ITO, MAKRANA V. Shri Raj Kumar Agarwal, JODHPUR

MA 7/JODH/2010

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1664 (ITAT-JODHPUR)
• Duration Of Justice: 4 year(s) 1 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-02-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 10-01-2014
• Assessment Year: 2002-2003
• Appeal Filed On: 18-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Keywords: Rectification of order; Difference of opinion; Change of opinion
• Section: 143(3); 147; 148; 2; 139

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER MA NO.07/JU/2010 (ARISING OUT OF ITA NO. 884/JU/2007) ASSESSMENT YEAR : 2002-03 I.T.O., WARD 2, VS. RAJ KUMAR AGARWAL, MAKRANA. MAKRANA. (APPLICANT) (RESPONDENT) PAN: AAKPA 5006 A APPLICANT BY : SHRI RAJENDRA JAIN DEPARTMENT BY : SHRI N.A. JOSHI, D.R. DATE OF HEARING : 10-01-2014 DATE OF PRONOUNCEMENT : 26-02-2014 O R D E R PER N.K. SAINI, A.M. THIS MISCELLANEOUS APPLICATION ARISING OUT OF THE O RDER DATED 17/04/2009 IN ITA NO. 884/JU/2007 FOR THE A.Y. 2002-03 HAS BEEN F ILED BY THE DEPARTMENT. IN THIS MISC. APPLICATION, THE DEPARTMENT CONTENDED AS UNDER:- ON ASSESSEES APPEAL IN THE ABOVE REFERRED CASE I N ITA NO.884/JU/2007 DATED 17-04-2009 THE HON'BLE I.T.A.T HOLDING THAT T HE NOTICE ISSUED FOR INITIATING ACTION U/S 148 BEING ON VITIATED REASONS IS QUASHED AND THE ASSESSMENT MADE IS ANNULLED. THE HON'BLE TRIBUNAL HAS CONSIDERED THAT REASONS OF RE-OPENING THE CASE U/S 147 ARE CHANGE OF OPINION OF THE A.O AS THE ORI GINAL ASSESSMENT HAS BEEN MADE U/S 143(3). 2 IT IS IMPORTANT TO MENTION THAT ORIGINAL ASSESSME NT U/S 143(3) WAS MADE ON 25-02-2005 AND THE SAME HAS BEEN RE-OPENED U/S 147 ON 25-02-2006 I.E. WITHIN FOUR YEARS OF THE ORIGINAL ORDER MADE U/S 143(3). T HE PROVISO TO THE SEC 147 SAYS THAT WHERE ASSESSMENT UNDER SUBSECTION (3) OF SECTI ON 142 OR THIS SECTION HAS BEEN MADE FOR THE RELEVANT ASSESSMENT YEAR, NO ACTI ON SHALL BE TAKEN UNDER THIS ACTION AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR, UNLESS ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASS ESSMENT FOR SUCH ASSESSMENT YEAR BY REASON OF THE FAILURE ON THE PART OF THE AS SESSEE TO MAKE A RETURN UNDER SECTION 139 OR IN RESPONSE TO NOTICE ISSUED UNDER S UB-SECTION (1) OF SECTION 142 OR SECTION 148 OR TO DISCLOSE FULLY AND TRULY ALL MATE RIAL FACTS NECESSARY FOR HIS ASSESSMENT, FOR THAT ASSESSMENT YEAR. THE ABOVE CONTENTS SHOW THAT UPTO 4 YEARS OF ASSE SSMENT U/S 143(3) THE CASE CAN BE RE-OPENED U/S 143(3) IF FOUND THAT SOME INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. THE ESSENTIAL INGRADIENT FOR IS SUE OF NOTICE 148 IS ESCAPEMENT OF INCOME CHARGEABLE TO TAX. THERE IS NO RELEVANCY OF ANY REASON WHETHER INFORMATION FOR MATERIAL RELEVANT TO ESCAPE INCOME WAS DISCLOSED BY THE ASSESSEE OR THE ASSESSEE FAILED TO DO SO. THE HON,BLE ITAT HAS NOT APPRECIATED THE ABOVE PR OVISIONS OF THE STATUTE. FURTHER MORE THE EXPLANATION 1 TO THE SEC.147 OF THE ACT CLARIFIES THAT PRODUCTION BEFORE THE ASSESSING OFFICER OF ACCOUNT BOOKS OR OTHER EVIDENCE FROM WHICH MATERIAL EVIDENCE COULD WITH DUE DILIGENCE HA VE BEEN DISCOVERED, THE ASSESSING OFFICER WILL NOT NECESSARILY AMOUNT TO DI SCLOSURE WITHIN THE MEANING OF THE FOREGOING PROVISO. IN THE ORIGINAL ASSESSMENT M ADE U/S 143(3) THE ISSUE ON WHICH THE CASE HAS BEEN RE-OPEN AS NOT AT ALL CONSI DERED OR DISCUSSED THEREIN AND THUS THE QUESTION OF CHANGE OF OPINION DOES NOT ARI SE. NO OPINION, EITHER DIRECTLY OR INDIRECTLY WAS FORMED AT THE ORIGINAL ASSESSMENT PROCEEDINGS AND THUS ANY CHANGE OF OPINION DOES NOT ARISE. A QUESTION OF CHA NGE OF OPINION OCCURS ONLY WHEN AN OPINION IS FORMED AT THE FIRST STAGE. HENC E ALSO THE HON'BLE TRIBUNAL HAS NOT CONSIDERED THIS FACT IN THE RIGHT PERSPECTIVE. IN VIEW OF ABOVE DISCUSSED POSITION OF THE STATUE AND FACTS THE MISCELLANEOUS APPLICATION IS MOVED BEFORE HON'BLE I TAT TO-CONSIDER THE LEGAL FACTS INVOLVED AND DECIDE THE CASE. THE COPIES OF ORDER O F ITAT, CIT(A) ORDER U/S 143(3) AND ORIGINAL ORDER U/S 143(3) ARE ENCLOSED HEREWITH FOR READY REFERENCE. 2. DURING THE COURSE OF HEARING, LD. D.R. REITERATE D THE AFORESAID CONTENTIONS AND LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE DEPARTMENT HAD NOT 3 POINTED ANY APPARENT MISTAKE IN THE ORDER DATED 17/ 04/2009 AND SEEKS THE REVIEW OF THE ORDER WHICH IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE I.T. ACT 1961 (HEREINAFTER REFERRED TO AS ACT, FOR SHORT). 3. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE P ARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON THE RECORD. FROM THE CONTENTS OF THE AFORESAID MISC. APPLICATION FILED BY THE DEPARTMENT, IT APPEA RS THAT NO APPARENT MISTAKE IN THE ORDER PASSED BY THE ITAT IN I.T.A. NO. 884/JU/2 007 DATED 17/04/2009 HAS BEEN POINTED OUT. THE DEPARTMENT WANTS THE ORDER T O BE REVIEWED WHICH IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE ACT BECAUSE THE POWER OF RECTIFICATION OF MISTAKE UNDER SECTION 254 OF THE ACT IS A LIMITED P OWER WHICH IS RESTRICTED TO RECTIFICATION OF MISTAKE APPARENT FROM THE RECORD. THE SAID MISTAKE MUST BE A MISTAKE WHICH IS PATENT ON THE FACE OF THE RECORD A ND DOES NOT CALL FOR DETAILED INVESTIGATION OF THE FACTS OR REQUIRE AN ELABORATE ARGUMENT TO ESTABLISH IT. IN THE PRESENT MISC. APPLICATION, THE DEPARTMENT IS RAISIN G THE ARGUMENTS WHICH HAD ALREADY BEEN CONSIDERED BY THE ITAT WHILE PASSING T HE ORDER DATED 17/04/2009. IN OUR OPINION, THE ORIGINAL DECISION OF THE ITAT D OES NOT DISCLOSE ANY APPARENT ERROR. IT IS WELL SETTLED THAT THE PROVISIONS OF S ECTION 254(2) OF THE ACT DOES NOT COVER THE CASES WHERE A REVISION OR REVIEW OF THE O RDER IS INTENDED. WE, THEREFORE, DO NOT SEE ANY MERIT IN THIS MISC. APPLI CATION FILED BY THE DEPARTMENT. 4 4. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E DEPARTMENT IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON THIS 26-02 -2014.) SD/- SD/- (HARI OM MARATHA) (N.K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 26 TH JANUARY, 2014 VR/- COPY TO:- 1.THE APPELLANT 2. THE RESPONDENT 3. THE LD. CIT 4. THE LD. CIT(A) 5. THE DR 6. THE GUARD FILE ASSISTANT REGISTRAR ITAT, JODHPUR.