Sushil kumar, KGF V. Deputy Commissioner of Income tax, Bangalore

MA 76/BANG/2017

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 5483 (ITAT-BANGALORE)
• Duration Of Justice: 5 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-09-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 12-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PADMAMEENAKSHI J
• Assessee Lawyers: H N KHINCHA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, B E NGAL U R U BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI LALIET KUMAR, JUDICIAL MEMBER MISC. PETN.NO.76/BANG/2017 (IN ITA NO.644(B ANG )/2015 ) (ASSESSMENT YEAR : 2012 - 13) SHRI M. SUSHIL KUMAR, PROP: M/S ABHISHEK BANKERS, SANTHOSH NIVAS, MAHARAJA ROAD, ROBERTSONPET K.G.F - 563 122 PAN ADMPK2632H VS. PETITIONER THE DEPUTY COMMISSIONER OF INCOME - TAX, CENTRAL CIRCLE - 2(1), BENGALURU. RESPONDENT PETITIONER BY : SHRI H .N.KHINCHA, CA. RESPONDENT BY : SMT.PADMA MEENAKSHI, JCIT(DR) DATE OF HEARING : 11/08/2017 DATE OF PRONOUNCEMENT : 15 /0 9 /2017 O R D E R PER I NTURI RAMA RAO, AM : THIS MISCELLANEOUS PETITION (MP) IS FILED BY THE ASSESSEE PRAYING FOR RECTI FICATION OF THE ORDER PASSED BY THIS TRIBUNAL IN ITA NO.644/BANG/2016 DATED 30/12/2015. RECTIFICATION OF THE ORDER WAS SOUGHT BY THE PETITIONER ON THE GROUND THAT WHILE PASSING THE IMPUGNED ORDER THE TRIBUNAL HAD NOT CONSIDERED CERTAIN FACTS RELEVANT TO D ECIDE GROUND OF APPEAL N O .3. M P NO . 76 /BANG/201 7 PAGE 2 OF 4 AFTER CONSIDERING THE RIVAL SUBMISSIONS AND MATERIAL ON RECORD, IT IS RELEVANT TO STATE THAT THIS IS A SECOND MP FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE TRIBUNAL IN ITA NO. 644/BANG/2015. THE FIRST MP BEARING NO.7 5/BANG/2016 WAS DISMISSED BY THIS TRIBUNAL VIDE ORDER DATED 31/10/2016. NOW THE LAW IS SETTLED TO THE EXTENT THAT SECOND MISCELLANEOUS PETITION AGAINST MISCELLANEOUS PETITION IS NOT MAINTAINABLE. RELIANCE IN THIS REGARD CAN BE PLACED ON THE DECISION OF TH E HON BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. PEARL WOOLEN MILLS (330 ITR 164) WHEREIN IT WAS 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 U NLESS SUCH POWER IS EXPRESSLY CONFERRED. REFERENCE MAY BE MADE TO JUDGMENT OF THE HON BLE SUPREME COURT IN PATEL NARSHI THAKERSHI V. PRADYUMAN SINGHJI ARJUNSINGHJI [1971] 3 SCC 844, WHEREIN IT WAS OBSERVED AS UNDER: '4. . . . IT IS WELL - SETTLED THAT THE P OWER 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 CHAUDHAR Y [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 M P NO . 76 /BANG/201 7 PAGE 3 OF 4 REFERRED TO PRINCIPLE OF INHERENT POWER AND INCIDENTAL POWER AND ALSO THE PRINCIPLE THAT ACT OF COURT CA NNOT 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, WHIC H 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 R EVIEW 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 C ASE ( 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 PREJUDI CING 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 WIT HOUT 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. FURTHER, PRO VISIONS OF SECTION 254(2) OF THE INCOME - TAX ACT, 1961 READS AS UNDER: 254. (1) THE APPELLATE TRIBUNAL MAY, AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THEREON AS IT THINKS FIT (2) THE APPELLATE TRIBUNAL MA Y, AT ANY TIME WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB - SECTION (1), AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BRO UGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER : PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCING AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INCREASING THE LIABILITY OF THE ASSESSEE, SHALL NOT BE MADE UNDER THIS SUB - SECTION UN LESS THE APPELLATE TRIBUNAL HAS GIVEN NOTICE TO THE ASSESSEE OF ITS INTENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD : M P NO . 76 /BANG/201 7 PAGE 4 OF 4 PROVIDED FURTHER THAT ANY APPLICATION FILED BY THE ASSESSEE IN THIS SUB - SECTION ON OR AFTER THE 1S T DAY OF OCTOBER, 1998, SHALL BE ACCOMPANIED BY A FEE OF FIFTY RUPEES. IN THIS CASE , THE ORDER WAS PASSED BY THE TRIBUNAL ON 30/12/2015 AND THE LIMITATION PRESCRIBED U/S 254(2) EXPIRED ON 30/06/2016. IT IS SETTLED PRINCIPLE OF LAW THAT IN ABSENCE OF PRO VISIONS FOR CONDONING THE DELAY, THE TRIBUNALS ARE NOT EMPOWERED TO CONDONE THE DELAY. HENCE, THIS MP IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH SEPTEMBER , 201 7 S D/ - SD/ - ( LALIET KUMAR ) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTA NT MEMBER PLACE : B EN GAL URU D A T E D : 15 /0 9 /2017 SRINIVASULU, SPS COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME - TAX APPELLATE TRIBUNAL BANGALORE