M/s. Vishnu Tea & Industries Private Limited, Kolkata V. DCIT, Circle - 4(2), Kolkata, Kolkata

MA 96/KOL/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6896 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-07-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 30-05-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K KOTHARI AR SHRI
• Keywords: Rectification of order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA C BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI ABY T. VARKEY, JUDICIAL MEMBER) M.A. NO. 96/KOL/2018 A/O ITA NO. 1749/KOL/2017 ASSESSMENT YEAR: 2008-09 M/S. VISHNU TEA & INDUSTRIES PRIVATE LIMITED........................APPELLANT 8, NETAJI SUBHAS ROAD C3/3, GILLANGER HOUSE KOLKATA 700 001 [PAN : AACCV 1846 Q] DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-4(2),KOLKATA.......................RESPONDENT APPEARANCES BY: SHRI D.K. KOTHARI, A/R, APPEARED ON BEHALF OF THE ASSESSEE. SHRI ARINDAM BHATTACHARJEE, ADDL. CIT, D/R. APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JULY 13 TH , 2018 DATE OF PRONOUNCING THE ORDER : JULY 18 TH , 2018 ORDER PER J. SUDHAKAR REDDY, AM :- BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE STATES THAT A MISTAKE APPARENT ON RECORD HAS CREPT INTO THE ORDER OF THE TRIBUNAL IN ITA NO. 1749/KOL/2016, FOR THE ASSESSMENT YEAR 2008-09. THIS MISCELLANEOUS APPLICATION RUNS INTO ABOUT 23 PAGES. 2. THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE LD. CIT(A) HAD CONSIDERED ALL THE FACTS AND CIRCUMSTANCES OF THE CASE AND HAD ALLOWED THE APPEAL OF THE ASSESSEE. HE SUBMITS THAT THE TRIBUNAL SHOULD NOT HAVE ALLOWED THE REVENUE APPEALS AND COULD HAVE RESTORED THE APPEALS TO THE FILE OF THE ASSESSING OFFICER FOR FRESH ADJUDICATION, IN ACCORDANCE WITH LAW, IN CASE IT WAS OF THE VIEW THAT CERTAIN FACTS REQUIRED VERIFICATION. HE RELIED ON THE MISCELLANEOUS APPLICATION. 3. THE LD. D/R, SUBMITTED THAT EACH AND EVERY FINDING OF THE TRIBUNAL IN THE ORDER HAS BEEN AGITATED AND FOUND FAULT WITH BY THE ASSESSEE IN THE MISCELLANEOUS APPLICATION AND HENCE THE SAME IS NOT MAINTAINABLE. HE ARGUED, THAT WHAT THE ASSESSEE SEEKS IS REVIEW OF THE TRIBUNALS OWN ORDER AND THAT SUCH POWER IS NOT PROVIDED FOR UNDER THE ACT. HE PLEADED THAT THE MISCELLANEOUS APPLICATION BE DISMISSED AS NOT MAINTAINABLE. 4. AFTER CONSIDERING RIVAL SUBMISSIONS AND PERUSING THE PAPERS ON RECORD, WE FIND THAT THE ASSESSEE IN HIS 23 PAGE OBJECTIONS, HAS PARAWISE DISPUTED THE FINDINGS OF THE TRIBUNAL. THIS CAN BE DONE ONLY IN AN APPEAL AGAINST THE ORDER OF THE TRIBUNAL. THE 2 M.A. NO. 96/KOL/2018 A/O ITA NO. 1749/KOL/2017 ASSESSMENT YEAR: 2008-09 M/S. VISHNU TEA & INDUSTRIES PRIVATE LIMITED ELABORATE MISCELLANEOUS APPLICATION AND THE CONTENTS IN THE SAME CLEARLY DEMONSTRATE THAT THE ASSESSEE SEEKS REVIEW OF THE ORDER OF THE ITAT. 4.1. THE HON'BLE MADRAS HIGH COURT IN THE CASE OF TAMILNADU SMALL INDUSTRIES DEVELOPMENT CORPORATION LTD. TC (A) NO.156/2006 HAS HELD AS UNDER: 'THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER. WHEN THE TRIBUNAL HAS ALREADY DECIDED AN ISSUE BY APPLYING ITS MIND AGAINST THE ASSESSEE, THE SAME CANNOT BE RECTIFIED UNDER SECTION 254(2) OF THE ACT. THERE WAS NO NECESSITY WHATSOEVER ON THE PART OF THE TRIBUNAL TO REVIEW ITS OWN ORDER. EVEN AFTER THE EXAMINATION OF THE JUDGMENTS OF THE TRIBUNAL, WE COULD NOT FIND A SINGLE REASON IN THE WHOLE ORDER AS TO HOW THE TRIBUNAL IS JUSTIFIED AND FOR WHAT REASONS. THERE IS NO APPARENT ERROR ON THE FACE OF THE RECORD AND THEREBY THE TRIBUNAL SAT AS AN APPELLATE AUTHORITY OVER ITS OWN ORDER. IT IS COMPLETELY IMPERMISSIBLE AND THE TRIBUNAL HAS TRAVELLED OUT OF ITS JURISDICTION TO ALLOW A MISCELLANEOUS PETITION IN THE NAME OF REVIEWING ITS OWN ORDER. IN THE PRESENT CASE, IN THE GUISE OF RECTIFICATION, THE TRIBUNAL REVIEWED ITS EARLIER ORDER AND ALLOWED THE MISCELLANEOUS PETITION WHICH IS NOT IN ACCORDANCE WITH LAW. SECTION 254(2) OF THE ACT DOES NOT CONTEMPLATE REHEARING OF THE APPEAL FOR A FRESH DISPOSAL AND DOING SO, WOULD OBLITERATE THE DISTINCTION BETWEEN THE POWER TO RECTIFY MISTAKES AND POWER TO REVIEW THE ORDER MADE BY THE TRIBUNAL. THE SCOPE AND AMBIT OF THE APPLICATION OF SECTION 254(2) OF THE ACT DOES NOT CONTEMPLATE REHEARING OF THE APPEAL FOR A FRESH DISPOSAL AND DOING SO, WOULD OBLITERATE THE DISTINCTION BETWEEN THE POWER OF RECTIFY THE MISTAKES AND POWER TO REVIEW THE ORDER MADE BY THE TRIBUNAL. THE SCOPE AND AMBIT OF THE APPLICATION OF SECTION 254(2) IS LIMITED AND NARROW. IT IS RESTRICTED TO RECTIFICATION OF MISTAKES APPARENT FROM THE RECORD. RECALLING THE ORDER OBVIOUSLY WOULD MEAN PASSING OF A FRESH ORDER. RECALLING OF THE ORDER IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE ACT. ONLY GLARING AND ANY MISTAKE APPARENT ON THE FACE OF THE RECORD ALONE CAN BE RECTIFIED AND HENCE ANYTHING DEBATABLE CANNOT BE A SUBJECT MATTER OF RECTIFICATION.' 4.2. APPLYING THE PROPOSITIONS OF LAW LAID DOWN IN THE ABOVE REFERRED CASE-LAW TO THE FACTS OF THIS CASE, WE HOLD THAT THERE IS NOT MISTAKE APPARENT ON RECORD IN THE ORDER OF THE TRIBUNAL REQUIRING RECTIFICATION. 5. IN THE RESULT, THIS MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED AS NON- MAINTAINABLE. KOLKATA, THE 18 TH DAY OF JULY, 2018. SD/- SD/- [ ABY T. VARKEY ] [ J. SUDHAKAR REDDY ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 18.07.2018 {SC SPS} 3 M.A. NO. 96/KOL/2018 A/O ITA NO. 1749/KOL/2017 ASSESSMENT YEAR: 2008-09 M/S. VISHNU TEA & INDUSTRIES PRIVATE LIMITED COPY OF THE ORDER FORWARDED TO: 1. M/S. VISHNU TEA & INDUSTRIES PRIVATE LIMITED 8, NETAJI SUBHAS ROAD C3/3, GILLANGER HOUSE KOLKATA 700 001 2. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-4(2),KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY HEAD OF OFFICE/ D.D.O. ITAT, KOLKATA BENCHES