Paradeep Port Trust, V. CIT, Cuttack

MA 9/CTK/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6344 (ITAT-CUTTACK)
• Duration Of Justice: 1 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-04-2011
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 23-02-2011
• Court: TRIBUNAL
• Department Lawyers: A K GAUTAM
• Assessee Lawyers: S K TULSIYAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , S HRI K.S.S.PRASAD RAO , JUDICIAL MEMBER MISC.APPLN. NOS. 9 TO 11/CTK/2011 IN / I.T.A.NO. 346/CTK/2006 DT.6.5.2008 / ASSESSMENT YEAR M/S.PARADEEP PORT TRUST, PARADEEP, CUTTACK, ORISSA. - - - VERSUS - COMMISSIONER OF INCOME - T AX, CUTTACK. ( /APPELLANT ) (APPLICANT IN MISC.APPLN.) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI S.K.TULSIYAN, AR / FOR THE RESPONDENT: / SHRI A.K.GAUTAM, DR / ORDER . . , , SHRI K.K.GUPTA, ACCOUNTANT MEMBER. THESE MISC. APPLICATIONS ARISE OUT OF ORDER DT.6.5.2008 PASSED BY THE ITAT, CUTTACK IN ITA NO.346/CTK/2006. 2. THE UNDISPUTED FACTS, IN BRIEF, ARE THAT THE ASSESSEE - APPLICANT FILED APPEAL BEFORE THE TRIBUNA L AGAINST THE ORDER DT.29.9.2006 PASSED U/S.12AA(B)(II) BY THE LEARNED COMMISSIONER OF INCOME - TAX DT.29.9.2006 REFUSING GRANT OF REGISTRATION U/S.12A TO THE ASSESSEE. AGGRIEVED, ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL. THE TRIBUNAL, AFTER CONSIDERING TH E FACTS AND SUBMISSIONS AND FOLLOWING THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT V. GUJARAT MARITIME BOARD AND THE DECISIONS OF ITAT, VISAKHAPATNAM, RAJKOT, MUMBAI AND KOLKATA BENCHES, PASSED THE IMPUGNED ORDER DT.6.5.2008 IN ITA NO.346/CTK/2 006, SET ASIDE THE ORDER OF THE LEARNED CIT AND DIRECTED HIM TO GRANT REGISTRATION U/S.12A W.E.F. 1.4.2005 WHEN THE APPLICATION WAS MADE WITHOUT ANY DELAY. HOWEVER, FOR THE INTERMEDIARY PERIOD OF THREE YEARS (I.E., FROM 1.4.2002 TO 31.3.2005), SINCE THE LE ARNED CIT HAS REFUSED MISC.APPLN. NOS. 9 TO 11/CTK/2011 IN I.T.A.NO. 346/CTK/2006 DT.6.5.2008 2 REGISTRATION FOR LATE FILING OF APPLICATION FOR REGISTRATION, AS WAS TOLD THEN BEFORE THE TRIBUNAL, THE TRIBUNAL OPINED THAT THE SAME NEEDS FRESH ADJUDICATION IN THE INTEREST OF JUSTICE. ACCORDINGLY, THE TRIBUNAL SET ASIDE THE ORDER O F THE LEARNED CIT AND RESTORED THE ISSUE TO HIS FILE FOR CONSIDERING THE BELATED REGISTRATION APPLICATION AND REGISTRATION FOR THE INTERMEDIARY PERIOD OF AFORESAID THREE YEARS STRICTLY ON MERITS DE NOVO AFTER PROVIDING A REASONABLE OPPORTUNITY TO THE ASSES SEE. THE EFFECTIVE PORTION OF THE ORDER DT.6.5.2008 PASSED BY THE TRIBUNAL READS AS UNDER: 7. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREFUL PERUSAL OF THE MATERIALS AVAILABLE ON RECORD, WE FIND FORCE IN THE SUBMISSIONS OF THE ASSESSEE. RESPECTFULLY FOLLOWING THE DECISION OF THE HONBLE APEX COURT AND SUBSEQUENT TRIBUNAL ORDERS [CITED SUPRA], WE SET ASIDE THE ORDER OF THE ID.CIT AND DIRECT H IM TO GRANT REGISTRATION W.E.F 1 - 4 - 05 I.E. FROM FIRST DAY OF THE FINANCIAL YEAR [2005 - 06] WHEN THE APPLICATION W AS MADE FOR REGISTRATION WITHOUT ANY DELAY . FOR THE INTERMEDIATORY PERIOD OF THREE YEARS (1 - 4 - 2002 TO 3 1 - 3 - 2005) THE APPLICATION WAS FILED BELATED AND THE SAME WAS REJECTED BY THE CIT, AS WE WERE TOLD. BY CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMST ANCES, WE ARE OF THE VIEW THAT THE ISSUE PERTAINING TO THE REGISTRATION FOR THE THREE YEARS NEEDS FRESH ADJUDICATION. THEREFORE, IN THE INTEREST OF JUSTICE, WE SET ASIDE THE ORDER OF THE LD.CIT AND RESTORE THE ISSUE TO HIS FILE FOR CONSIDERING THE BELATED REGISTRATION APPLICATION AND REGISTRATION FOR THE INTER - MEDIATORY PERIOD OF THREE YEARS STRICTLY ON MERITS DE NOVO AFTER PROVIDING A REASONABLE OPPORTUNITY TO THE ASSESSEE . (EMPHASIS GIVEN) 3. THE LEARNED COUNSEL FOR THE ASSESSEE, WHILE ARGUING IN SUPPOR T OF THE PRESENT MISC. APPLICATIONS, SUBMITTED THAT PENDING CONSIDERING THE REGISTRATION OF THE PARADEEP PORT TRUST (ASSESSEE - APPLICANT) FOR THE MISC.APPLN. NOS. 9 TO 11/CTK/2011 IN I.T.A.NO. 346/CTK/2006 DT.6.5.2008 3 INTERMEDIARY PERIOD OF THREE YEARS (I.E., FROM 1.4.2002 TO 31.3.2005) IN PURSUANCE TO THE ORDER DT.6.5.2008 PAS SED BY THE TRIBUNAL IN ITA NO.346/CTK/2006, ASSESSMENT ORDERS FOR THE SAID PERIOD I.E., FOR ASSESSMENT YEARS 2003 - 04, 2004 - 05 AND 2005 - 06 WERE PASSED U/S.143(3)/147 ON 28.12.2009, 29.12.2009 AND 28.01.2011 RESPECTIVELY BY NOT TREATING THE ASSESSEE AS A CHA RITABLE TRUST THEREBY CREATING HUGE DEMANDS BY NOT GRANTING EXEMPTION U/S.11. HE FURTHER SUBMITTED THAT THE DEPARTMENT IS PRESSURIZING PAYMENT OF THE SAID DEMANDS. IN THE ABOVE CONTEXT, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN PURSUANCE OF T HE ORDER OF THE TRIBUNAL THE LEARNED CIT ISSUED NOTICE OF HEARING FIXING DATE ON 22.7.2008. IN RESPONSE TO THE SAID NOTICE, THE ASSESSEE, VIDE APPLICATION DT.21.7.2008, SOUGHT FOR ONE MONTHS TIME. AGAIN, VIDE LETTER DT.28.8.2008 THE ASSESSEE - APPLICANT REQ UESTED THE LEARNED CIT FOR FIXATION OF HEARING. THE LEARNED CIT ISSUED NOTICE DT.26.4.2010 ALONG WITH A QUESTIONNAIRE AND THE ASSESSEE - APPLICANT FILED WRITTEN SUBMISSION DT.19.5.2010. THEREAFTER NEITHER ANY HEARING WAS FIXED BY THE LEARNED CIT NOR WAS ANY ORDER IN PURSUANCE OF THE TRIBUNALS DIRECTION PASSED. 4. IT IS UNDER FACTS AND CIRCUMSTANCES STATED IN THE FOREGOING PARAGRAPH, THE LEARNED COUNSEL FOR THE ASSESSEE PRAYED THAT THE LEARNED CIT MAY BE DIRECTED TO PASS THE REQUISITE ORDER AS PER THE DIRE CTION OF THE TRIBUNAL IN ITS ORDER DT.6.5.2008 WITHIN A SHORT TIME TO BE FIXED BY THE TRIBUNAL OR TO RECALL BACK THE REMAND ORDER TO PASS APPROPRIATE ORDERS GRANTING REGISTRATION U/S.12A TO THE ASSESSEE - APPLICANT FOR THE INTERMEDIARY PERIOD AS STATED ABOVE ON THE BASIS OF RECORDS AVAILABLE WITH THE TRIBUNAL. IN SUPPORT OF HIS SUBMISSION, HE PLACED RELIANCE ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF STATE OF KARNATAKA V. VISHWABARATHI HOUSE BUILDING CO - OPERATIVE MISC.APPLN. NOS. 9 TO 11/CTK/2011 IN I.T.A.NO. 346/CTK/2006 DT.6.5.2008 4 SOCIETY (2003) 113 COMP CAS 536,5 54 (SC) FOR THE PROPOSITION THAT A TRIBUNAL HAS GOT THE INHERENT POWER TO MAKE ITS ORDER EFFECTIVE. HE ALSO RELIED ON THE DECISION OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF MALCHAND SURANA V. CIT ( 82 ITR 314), THE APPELLATE TRIBUNAL HAS POWER UNDER SE CTION 33 OF THE I.T.ACT,1922 FOR DOING ALL SUCH ACTS OR EMPLOYING SUCH MEANS AS WOULD BE ESSENTIALLY NECESSARY FOR THE EXECUTION OF ITS APPELLATE JURISDICTION. 5. THE LEARNED DR, ON THE OTHER HAND, VEHEMENTLY OPPOSED THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE, FOR THE SIMPLE REASON THAT THE ACTION OF THE LEARNED CIT IN NOT CARRYING OUT THE DIRECTION OF THE TRIBUNAL IN THEIR ORDER DT.6.5.2008 FOR THE REASON BEST KNOWN TO HIM, CANNOT BE A GROUND FOR ADJUDICATION BY THE TRIBUNAL THE VERY SAME ISSU E AGAIN BY RECALLING ITS ORDER. IN SUCH EVENT, REMEDIES LIE ELSEWHERE AND NOT BY WAY OF FILING OF MISC. APPLICATION SEEKING ADJUDICATION OF AN ISSUE, WHICH HAS ALREADY BEEN CONSIDERED BY THE TRIBUNAL AND IN ITS WISDOM HAS RESTORED THE SAME TO THE FILE OF T HE LEARNED CIT FOR CONSIDERATION. THE POWER OF THE TRIBUNAL, AS SUGGESTED BY THE LEARNED COUNSEL FOR THE ASSESSEE, HAS TO BE ON THE BASIS OF POWER WHICH CAN BE EXECUTED ON ITS OWN ON THE BASIS OF FACTS AND CIRCUMSTANCES OF A GIVEN CASE AND NOT BY SNATCHING THE POWER OF GRANTING REGISTRATION U/S.12A, WHICH POWER IS ASSIGNED ONLY TO THE LEARNED CIT. THE CASE LAWS CITED BY THE LEARNED COUNSEL FOR THE ASSESSEE RELATE TO PROVISIONS CONTAINED IN INCOME - TAX ACT,1922 WHICH MAY OR MAY NOT HAVE RELEVANT TO THE EXTENT THAT THE TRIBUNAL HAS VERY MUCH LIMITED POWER WHILE CONSIDERING MISC. APPLICATIONS, WHICH IS ONLY TO BE CONSIDERED ON THE BASIS OF MISTAKE APPARENT ON RECORD AND NOT ON THE BASIS OF EXERCISING VARIOUS FOR AND AGAINST PROPOSITIONS AS ALSO NOTED BY THE LEAR NED CIT IN THE QUESTIONNAIRES BROUGHT ON RECORD BY THE LEARNED COUNSEL FOR THE ASSESSEE IN THE PAPER BOOK (PAGES MISC.APPLN. NOS. 9 TO 11/CTK/2011 IN I.T.A.NO. 346/CTK/2006 DT.6.5.2008 5 25 TO 27). FURTHER HE CONTENDED THAT MERE MAKING OF ASSESSMENTS FOR THE AYS 2003 - 04, 2004 - 05 AND 2005 - 06 RAISING DEMAND BY NOT ALLOWING EXEMPTI ON U/S.11 FOR WANT OF REGISTRATION U/S.12A AND EVEN INSISTING FOR PAYMENTS OF THOSE DEMANDS, CANNOT ITSELF BE A GROUND FOR ALLOWING THE PRAYER OF THE ASSESSEE - APPLICANT AS MADE IN THE PRESENT MISC. APPLICATION. HE, THEREFORE, PRAYED THAT THE MISC. APPLICAT IONS FILED BY THE ASSESSEE BE REJECTED. 6. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE IMPUGNED ORDER OF THE TRIBUNAL AND ALSO THE DECISIONS RELIED ON BY THE LEARNED COUNSEL FOR THE ASSESSEE. 