M/s. J.K. Promotors, Anand V. The Income tax Officer, Ward-1, Anand

MA 71/AHD/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1950 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-06-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 06-06-2014
• Assessment Year: 2004-2005
• Appeal Filed On: 05-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: J P JHANGID
• Assessee Lawyers: N S AMIN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI, A.M.) M. A. NOS. 69 TO 72/AHD/2014 (IN ITA NO. 133 & 134/AHD/09 & 1946 & 1 947/AHD/2012 ASSESSMENT YEARS: 2003-04 & 2004-05) M/S. J.K. PROMOTORS, SHEFALI APARTMENT, B/H KALPANA CINEMA, ANAND-388 001 V/S INCOME-TAX OFFICER WARD (1), ANAND. (APPELLANT) (RESPONDENT) PAN: AABFJ 4166B APPELLANT BY : SHRI N.S. AMIN RESPONDENT BY : SHRI J.P. JHANGID, SR. D.R. ( )/ ORDER DATE OF HEARING : 06-06-2014 DATE OF PRONOUNCEMENT : 27 -06-2014 PER SHRI ANIL CHATURVEDI,A.M. 1. THESE 4 MAS ARE ARISING OUT OF ITA NOS. 133 & 134/A HD/2009, ITA NOS. 1946 & 1947/AHD/2012 FOR AYS 2003-04 & 2004-05 ORDE R DATED 21.02.2014. 2. BY THESE MISCELLANEOUS APPLICATIONS, ASSESSEE HAS R EQUESTED FOR RECALLING OF THE ORDER DATED 21.02.2014 PASSED BY T HE ITAT AHMEDABAD M.A NOS. 69 TO 72/AH D/14 ( IN ITA NOS. 133 & 13 4/A/09 & 1946 & 1947/A/2012) . A.YS. 2003-04 & 2004-05 2 BENCH-D IN ITA. NOS. 133 & 134/AHD 2009, ITA NOS. 1 946 & 1947/AHD/2012 FOR THE ASSESSMENT YEARS 2003-04 & 20 04-05. 3. BEFORE US, THE LD. A.R. SUBMITTED THAT ALL THE M.AS , ARISE OUT THE CONSOLIDATED ORDER AND THE ISSUE IN ALL THE M.AS. A RE IDENTICAL AND ALL THE M.AS. CAN BE DECIDED TOGETHER. WE THEREFORE PROCEED TO DISPOSE OF ALL THE M.AS. BY A CONSOLIDATED ORDER. FOR THE SAKE OF CON VENIENCE WE PROCEED WITH THE FACTS IN M.A. NO. 69/AHD/2014. 4. IN THE MISCELLANEOUS APPLICATION WHICH IS RUNNING I NTO 7 PAGES, THE ASSESSEE HAS INTERALIA SUBMITTED THAT THE TRIBUNAL HAS NOT DISCUSSED AND CONSIDERED THE DECISIONS CITED BY AR AND THEREFORE THERE IS APPARENT MISTAKE IN THE ORDER OF TRIBUNAL AND THEREFORE THE ORDER OF THE TRIBUNAL BE RECALLED. 5. BEFORE US, LEARNED AR, REITERATED THE SUBMISSIONS M ADE IN THE APPLICATION. HE THEREFORE SUBMITTED THAT IN VIEW OF THE AFORESAID, THERE IS MISTAKE APPARENT FROM RECORD IN TERMS OF PROVISIONS OF S. 254(2) AND THEREFORE THE ORDER BE RECALLED. THE LD. D.R. ON TH E OTHER HAND OBJECTED TO THE SUBMISSIONS OF THE ID. AR. HE SUBMITTED THAT THE HON'BLE BENCH AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE A ND THE CASE LAWS RELIED BY AR DECIDED THE ISSUE ON MERITS AND THEREFORE THE RE WAS NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL. HE THUS OBJEC TED TO THE PRAYER OF ID AR AND SUBMITTED THAT THE M/A OF THE ASSESSEE NEEDS TO BE DISMISSED. M.A NOS. 69 TO 72/AH D/14 ( IN ITA NOS. 133 & 13 4/A/09 & 1946 & 1947/A/2012) . A.YS. 2003-04 & 2004-05 3 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS AND, PERUSED THE MATERIAL ON RECORD. WE HAVE ALSO GONE THROUGH THE M ISCELLANEOUS