Shri Ratanlal C Bafna, Jalgaon V. JCiT Rg 1, Jalgaon

MA 97/PUN/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1031 (ITAT-PUNE)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-03-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 22-11-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHOK BABU
• Keywords: Rectification of order; Document seized; Question of law; Documents seized
• Section: 260A

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI ANIL CHATURVEDI, AM AND SHRI VIKAS AWASTHY, JM M.A.NO.97/PUN/2018 IN ITA NO.204/PUN/2012 / ASSESSMENT YEAR : 2008-09 SHRI RATANLAL C. BAF NA, PROPRIETOR OF R.C. BAFNA SILVA PALACE, 96, SUBHASH CHOWK, JALGAON 425 001. PAN : AAMPB3939K. . / APPELLANT V/S JOINT COMMISSIONER OF INCOME TAX, RANGE 1, JALGAON. . / RESPONDENT ASSESSEE BY : SHRI SUNIL GANOO REVENUE BY : SHRI ASHOK BABU. / ORDER PER ANIL CHATURVEDI, AM : 1. THIS MISCELLANEOUS APPLICATION (M.A.) FILED BY THE ASSESSEE U/ S 254(2) OF THE I.T. ACT IS ARISING OUT OF THE CONSOLIDATED OR DER OF TRIBUNAL IN ITA NO.204/PUN/2012 FOR A.Y. 2008-09. 2. BEFORE US, LD AR SUBMITTED IN ITA NO.204/PUN/2012 FOR A.Y. 2008-09, ASSESSEE HAD RAISED GROUND NO.12 WHICH WAS WITH RESPECT TO DENYING THE OPPORTUNITY TO CROSS-EXAMINE MR. DEVICHA ND CHHORIYA, AUTHOR OF THE SEIZED DOCUMENTS. LD AR SUBMITTE D THAT THE TRIBUNAL WHILE DECIDING THE CAPTIONED APPEAL DID NOT ADJUD ICATE GROUND OF APPEAL NO.12 THOUGH THE GROUND WAS NEVER WITH DRAWN BY ASSESSEE. HE SUBMITTED THAT NON-ADJUDICATION OF THE GRO UND IN THE / DATE OF HEARING : 08.02.2019 / DATE OF PRONOUNCEMENT: 15.03.2019 2 APPEAL BY THE TRIBUNAL IS A MISTAKE APPARENT FROM RECORD IN THE O RDER OF THE TRIBUNAL WHICH NEEDS TO BE CORRECTED. LD.A.R. FURTHE R SUBMITTED THAT AGAINST THE ORDER OF ITAT (IN ITA NO.204/P N/2015) ASSESSEE HAD PREVIOUSLY FILED M.A. BEARING NO.33/PUN/2015 WHICH WAS DISMISSED BY THE HONBLE BENCH VIDE ORDER DT.27.07.201 8. HE SUBMITTED THAT IN THE SAID M.A. THE ASSESSEE HAD NOT RA ISED THE ISSUE OF NON-ADJUDICATION OF GROUND NO.12 WHICH IS NOW RAISED IN THE PRESENT M.A WHICH IS THE SECOND M.A. HE SUBMITTED THAT S INCE THE EARLIER M.A DID NOT TOUCH THE ISSUE OF NON ADJUDICATION OF GROUND NO 12 WHICH IS NOW RAISED IN THE PRESENT SECOND M.A, THE BEN CH HAS POWER AND AUTHORITY TO HEAR AND DECIDE THE ISSUE IN SE COND M.A FOR PASSING THE NECESSARY RECTIFICATION ORDER. 3. A QUERY WAS RAISED BY THE BENCH TO THE LD.A.R. AS T O WHETHER THE SECOND M.A. IS MAINTAINABLE IN VIEW OF THE FACT THAT FIRST M.A. OF THE ASSESSEE FOR THE SAME ORDER HAS BEEN DISMISSED BY THE TRIBUNAL. LD.A.R. SUBMITTED THAT THE SECOND M.A. IS MAINTAINABLE BECAU SE IT IS ON THE ISSUE WHICH WAS NOT SUBJECT MATTER OF FIRST M.A. IN SUPPOR T OF HIS CONTENTION THAT THE ISSUE WHICH HAS NOT BEEN DECIDED IN THE FIRST M.A, ASSESSEE CAN RAISE THE ISSUE IN SECOND M.A, HE PLACED RELIANCE ON THE DECISION OF HONBLE KERALA HIGH COURT IN THE CASE O F CIT VS. AISWARYA TRADING COMPANY REPORTED IN (2011) 323 ITR 521 , DECISION OF ALLAHABAD HIGH COURT IN THE CASE OF HIRALAL SURATWALA VS. CIT REPORTED IN 56 ITR PAGE 339 (ALL) AND THE DECISION OF HONB LE GUJARAT HIGH COURT IN THE CASE OF CIT VS. SMT. VASANTBEN H. SHET H REPORTED IN (2015) 372 ITR 536 (GUJ). 