Market Committee, Pipli V. ACIT, Kurukshetra

MA 88/CHANDI/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9943 (ITAT-CHANDIGARH)
• Duration Of Justice: 6 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-02-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 22-02-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 27-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N K SAINI
• Assessee Lawyers: B S SAINI
• Keywords: Rectification of order; Charitable institution; Agreed addition
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A CHANDIGARH BEFORE MS.SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER MA NO. 88/CHD/2012 IN ITA NO.1160/CHD/2011 ASSESSMENT YEAR: 2005-06 MARKET COMMITTEE, V THE ACIT, CIRCLE, PIPLI (KURUKSHETRA). KURUKSHETRA. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI B.S.SAINI RESPONDENT BY : SHRI N.K.SAINI DATE OF HEARING : 22.02.2013 DATE OF PRONOUNCEMENT : 27.02.2013 ORDER PER MEHAR SINGH, AM THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILE D BY THE ASSESSEE ON 27.08.2012. 2. IN THE IMPUGNED MISCELLANEOUS APPLICATION THE AS SESSEE APPELLANT SOUGHT TO ADJUDICATE THE ISSUE OF ADDITIO N, ON THE BASIS OF RECTIFICATION ORDER EFFECTED BY THE CIT(AP PEALS), VIDE HIS ORDER DATED 16.07.2012. THE CIT(APPEALS), IN THE I MPUGNED RECTIFICATORY ORDER U/S 154 OF THE ACT, OBSERVED, THE CONTENTION OF THE APPELLANT IS FOUND CORRECT AND THE MISTAKE B EING APPARENT FROM THE RECORD IS HEREBY RECTIFIED. THE PHRASE IN PARA 1.06 OF THE APPELLATE ORDER DATED 24.08.2012 MAY BE READ AS , DURING THE ASSESSMENT PROCEEDINGS INSTEAD OF DURING THE APPEAL PROCEEDINGS. IT WOULD BE PERTINENT TO REPRODUCE THE CONTENTS O F THE M.A., RECTIFICATORY ORDER DATED 16.07.2012, PAS SED BY THE CIT(APPEALS) AND THE RELEVANT PART OF THE ORDER DAT ED 07.03.2012 2 PASSED BY THE BENCH, FOR THE PURPOSE OF PROPER APPR ECIATION OF THE CONTENTION RAISED BY THE APPELLANT : ( CONTENTS OF THE M.A.FILED BY THE ASSESSEE) MOST RESPECTFULLY, IT IS STATED THAT THE ABOVE MEN TIONED APPEAL WAS DECIDED BY THE HONOURABLE BENCH - A, ON 07.03.2012 IN WHICH TH E APPEAL OF THE APPELLANT WAS DISMISSED DUE TO THE AGREED ADDITION BEFORE BOT H THE AUTHORITIES. BUT THE APPEAL OF RECTIFICATION BEFORE CIT (APPEALS) WAS PE NDING WHICH WAS DECIDED BY THE LD. CIT ON 16.07.2012 RECEIVED ON 05.08.2012 IN WHICH THE PREVIOUS ORDER OF THE CIT (APPEAL), KARNAL IS RECTIFIED BY SAYING' TH E CONTENTION OF THE APPELLANT IS FOUND CORRECT AND THE MISTAKE BEING APPARENT FR OM THE RECORD IS HERE BY RECTIFIED' IT IS HERE BY REQUESTED BEFORE HONOURABLE IT AT, TO DECIDE THE CASE IN THE LIGHT OF THE RECTIFIED ORDER OF THE APPEAL DECIDED BY YOURGOODSELF EARLIER HERE CIT (A) BY MISTAKE WROTE DURING APPEAL