7. UNDER SECTION 254(2) OF THE INCOME - TA X ACT, 1961, THE APPELLATE TRIBUNAL MAY, 'WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD', AMEND ANY ORDER PASSED BY IT UNDER SUB - SECTION (1) WITHIN THE TIME PRESCRIBED THEREIN. IT IS AN ACCEPTED POSITION THAT THE APPELLATE TRIBUNAL DOES NO T HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER THE PROVISIONS OF THE INCOME - TAX ACT, 1961. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO RECTIFY ANY MISTAKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD. THIS IS MERELY A POWER OF AMENDING ITS ORD ER [SEE. - . 203 ITR 497 (BOM) CIT V RAMESH ELECTRIC AND TRADING CO]. THE EXTENT OF THIS POWER OF RECTIFICATION WAS CONSIDERED BY THE SUPREME COURT AS FAR BACK AS IN 1971 IN THE CASE OF T. S. BALARAM, ITO V. VOLKART BROTHERS [1971] 82 ITR 50 . THE SUPREME COURT SAID (HEADNOTE) : --- ' A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINT . THIS VIEW OF THE SUPREM E COURT HAS HELD THE FIELD FOR A LONG TIME, AND HAS BEEN FOLLOWED BY OTHER HIGH COURTS. IN THE CASE OF V. P. MINOCHA, ITO V. ITAT [1977] 106 ITR 691 , HONBLE GUJARAT HIGH COURT, MISC.APPLN. NOS. 9 TO 11/CTK/2011 IN I.T.A.NO. 346/CTK/2006 DT.6.5.2008 6 RELYING UPON BALARAM'S CASE [1971 ] 82 ITR 50 (SC) (SUPRA), SAID THAT A DECISION GIVEN BY THE TRIBUNAL ON A DEBATABLE POINT OF LAW CANNOT BE SUBSEQUENTLY CONSIDERED AS SHOWING ANY MISTAKE APPARENT FROM THE RECORD WHICH THE TRIBUNAL COULD CONSEQU ENTLY RECTIFY. SIMILARLY, HONBLE MADRAS HIGH COURT IN THE CASE OF CIT V. R. CHELLADURAI [1979] 118 ITR 108 , SAID THAT THE TRIBUNAL'S POWER UNDER SECTION 254(2) IS NOT TO REVIEW ITS EARLIER ORDER BUT ONLY TO AME ND IT WITH A VIEW TO RECTIFYING ANY ERROR APPARENT FROM THE RECORD. THE POWER OF RECTIFICATION UNDER SECTION 254(2) OF THE INCOME - TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPAR ENT FROM THE RECORD, AND NOT A MISTAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINION. 8. IN THE PRESENT CASE ON HAND, THERE IS NO DISPUTE AS TO THE FACT THAT TH E ISSUE REGARDING GRANT OF REGISTRATION U/S.12A FOR THE AYS 2003 - 04, 2004 - 05 AND 2005 - 06 HAS BEEN RESTORED BY THE TRIBUNAL TO THE FILE TO BE CONSIDERED BY THE LEARNED CIT. IT IS ALSO A FACT, NOT DISPUTED BY THE REVENUE, THAT THE LEARNED CIT HAS NOT GIVEN E FFECT TO THE SAID ORDER OF THE TRIBUNAL AS YET, AS SUBMITTED BY THE LEARNED COUNSEL OF THE ASSESSEE, WHEREAS THE ASSESSMENTS U/S.143(3)/147 FOR THESE YEARS HAVE BEEN COMPLETED AND DEMAND HAS BEEN RAISED BY NOT GRANTING EXEMPTION U/S.11. IN OUR CONSIDERED V IEW, THE ABOVE CANNOT BE GROUNDS FOR RECALLING OF THE ORDER DT.6.5.2008 PASSED BY THE TRIBUNAL, SINCE THE ISSUE HAS ALREADY BEEN DECIDED BY THE TRIBUNAL AND IT WAS RESTORED TO THE FILE OF THE LEARNED CIT FOR CONSIDERATION AND THUS, THERE IS ADMITTEDLY NO M ISTAKE APPARENT FROM RECORD. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT RECALLING OF THE ORDER OF THE TRIBUNAL FOR RE - ADJUDICATING THE ISSUE AFRESH, AS PRAYED IN THE MISC. APPLICATIONS WOULD MISC.APPLN. NOS. 9 TO 11/CTK/2011 IN I.T.A.NO. 346/CTK/2006 DT.6.5.2008 7 TANTAMOUNT TO REVIEW/REVISION OF THE ORDER OF THE TRIBUNAL , WHICH IS NOT PERMISSIBLE IN LAW, AS DISCUSSED IN THE FOREGOING PARAGRAPH. IT MAY BE TRUE THAT HARDSHIP IS CAUSED TO THE ASSESSEE - APPLICANT, AS CONTENDED BY THE LEARNED COUNSEL OF THE ASSESSEE BY NON - GIVING OF EFFECT TO THE TRIBUNAL ORDER BY THE LEARNED C IT IN ONE HAND AND ON THE OTHER HAND, PASSING OF ASSESSMENT ORDERS U/S.143(3)/147 BY THE ASSESSING OFFICER FOR THE AYS 2003 - 04, 2004 - 05 AND 2005 - 06 BY NOT GRANTING EXEMPTION U/S.11 ON THE GROUND OF ABSENCE OF REGISTRATION U/S.12A AND THUS RAISING DEMAND AND ALSO INSISTING PAYMENT OF SUCH DEMAND. BUT FOR SUCH HARDSHIP, IN OUR CONSIDERED VIEW, REMEDIES LIE ELSEWHERE AGAINST THE NON - ACTION OF THE LEARNED CIT, IF ANY AND ALSO AGAINST THE ASSESSMENT ORDERS SO PASSED, AND CERTAINLY NOT IN THE WAY AS SOUGHT F OR BY THE ASSESSEE - APPELLANT IN THE PRESENT MISC. APPLICATIONS, PARTICULARLY WHEN ADMITTEDLY THERE IS NO MISTAKE APPARENT ON THE RECORD FOUND IN THE ABOVE TRIBUNALS ORDER. IN VIEW OF THE ABOVE, THE DECISIONS RELIED ON BY THE LEARNED COUNSEL FOR THE ASSESS EE, WHICH ARE ON DIFFERENT CONTEXT AND THAT TOO UNDER THE PROVISIONS OF THE INCOME - TAX ACT,1922, AS RIGHTLY POINTED OUT BY THE L EARNED DR, ARE OF NO HELP TO THE ASSESSEE - APPELLANT. THEREFORE, CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE DO NOT F IND ANY MERIT IN THE PRESENT MISC. APPLICATIONS AND AS SUCH, THE MISC. APPLICATIONS FILED BY THE ASSESSEE ARE DISMISSED. 9. HOWEVER, PARTING WITH THE ISSUE IN MISC. APPLICATIONS, WE MAY MENTION HERE THAT IN ORDER TO AVOID MULTIPLICITY OF LITIGATIONS BASED ON THE FATE OF GRANTING REGISTRATION U/S.12A OF THE ACT FOR THE AYS 2003 - 04, 2004 - 05 AND 2005 - 06 IN THE PRESENT CASE, THE SAME NEEDS EARLY CONSIDERATION, WHICH IS NOW STATED TO BE PENDING BEFORE THE LEARNED CIT, IN VIEW OF THE FACT THAT EARLY DISPOSAL OF LIS IS THE MOTTU OF THE STATE AND IT SHOULD NOT BE PROLONGED LONG IN MISC.APPLN. NOS. 9 TO 11/CTK/2011 IN I.T.A.NO. 346/CTK/2006 DT.6.5.2008 8 DETERRENCE TO THE SUBJECT AND ALSO IN THE INTEREST OF REVENUE. 10. IN THE RESULT, THE MISC. APPLICATIONS FILED BY THE ASSESSEE - APPLICANT ARE REJECTED BEING DEVOID OF MERIT. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 8 TH APRIL, 2011 SD/ - SD/ - ( . . . ) , ( K.S.S.PRASAD RAO), JUDICIAL MEMBER ( . . ) , , (K.K.GUPTA), ACCOUNT ANT MEMBER. ( ) DATE: 8 TH APRIL, 2011 - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT /APPLICANT : M/S.PARA DEEP PORT TRUST, PARADEEP, CUTTACK, ORISSA. 2 / THE RESPONDENT: COMMISSIONER OF INCOME - TAX, CUTTACK. 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, [ ] SENIOR PRIVATE SECRETARY ( ), ( H.K.PADHEE ), SENIOR.PRIVATE SECRETARY.