APPLICATION. THE MAIN GRIEVANCE OF THE ASSESSEE IS THAT THE VARIOUS CASE LAWS CITED BY THE LD AR HAVE NOT BEEN DEALT WITH AN D THE TRIBUNAL HAS NOT CONSIDERED HIS VARIOUS SUBMISSIONS. IN THE IMPU GNED ORDER, WE FIND THAT AFTER CONSIDERING THE DECISIONS CITED THEREIN THE TRIBUNAL HAS DECIDED THE ISSUE. THE TRIBUNAL HAS FURTHER HELD THAT THE D ECISIONS RELIED BY THE LD. AR WERE NOT APPLICABLE TO THE FACTS OF THE CASE . WE ARE THUS OF THE VIEW THAT THE SUBMISSIONS OF THE ASSESSEE WERE CONS IDERED WHILE DISPOSING THE APPEAL. IF THE PRESENT PRAYER MADE BY THE ASSESSEE IN ITS MISCELLANEOUS APPLICATION IS ACCEPTED, IT WILL AMOU NT TO REVIEW OF OUR ORDER. THE LAW IS SETTLED THAT WE HAVE NO POWER OF REVIEW FOR WHICH WE FIND SUPPORT BY THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF PERFETTI VAN MELLE INDIA (P) LTD. VS. CIT (2008) 29 6 ITR 595 (DEL) WHERE THE HON'BLE HIGH COURT HAS CONCLUDED THAT ASS ESSEE CANNOT BE ALLOWED TO REOPEN AND REARGUE THE WHOLE MATTER IN T HE GARB OF RECTIFICATION UNDER S. 254(2). IT HAS HELD AS UNDER : 'IT IS WELL SETTLED THAT AN OVERSIGHT OF A FACT CAN NOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER S. 254(2). SIMILARLY, FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION, IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE MERE FACT THAT THE TRIBUNAL HAS NOT ALLOWED A DEDUCTION, EVEN IF THE CONCLUSION IS WRONG, THAT WILL BE NO GROUND FOR MOV ING AN APPLICATION UNDER S. 254(2). FURTHER, IN GARB OF APPLICATION FOR RECTIFICATION, THE ASSESSEE CANNOT BE ALLOWED TO BE PERMITTED TO REOPEN AND REARGUE THE WHOLE MATTER, WHICH IS BEYOND THE SCOPE OF THIS SECTION. 7. THE HON'BLE APEX COURT IN THE CASE OF CIT VS KARAM CHAND THAPAR & BROS (P) LTD (1989) 176 ITR 535 (SC) HAS NOTED US U NDER: M.A NOS. 69 TO 72/AH D/14 ( IN ITA NOS. 133 & 13 4/A/09 & 1946 & 1947/A/2012) . A.YS. 2003-04 & 2004-05 4 '7 IT IS EQUALLY SETTLED THAT THE DECISION OF THE TRIBUNAL HAS NOT TO BE SCRUTINISED SENTENCE BY SENTENCE MERELY TO FIND OUT WHETHER ALL FACTS HAVE BEEN SET OUT IN DETAIL BY THE TRIBUNAL OR WHETHER SOME INCIDENTAL FACT WHICH APPEARS ON RECORD HAS NO T BEEN NOTICED BY THE TRIBUNAL IN IS JUDGEMENT. IF THE COURT, ON A FAIR READING OF THE JUDGMENT OF THE TRIBUNAL, FINDS THAT IT HAS TAKEN INTO ACCOUNT ALL RELEVANT MATERIAL AND HAS NOT TAKEN INTO ACCOUN T ANY IRRELEVANT MATERIAL IN BASING THE CONCLUSIONS, THE DECISION OF THE TRIBUNAL IS NOT LI ABLE TO BE INTERFERED WITH....' 8. IN THE CASE OF CIT VS MARUTI INSURANCE DISTRIBUTION SERVICES LTD. (W.P.(C) 106/2012 DEL HIGH COURT ORDER DATED 04.09. 2012) THE HON'BLE HIGH COURT HAS HELD AS UNDER: 'SECTION 254(2) OF THE ACT MAKES IT AMPLY CLEAR THA T A 'MISTAKE APPARENT FROM THE RECORD' IS RECTIFIABLE. TO ATTRACT THE JURISDICTION UNDER SECT ION 254(2), A MISTAKE SHOULD EXIST AND MUST BE APPARENT FROM THE RECORD. THE POWER TO RECTIFY THE MISTAKE, HOWEVER, DOES NOT COVER CASES WHERE A REVISION OR REVIEW OF THE ORDER IS INTENDED. 