M/s. Viraj Steels, Pune V. Addl. CIT, Range-1, Pune

MA 91/PUN/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9817 (ITAT-PUNE)
• Duration Of Justice: 8 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-04-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 04-01-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 25-07-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: V L JAIN
• Keywords: Rejection of books of accounts

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A , PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / M .A. NOS.91 & 92/PUN/2018 (ARISING OUT OF ITA NOS.1027 & 1028/PUN/2013) / ASSESSMENT YEARS : 2008-09 & 2009-10 M/S. VIRAJ STEELS, OFFICE NO.38, VASTUSHREE COMPLEX, SR.NO.587, MARKET YARD, PUNE 411 037. PAN : AAGFV0774Q. APPLICANT. V/S THE ADDL. COMMISSIONER OF INCOME TAX, RANGE 5, PUNE. RESPONDENT ASSESSEE BY : SHRI V.L. JAIN. REVENUE BY : SHRI RAJESH GAWALI. / ORDER PER ANIL CHATURVEDI, AM : 1. THESE TWO MISCELLANEOUS APPLICATIONS (M.AS) I.E., M.A.NO.91/P UN/ 2018 AND M.A.NO.92/PUN/2018 ARISING OUT OF THE CONSOLIDATE D ORDER OF TRIBUNAL IN ITA NOS.1027 & 1028/PUN/2013 FOR A.Y.S 2008-09 AND 2009- 10, RESPECTIVELY HAVE BEEN FILED BY THE ASSESSEE. 2. BEFORE US LD.A.R. SUBMITTED THAT THE APPEALS FOR A.Y. 2008 -09 AND 2009-10 WERE DECIDED BY A CONSOLIDATED ORDER AND THE IS SUE INVOLVED IS IDENTICAL IN BOTH THE APPEALS. IN THE MISCELLANEOUS APPLICAT ION, ASSESSEE HAS INTER-ALIA SUBMITTED THAT THE HON'BLE TRIBUNAL WHILE UPH OLDING THE REJECTION OF BOOKS OF ACCOUNTS HAS OVER LOOKED CERTAIN FA CTS AS ENUMERATED / DATE OF HEARING : 29.03.2019 / DATE OF PRONOUNCEMENT: 03.04.2019 2 IN PARA 2 OF THE MISCELLANEOUS APPLICATION. IT IS FURTHER THE CONTENTION OF THE ASSESSEE THAT CERTAIN DECISIONS RELIED UPON BY ASSES SEE HAVE NOT BEEN DEALT WITH WHILE DECIDING THE ISSUE. HE THEREFORE SUBMITTED THAT THE ORDER BE SUITABLY AMENDED TO RECTIFY THE AFORESAID MISTAKES. 3. THE LD.D.R. ON THE OTHER HAND, CONTENDED THAT THE TRIB UNAL AFTER CONSIDERING ALL THE FACTS HAS DECIDED THE ISSUE. HE FURTHER SUBMITTED THAT THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL AND THE RE IS NO APPARENT ERROR IN THE ORDER OF TRIBUNAL THAT REQUIRES INTERFERENCE AND IF THE PRESENT M.A OF THE ASSESSEE IS ACCEPTED IT WOULD AMOUNT TO THE R EVIEW OF THE ORDER WHICH IS NOT PERMISSIBLE, HE THEREFORE SUBMITTED THAT THAT THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE BE DISMISSED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE POWERS OF THE TRIBUNAL UNDER SECTION 254(2) O F THE ACT IS VERY LIMITED AND THE TRIBUNAL HAS LIMITED JURISDICTION OF RECTIFICATION IN ITS OR DER OF AN ERROR IS CREPT THEREIN WHICH IS APPARENT FROM THE FACE OF THE RECORD. RE-APPRECIATION OF THE EVIDENCE PLACED BEFORE THE TRIBUNAL DURING THE COURSE OF HEARING IS NOT PERMISSIBLE TO RE-ADJUDICATE THE ISSUE AFRESH UNDER THE GARB OF RECTIFICATION. THE TRIBUNAL CANNOT, IN LAW AND FACTS, RECALL AND DESTROY ITS FINAL ORDER AS A WHOLE WITH A VIEW TO RECTIFY THE SAME ORDER UNDER SECTION 254(2). THE POWER TO REVIEW IS NOT AV AILABLE TO THE TRIBUNAL. IF WE ACCEPT THIS APPLICATION, THEN THIS MAY TANTAM OUNT TO REVIEW OF AN ORDER OF THE TRIBUNAL AND THE LAW IS SETTLED T HAT WE HAVE NO SUCH POWER. TO SUPPORT OUR AFORESAID VIEW REFERENCE CAN BE MADE TO THE DECISION IN THE CASE OF PERFETTI VAN MELLE INDIA (P) LTD. VS. CIT REPORTED IN (2008) 296 ITR 595 (DEL) WHEREIN THE HON'BLE HIGH COURT HAS HELD THAT ASSESSEE CANNOT BE ALLOWED TO REOPEN AND REARGUE THE WHOLE MATTER IN THE GARB OF RECTIFICATION UNDER SECTION 254(2). IT HAS HELD AS UNDER : 3 'IT IS WELL SETTLED THAT AN OVERSIGHT OF A FACT CAN NOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER SEC.254(2). SIMILARLY, FA ILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR A RRIVING AT A CONCLUSION, IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE MERE FACT THAT THE TRIBUNAL HAS NOT A LLOWED A DEDUCTION, EVEN IF THE CONCLUSION IS WRONG, THAT WILL BE NO GROUND FOR MOVING AN APPLICATION UNDER SEC.254(2). FURTHER, IN GARB OF APPLICATION F OR RECTIFICATION, THE ASSESSEE CANNOT BE ALLOWED TO BE PERMITTED TO REOPE N AND REARGUE THE WHOLE MATTER, WHICH IS BEYOND THE SCOPE OF THIS SEC TION. 5. WE FURTHER FIND THE HONBLE BOMBAY HIGH COURT IN THE C ASE OF CIT VS. EARNEST EXPORTS LTD., (2010) 323 ITR 577 (BOMBAY) HAS HELD THAT SEC.254(2) OF THE ACT IS NOT A CARTE BLANCHE FOR THE TRIBUN AL TO CHANGE ITS OWN VIEW BY SUBSTITUTING A VIEW WHICH IT BELIEVES SHOULD HA VE BEEN TAKEN IN THE FIRST INSTANCE. IT FURTHER HELD THAT THE SECTION D OES NOT CONTEMPLATE A FRESH LOOK AT A DECISION RECORDED ON THE MERITS, HOWEVE R APPEALING AN ALTERNATE VIEW MAY SEEN. IN VIEW OF THE AFORESAID FACTS A ND FOLLOWING THE DECISION OF HONBLE HIGH COURTS CITED HEREINABOVE, WE ARE O F THE VIEW THAT SINCE THE ASSESSEE HAS FAILED TO POINT OUT ANY MISTAKE AP PARENT FROM RECORD IN THE ORDER, WE ARE NOT INCLINED TO RECALL THE OR DER OF THE CO- ORDINATE BENCH DATED 25.05.2018 AND THUS, BOTH THE MISCE LLANEOUS APPLICATIONS FOR A.Y. 2008-09 AND 2009-10 ARE HEREBY DISMISSED. 6. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIONS OF ASSESSEE ARE DISMISSED. ORDER PRONOUNCED ON 3 RD DAY OF APRIL, 2019. SD/- SD/- ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) # / JUDICIAL MEMBER $# / ACCOUNTANT MEMBER PUNE; DATED : 3 RD APRIL, 2019. YAMINI 4 %&'()*) ' / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. ! / THE RESPONDENT 3. 4. 5 6. CIT(A), PUNE-5, PUNE. PR.CIT, PUNE-4, PUNE. '#$!% %&',)! !&' , / DR, ITAT, A PUNE; $,-./ GUARD FILE. / BY ORDER // TRUE COPY // / 01%2&3 / SR. PRIVATE SECRETARY )! !&' , / ITAT, PUNE.