The ITO, Ward-2, GANDHIDHAM V. Shri Vasant Mohanlal Thaakar, GANDHIDHAM

MA 8/RJT/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9565 (ITAT-RAJKOT)
• Duration Of Justice: 6 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-10-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 05-10-2012
• Assessment Year: 1997-1998
• Appeal Filed On: 26-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Keywords: Tax effect

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. . .. . . .. . , , , , . .. . . .. . , , , , $ $ $ $ BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K. SRIVASTAV A, AM MA NO.08/RJT/2012 ARISING OUR OF ITA NO.994/RJT/2010. / ASSESSMENT YEAR 1997-98 THE INCOME TAX OFFICER, WARD 2, PLOT NO.32, SEC-3, GANDHIDHAM. ( * / APPELLANT) VS. SHRI VASANT MOHANLAL THACKER, 55, TANKER OWNERS ASSN. BUILDING, NH8-A, GANDHIDHAM-KUTHCH, PAN: AAZPT6192M. +,* / RESPONDENT -. / APPLICANT BY SHRI. AVINASHKUMAR . / RESPONDENT BY SHRI KALPESH DOSHI . / DATE OF HEARING 13-07-2012 . / DATE OF PRONOUNCEMENT 05-10-2012 / / / / ORDER . .. . . . . . , , , , / T. K. SHARMA, J. M. THIS MA FILED BY THE REVENUE WHICH READS AS UNDER : 2. IN THIS CASE, THE DEPARTMENT HAD FILED AN APPEAL B EFORE THE ITAT, RAJKOT AGAINST THE ORDER OF LD.CIT(A)-II, RAJKO T DATED 30.3.2010 IN APPEAL NO. CIT(A)-II/0145/2008-2009 IN THE APPEAL ON THE FOLLOWING GROUNDS: I) THE LD. CIT(A) HAS ERRED IN LAW AND ON DELETING T HE ADDITION OF RS.5,00,000/- MADE U/S 68 BEING UNEXPLAINED CASH CRE DIT. II) THE LD. CIT(A) HAS ERRED IN LAW AND ON FACT S IN DELETING THE DISALLOWANCE OF RS.13,125/- BEING CLAIM OF INTEREST PAY MENT ON RS.5,00,000/-; MA NO.08/RJT/2012 ARISING OUR OF ITA NO.994/RJT/2010. 2 III) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE AO. IV) IT IS THEREFORE PRAYED THAT THE ORDER OF THE LD . CITA) BE SET ASIDE AND THAT OF THE AO BE RESTORED TO THE ABO VE EXTENTS. 3. THE ITAT VIDE ORDER DATED 21.7.2011 IN ITA NO. .994/RJT/2010 PRONOUNCED IN OPEN COURT AT THE TIME O F HEARING, DISMISSED THE APPEAL FILED BY THE REVENUE ON THE GROUN D THAT THE APPEAL FILED BY THE REVENUE INVOLVED TAX EFFECT BEL OW RS.3 LAKHS. . 4. THUS, THERE IS MISTAKE IN THE ORDER OF THE TRIBUNA L IN ITA NO.994/RJT/2010 DATED 21.7.2011 IN SO FAR AS THE MON ITORY LIMIT FOR FILING APPEAL TO ITAT WAS RS.2 LAKHS AT THE RELEVANT TIME WHEN THE APPEAL WAS FILED. THE LIMIT WAS RAISED TO 3 LAKHS VIDE BOARDS INSTRUCTION DATED 9.2.2011. THE SUPREME COURT IN TH E CASE OF SURYA HERBAL IN SLP( C) CC NO. 13694 OF 2011 HAS D IRECTED NOT TO APPLY INSTRUCTION NO.3/2011 IPSO FACTO IN RESPECT OF A PPEAL FILED PRIOR TO 9.2.2011. PRAYER IN VIEW OF THE ABOVE, IT IS KINDLY REQUESTED TO RECTI FY THE ORDER DATED 21.7.2011 IN ITA NO. .994/RJT/2010; FOR THE AY 1997-98 U/S 254(2) OF THE IT ACT, 1961 TO THE ABOVE EXTENT AND THE APPEAL FOR THE REVENUE BE DECIDED ON MERITS. . 2. AT THE TIME OF HEARING OF THIS MISCELLANEOUS APPLICAT ION, ON BEHALF OF THE REVENUE SHRI AVINASHKUMAR THE LD. DR APPEA RED AND POINTED OUT THAT THE LIMIT FOR FILING THE APPEAL BEFORE THE TRIBUNAL OF RS.2 LAKHS WAS RAISED TO RS.3 LAKHS VIDE INSTRUCTION NO.3/2011 DATED 9. 2.2011 IN RESPECT OF THE APPEAL FILED ON OR AFTER 9.2.2011. THIS A PPEAL OF THE REVENUE WAS FILED ON 29.06.2010, THEREFORE, THE TRIBUNAL MAY RECALL ITS ORDER AND DECIE THE APPEAL ON MERITS. 3. SHRI KALPESH DOSHI, THE LD. COUNSEL FOR THE ASSESSEE AS AGAINST THIS POINTED OUT THAT THE INSTRUCTION NO.3/2011 IS APP LICABLE IN RESPECT OF THE PENDING CASES OF THE REVENUE. HE FURTHER POINTED OUT THAT RECTIFICATION IS NOT POSSIBLE WHERE TWO VIEWS ARE POSSIBLE . THE LD. COUNSEL MA NO.08/RJT/2012 ARISING OUR OF ITA NO.994/RJT/2010. 3 FOR THE ASSESSEE POINTED OUT THAT THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V/S ASMT.VARSHA DILIP KOLHE, HAS OBSERVED T HAT THE CIRCULAR NO.3/2011 HAS A RETROSPECTIVE OPERATION AND INSTRUCTIO N CONTAINED IN THE CIRCULAR WOULD APPLY EVEN PENDING CASES. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS PERTIN ENT TO NOTE THAT AT THE TIME OF HEARING OF THE APPEAL, BOTH T HE SIDES CONCEDED THAT THE TAX EFFECT INVOLVED IN THE APPEAL FILED BY THE REVENUE IS LESS THAN RS.3,00,000/- AND THE INSTRUCTION OF CBDT IS BINDING ON THE AO. APART FROM THIS, IT IS WELL SETTLED LAW THAT THE TRIBUNAL HA S NO POWER TO REVIEW ITS OWN ORDER U/S 254(2) OF THE INCOME TAX ACT, 1961. WH ILE DISMISSING THE APPEAL OF THE REVENUE, PRIMA FACIE THE TRIBUNAL HA S TAKEN A PARTICULAR VIEW. UNLESS THERE ARE MANIFEST ERRORS, WHICH ARE OBVI OUS, CLEAR AND SELF EVIDENT, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER IN AN ATTEMPT TO REVIEW THE ORDER. THE MISTAKE HAS TO BE SUCH FOR WHI CH NO ELABORATE REASONS OR INQUIRY IS NECESSARY. IN THIS CASE, ADMITT EDLY, WHETHER THE INSTRUCTION NO.3/2011 IS APPLICABLE WHEREBY THE LIMIT OF RS.2 LAKHS IS RAISED TO RS.3 LAKHS FOR FILING THE APPEAL BY REVENUE IS RETROSPECTIVE OR NOT, THE DIVERGENT OF VIEWS ARE POSSIBLE. 5. IN VIEW OF THE FOREGOING DISCUSSION, WE ARE OF THE VIEW THAT BY FILING MISCELLANEOUS APPLICATION, THE REVENUE IS VIRTU ALLY SEEKING A REVIEW OF THE ORDER PASSED BY THE TRIBUNAL WHICH IS CLE ARLY BEYOND THE SCOPE OF THE PROVISIONS OF SECTION 254(2) OF THE INCOME TAX ACT. 1961 AND NOT PERMISSIBLE UNDER LAW. THEREFORE, THE MISCELLANEO US APPLICATION FILED BY THE REVENUE IS REJECTED. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF TH E REVENUE IS DISMISSED. MA NO.08/RJT/2012 ARISING OUR OF ITA NO.994/RJT/2010. 4 THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON THE DAT E MENTIONED HEREINABOVE. SD SD ( .. / D. K. SRIVASTAVA) ( .. / T. K. SHARMA) / ACCOUNTANT MEMBER /JUDICIAL MEMBER 3/ ORDER DATE 5.10.2012. /RAJKOT SRL . .. . +4 +4 +4 [phone] / COPY OF ORDER FORWARDED TO:- 1. * / APPLICANT - 2. +,* / RESPONDENT- 3. : / CONCERNED CIT. 4. :- / CIT (A),. 5. 4 +, , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , TRUE COPY SENIOR PRIVATE SECRETARY , INCOME TAX APPELLATE TRIBUNAL, RAJKOT.