'MISTA KE' MEANS TO UNDERSTAND WRONGLY OR INACCURATELY; IT IS AN ERROR; A FAULT, A MISUNDERST ANDING, A MISCONCEPTION. 'APPARENT' IMPLIES SOMETHING THAT CAN BE SEEN, OR IS VISIBLE; OBVIOUS; PLAIN. A MISTAKE WHICH CAN BE RECTIFIED UNDER SECTION 254(2) IS ONE WHICH IS PATENT, OBVIOUS AND WHOSE DISCOVERY IS NOT DEPENDENT ON ARGUMENT. THE LANGUAGE USED IN SECTION 254(2) IS PERMISSIBLE WHERE IT IS BROUGHT TO THE NOTICE OF THE TRIBUNAL THAT THERE IS ANY MISTAKE APPARENT FROM TH E RECORD. THE AMENDMENT OF AN ORDER THEREFORE, DOES NOT MEAN OBLITERATION OF THE ORDER ORIGINALLY PASSED AND ITS SUBSTITUTION BY A NEW ORDER WHICH IS NOT PERMISSIBLE, UNDER THE PROVISION S OF SECTION 254(2). FURTHER, WHERE AN ERROR IS FAR FROM SELF-EVIDENT, IT CEASES TO BE AN 'APPARENT ' ERROR. UNDOUBTEDLY, A MISTAKE CAPABLE OF RECTIFICATION UNDER SECTION 254(2) IS NOT CONFINED TO CLERICAL OR ARITHMETICAL MISTAKES. AT THE SAME TIME, IT DOES NOT COVER ANY MISTAKE WHICH MAY BE DI SCOVERED BY A COMPLICATED PROCESS OF INVESTIGATION, ARGUMENT OR PROOF. AS OBSERVED BY TH E SUPREME COURT IN MASTER CONSTRUCTION CO. (P) LTD. V. STATE OF ORISSA (1966) 17 STC 360, AN E RROR WHICH IS APPARENT ON THE FACE OF THE RECORD SHOULD BE ONE WHICH IS NOT AN ERROR WHICH DEPENDS F OR ITS DISCOVERY ON ELABORATE ARGUMENTS ON QUESTIONS OF FACT OR LAW. A SIMILAR VIEW WAS ALSO E XPRESSED IN SATYANARAYAN LAXMINARAYAN HEGDE V. MALLIKARJUN BHAVANAPPA TIRUMALE AIR 1960 SC 137. 9. IN THE CASE OF V.T. SOMASUNDARAM V.LTO [1999] 70 IT D 398 (CHEN), THE CO-ORDINATE BENCH OF TRIBUNAL HAS HELD THAT:- SECTION 254(2) IT IS NOT NECESSARY OR IMPERATIVE ON PART OF TRIBUNAL TO GIVE ADDITIONAL OR SEPARATE REASONS IF TRIBUNAL IS IN AGREEMENT WITH REASONS GI VEN BY LOWER TAX AUTHORITIES WHEN EACH AND EVERY DOCUMENT OR EACH AND EVERY SENT ENCE OR PARAGRAPH FROM DOCUMENTS FILED BY THE ASSESSEE HAD NOT BEEN THREADBARE AND ELABORATEL Y DISCUSSED IN THE APPEAL ORDER DID NOT MEAN THAT THERE HAD BEEN NON-APPLICATION OF MIND OR NON- CONSIDERATION OF THE RELEVANT MATERIAL FOR ARRIVING AT THE DECISION BY THE TRIBUNAL. IT WAS SU FFICIENT IF THE TRIBUNAL STATED THAT THERE HAD BEEN EXAMINATION OF THE FACTS OF THIS CASE AS WELL AS AR GUMENTS PUT FORTH BY THE RIVAL PARTIES. IT WAS FURTHER HELD THAT IT WAS NOT NECESSARY OR IMPERATIV E ON THE PART OF THE APPELLATE AUTHORITY THAT IT SHOULD GIVE ADDITIONAL OR SEPARATE REASONS IF THE T RIBUNAL IS IN AGREEMENT WITH THE REASONS GIVEN BY THE LOWER TAX AUTHORITIES. M.A NOS. 69 TO 72/AH D/14 ( IN ITA NOS. 133 & 13 4/A/09 & 1946 & 1947/A/2012) . A.YS. 2003-04 & 2004-05 5 10. IN VIEW OF THE ABOVE, AND FOLLOWING THE VARIOUS DEC ISIONS CITED ABOVE, WE ARE OF THE VIEW THAT SINCE THE ASSESSEE HAS FAILED TO POINT OUT ANY MISTAKE APPARENT FROM RECORD IN OUR ORDER AND HENCE THE MIS CELLANEOUS APPLICATIONS ARE DISMISSED. 11. IN THE RESULT, ALL THE MISCELLANEOUS APPLICATIONS A RE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 27 - 06 - 2014. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT ,AHMEDABAD