DIMPY ENTERPRSES, MUMBAI V. INCOME TAX OFFICER 17(1)(4), MUMBAI

MA 881/MUM/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 0381 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-09-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 08-12-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH
• Keywords: Rectification of order; Principle of natural justice; Reasonable cause
• Section: 133(6); 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D MUMBAI BEFORE SHRI C.N. PRASAD (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) M.A. NO. 881/MUM/2017 (ITA NO. 3208/MUM/2017) ASSESSMENT YEAR: 2010 - 11 & M.A. NO. 882/MUM/2017 (ITA NO. 3209/MUM/2017) ASSESSMENT YEAR: 2011 - 12 M/S DIMPY ENTERPRISES 501, ASHIRWAD BUILDING AHMEDABAD STREET, MUMBAI - 400009 VS. ITO - 17(1)(4) MUMBAI PAN NO. AAAFD4836B APPELLANT RESPONDENT ASSESSEE BY : SHRI BHUPENDRA SHAH, AR REVENUE BY : SHRI CHAUDHARY ARUN KUMAR SINGH, DR DATE OF HEARING : 23/08/2019 DATE OF PRONOUNCEMENT : 06/09/2019 ORDER PER N.K. PRADHAN, A.M. BY MEANS OF THESE MISCELLANEOUS APPLICATION S (MA S ), THE APPLICANT SEEK S RECALL OF THE ORDER DATED 31.10 .20 17 PASSED BY THE ITAT D BENCH MUMBAI (ITA NO. 320 8 & 3209 /MUM/201 7 ) FOR THE ASSESSMENT YEAR (AY) 2010 - 11 & 2011 - 12 . 2. THE LD. COUNSEL FOR THE APPLICANT SUBMITS THAT THE AUTHORIZED REPRESENTATIVE OF THE APPELLANT NEVER ARGUED FOR RESTORING THE FILE TO THE ASSESSING OFFICER (AO) FOR WANT OF FURTHER EVIDENCE. IT IS STATED BY HIM THAT M/S DIMPY ENTERPRISES MA NOS. 881 & 882/MUM/2017 2 THE MATTER WAS REMANDED BACK TO THE AO FOR WANT OF CROSS EXAMINATION OF PARTIES AS FURTHER EVIDENCE IN SPITE OF THE FACT THAT NOTICES U/S 133(6) WERE RETURNED UN - SERVED TO THE AO AND EVEN THOUGH NO NEW EVIDENCE WAS PRODUCED. FINALLY, IT IS ARGUED BY HIM THAT THERE WERE ADEQUATE CASE LAWS WHICH ALLOWED THE MATTER TO BE DECIDED ON THE BAS IS OF GP ADDITION WHICH WERE NOT GIVEN DUE CONSIDERATION AND THEREFORE, THE DISMISSAL OF APPEAL IS AGAINST NATURAL JUSTICE. THUS IT IS SUBMITTED THAT THE TRIBUNAL MAY FIX UP FRESH DATE OF HEARING OF THE MATTER AT THE EARLIEST. 3. ON THE OTHER HAND, THE LD . DR SUBMITS THAT THE IMPUGNED ORDER PASSED BY THE TRIBUNAL IS A REASONED ONE AND RECTIFICATION OF IT WOULD AMOUNT TO REVISION. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. THE REASONS FOR OUR DECISIONS ARE GIVEN BEL OW. IN THE GROUNDS OF APPEAL, THE ASSESSEE HA S RAISED OBJECTION THAT THE ORDER WAS PASSED BY THE AO WITHOUT ALLOWING CROSS - EXAMINATION OF THE SAID SUPPLIERS AND WITHOUT FURNISHING COPY OF THE STATEMENT OF THE SUPPLIERS RECORDED BY THE SALES TAX DEPARTMENT ( REF. THE 2 ND GROUND OF APPEAL). IN VIEW OF THE SAID GROUND OF APPEAL AND CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE RESTORE D THE MATTER TO THE FILE OF THE AO TO MAKE A FRESH ASSESSMENT AFTER GIVING OPPORTUNITY TO THE ASSESSEE TO CROSS EXAMIN E THE CONCERNED PARTIES. IN THIS R EGARD, WE RELIED ON THE DECISION IN STATE OF KERALA V. K.T. SHADULI GROCERY DEALER AIR 1977 SC 1627, ITO V. M. PIRAI CHOODI (2012) 20 TAXMANN.COM 733 (SC) AND OM VINYLS P. LTD. V. ITO [W.P. (L) NO. 3114 OF 2014] (BOMBAY) . THE SCOPE AND AMBIT OF APPLICATION OF SECTION 254(2) IS VERY LIMITED. THE SAME IS RESTRICTED TO RECTIFICATION OF MISTAKE APPARENT FROM THE RECORD. M/S DIMPY ENTERPRISES MA NOS. 881 & 882/MUM/2017 3 THE ORDER PASSED BY THE TRIBUNAL U/S 254(1) IS THE EFFECTIVE ORDER SO FAR AS THE APPEAL IS CONCERNED. ANY OR DER PASSED U/S 254(2) EITHER ALLOWING THE AMENDMENT OR REFUSING TO AMEND GETS MERGED WITH THE ORIGINAL ORDER PASSED. POWER TO RECALL AN ORDER IS PRESCRIBED IN TERMS OF RULE 24 OF THE ITAT RULES, 1963 AND THAT TOO ONLY IN CASE WHERE THE ASSESSEE SHOWS THAT IT HAD A REASONABLE CAUSE FOR BEING ABSENT AT A TIME WHEN THE APPEAL WAS TAKEN UP AND DECIDED EX - PARTE. THE WORDS USED IN SECTION 254(2) ARE SHALL MAKE SUCH AMENDMENT, IF THE MISTAKE IS BROUGHT TO ITS NOTICE. CLEARLY, IF THERE IS A MISTAKE, THEN AN AMEN DMENT IS REQUIRED TO BE CARRIED OUT IN THE ORIGINAL ORDER TO CORRECT THAT PARTICULAR MISTAKE. THE PROVISION DOES NOT INDICATE THAT THE TRIBUNAL CAN RECALL THE ENTIRE ORDER AND PASS A FRESH DECISION. THAT WOULD AMOUNT TO A REVIEW OF THE ENTIRE ORDER AND THA T IS NOT PERMISSIBLE UNDER THE I.T. ACT. THE POWER TO RECTIFY A MISTAKE U/S 254(2) CANNOT BE USED FOR RECALLING THE ENTIRE ORDER. 4. 1 AS CAN BE SEEN FROM THE FACTUAL SCENARIO IN THE INSTANT CASE, THERE IS NO MISTAKE APPARENT FROM RECORD. 5. IN THE RESULT, THE MA S ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 06/09/2019. SD/ - SD/ - ( C.N. PRASAD ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 06/09/2019 RAHUL SHARMA, SR. P.S. M/S DIMPY ENTERPRISES MA NOS. 881 & 882/MUM/2017 4 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI