Income-tax Officer, Ward - 1 (3), Jalna V. Shivratan Motilal Rathi, Jalna

MA 72/PUN/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3882 (ITAT-PUNE)
• Duration Of Justice: 6 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-03-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 29-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P WALIMBE
• Keywords: Rectification of order; Question of law
• Section: 254(2); 72

Judgement Text

- IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, PUNE BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI PARTHA SARATHI CHAUDHURY , JM M .A. NO. 72 / PUN /20 19 (ARISING OUT OF ITA NO. 733 / PUN / 2016) / ASSESSMENT YEAR : 2011 - 12 THE INCOME TAX OFFICER, WARD - 1(3), JALNA .. /APPLICANT / V/S. SHRI SHIVRATAN MOTILAL RATHI, BEHIND HEAD POST OFFICE, TALREJA NAGAR, JALNA. PAN: ADBPR0373F .. / RESPONDENT REVENUE BY : SHRI S.P. WALIMBE A SSESSEE BY : SHRI PARAG RATHI / DATE OF HEARING : 28 .0 2 .2020 / DATE OF PRONOUNCEMENT : 02 .03 .2020 / ORDER PER PARTHA SARATHI CHAUDHU RY, JM : THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY REVENUE U/S. 254(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) SEEKING RECALLING OF ITS OWN CONSOLIDATED ORDER OF TRIBUNAL IN ITA NO S.730 TO 733 / PUN /201 6 DATED 11.03.2019. 2 M A NO. 72 / PUN /20 19 A.Y. 2011 - 12 2 . THE LD. DR FOR THE REVENUE BY THIS MISCELLANEOUS APPLICATION SUBMITTED THAT THE PUNE BENCH OF THE TRIBUNAL WHILE PASSING CONSOLIDATED ORDER DATED 11.03.2019 FOR AY 2004 - 05, 2008 - 09, 2009 - 10 AND 2011 - 12 HAS REMITTED BACK THE CASE TO THE ASSESSING OFFICER FOR AY 2004 - 05 AND THE APPEALS OF THE ASSESSEE WAS ALLOWED FOR REMAINING AYS.2008 - 09, 2009 - 10 AND 2011 - 12. THE LD. DR FURTHER SUBMITTED THAT IT WAS HELD BY THE TRI BUNAL THAT THE ASSESSING OFFICER IS NOT ENTITLED TO REOPEN THE ASSESSMENT ON THE BASIS OF OPINION OF THE DVO AND THE ASSESSING OFFICER HAD NO AUTHORITY TO REOPEN THE ASSESSMENT U/S.147/148 OF THE ACT AND CONSEQUENTLY, THE ASSESSMENT ORDER PASSED U/S.143(3) R.W.S147 OF THE ACT, DO NOT STAND. THE LD. DR FURTHER SUBMITTED THAT THE CASE OF THE ASSESSEE FOR A.Y.2011 - 12 WAS NOT RE - OPENED AS PER PROVISIONS OF SECTION 147/148 OF THE ACT AND IN FACT, THE CASE OF AY 2011 - 12 WAS SELECTED FOR SCRUTINY UNDER COMPULSORY SCRUTINY NORM S FOR THE REASON ADDITION IN EARLIER ASSESSMENT IN EXCESS OF RS.10 LACS ON A SUBSTANTIAL AND RECURRING QUESTION OF LAW OR FACT. HENCE, THE LD. DR PRAYED FOR RECALLING THE ORDER OF THE TRIBUNAL IN ITA NO.733/PUN/2016 DATED 11.03.2019. 3 . THE LD. AR OF THE ASSESSEE STRONGLY OPPOSED TO THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE AND SUBMITTED THAT THE ORDER OF THE TRIBUNAL DATED 11.03.2019 IS WELL REASONED AND THE SAME DOES NOT CALL FOR ANY REVIEW OR RECTIFICATION. THE LD. AR OF THE A SSESSEE FURTHER SUBMITTED THAT THE REVENUE HAS FAILED TO POINT OUT ANY APPARENT MISTAKE IN THE ORDER WARRANTING RECTIFICATION. THE REVENUE IS SEEKING REVIEW OF THE ENTIRE ORDER IN THE GRAB OF RECTIFICATION WHICH IS BASICALLY BEYOND THE SCOPE OF SECTION 254 (2) OF THE ACT . 3 M A NO. 72 / PUN /20 19 A.Y. 2011 - 12 THE LD. AR PRAYED FOR DISMISSING THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE. 4. WE HAVE PERUSED THE CASE RECORD S AND HEARD THE RIVAL CONTENTIONS. WE FIND THAT THE ENTIRE CONSOLIDATED O RDER OF THE TRIBUNAL IN ITA NO S . 