M/s. J.R. Tantia Charitable Trust, SRIGANGANAGAR V. ITO, SRIGANGANAGAR

MA 96/JODH/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1283 (ITAT-JODHPUR)
• Duration Of Justice: 3 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 03-12-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 02-09-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Keywords: Charitable institution

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. M.A. NO. 96,97,98 & 99/JODH/2013 (IN ITA NO. 438 & 439/JODH/2009 (A.YS. 2005-06 & 2006-07) M/S. J.R. TANTIA CHARITABLE TRUST VS. THE I.T.O. UDHYOG VIHAR, WARD-2, HANUMANGARH ROAD, NEAR RIICO SRIGANGANAGAR SRIGANGANAGAR. PAN NO. AAATJ0615Q (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI SURESH OJHA DEPARTMENT BY : SHRI N.A. JOSHI- D.R. DATE OF HEARING : 03/12/2013. DATE OF PRONOUNCEMENT : 03/12/2013. O R D E R PER N.K.SAINI, A.M THESE MISC. APPLICATIONS HAVE BEEN FILED BY THE AS SESSEE AGAINST THE ORDER DATED 4 TH APRIL,2012 PASSED IN I.T.A. NO. 438 AND 439/JU/200 9 AND C.O. NOS. 62 & 63/JU/2009 FOR THE ASSESSMENT YEARS 2005-06 AND 2006- 07. 2. THE MAIN GRIEVANCE OF THE ASSESSEE VIDE THESE MISC . APPLICATIONS IS THAT THE CERTAIN JUDGMENTS RELIED, WERE NOT CONSIDE RED. COMMON CONTENTION RAISED IN THESE MISC. APPLICATIONS READ AS UNDER:- 2 WITH REFERENCE TO ABOVE IT IS SUBMITTED THAT APPEA L OF THE ASSESSEE WAS DECIDED BY THE HON'BLE BENCH VIDE ORDE R DATED 4.4.2012. IN THIS CONNECTION, IT IS SUBMITTED THAT THE FOLLOWING ARE THE MISTAKES WHICH ARE THE MISTAKES APPARENT FR OM THE RECORD. THE APPEAL WAS SUBMITTED BY THE INCOME-TAX OFFICER BEFORE THE HON'BLE TRIBUNAL AGAINST THE ORDER OF THE COMMI SSIONER OF INCOME-TAX (APPEALS). THE ASSESSEE WENT IN THE CROS S OBJECTION ALSO. THE CROSS OBJECTION AS WELL AS THE APPEAL WER E DECIDED BY A COMMON ORDER. I AM HEREWITH ENCLOSING THE GROUNDS T AKEN BY THE DEPARTMENT AS WELL AS IN THE CROSS OBJECTION. FROM THE PERUSAL OF THE ABOVE YOU WILL OBSERVE THA T THE GROUNDS NO. WERE NOT ADJUDICATED AND DISPOSED OF F. IF THE GROUNDS REMAIN INDISPOSED OFF SHALL BE COVE RED UNDER THE DEFINITION OF THE MISTAKE APPARENT FROM THE REC ORD. IN SUCH CIRCUMSTANCES YOU WILL OBSERVE THAT THE ABOVE MENTI ONED MISTAKE IS A MISTAKE APPARENT FROM THE RECORD. IT IS FURTHER SUBMITTED THAT IN THE COURSE OF HEAR ING THE ASSESSEE RELIED UPON THE JUDGMENTS OF HON'BLE RAJA STHAN HIGH COURT IN RESPECT OF VALUATION OF CLOSING STOCK AS P ER CHART SUBMITTED WITH WRITTEN SUBMISSION OF ASSESSMENT YEA R 2005-06. THE ASSESSEE ALSO RELIED UPON JUDGMENT OF SUPREME C OURT IN THE CASE OF 76 ITR 719,64 TTJ 520 (JP) TRIBUNAL. THE JUDGMENTS ON WHICH THE ASSESSEE IS RELYING WAS ALSO NOT CONSIDERED AND ADJUDICATED. IT IS FURTHER SUBMITTED THAT THE JUDGMENT REFERRED ABOVE IN THE WRITTEN SUBMISSIONS ARE ALSO INCLUDING THE JUDGMENT OF THIS HON'BLE HIGH COURT O F RAJASTHAN AS WELL AS THE JUDGMENT OF THE SUPREME COURT. THE JUDG MENT OF HON'BLE SUPREME COURT AND HON'BLE RAJASTHAN HIGH CO URT IS HAVING THE CHARACTER OF BINDING NATURE. IF THE JUDGMENT NOT CONSIDERED AND ADJUDICATED IN THAT CASE THE MISTAKE SHALL BE A MISTAKE APPARENT FROM THE RE CORD. THIS HON'BLE BENCH IS HAVING THE SAME VIEW AS HAS BEEN T AKEN IN CASE OF DR. ASHOK UPPAL, THEREFORE, THIS BEING ALSO A MI STAKE APPARENT FROM THE RECORD. BESIDES THIS IT IS ALSO SUBMITTED THAT AT THE TIME OF PASSING THE ORDER, THE HON'BLE BENCH RESTORED THE MATTER BA CK. THE 3 HON'BLE BENCH WHILE DECIDING THE APPEAL REFERRED TH E JUDGMENT OF HON'BLE SUPREME COURT, BUT THE JUDGMENT SO REFER RED IN COURSE OF HEARING AND ON THE BASIS THEREOF THE ADDI TIONS WERE DELETED BY THE CIT IS THE JUDGMENT OF HON'BLE RAJAS THAN HIGH COURT WAS NOT CONSIDERED AND ADJUDICATED. THESE JUD GMENTS ARE ALSO NOT ADJUDICATED/DISCUSSED IN THE JUDGMENT SO R EFERRED. THEREFORE, YOU WILL OBSERVE THAT THE ORDER OF HON'B LE TRIBUNAL ARE THE JUDGMENT PER IN CURIUM. THE JUDGMENT OF HON 'BLE RAJASTHAN HIGH COURT SHALL APPLY IN THE TERRITORY O F RAJASTHAN. IN THIS RESPECT IT IS FURTHER SUBMITTED THAT THE O BSERVATION OF THE HON'BLE BENCH IN THE ORDER SEEMS TO BE DUE TO S OME OVERSIGHT, IN CASE OF THE ASSESSEE BOOKS OF ACCOUNT S WERE NOT REJECTED, THEREFORE, IN ABSENCE THEREOF THE ADDITIO N MADE IS ILLEGAL AND THE JUDGMENT TOO WAS ALSO NOT PROPERLY APPRECIATED. THEREFORE, YOU WILL OBSERVE THAT THIS BEING ALSO A MISTAKE APPARENT FROM THE RECORD. THE ASSESSEE RELIED UPON 192 ITR 565 (RAJ.) WHICH WAS EVEN NOT CONSIDERED. THE ARGUMENT THAT WITHOUT REJECTION OF BOOKS OF AC COUNTS NO ADDITION CAN BE MADE HAVE ALSO NOT BEEN CONSIDERED AND ADJUDICATED. IF THE ARGUMENT NOT CONSIDERED IT WILL BE A MISTAKE APPARENT FROM RECORD. IN VIEW OF ABOVE MENTIONED FACTS AND CIRCUMSTANCES , YOU WILL OBSERVE THAT THIS BEING A MISTAKE APPARENT FROM REC ORD REQUIRED, RECTIFICATION AS SUBMITTED EARLIER. IT IS, THEREFOR E, SUBMITTED THAT THE MISTAKE MAY KINDLY BE RECTIFIED. IN VIEW OF ABOVE MENTIONED FACTS AND CIRCUMSTANCES YOU WILL OBSERVE THAT THE MISTAKE IS A MISTAKE APPARENT FROM RECORD. IN THIS RESPECT IT WILL BE WORTHWHILE TO MENTION H ERE THAT IN COURSE OF ARGUMENT SOME OTHER JUDGMENTS WERE REFERR ED AS PER CHART SUBMITTED IN COURSE OF HEARING WITH LETTER BU T THAT TOO WAS ALSO NOT CONSIDERED IN THE ORDER. IT IS, THEREFORE, PRAYED THAT ABOVE, BEING A MISTA KE APPARENT FROM THE RECORD, MAY KINDLY BE RECTIFIED U/S 254(2) OF THE I.T. ACT. 3. DURING COURSE OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE AFORESAID CONTENTIONS CONTAINED IN T HE MISC. APPLICATIONS 4 AND FURTHER SUBMITTED THAT IN THE SUBSEQUENT YEARS ALSO THE ISSUE HAS BEEN DECIDED BY THE I.T.A.T. 4. IN HIS RIVAL SUBMISSIONS, THE LEARNED D.R. SUBMI TTED THAT THERE IS NO APPARENT MISTAKE IN THE ORDER DATED 4/4/2012 PAS SED BY THE I.T.A.T. AND THE ASSESSEE IN THE GRAB OF SECTION 254(2) OF T HE I.T. ACT, 1961 (HEREINAFTER TO BE REFERRED AS THE ACT) WANTS THE R EVIEW OF THE ORDER, WHICH IS NOT PERMISSIBLE. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PAR TIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. IN THE PR ESENT CASE, THE ASSESSEE DID NOT CHALLENGE THE SETTING ASIDE THE IS SUES TO THE FILE OF THE ASSESSING OFFICER VIDE ORDER DATED 4/4/2012, THE ON LY GRIEVANCE IS THAT CERTAIN JUDGMENTS WERE NOT CONSIDERED IN THE SAID O RDER. DURING THE COURSE OF HEARING, IT WAS THE COMMON CONTENTION OF BOTH THE PARTIES THAT A DIRECTION MAY BE GIVEN TO THE ASSESSING OFFICER T O CONSIDER THE JUDGMENTS QUOTED BY THE ASSESSEE BEFORE THE I.T.A.T ., WHILE PASSING THE ASSESSMENT ORDER, AS DIRECTED VIDE ORDER DATED 4/4/ 2012 AND ALSO TO CONSIDER THE ORDER OF THE TRIBUNAL PASSED FOR THE S UBSEQUENT YEARS. WE, THEREFORE, CONSIDERING THE TOTALITY OF THE FACTS AS DISCUSSED HEREINABOVE AND THIS ASPECT THAT THE ASSESSEE HAD NOT OBJECTED THE SETTING ASIDE OF THE CASE, THE ASSESSING OFFICER IS DIRECTED TO CONS IDER THE DECISION QUOTED BY THE ASSESSEE IN THESE MISC. APPLICATIONS WHILE D ECIDING THE APPEALS OF 5 THE DEPARTMENT AND CROSS OBJECTIONS OF THE ASSESSEE AS DIRECTED VIDE ORDER DATED 4/4/2012. 6. IN THE RESULT, MISC. APPLICATIONS ARE ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE COURT ON 03.12.2013) SD/ SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 03.12.2013 RANJAN* COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR, ITAT, JODHPUR.