Rajhans Prakshans, Pune V. DCIT, Pune

MA 78/PUN/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1001 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-08-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 09-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANN KAPTHUAMA
• Keywords: Rectification of order
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCHES B, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER MA NO.78/PN/2012 (ARISING OUT OF ITA NO.1447/PN/2010) (ASSESSMENT YEAR : 2005-06) RAJHANS PRAKASHAN 1025 SADASHIV PETH, PUNE 411 030 PAN : AABFR5126K . APPELLANT VS. DY. COMMISSIONER OF INCOME TAX CIRCLE 3, PUNE . RESPONDENT APPELLANT BY : MR. M. N. KULKARNI RESPONDENT BY : MS. ANN KAPTHUAMA ORDER PER G. S. PANNU, AM THIS MISCELLANEOUS APPLICATION HAS BEEN PREFERRED BY THE ASSESSEE UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 (I N SHORT THE ACT) SEEKING RECTIFICATION OF MISTAKE IN THE ORDER OF THE TRIBUN AL DATED 21.06.2012. 2. AS PER THE ASSESSEE, A MISTAKE WITHIN THE MEANIN G OF SECTION 254(2) OF THE ACT HAS CREPT INTO THE ORDER OF THE TRIBUNAL DA TED 21.06.2012 (SUPRA) INASMUCH AS ASSESSEES SUBMISSION ASSAILING AN ADDI TION OF RS.3,56,099/- CONFIRMED BY THE CIT(A) UNDER SECTION 41 OF THE ACT WAS NOT ADJUDICATED THOUGH A SPECIFIC REQUEST AND SUBMISSION WAS MADE I N TERMS OF RULE 27 OF THE APPELLATE TRIBUNAL RULES 1963 (IN SHORT THE RULES ). 3. IN BRIEF, THE BACKGROUND OF THE PRESENT PETITION CAN BE SUMMARIZED AS FOLLOWS. THE ASSESSEE IS A FIRM ENGAGED IN THE BUSI NESS OF PUBLICATION AND PRINTING OF BOOKS. THE ASSESSING OFFICER NOTED THAT A SUM OF RS.32,53,366/- WAS AN OUTSTANDING LIABILITY PAYABLE TOWARDS ROYALT Y TO AUTHORS. THE ASSESSING OFFICER DISALLOWED A SUM OF RS.30,44,336/ - ON THE GROUND THAT SUCH MA NO.78/PN/2012 RAJHANS PRAKASHAN A.Y. : 2005-06 LIABILITY CEASED TO EXIST IN THE ABSENCE OF CONFIRM ATIONS FROM THE RESPECTIVE PARTIES AND THE INVOKED SECTION 41(1)(A) OF THE ACT IN THIS REGARD. SUBSEQUENTLY, ASSESSING OFFICER PASSED AN ORDER PAS SED UNDER SECTION 154 DATED 18.03.2000 WHEREBY THE DISALLOWANCE WAS REDUC ED TO RS.24,72,510/- AFTER CONSIDERING CERTAIN CONFIRMATIONS FURNISHED B Y THE ASSESSEE. ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) CHAL LENGING THE ADDITION OF RS.24,72,510/- MADE BY THE ASSESSING OFFICER. 4. THE CIT(A) DELETED THE ADDITION TO THE EXTENT OF RS.21,16,411/- BY CONSIDERING THE EVIDENCE AND MATERIAL ON RECORD AND SUSTAINED THE BALANCE OF RS.3,56,399/-. THE REVENUE CAME IN APPEAL BEFORE TH E TRIBUNAL VIDE ITA NO.1447/PN/2010, WHICH WAS DISPOSED-OFF BY THE TRIBUNAL VIDE ORDER DATED 21.06.2012 DISMISSING THE APPEAL OF THE REVEN UE. 5. IN THE COURSE OF HEARING OF THE APPEAL, THE RESP ONDENT-ASSESSEE DEFENDED THE DELETION OF RS.21,16,411/- MADE BY THE CIT(A) BY SUBMITTING THAT SECTION 41(1)(A) OF THE ACT HAS BEEN WRONGLY INVOKE D BY THE ASSESSING OFFICER. THE ASSESSEE ALSO RAISED A POINT THAT THE DISALLOWANCE OF RS.3,56,399/- RETAINED BY THE CIT(A) WAS ALSO NOT S USTAINABLE IN VIEW OF INAPPLICABILITY OF SECTION 41(1)(A) OF THE ACT. 6. THE TRIBUNAL UPHELD THE PLEA OF THE ASSESSEE THA T THE CIT(A) WAS JUSTIFIED IN HOLDING THAT THE LIABILITY COULD NOT C EASE TO EXIST WITHIN THE MEANING OF SECTION 41(1)(A) OF THE ACT MERELY IN THE ABSENC E OF CONFIRMATIONS FROM THE PARTIES. THE TRIBUNAL CONFIRMED THE ORDER OF THE CI T(A) DELETING THE ADDITION OF RS.21,16,411/- AND ACCORDINGLY DISMISSED THE APPEAL OF THE REVENUE. WITH REGARD TO THE AMOUNT OF RS.3,56,399/- SUSTAINED BY THE CIT(A), THE TRIBUNAL NOTED THAT THERE WAS NO APPEAL OR CROSS-OBJECTION F ILED BY THE ASSESSEE PRAYING FOR ITS DELETION. MA NO.78/PN/2012 RAJHANS PRAKASHAN A.Y. : 2005-06 7. NOW, BY WAY OF THE PRESENT PETITION, IT IS CONTE NDED THAT IN TERMS OF RULE 27 OF THE RULES ASSESSEE WAS ENTITLED TO RAISE THE ABOVE POINT, AND THE SAME SHOULD BE ALLOWED, AND THE ASSESSEE BE ALLOWED RELI EF OF RS.3,56,399/- ALSO. 8. RULE 27 OF THE APPELLATE TRIBUNAL RULES, 1963 RE ADS AS UNDER :- THE RESPONDENT, THOUGH HE MAY NOT HAVE APPEALED, M AY SUPPORT THE ORDER APPEALED AGAINST ON ANY OF THE GROUNDS DECIDE D AGAINST HIM. 9. OSTENSIBLY, THE AFORESAID RULE PERMITS A RESPOND ENT, THOUGH HE MAY NOT HAVE APPEALED, TO SUPPORT THE ORDER APPEALED AG AINST ON ANY OF THE GROUNDS DECIDED AGAINST HIM. IN OTHER WORDS, THE SA ID RULE PERMITTED THE RESPONDENT-ASSESSEE, THOUGH HE HAD NOT FILED ANY AP PEAL, TO SUPPORT THE ORDER OF THE CIT(A) WHILE DEFENDING THE ORDER OF THE CIT( A) WHICH WAS CHALLENGED BY THE REVENUE, ON ANY GROUND DECIDED AGAINST HIM. PER TINENTLY, RULE 27 OF THE RULES ONLY PERMITTED THE RESPONDENT-ASSESSEE, TO SUPPORT THE ORDER APPEALED AGAINST . IN OTHER WORDS, IT ONLY PERMITTED THE RESPONDENT- ASSESSEE TO RAISE A GROUND TO SERVE ONLY AS A WEAPON OF DEFENSE AGAINST THE APPEAL OF THE REVENUE. QUITE CLEARLY, IT WOULD NOT ENTITLE THE AS SESSEE TO DISTURB THAT PORTION OF THE ORDER OF THE CIT(A) WHICH WAS DECIDED IN FAV OUR OF THE APPELLANT REVENUE. FACTUALLY, THE APPEAL OF THE REVENUE WAS D ISMISSED AND THEREFORE, THE ASSESSEE CANNOT, THROUGH THE MECHANISM OF RULE 27 OF THE RULES, SEEK TO EFFECT OR DISTURB THAT PORTION OF THE ORDER OF THE CIT(A) WHICH WAS IN FAVOUR OF THE APPELLANT, INASMUCH AS THE SAID ISSUE WAS NEVER BEFORE THE TRIBUNAL IN THE APPEAL OF THE APPELLANT-REVENUE. THE AFORESAID PROP OSITION IS IN LINE WITH THE PARITY OF REASONING LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF B.R. BAMASI VS. CIT 83 ITR 223 (BOM.). 10. THEREFORE, HAVING REGARD TO THE FACTS AND CIRCU MSTANCES OF THE PRESENT CASE, THE CAPTIONED MISCELLANEOUS APPLICATION PREFE RRED BY THE ASSESSEE IS MISCONCEIVED AND IS HEREBY DISMISSED. MA NO.78/PN/2012 RAJHANS PRAKASHAN A.Y. : 2005-06 11. ORDER PRONOUNCED IN THE OPEN COURT ON 07 TH AUGUST, 2013. SD/- SD/- (SHAILENDRA KUMAR YADAV) (G . S. PANNU) JUDICIAL MEMBER ACCOUNT ANT MEMBER PUNE, DATED: 07 TH AUGUST, 2013 SUJEET COPY OF THE ORDER IS FORWARDED TO : - 1) THE ASSESSEE; 2) THE DEPARTMENT; 3) THE CIT(A)-II, PUNE; 4) THE CIT-II, PUNE; 5) THE DR, B BENCH, I.T.A.T., PUNE; 6) GUARD FILE. BY ORDER //TRUE COPY// SR. PRIVATE SECRETARY I.T.A.T., PUNE