M/s. Mohan Exports (India) Pvt. Ltd., New Delhi V. DCIT, New Delhi

MA 76/DEL/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6916 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-09-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2001-2002
• Appeal Filed On: 16-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: V K AGARWAL
• Keywords: Reopening of assessment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH E NEW DELHI (FRIDAY) BEFORE SHRI R.P. TOLANI AND SHRI B.C. MEENA M.A. NO. 76/DEL/2011 ( IN ITA NO.3696/DEL/10 ) ASSTT. YR: 2001-02 M/S MOHAN EXPORTS (INDIA )PVT. LTD. VS. DCIT CIR. 5(1), MOHAN HOUSE, NEW DELHI. 7, ZAMRUDPUR COMMUNITY CENTRE, KAILASH COLONY EXTN., NEW DELHI. PAN/GIR NO. AAACM4168J ( APPLICANT ) ( RESPONDENT ) APPLICANT BY : SHRI V.K. AGARWAL CA RESPONDENT BY: SHRI ROHIT GARG SR. DR O R D E R PER R.P. TOLANI, J.M : THIS IS ASSESSEES MISC. APPLICATION U/S 254(2) OF THE I.T. ACT, 1961, RAISING FOLLOWING MISTAKES PURPORTING TO BE APPAREN T FROM THE ORDER OF THE ITAT DATED 22-12-2010 PASSED IN THE ABOVE CAPTIONE D APPEAL. (1) THAT SIGNIFICANT CONTENTIONS RAISED DURING THE COUR SE OF HEARING HAVE NOT BEEN CONSIDERED; (2) THAT THE IMPUGNED REASSESSMENT WAS FRAMED ON THE AS SUMPTION THAT NO RETURN OF INCOME WAS FILED BY THE ASSESSEE WHERE AS THE RETURN WAS FILED AND NO NOTICE U/S 143(2) WAS ISSUED. (3) THE ASSESSEES COUNSEL DID NOT UNDERTAKE THAT IT MA Y BE GIVEN A CHANCE TO REMOVE ANY DEFECT IN THE RETURN. 2 (4) THE ASSESSEES COUNSEL DID NOT UNDERTAKE TO THE EFF ECT THAT REOPENING OF ASSESSMENT WILL NOT BE CHALLENGED DURING THE CO URSE OF SET ASIDE PROCEEDINGS. (5) THE ASSESSEES COUNSEL CONTESTED THE SUGGESTION OF SETTING ASIDE THE CASE AND WANTED THE CASE TO BE DECIDED ON THE BASIS OF NON-ISSUE OF MANDATORY NOTICE U/S 143(2). 2. LEARNED COUNSEL RELIES ON THE RATIO OF DECISION OF HONBLE SUPREME COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD. VS. CIT (2007) 295 ITR 466 (SC) FOR THE PROPOSITION THAT ATONEMENT TO THE WRONGED PARTY BY THE ITAT FOR THE WRONG COMMITTED BY IT HAS NOTHING TO D O WITH THE CONCEPT OF INHERENT POWER OF REVIEW. FURTHER RELIANCE IS PLACE D ON THE RATIO OF DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF LACHMAN DASS BHATIA HINGWALA (P) LTD. VS. ACIT (WP NOS. 6460/2010 & OTHERS DATED 24-12-2010) FOR THE PROPOSITION THAT WHILE EXERCISING U/S 254(2) THE IT AT CAN RECALL ITS ORDER IN ENTIRETY. IT IS PLEADED THAT IN VIEW OF AFOREMENTIO NED MISTAKES, THE TRIBUNALS ORDER MAY BE RECALLED AND THE MATTER MAY BE REHEARD. 3. LEARNED DR OPPOSED THE MA AND CONTENDS THAT THE ARGUMENT OF THE LEARNED COUNSEL AMOUNTS TO REVIEW OF THE ORDER. THE ITAT IN PARA 5 OF ITS ORDER HAS APPRECIATED ALL THE FACTS AND POINTED OUT THE MISTAKE OF THE ASSESSEES COUNSEL THAT INSTEAD OF WRITING A.Y. 2001-02 ON THE COUNTER FOIL, MOVED TO THE DEPARTMENT AS A.Y. 2006-07 AN D THAT IT WHY THE RETURN COULD NOT BE PLACED BY THE LOWER STAFF IN THE FOLDE R FOR A.Y. 2001-02. ITAT 3 HAS CONSIDERED ALL THE FACTS AND THEREAFTER A JUDIC IAL FINDING HAS BEEN GIVEN ABOUT SETTING ASIDE OF THE ORDER TO CORRECT THE MIS TAKES AND REFRAMING OF PROPER ASSESSMENT. THE ASSESSEE WANTS TO DEFEAT T HE ENTIRE PROCEEDINGS ON MINOR TECHNICALITIES IGNORING ITS OWN DEFECTS IN FI LING THE RETURN. THE MATTER WAS ARGUED IN DETAIL ON 25-11-2010 AND AS SOME FURT HER VERIFICATION OF DEPARTMENTAL RECORD WAS DESIRABLE IT WAS ADJOURNED TO 26-11-2010. AFTER ELABORATE ARGUMENTS, IT WAS AGREED BY ALL CONCERNE D THAT IN THE INTEREST OF SUBSTANTIAL JUSTICE, THE MATTER MAY GO BACK TO THE FILE OF AO. IT IS A JUDICIAL FINDING GIVEN BY ITAT. IT DOES NOT LIE WITH LEARN ED COUNSEL TO PROPOSE THAT ITAT ORDER WAS MISTAKEN AND NO SUCH UNDERTAKING WA S GIVEN BY HIM, CONSEQUENTLY, THE MA AMOUNTS TO REVIEW OF THE ORDER WHICH IS NOT PERMISSIBLE U/S 254(2). 4. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. WE FIND MERIT IN THE ARGUMENT OF LEARNED DR. THE ITAT AFTER CONSIDERING ALL ASPECTS OF THE MATTER AND HOL DING DISCUSSION ON TWO SUCCESSIVE DAYS CAME TO THE CONCLUSION THAT THE INT EREST OF JUSTICE WILL BE SERVED BY SETTING ASIDE THE MATTER TO AO WHICH WAS AGREED BY BOTH THE PARTIES. THIS BEING A JUDICIAL FINDING, THE SAME CA NNOT BE RECALLED IN THE GARB OF SEC. 254(2). THE APPLICATION OF THE ASSESSEE AMO UNTS TO REVIEW OF THE ORDER AND THIS BEING SO, THE RATIO OF DECISIONS OF HONBLE SUPREME COURT AND 4 THAT OF HONBLE DELHI HIGH COURT (SUPRA) IS NOT APP LICABLE TO ASSESSEES CASE AS IN THOSE CASES THE MISTAKES WERE HELD TO BE APPA RENT ON RECORD. IN VIEW OF ABOVE ASSESSEES MA IS LIABLE TO BE DISMISSED. 5. IN THE RESULT, ASSESSEES M.A. IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 09-09-2011. SD/- SD/- ( B.C. MEENA ) ( R.P. TOLANI ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 09-09-2011. MP COPY TO : 1. ASSESSEE 2. AO 3. CIT 4. CIT(A) 5. DR