PROCEEDINGS WHICH WAS DURING THE ASSESSMENT PROCEEDING AND DO NEED FULL AS PER LAW I N THE INTEREST OF JUSTICE AND OBLIGE. (CONTENTS OF ORDER U/S 154 OF THE ACT PASSED BY CIT (APPEALS),KARNAL) ORDER U/S 154 OF THE INCOME TAX ACT 1961 1.0 THE APPELLANT FILED AN APPLICATION FOR RECTIFICATIO N U/S 154 OF THE INCOME TAX ACT 1961(IN SHORT 'THE ACT') WITH RE FERENCE TO THE APPEAL ORDER DATED 24.08.2011 OF THIS OFFICE IN THE CASE O F THE APPELLANT FOR THE ASSESSMENT YEAR 2005-06. 1.1 THE FACTS ARE THAT WHILE DECIDING THE APPEAL, IT WA S OBSERVED THAT DURING THE ASSESSMENT PROCEEDINGS, TH E COUNSEL FOR THE APPELLANT AGREED TO THE ADDITION OF RS.8,65,089/- I .E. THE AMOUNT SPENT LESS THAN 85% OF THE TOTAL RECEIPTS FOR CHARITABLE PURPOSES. THE SAME WAS, HOWEVER, MENTIONED IN THE APPEAL ORDER AS 'DUR ING THE APPEAL PROCEEDINGS' INSTEAD OF 'DURING THE ASSESSMENT PROC EEDINGS'. THE APPELLANT, THEREFORE, FILED APPLICATION U/S 154 OF THE ACT TO RECTIFY THE SAID MISTAKE WHICH WAS FIXED FOR HEARING ON 13.7.2012. THE CONTENTION OF THE APPELLANT IS FOUND CORRECT AND THE MISTAKE BEING AP PARENT FROM RECORD IS HEREBY RECTIFIED. THE PHRASE IN PARA 1.06 OF TH E APPEAL ORDER DATED 24.8.2012 MAY BE READ AS 'DURING THE ASSESSMENT PROCEEDINGS,' INSTEAD OF 'DURING THE APPEAL PROCEEDINGS. 2.00 THE RECTIFICATION APPLICATION OF THE APPELLANT IS, AS SUCH, ALLOWED. RELEVANT PART OF THE ORDER DATED 07.03.2012 PASSED BY THE BENCH 8. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE ALS O PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THIS CASE, THE DI SPUTE RELATES TO AN ADDITION OF RS. 8,65,0897- WHICH WAS NOT APPLIED FOR THE AIMS A ND OBJECTS OF THE TRUST AND HAS ALSO NOT APPLIED IN FORM NO.1OB TO THE A.O FOR ACCUMULATION OF THE SURPLUS AMOUNT. IT IS MATTER OF RECORD THAT THE ABO VE FACT WAS CONFRONTED BY THE ASSESSING OFFICER TO THE COUNSEL OF THE ASSESSE E AS PER ORDER SHEET ENTRY DATED 12.11.2010. IT IS ALSO CRYSTAL CLEAR FROM THE ORDER OF THE ASSESSING 3 OFFICER THAT THE AUTHORIZED REPRESENTATIVE OF THE A SSESSEE SHRI RAJESH KAUSHIK, ADVOCATE APPEARED BEFORE THE ASSESSING OFF ICER AND AGREED TO THE PROPOSED ADDITION. ACCORDINGLY, AN AMOUNT OF RS. 8, 65,0897- WAS ADDED TO THE INCOME OF THE ASSESSEE. AS PER PARA 1.06 OF THE IMPUGNED ORDER ALSO, IT IS CLEAR THAT DURING THE APPEAL PROCEEDINGS, THE COUNSEL OF THE ASSESSEE SHRI R.K. AGGARWAL, ADVOCATE AGREED TO THE A DDITION OF RS. 8,65,0897- I.E. AMOUNT SPENT LESS THAN 85% OF THE TOTAL RECEIPTS FO R CHARITABLE PURPOSES. EVEN IN THE WRITTEN SUBMISSIONS FILED BEFORE THE CI T(A), NO ARGUMENT WAS ADVANCED BY THE COUNSEL OF THE ASSESSEE. THUS IT IS CLEAR FROM THE ORDERS OF ASSESSING OFFICER AS WELL AS CIT(A) THAT AT BOTH STAGES I.E. BEFORE THE ASSESSING