730 TO 733 /PU N/2015 DATED 11.03.2019 IS BASED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF ACIT VS. DHARIYA CONSTRUCTION COMPANY (2010) 328 ITR 515 (SC) AND IN VIEW OF THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT (SUPRA.), THE TRIBUNAL VIDE PARA 18 OF ITS ORDER HAS TAKEN A VIEW THAT THE ASSESSING OFFICER IS NOT ENTITLED TO REOPEN THE ASSESSMENT ON THE BASIS OF SUCH OPINION OF THE DVO. ACCORDINGLY, WE HOLD THAT THE ASSESSING OFFICER HAD NO AU THORITY TO REOPEN THE ASSESSMENT U/S.147/148 OF THE ACT. CONSEQUENTLY, THE ASSESSMENT ORDER PASSED U/S.143(3) R.W.S147 OF THE ACT, DO NOT STAND. 5. WE ALSO FIND THAT T HERE ARE S ERIES OF DECISIONS BY THE HON'BLE SUPREME COURT AS WELL AS HON'BLE HIGH COURT EXPOUNDING SCOPE OF EXERCISING POWERS UNDER SECTION 254(2) OF THE ACT. WE DO NOT DEEM IT NECESSARY TO RECITE AND RECAPITULATE ALL OF THEM, BUT SUFFICE TO SAY THAT CORE OF ALL THESE AUTHORITATIVE PRONOUNCE MENTS IS THAT POWER FOR RECTIFICATION UNDER SECTION 254(2) OF THE ACT CAN BE EXERCISED ONLY WHEN MISTAKE, WHICH IS SOUGHT TO BE RECTIFIED, IS AN OBVIOUS AND PATENT MISTAKE, WHICH IS APPARENT FROM THE RECOR D AND NOT A MISTAKE, WHICH IS REQUIRED TO BE ESTABLISHED BY ARGUMENTS AND LONG DRAWN PROCESS OF REASONING ON POINTS, ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. FOR FORTIFYING THIS VIEW, WE MAKE REFERENCE TO THE DECISION OF THE HON'BLE JURISDICTIONAL H IGH COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH 4 M A NO. 72 / PUN /20 19 A.Y. 2011 - 12 STOCK EXCHANGE LD., 262 ITR 146 WHICH HAS BEEN UPHELD BY THE HON'BLE SUPREME COURT REPORTED IN 305 ITR 227. 6 . THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. RAMESH ELECTRIC & TRADING COMPAN Y REPORTED AS 203 ITR 497 HAS HELD THAT THE SCOPE OF SECTION 254(2) IS LIMITED TO RECTIFICATION OF MISTAKE APPARENT FROM RECORD ITSELF AND NOT RECTIFICATION IN ERROR OF JUDGMENT. THE RELEVANT OBSERVATIONS OF THE HON'BLE HIGH COURT ARE AS UNDER: THE TRIBUNAL CANNOT, IN EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION SO ARRIVED AT. THE MISTAKE WHICH THE TRIBUNAL IS ENTITLED TO CORRECT IS NOT AN ERROR OF JUDGMENT BUT A MISTAKE WHICH IS APPARENT FROM THE RECORD ITSELF. WE ARE OF CONSIDERED VIEW THAT IN THE GUISE OF RECTIFICATION, THE REVENUE IS SEEKING REVIEW OF THE ORDER OF TRIBUNAL, WHICH IS BEYOND THE SCOPE OF POWERS AS ENVISAGED U/S. 254(2) OF THE ACT. 7 . IN VIEW OF THE ABOVE AND AS PER THE MISCELLANEOUS APPLICATION FILED BEFORE US, WE DO NOT FIND ANY MISTAKE, MUCH LESS ANY APPARENT MISTAKE THAT WARRANTS RECTIFICATION IN THE ORDER OF TRIBUNAL DATED 11.03.2019 . THE TRIBUNAL IN ITS OWN WISDOM HAS RELIED ON TH E DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF ACIT VS. DHARIYA CONSTRUCTION COMPANY (SUPRA.) AND ADJUDICATE D THE APPEAL OF THE ASSESSEE. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE TRIBUNAL HAS RIGHTLY ADJUDICATED THE ISSUE BY PLACING RELIAN CE ON THE DECISION OF THE HONBLE SUPREME COURT AS MENTIONED AFORESAID. 5 M A NO. 72 / PUN /20 19 A.Y. 2011 - 12 ACCORDINGLY, MISCELLANEOUS APPLICATION FILED BY REVENUE IS DISMISSED BEING DEVOID OF ANY MERIT. 8 . IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY REVENUE IS DISMISSED. ORDER PRO NOUNCED ON 2 ND DAY OF MARCH , 2020. SD/ - SD/ - D. KARUNAKARA RAO PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 2 ND MARCH , 2020. SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(A) - 1, AURANGABAD. 4. THE PR. CIT - 1, AURANGABAD. 5 . , , - , / DR, ITAT, SMC BENCH, PUNE. 6 . / GUARD FILE. // TRUE COPY // / BY ORDER, / PRIVATE SECRETARY , / ITAT, PUNE. 6 M A NO. 72 / PUN /20 19 A.Y. 2011 - 12 DATE 1 DRAFT DICTATED ON 02 .0 3 .2020 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 02.03 .2020 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER