NO. 217/IND/2008) AY: 1998-99 ACIT 1(2), BHOPAL :: APPLICANT VS M/S. ENBEE IMPEX PVT. LTD. BHOPAL :: RESPONDENT M.A. NO. 72/IND/2012 (ARISING OUT OF ITA NO. 218/IND/2008) AY: 1998-99 ACIT 1(2), BHOPAL :: APPLICANT VS M/S. ENBEE FINLEASE LTD. BHOPAL :: RESPONDENT M.A. NO. 73/IND/2012 (ARISING OUT OF ITA NO. 219/IND/2008) AY: 1998-99 ACIT 1(2), BHOPAL :: APPLICANT VS M/S. ENBEE INDUSTRIES LTD. BHOPAL :: RESPONDENT M.A. NO. 74/IND/2012 (ARISING OUT OF ITA NO. 220/IND/2008) AY: 1998-99 ACIT 1(2), BHOPAL :: APPLICANT VS M/S. ENBEE TECHNOLIGIES LTD. BHOPAL :: RESPONDENT 3 DEPARTMENT BY SHRI KESHAV SAXENA, CIT DR ASSESSEE BY NONE DATE OF HEARING 6.7.2012 DATE OF PRONOUNCEMENT 6.7.2012 ORDER PER SHRI JOGINDER SINGH, JUDICIAL MEMBER THIS GROUP OF SEVEN MISCELLANEOUS APPLICATIONS, WHIC H PERTAINS TO DIFFERENT ASSESSEES, ARE BY THE REVENUE ON THE GROUND THAT TH E REVENUE HAS FILED APPEAL BEFORE THE HONBLE HIGH COURT U/S 260A OF THE ACT, THEREFORE, THE DECISION MAY BE KEPT IN ABEYANCE AND THE PENALTY HAS BEEN WRONGLY DELETED. 2. DURING HEARING OF THESE MISCELLANEOUS APPLICATIO NS, WE HAVE HEARD SHRI KESHAV SAXENA, LEARNED CIT DR WHEREAS NOBODY IS PRES ENT FOR THE ASSESSEE. MR. SAXENA ADVANCED HIS ARGUMENTS TO THE EFFECT THAT SI NCE THE DEPARTMENT HAS GONE TO THE HONBLE HIGH COURT AGAINST THE QUANTUM ORDER, THEREFORE, THE PENALTY SHOULD NOT HAVE BEEN DELETED. 3. WE HAVE PERUSED THE RECORD AND CONSIDERED THE AS SERTION MADE BY THE LEARNED CIT DR. THE FACTS, IN BRIEF, ARE THAT THE TRI BUNAL DECIDED THE QUANTUM APPEAL IN FAVOUR OF THE ASSESSEE VIDE ELABORATE ORD ER DATED 30.11.2010 BY HOLDING THAT THE ADVANCE LEASE RENT RECEIVED FOR FU TURE 17 YEARS IS TO BE CONSIDERED IN THE RESPECTIVE YEAR TO WHICH SUCH LEAS E RENT ACTUALLY PERTAINS AND 4 FURTHER HELD THAT THERE WAS NO JUSTIFICATION IN THE ORDER OF THE DEPARTMENT IN TREATING THE ADVANCE RENT AS INCOME FROM OTHER SOUR CES, THEREFORE, THE ASSESSING OFFICER WAS DIRECTED ACCORDINGLY. THE REVENUE ALSO L EVIED PENALTY AGAINST DIFFERENT ORDERS DATED 11 TH FEBRUARY, 2008. THE ASSESSEE CHALLENGED THE IMPOSITION OF PENALTY ON THE GROUND THAT SINCE QUAN TUM APPEALS HAVE BEEN DECIDED IN FAVOUR OF THE ASSESSEE, THEREFORE, NO PE NALTY IS LEVIABLE. THE TRIBUNAL VIDE ORDER DATED 19.4.2011 DELETED THE PENALTY IN S EVEN APPEALS AND SINCE ITA NO. 222/IND/2008 (QUANTUM APPEAL) WAS RESTORED TO T HE FILE OF THE ASSESSING OFFICER, THEREFORE, THE PENALTY APPEAL WAS ALSO REST ORED FOR FRESH ADJUDICATION AND ALLOWED THAT APPEAL FOR STATISTICAL PURPOSES ONL Y. THE BENCH WHILE COMING TO THE PARTICULAR CONCLUSION FOLLOWED VARIOUS DECISIONS FROM THE HONBLE APEX COURT ALONG WITH HONBLE HIGH COURTS. NO CONTRARY DECISIO N WAS BROUGHT TO OUR NOTICE BY THE REVENUE. 4. UNDER THE AFOREMENTIONED FACTS, IT SEEMS THAT TH E REVENUE IS TRYING TO GET THE ORDER OF THE TRIBUNAL REVIEWED WHICH IS NOT PERMIS SIBLE U/S 254(2) OF THE ACT. AS PER THE SECTION, THE POWERS OF THE TRIBUNAL ARE LI MITED TO ERROR OR OMISSION AND THE ORDER ONLY CAN BE RECALLED IN ITS ENTIRETY IF THE TRIBUNAL IS SATISFIED THAT PREJUDICE HAS RESULTED TO THE PARTY WHICH IS ATTRIBU TABLE TO THE MISTAKE, ERROR OR OMISSION WHICH IS MANIFEST ERROR AND IT HAS NOTHING TO DO WITH THE DOCTRINE OR 5 CONCEPT OF INHERENT POWER OF REVIEW. NO SUCH MISTAK E WAS POINTED OUT BY THE REVENUE IN THE ORDER OF THE TRIBUNAL. U/S 254(2) THE TRIBUNAL HAS JURISDICTION ONLY TO RECTIFY MISTAKES WHICH ARE APPARENT FROM REC ORD BUT THE EARLIER ORDER CANNOT BE REVIEWED MEANING THEREBY THE MERITS OF THE CASE CANNOT BE GONE INTO. OUR VIEW IS FORTIFIED BY THE FOLLOWING PRONOUNCEMENTS :- 1. CIT VS. ITAT (1992) 196 ITR 640 (ORISSA) 2. CIT VS. ITAT (1994) 210 ITR 397 (ORISSA) 3. CIT VS. B.P. AGARWALA (1997) 90 TAXMAN 283 (CAL) 4. CIT VS. ITAT (2006) 155 TAXMAN 378 (DEL) 5. CIT VS. RAMESHCHAND MODI; (2001) 249 ITR 323 (RAJ. ) 6. NIRANJAN & COMPANY LTD. VS. ITAT (1980) 122 ITR 51 9 (CAL) 7. CIT VS. SUMAN TEA & PLYWOOD INDUSTRIES PVT. LTD.; 2 26 IT 34 (CAL) IN VIEW OF THE ABOVE, THE TOTALITY OF FACTS AND CIRC UMSTANCES AND THE JUDICIAL PRONOUNCEMENTS LEADS TO THE CONCLUSION THAT REVIEW I S NOT PERMISSIBLE ESPECIALLY WHEN THE APPEALS OF THE ASSESSEES HAVE BEEN DECIDED ON MERIT AND MORE SPECIFICALLY EVEN QUANTUM WAS DELETED BY THE TRIBUNAL . THROUGH THESE MISCELLANEOUS APPLICATIONS THE REVENUE IS TRYING TO GET THE ORDER REVIEWED WHICH IS NOT PERMISSIBLE U/S 254(2) OF THE ACT. IT IS WOR TH MENTIONING HERE THAT THE TRIBUNAL WHILE DECIDING THE PENALTY APPEALS SPECIFICA LLY FOUND THAT SINCE THE BASIS ON WHICH THE PENALTY WAS IMPOSED REMAINED NO MORE IN EXISTENCE, THEREFORE, IN SUCH CASES, PENALTY CANNOT SURVIVE AND LIABLE TO TH E CANCELLED. OUR VIEW IS FORTIFIED BY THE DECISION OF THE HONBLE APEX COURT IN KC BUILDERS 265 ITR 562, 6 THEREFORE, WE FIND NO MERIT IN THE APPLICATIONS OF T HE REVENUE. THESE ARE DISMISSED. FINALLY, THE MISCELLANEOUS APPLICATIONS ARE DISMIS SED. THIS ORDER WAS PRONOUNCED IN OPEN COURT IN THE PRESE NCE OF LEARNED CIT DR AT THE CONCLUSION OF HEARING ON 6 TH JULY, 2012-07-06 SD SD (R.C. SHARMA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 6 TH JULY, 2012 COPY TO: APPELLANT/RESPONDENT/CIT/CIT(A)/DR DN/-66