OFFICER AND THE CIT(A), RESPECTIVE CO UNSELS APPEARED BEFORE THESE AUTHORITIES AND THE COUNSELS AGREED TO THE IM PUGNED ADDITION. IN OUR CONSIDERED VIEW, THE ORDERS PASSED BY THE LO WER AUTHORITIES ON AN AGREEMENT CAN NOT GIVE RISE TO THE GRIEVANCES AND T HE SAME CANNOT BE AGITATED IN APPEAL BEFORE THE TRIBUNAL. THE VIEW TA KEN BY US IS DULY SUPPORTED BY FOLLOWING JUDGMENTS:- I) BANTA SINGH KARTAR SINGH V CIT, PATIALA (1980) 125 ITR 239(P&H) II) JIVATLAL PURTAPSHI V CIT, BOMBAY (1967) 65 ITR 261 (BOM) 3. A BARE PERUSAL OF THE CONTENTS OF THE MISCELLANE OUS APPLICATION FILED BY THE APPELLANT, THE SAID RECTIF ICATORY ORDER PASSED BY THE CIT(APPEALS) AND PARA 8 OF THE ORDER OF THE TRIBUNAL, REVEALS THAT THE ADDITION HAD BEEN UPHELD BY THE BENCH, ON THE BASIS OF SURRENDER MADE BY THE ASSESS EE BEFORE THE AO. THE BENCH HAS FOLLOWED THE DECISION OF THE JURISDICTIONAL HIGH COURT AND THE HON'BLE BOMBAY HI GH COURT, AS IS EVIDENT FROM THE REPRODUCTION OF THE RELEVANT PART OF THE ORDER PASSED BY THE TRIBUNAL. 4. HAVING REGARD TO THE RECTIFICATION, EFFECTED BY THE CIT(APPEALS) AND THE IMPUGNED ORDER OF THE BENCH, I T IS EVIDENT THAT THE IMPUGNED ADDITION HAS BEEN UPHELD IN VIEW OF SURRENDER MADE BY THE APPELLANT, BEFORE THE AO. IT IS APPARENT THAT EVEN IN THE LIGHT OF IMPUGNED RECTIFICATORY OR DER, PASSED BY THE CIT(APPEALS), THE FACTUAL AND LEGAL POSITION OF THE CASE REMAINS UN-REBUTTED AND, HENCE, THE DECISION TAKEN BY THE BENCH IS PURELY BASED ON MERIT, ON APPRECIATION OF THE FACTUAL MATRIX OF THE CASE. THEREFORE, THERE IS NO MISTAKE APPARENT FROM 4 THE RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE ACT, IN THE ORDER DATED 07.03.2012, PASSED BY THE BENCH. NEEDL ESS TO SAY THAT IT IS THE LEGALLY SETTLED PROPOSITION THAT THE ORDER PASSED BY THE BENCH, ON MERIT, CANNOT BE REVIEWED AND REVERSE D, IN THE GARB OF RECTIFICATION, AS CONTEMPLATED U/S 254(2) O F THE ACT. TO INVOKE THE PROVISIONS OF SECTION 254(2) OF THE ACT, IT IS ESSENTIAL THAT THERE MUST EXIST MISTAKE APPARENT FROM RECORD, WHICH IS DISCERNIBLE BY LOOKING AT THE RECORD, AND NOT BY LO OKING INTO THE RECORD. THE ASSESSEE APPELLANT HAS FAILED TO DEMON STRATE, THE EXISTENCE OF ANY MISTAKE APPARENT FROM RECORD, IN T HE SAID ORDER OF THE BENCH. THEREFORE, THE ISSUE DECIDED ON MERIT BY THE BENCH, CANNOT BE REVIEWED AND THE RECTIFICATORY PRO CEEDINGS U/S 254(2) CANNOT BE CONVERTED INTO APPELLATE PROCEEDIN GS, AS INTENDED BY THE APPELLANT. 5. IN VIEW OF THE ABOVE, THE MISCELLANEOUS APPLICAT ION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH FEB.,2013. SD/- SD/- (SUSHMA CHOWLA) (MEHAR SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 27 TH FEB.,2013. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT CHANDIGARH.