DCIT, Range-3, Gwalior V. Shri Rajkumar Sachdeva, Shivpuri

MA 7/AGR/2006

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9888 (ITAT-AGRA)
• Duration Of Justice: 7 year(s) 1 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-02-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 26-02-2013
• Assessment Year: 1993-1994
• Appeal Filed On: 24-01-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Keywords: Reopening of assessment
• Section: 142(1); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER M.A. NO. 07 & 08/AGRA/2006 (IN ITA NO. 590 & 602/AGRA/1998) ASSTT. YEAR : 1993-94 & 1992-93) D.C.I.T., RANGE-3, VS. SHRI RAJ KUMAR SACHDEVA, GWALIOR. MAHAL COLONY, SHIVPURI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K.K. MISHRA, JR. D.R. RESPONDENT BY : NONE DATE OF HEARING : 26.02.2013 DATE OF PRONOUNCEMENT OF ORDER : 26.02.2013 ORDER PER BHAVNESH SAINI, J.M.: BOTH THE MISCELLANEOUS APPLICATIONS ARE FILED BY T HE REVENUE AGAINST THE COMMON ORDER OF THE TRIBUNAL DATED 14.07.2005. 2. BRIEFLY, THE FACTS OF THE CASE ARE THAT ITAT, AG RA BENCH VIDE ORDER DATED 14.07.2005 DECIDED SEVERAL CROSS APPEALS OF THE REV ENUE AND THE ASSESSEE IN THE CASE OF SHRI RAJ KUMAR SACHDEVA BEARING ITA NO. 601 & 602 OF 1998 FOR THE ASSESSMENT YEARS 1991-92, 1992-93 AND IN ITA NO. 58 8, 589 & 590 OF 1998 IN ASSESSMENT YEARS 1991-92, 1992-93 AND 1993-94. M.A. NO. 07 & 08/AGRA/2006 2 3. THE TRIBUNAL WHILE DECIDING ITA NO. 589 OF 1998, I.E., APPEAL OF THE ASSESSEE AND ITA NO. 602 OF 1998 OF THE REVENUE FOR THE ASSESSMENT YEAR 1992-93 CONSIDERED THE ISSUE OF SERVICE OF NOTICE U /S. 148 OF THE IT ACT UPON ONE SHRI HANSRAJ SACHDEVA WHO IS NOT RELATED TO THE ASSESSEE. ITAT, AGRA BENCH WHILE DECIDING APPEAL NO. 589 OF 1998 (A.Y. 1 992-93) HELD THAT THERE IS NO PROPER SERVICE OF NOTICE U/S. 148 OF THE IT ACT AS NOTICE IS SERVED ON SOME HANSRAJ SACHDEVA WHO IS NOT BROTHER OF THE ASSESSEE . THE NOTICE U/S. 148 WAS ACCORDINGLY QUASHED WITH RESULTANT ORDER ALSO. THE DEPARTMENTAL APPEAL IN ITA NO. 602 OF 1998 (A.Y. 1992-93) HAS BECOME INFRUCTUO US, AS THE ASSESSMENT ITSELF HAS BEEN QUASHED IN ITA NO. 589 OF 1998 OF T HE SAME ASSESSMENT YEAR. 4. ITAT AGRA BENCH WHILE CONSIDERING ITA NO. 590 OF 1998 (A.Y. 1993- 94) WHICH IS APPEAL OF THE ASSESSEE, CONSIDERED THE IDENTICAL ISSUE OF 148 AND BY FOLLOWING THE ORDER IN ASSESSEES APPEAL IN ITA NO. 589 OF 1998 ABOVE QUASHED THE REOPENING OF ASSESSMENT AND THE RESULTANT ORDER . 5. IT MAY BE NOTED HERE THAT WHILE DECIDING THE APP EAL FOR THE ASSESSMENT YEAR 1992-93 IN ITA NO. 589 OF 1998, THE TRIBUNAL O BSERVED THAT IN CASE DEPARTMENT COMES ACROSS ANY EVIDENCE OR IS IN A POS ITION TO REBUT THE SUBMISSIONS MADE IN THE AFFIDAVIT IN AS MUCH AS SHR I HANSRAJ SACHDEVA IS FOUND M.A. NO. 07 & 08/AGRA/2006 3 TO BE THE BROTHER OF THE ASSESSEE, THEN DEPARTMENT WOULD BE AT LIBERTY TO FILE M.A. AND TO PRAY TO RECALL OF THE ORDER AND TO DECI DE THE APPEALS ON MERITS. THE REVENUE DEPARTMENT ACCORDINGLY FILED THE PRESENT M. A. NO. 07 OF 2006 IN ITA NO. 590/98 FOR ASSESSMENT YEAR 1993-94 AND M.A. NO. 08 OF 2006 IN ITA NO. 602/98 FOR ASSESSMENT YEAR 1992-93. 