Shri Yogesh Kumar Gautam, Prop., Mathura V. ITO, Mathura

MA 94/AGR/2007

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7883 (ITAT-AGRA)
• Duration Of Justice: 4 year(s) 7 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-04-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 20-04-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 21-08-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Assessee Lawyers: R C TOMAR I T P

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER & SHRI A. L. GEHLOT, ACCOUNTANT MEMBER M.A. NO. 08/AGRA/2007 (IN M.A. NO. 21/AGRA/2006 IN ITA NO.14/AGRA/2006) ASST. YEAR : 2003-04 SHRI YOGESH KUMAR GAUTAM, VS. INCOME-TAX OFFICER, PROP. YOGESH CEMENT AGENCY, 3(4), MATHURA. MAHOLI ROAD, MATHURA. M.A. NO. 94/AGRA/2007 (IN ITA NO.14/AGRA/2006) ASST. YEAR : 2003-04 SHRI YOGESH KUMAR GAUTAM, VS. INCOME-TAX OFFICER, PROP. YOGESH CEMENT AGENCY, 3(4), MATHURA. MAHOLI ROAD, MATHURA. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI R.C. TOMAR, I.T.P. RESPONDENT BY : SHRI A.K. SHARMA, JR. D.R. DATE OF HEARING : 20.04.2012 DATE OF PRONOUNCEMENT : 20.04.2012 ORDER PER BENCH : WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH THE P ARTIES AND PERUSED THE RECORD OF THE TRIBUNAL. M.A. NO.08 & 94/AGRA/2007 2 2. BRIEFLY, THE BACKGROUND OF FILING OF PRESENT MIS CELLANEOUS APPLICATIONS IS THAT THE ASSESSEE FILED APPEAL BEFORE THE TRIBUNAL IN ITA NO. 14/AGRA/2006, WHICH WAS DECIDED EXPARTE BY THE TRIBUNAL VIDE ORDER DATE D 17.04.2006, WHEREBY THE APPEAL OF THE ASSESSEE WAS DISMISSED CONFIRMING PEN ALTY U/S. 271-B OF THE IT ACT. THE ASSESSEE PREFERRED M.A. NO. 21/AGRA/2006 AGAINS T THE ORDER OF THE TRIBUNAL DATED 17.04.2006 FOR RECALLING OF THE ORDER ON THE GROUND THAT NO NOTICE WAS SERVED UPON THE ASSESSEE FOR THE DATE OF HEARING. THE ASSE SSEE, THEREFORE, PRAYED THAT THE ORDER MAY BE RECALLED AND THE APPEAL MAY BE HEARD A GAIN. THE TRIBUNAL DECIDED THE M.A. NO. 21/AGRA/2006 VIDE ORDER DATED 17.11.2006 A ND M.A. OF THE ASSESSEE WAS DISMISSED HOLDING THAT THE ASSESSEE HAS NOT BEEN AB LE TO POINT OUT IF THERE WAS ANY ERROR IN THE ORDER OF THE TRIBUNAL SOUGHT TO BE REC TIFIED. M.A. OF THE ASSESSEE WAS, ACCORDINGLY, DISMISSED. 3. THEREAFTER, THE ASSESSEE FILED M.A. NO. 08/AGRA/ 2007 AGAINST THE ORDER PASSED IN M.A. NO. 21/AGRA/2006 DATED 17.11.2006. T HE LD. COUNSEL FOR THE ASSESSEE WAS DIRECTED TO EXPLAIN AS TO HOW THIS M.A . WOULD LIE AGAINST THE ORDER PASSED IN M.A. NO. 21/2006. HE HAS SUBMITTED THAT T HOUGH THERE IS NO SPECIFIC PROVISION PROVIDED UNDER LAW, BUT HE HAS RELIED UPO N THE DECISION OF HONBLE KERALA HIGH COURT IN THE CASE OF JOSEPH MICHAEL AND BROTHERS VS. ITAT, 199 ITR 466. IN OUR VIEW THE JUDGMENT OF HONBLE KERALA HIG H COURT WOULD NOT BE RELEVANT M.A. NO.08 & 94/AGRA/2007 3 IN THE CONTEXT. SECTION 254(2) OF THE IT ACT PROVID ES THAT THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER, WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT ON RECORD, AMEND ANY ORDER PAS SED BY IT IN SUB-SECTION (1) OF SECTION 254 OF THE IT ACT. THEREFORE, THE ORDER PAS SED U/S. 254(2) CANNOT BE CONSIDERED AS AN ORDER PASSED U/S. 254(1) OF THE AC T. NO REMEDY IS PROVIDED U/S. 254(2) FOR FILING M.A. AGAINST M.A. ORDER. WE ARE F ORTIFIED IN OUR VIEW BY THE JUDGMENT OF HONBLE ORISSA HIGH COURT IN THE CASE O F CIT VS. INCOME-TAX APPELLATE TRIBUNAL AND ANOTHER, 196 ITR 838 IN WHIC H IT WAS HELD SECTION 254(2) OF THE INCOME-TAX ACT, 1961, EMPOWER S THE TRIBUNAL TO AMEND ANY ORDER PASSED BY IT UNDER SUB- SECTION (1) WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RE CORD AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER. THERE FORE, TO ATTRACT THE APPLICABILITY OF SECTION 254(2), THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED MUST BE APPARENT FROM THE RECORD, AND THE SAME MUST BE IN ANY ORDER PASSED UNDER SUB-SECTION (1) OF SECTION 2 54. AN ORDER REJECTING AN APPLICATION FOR RECTIFICATION UNDER SE CTION 254(2) IS NOT AN ORDER PASSED UNDER SECTION 254(1) AND IT CANNOT BE RECTIFIED UNDER SECTION 254(2). THEREFORE, THE M.A. OF THE ASSESSEE BEARING NO. 08 /AGRA/2007 IS NOT MAINTAINABLE AND IS ACCORDINGLY DISMISSED. 4. NOW, WE TAKE UP M.A. NO. 94/AGRA/2007. THIS IS T HE SECOND M.A. FILED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER DATED 17.04 .2006 OF THE TRIBUNAL IN ITA NO. 14/AGRA/2006. IN THIS M.A. ALSO, THE ASSESSEE H AS SIMILARLY PLEADED THAT SINCE NO NOTICE WAS SERVED UPON THE ASSESSEE, THEREFORE, THE ORDER OF THE TRIBUNAL DATED M.A. NO.08 & 94/AGRA/2007 4 17.04.2006 MAY BE RECALLED. ON THE SAME SET OF FACT S AND SAME CAUSE OF ACTION, THE ASSESSEES M.A. NO. 21/AGRA/2006 HAS ALREADY BEEN D ISMISSED BY THE TRIBUNAL VIDE ORDER DATED 17.11.2006. THERE IS NO CHANGE IN THE FACTS AND CIRCUMSTANCES POINTED OUT IN ASSESSEES SECOND M.A. THEREFORE, ON THE SAME SET OF FACTS, SECOND M.A. WOULD NOT BE MAINTAINABLE. WE ARE FORTIFIED IN OUR VIEW BY THE JUDGMENT IN THE CASE OF CIT VS. SMT. GUNWANTI BAI, 219 ITR 632 , IN WHICH IT HAS BEEN HELD HELD, THAT THE FIRST RECTIFICATION APPLICATION WAS REJECTED BY THE TRIBUNAL BY ORDER DATED AUGUST 16, 1982, AFTER TAKI NG INTO CONSIDERATION ALL THE MATERIAL WHICH WAS THERE. THE REFORE, THERE WAS NO OCCASION TO HAVE MOVED A SECOND APPLICATION FOR RECTIFICATION. THERE WAS NO CHANGE OF THE FACTS EXCEPT THAT THE IN CUMBENT WHO DECIDED THE MATTER CHANGED. THE TRIBUNAL WAS NOT LE GALLY COMPETENT TO REVERSE ITS FINAL DECISION IN EXERCISE OF THE PO WERS UNDER SECTION 254(2) OF THE ACT. IN THE CASE OF JOSEPH MICHAEL AND BROTHERS VS. ITA T (SUPRA) RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE IN THE FIRST M.A., THE TRI BUNAL HELD THAT IT HAS NO POWER TO REVIEW ITS ORDER. THEREFORE, SECOND M.A. WAS CONSID ERED AND REJECTED. HONBLE KERALA HIGH COURT HELD THAT THE TRIBUNAL HAS POWER TO SET ASIDE EXPARTE ORDER OF THE TRIBUNAL. HOWEVER, IN THE PRESENT CASE, THE REA SON GIVEN FOR NON-APPEARANCE BEFORE THE TRIBUNAL HAS ALREADY BEEN TURNED DOWN BY THE TRIBUNAL WHILE DISMISSING THE FIRST M.A 21/AGRA/2006 ON MERITS CONSIDERING SA ME MATERIAL ON RECORD AND M.A. NO.08 & 94/AGRA/2007 5 SAME AVERMENTS CONTAINED IN FIRST M.A. THEREFORE, T HE DECISION CITED BY THE LD. COUNSEL IS DISTINGUISHABLE. NO SECOND M.A. WOULD LI E ON THE SAME FACTS WHICH HAVE ALREADY BEEN CONSIDERED BY THE TRIBUNAL. THEREFORE, M.A. NO. 94/AGRA/2007 IS ALSO DISMISSED AS NON-MAINTAINABLE. 5. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIO NS ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20.04.2012. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY