R.Arun, Udamalpet V. ITO, Pollachi

MA 86/CHNY/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4460 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 24-06-2016
• Assessment Year: 2008-2009
• Appeal Filed On: 21-04-2016
• Court: TRIBUNAL
• Department Lawyers: R DURAI
• Assessee Lawyers: T VASUDEVAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI , ! ' . #$ % &' BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI DUVVURU RL REDDY , JUDICIAL MEMBER MP NO. 86/MDS./2016 ( I.T.A.NO.269/MDS./14 ASSESSMENT YEAR : 2008-09) MR.R.ARUN, S/O.V.RAMANUJAM, 2/52,MODAKKUPATTI, DEEPALAPATTI(PO),UDUMALPET. VS. THE INCOME TAX OFFICER, WARD-1(I), POLLACHI. [PAN AJSPA 1486 F ] ( () / APPELLANT) ( *+() /RESPONDENT) / APPELLANT BY : MR.T.VASUDEVAN,ADVOCATE /RESPONDENT BY : MR.R.DURAIPANDIAN,JCIT,DR / DATE OF HEARING : 24 - 06 - 201 6 / DATE OF PRONOUNCEMENT : 06 - 07 - 2016 , / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER BY THIS MISCELLANEOUS PETITION, THE ASSESSEE SEE KS RECTIFICATION OF THE ORDER OF THE TRIBUNAL IN ITA NO.269/MDS./201 4 DATED 10.02.2016 FOR ASSESSMENT YEAR 2008-09. 2. THE LD.A.R SUBMITTED THAT THE ASSESSEE CAME IN APPEAL BEFORE THIS TRIBUNAL IS WITH REGARD TO DISALLOWANCE MADE U /S.40A(3) OF THE MA NO.86/MDS./16 :- 2 -: ACT. THE TRIBUNAL WHILE DISMISSING THE GROUND, HA D NOT CONSIDERED THE ARGUMENT OF THE LD.A.R THAT COPRA PER SE WAS AN AGRICULTURAL PRODUCE BUT FALLS WITHIN THE EXCLUSIONARY PROVISION S OF RULE 6DD(F)(I) OF THE RULES. FURTHER, THE PAYMENTS ARE MADE IN A VIL LAGE WHICH WERE NOT COVERED BY BANKING FACILITIES, AS SUCH IT SQUARELY FALLS WITHIN RULE 6DDD(H) OF RULES. FURTHER, IT ALSO MADE A PLEA BEF ORE THE TRIBUNAL THAT THE PAYMENTS WERE MADE TO THE AGRICULTURISTS, AS SUCH IT FALLS UNDER THE PURVIEW OF RULE-6DD(I) OF THE RULES. ACCO RDING TO LD.A.R, THESE FACTS WERE NOT CONSIDERED BY THE TRIBUNAL, AS SUCH HE REQUIRES RE-CONSIDERATION OF THE ORDER OF THE TRIBUNAL AND H E PLEADED THAT THE ORDER OF TRIBUNAL TO BE RECALLED. 3. ON THE OTHER HAND, LD.D.R RELIED ON THE ORDER O F THE TRIBUNAL. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. THE TRIBUNAL WHILE ADJUDICATING THE ISSUE R AISED BY THE ASSESSEE BEFORE US, CONSIDERED THE ENTIRE FACTS AND CIRCUMSTANCES OF THE CASE AND RECORDED ITS FINDINGS. NOW, THE LD.A. R WANTS THE TRIBUNAL TO REVIEW THE EARLIER ORDER OF THE TRIBUNAL. IT IS WELL SETTLED THAT STATUTORY AUTHORITY CANNOT EXERCISE POWER OF REVIEW UNLESS SUCH POWER IS EXPRESSLY CONFERRED. THERE IS NO EXPRESS POWER O F REVIEW CONFERRED ON THIS TRIBUNAL. EVEN OTHERWISE, THE SCOPE OF REVI EW DOES NOT EXTENT TO RE-HEARING OF THE CASE ON MERIT. IN THE CASE OF CIT V. PEARL WOOLEN MILLS REPORTED IN [2011] 330 ITR 164 (P&H) WHEREIN IT WAS HELD:- MA NO.86/MDS./16 :- 3 -: 7. LEARNED COUNSEL FOR THE REVENUE SUBMITS THAT THE SCOPE OF RECTIFICATION UNDER SECTION 254(2) IS LIMITED TO CO RRECTING AN ERROR ON THE FACE OF RECORD AND NOT TO READJUDICATE THE ISSU ES. RELIANCE HAS BEEN PLACED ON T. S. BALARAM, ITO V. VOLKART BROTHE RS [1971] 82 ITR 50 (SC), CIT V. RAMESH ELECTRIC AND TRADING CO. [19 93] 203 ITR 497 (BOM), CIT V. HERO CYCLES PVT. LTD. [1997] 228 ITR 463 (SC), CIT V. KAMAL BHAI ISMAILJI [2007] 288 ITR 297 (ALL) , CIT V. ITAT [2007] 293 ITR 118 (DELHI), ASST. CIT V. SAURASTHTR A KUTCH STOCK EXCHANGE LTD. [2008] 305 ITR 227 (SC) AND DEVA META L POWDERS (P) LTD. V. COMMISSIONER, TRADE TAX, UTTAR PRADESH [2007] 10 VST 751; [2008] 2 SCC 439. 8. LEARNED COUNSEL FOR THE ASSESSEE, HOWEVER, SUBMI TS THAT THE ASSESSEE COULD NOT BE MADE TO SUFFER ON ACCOUNT OF OMISSION OF THE TRIBUNAL IN APPRECIATING THE SUBMISSIONS WHICH WERE MADE AND THE TRIBUNAL WAS JUSTIFIED IN OBSERVING THAT EITHER THE EARLIER ORDER SHOULD BE RECALLED OR THE MATTER SHOULD BE ADJUDICATED AFR ESH. 9. THE QUESTION TO BE CONSIDERED IS WHETHER IT IS O PEN TO THE TRIBUNAL TO READJUDICATE THE MATTER AND THAT TOO WHEN AN EAR LIER 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 RE-ADJUDICATED THE MATTER UNDER SECTION 254(2). KEEPING IN MIND THE ABOVE PARAMETERS, WE ARE OF THE OPINION THAT THE TRIBUNAL IN ITS ORDER GIVEN A CATEGORICAL FINDING T HAT THE PERSON TO WHOM THE PAYMENTS TO HAVE MADE WERE NOT FULL TIME A GRICULTURISTS. THEY ARE ALSO ENGAGED IN TRAINING ACTIVITIES, AS SU CH RULE-6DD(L) IS NOT APPLICABLE. FURTHER, THE TRIBUNAL HAD GONE THROUGH THE ENTIRE PROVISIONS OF RULE-6DD AND ALSO OBSERVED THAT SHRI DHAKSHINAMOORTHY IS HAVING BANK ACCOUNT WITH TAMILNADU MERCANTILE BA NK AND SHRI RAMANATHAN IS HAVING BANK ACCOUNT WITH SYNDICATE BA NK. HENCE, IT MA NO.86/MDS./16 :- 4 -: WAS OPINED THAT SEC.40A(3) IS APPLICABLE TO THE FA CTS OF THE CASE AND RULE 6DD(H) IS NOT APPLICABLE. EVEN RULE 6DD(L) CAN NOT BE APPLIED AND PAYMENTS WERE MADE TO THESE TWO PERSONS ONLY. HENCE , IN OUR OPINION, THE MISCELLANEOUS PETITION FILED BY THE AS SESSEE IS HAVING NO MERIT. 5. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON 06 TH JULY, 2016, AT CHENNAI. SD/ - SD/ - . ! '# $ ( DUVVURU RL REDDY ) ) % / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER %& / CHENNAI '() / DATED: 06 TH JULY, 2016 K S SUNDARAM (*++,-.+/. / COPY TO: + 1 . / APPELLANT 3. + 0+$ / CIT(A) 5. .12+,,3 / DR 2. / RESPONDENT 4. + 0 / CIT 6. 2#4+5 / GF