6. THE LD. DR MERELY STATED THAT NOW THE AFFIDAVIT OF THE ACIT, CIRCLE-I, GWALIOR SHRI LEYAQT ALI AAFAQUI DATED 28.06.2011 HA S BEEN FILED IN WHICH IT WAS CONFIRMED THAT NOTICE U/S. 148 HAS BEEN SERVED ON 11.07.1994 AND 142(1) NOTICE HAS BEEN SERVED ON 17.08.1994. THUS, NO MATE RIAL OR EVIDENCE HAS BEEN PRODUCED EVEN NOW TO SHOW THAT HANSRAJ SACHDEVA IS BROTHER OF THE ASSESSEE. NONE APPEARED ON BEHALF OF THE ASSESSEE. 7. ON CONSIDERATION OF THE FACTS OF THE CASE AS NOT ED ABOVE, WE DO NOT FIND ANY MISTAKE APPARENT ON RECORD OF THE TRIBUNAL. ONL Y AFFIDAVIT OF ACIT, CIRCLE- 3, GWALIOR HAS BEEN FILED, WHICH IS DATED 28.06.201 1, WHICH IS SUBSEQUENT TO THE ORDER PASSED BY THE TRIBUNAL ON 14.07.2005 AND CANNOT BE SAID TO BE THE RECORD OF THE TRIBUNAL WHILE DECIDING THE APPEALS E ARLIER. FURTHER, THE TRIBUNAL WHILE DECIDING ITA NO. 590/98 FOR THE ASSESSMENT YE AR 1993-94 HAS FOLLOWED THE ORDER IN ITA NO. 589/98 OF ASSESSMENT YEAR 1992 -93. NO M.A. HAS BEEN M.A. NO. 07 & 08/AGRA/2006 4 FILED AGAINST THE DECISION GIVEN IN ITA NO. 589/98. THUS, THE MAIN ORDER PASSED IN ITA NO. 589/98 HAS NOT BEEN CHALLENGED BY THE RE VENUE. THEREFORE, THERE WOULD BE NO ERROR APPARENT ON RECORD OF THE TRIBUNA L. FURTHER, M.A. NO. 08/2006 IS PREFERRED AGAINST THE ORDER IN ITA NO. 6 02/98 WHICH WAS DISMISSED BEING THE DEPARTMENTAL APPEAL HAS BECOME INFRUCTUOU S ON QUASHING THE PROCEEDINGS U/S. 148 IN ITA NO. 589/98 FOR THE SAME ASSESSMENT YEAR. THUS, ON THE SAME REASONS, THERE IS NO MISTAKE APPARENT ON R ECORD OF THE TRIBUNAL. IN THE ABSENCE OF ANY EVIDENCE OR MATERIAL ON RECORD TO CH ALLENGE THE ORDER OF THE TRIBUNAL ON MERITS, WE DO NOT FIND ANY MISTAKE APPA RENT ON RECORD OF THE TRIBUNAL. IT IS WELL SETTLED LAW THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER ALREADY PASSED ON MERITS AND WE RELIED UPON THE DEC ISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. ANAMIKA BUILDERS PVT. LTD., 251 ITR 585, HONBLE ANDHRA PRADESH IN THE CASE OF CIT VS. IDEAL ENGINEERS, 251 ITR 743 AND HONBLE M.P. HIGH COURT IN THE CASE OF AGARWAL WAREHOUSING, 257 ITR 235. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF E ARNEST EXPORT LTD., 323 ITR 577 HELD THAT THE ORDER PASSED AFTER CONSIDERIN G THE MATERIAL AND DECISIONS CITED, CANNOT BE RECALLED. HONBLE CALCUTTA HIGH CO URT IN THE CASE OF HINDUSTAN LEVER LTD VS. JCIT, 284 ITR 42 HELD THAT THE MISTA KE MUST BE SO OBVIOUS THAT IT CAN EASILY BE CORRECTED, TO WIT AN ARITHMETICAL MISTAKE, A WRONG QUOTATION OF SECTION, ETC. BUT NOT ON DEBATABLE ISSUE. CONSIDERI NG THE ABOVE DISCUSSION, WE M.A. NO. 07 & 08/AGRA/2006 5 DO NOT FIND ANY MISTAKE APPARENT ON RECORD OF THE T RIBUNAL. BOTH THE MAS OF THE REVENUE ARE ACCORDINGLY DISMISSED. 8. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIO NS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY