Oerlikon Balzers Coating India Ltd., Pune V. Deputy Commissioner of Income-tax, Circle - 10, Pune

MA 71/PUN/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3243 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 11 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-08-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 04-08-2022
• Assessment Year: 2009-2010
• Appeal Filed On: 12-08-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: FORM 26AS
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH “A”, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI S. S. VISWANETHRA RAVI, JUDICIAL MEMBER M.A. No.71/PUN/2019 (Arising out of ITA No.1832/PUN/2014) िनधाᭅरण वषᭅ / Assessment Year: 2009-10 Oerlikon Balzers Coating India Ltd., EL-22, J. Block, MIDC, Bhosari, Pune- 411026. PAN : AAACI3916N Vs. DCIT, Circle-10, Pune. Appellant Respondent आदेश / ORDER PER INTURI RAMA RAO, AM: This present Miscellaneous Application is filed by the assessee against the order passed by this Tribunal in M.A. No.05/PUN/2017 dated 14.05.2019 in ITA No.1832/PUN/2014 for the assessment year 2009-10. 2. We find that this Tribunal in M.A. No.05/PUN/2017 in ITA No.1832/PUN/2014 allowed the Miscellaneous Application filed by the assessee company by restricting the addition on account Assessee by : Shri Manoj Jain Revenue by : Shri Arvind Desai Date of hearing : 05.08.2022 Date of pronouncement : 11.08.2022 MA No.71/PUN/2019 2 discrepancies between receipts shown in books of accounts and as declared as per Form 26AS to Rs.50,58,159/- against the addition made in the original assessment order of Rs.1,78,77,487/-. On mere perusal of the order passed in M.A. No.05/PUN/2017 dated 14.05.2019, it is clear that that M.A. filed by the assessee stands allowed. The present Miscellaneous Application is filed against the order passed in M.A. No.05/PUN/2017 stating that the Tribunal while passing the order in M.A. No.05/PUN/2017 had restricted the addition to sum of Rs.50,58,159/- as against Rs.1,78,77,487/- as made in the original assessment order. From the averments made in the present Miscellaneous Application, it is clear that it is an application made for review of the order passed by the Tribunal in M.A. No.05/PUN/2017, which is not permissible under law as there is no expressed power of review conferred on the Tribunal. In this context, it is worth mentioning that the decision of the Hon’ble Punjab & Haryana High Court in the case of CIT vs. Pearl Woolen Mills, 330 ITR 164 (P&H) wherein it has held as under :- “9. Question to be considered is whether it is open to Tribunal to readjudicate the matter and that too when an earlier application under section 254(2) had been dismissed on the same issue. 10. We are clearly of the opinion that the Tribunal could not have readjudicated the matter under section 254(2). 11. It is well-settled that a statutory authority cannot exercise power of review unless such power is expressly conferred. Reference may be made to judgment of the Hon'ble Supreme Court in Patel Narshi MA No.71/PUN/2019 3 Thakershi v. Pradyuman Singhji Arjunsinghji [1971] 3 SCC 844, wherein it was observed as under:— "4. . . . It is well-settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. . . ." (p. 847) 12. The above view has been reiterated in Kapra Mazdoor Ekta Union v. Birla Cotton Spg. & Wvg. Mills Ltd. AIR 2005 SC 1728. 13. There is no express power of review conferred on the Tribunal. Even otherwise, scope of review does not extend to rehearing of a case on merits. Aribam Tuleshwar Sharma v. Aribam Pishak Sharma [1979] 4 SCC 389, Meera Bhanja v. Nirmala Kumari Chaudhary [1995] 1 SCC 170. Finality of order of Tribunal cannot be disturbed by a different Bench beyond the statutory power available to it. The Tribunal has referred to principle of inherent power and incidental power and also the principle that act of Court cannot prejudice anyone. Scope of the principle "Actus curiae neminem gravabit" i.e., nobody will be prejudiced by act of Court, extends to correcting an error from an accidental slip or omission. Such power is available under section 254(2) of the Act, which is akin to section 152, CPC. In Niyamat Ali Molla v. Sonargon Housing Co-op. Society Ltd. AIR 2008 SC 225, after referring to earlier judgments, the scope of such power was considered and it was observed that the said power was neither akin to power of review nor could clothe the Court to modify judgment on merits. Scope of power of rectification has been repeatedly considered, inter alia, in Volkart Bros.' case (supra), Deva Metal Powders (P.) Ltd.'s case (supra), Saurashtra Kutch Stock Exchange Ltd.'s case (supra ) and such power is limited to correcting an error apparent on the face of record and not to an error to be discovered by long drawn process of reasoning. Thus, neither by invoking inherent power nor the principle of mistake of Court not prejudicing a litigant nor by involving doctrine of incidental power, the Tribunal could reverse a decision on merits. Power available to a Court of record, ex debito justitiae, or power to be invoked where an order may be nullity, on account of having passed without service of a party, stand on a different footing. 14. Thus, we hold that the Tribunal was not justified in recalling its previous finding restoring the addition, more so when an application for the same relief had been earlier dismissed.” 3. Thus, in the light of above legal position, we hold that the present Miscellaneous Application filed by the assessee, which is in nature of application for review, cannot be entertained, hence, dismissed. MA No.71/PUN/2019 4 4. In the result, the Miscellaneous Application filed by the assessee stands dismissed. Order pronounced on this 11 th day of August, 2022. Sd/- Sd/- (S. S. VISWANETHRA RAVI) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 11 th August, 2022. Sujeet आदेश कᳱ ᮧितिलिप अᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A)-V, Pune. 4. The CIT-V, Pune. 5. िवभागीय ᮧितिनिध, आयकर अपीलीय अिधकरण, “A” बᱶच, पुणे / DR, ITAT, “A” Bench, Pune. 6. गाडᭅ फ़ाइल / Guard File. आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.