4. THEREAFTER A QUERY WAS RAISED TO THE LEARNED AR AS TO WHETHER ASSESSEE HAS PREFERRED APPEAL AGAINST THE ORDER OF TRIB UNAL BEFORE HONBLE HIGH COURT AND IF SO THEN WHETHER THE TRIBUNAL C AN DECIDE THE ISSUE IN 254(2) PROCEEDINGS? IN RESPONSE TO THE QUE RY OF THE 3 BENCH, LD AR SUBMITTED THAT AGAINST THE QUANTUM ORDER PASSED BY THE TRIBUNAL, ASSESSEE HAS FILED APPEAL BEFORE THE HONBLE B OMBAY HIGH COURT IN ITA NOS.471/2016 AND 475/2016. THE HON'B LE HIGH COURT VIDE ORDER DATED 26.11.2018 HAS ADMITTED THE TAX APPEALS FOR CONSIDERATION. HE ALSO PLACED ON RECORD THE COPY OF THE AFORESAID ORDER. LD.A.R. THEREAFTER RELYING ON THE DECISION OF HONB LE BOMBAY HIGH COURT IN THE CASE OF R.W. PROMOTIONS PVT. LTD. VS. ITA T (W.P.NO.2238/2014) DECIDED ON 08.04.2015 SUBMITTED THAT MERE LY BECAUSE AN APPEAL HAS BEEN FILED BEFORE HIGH COURT, IT WOU LD NOT PREVENT THE TRIBUNAL FROM DEALING WITH AN APPLICATION U/S 25 4(2) OF THE ACT. HE THEREFORE SUBMITTED THAT SINCE THE GROUND NO 12 HAS NOT BEEN ADJUDICATED, THE ORDER OF THE TRIBUNAL BE RECALLED TO DECIDE THE AFORESAID GROUND. 5. LD.D.R. ON THE OTHER HAND, SUBMITTED THAT THERE IS NO APPARENT MISTAKE IN THE ORDER OF TRIBUNAL AND THE BENCH WHILE DECIDIN G THE APPEAL OF THE ASSESSEE HAS CONSIDERED THE SUBMISSIONS AN D HAS DECIDED THE GROUNDS OF APPEAL ISSUE CONSIDERING THE ISSU ES IN TOTALITY AND THE FACTS INVOLVED. HE FURTHER SUBMITTED THAT THROUGH THIS M.A. ASSESSEE IS SEEKING A REVIEW OF THE ORDER WHICH IS NOT P ERMISSIBLE UNDER THE ACT. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE M ATERIAL ON RECORD. BEFORE US, IN THE PRESENT M.A, IT IS ASSESSEE S CONTENTION THAT GROUND NO.12 WHICH WAS RAISED BY THE ASSESSEE IN T HE APPEAL WAS NOT DISPOSED OF BY THE TRIBUNAL AND HENCE, THERE IS A MISTAKE APPARENT ON RECORD. IT IS AN UNDISPUTED FACT THAT AGAIN ST THE ORDER OF TRIBUNAL DATED 31.3.2015, ASSESSEE HAS PREFERRED APPEAL B EFORE THE HONBLE BOMBAY HIGH COURT. THE HONBLE BOMBAY HIGH COUR T VIDE ORDER DT.26.11.2018 (IN ITA NO 471 AND 475 OF 2016) HAS AD MITTED THE APPEALS OF THE ASSESSEE FOR CONSIDERATION OF SUBSTANT IAL QUESTION 4 OF LAW. IN SUPPORT OF ASSESSEES CONTENTION THAT WHEN E VEN THOUGH AGAINST THE ORDER OF TRIBUNAL, ASSESSEE HAS FILED APPEAL, S TILL TRIBUNAL CAN ENTERTAIN AN APPLICATION U/S 254(2) OF THE ACT SEEKING RECTIFICATION OF THE ORDER PASSED BY TRIBUNAL, LD.A.R. HAS PLAC ED RELIANCE ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN T HE CASE OF M/S. R.W. PROMOTIONS PRIVATE LIMITED (SUPRA). 7. WE FIND THAT IN THE CASE OF R.W. PROMOTIONS PVT. LTD. (SUPR A), IT WAS THE CASE WHERE AGAINST THE ORDER OF TRIBUNAL, ASSESS EE HAD FILED AN APPEAL U/S 260A OF THE ACT BEFORE THE HONBLE HIGH CO URT BUT THE APPEAL WAS YET TO BE ADMITTED . THE HON'BLE HIGH COURT IN THE FACTS OF THE CASE HELD THAT THE TRIBUNAL HAS POWER TO EN TERTAIN AN APPLICATION U/S 254(2) OF THE ACT FOR RECTIFICATION OF MISTAKE. IN THE PRESENT CASE, HOWEVER IT IS NOT A CASE WHERE THE ASSES SEE HAS MERELY FILED AN APPEAL BEFORE THE HONBLE HIGH COURT BUT IT IS A CASE WHERE THE HONBLE HIGH COURT HAS ADMITTED THE APPEAL FOR CONSIDERATION AFTER FRAMING SUBSTANTIAL QUESTION O F LAW . WE THUS FIND THAT THE FACTS IN THE CASE OF R.W. PROMOTIONS (SUPRA) AND THE PRESENT CASE ARE DISTINGUISHABLE. 8. ON THE ISSUE WHEN A SLIGHTEST CHANGE IN THE FACTS CH ANGES THE FACTUAL SCENARIO AND MAKES ONE CASE DISTINGUISHABLE FROM TH E OTHER, WE FIND THAT THE KOLKATA BENCH OF TRIBUNAL IN THE CASE OF SUBHLAKSHMI VANIJYA (P.) LTD.VS CIT REPORTED IN (2015) 60 TAXMANN.COM 60 (KOLKATA - TRIB.) HAS NOTED AS UNDER: 13.D IT IS A WELL SETTLED LEGAL POSITION THAT EVER Y CASE DEPENDS ON ITS OWN FACTS. EVEN A SLIGHTEST CHANGE IN THE FACTUAL S CENARIO ALTERS THE ENTIRE CONSPECTUS OF THE MATTER AND MAKES ONE CASE DISTINGUISHABLE FROM ANOTHER. THE CRUX OF THE MATTER IS THAT THE RA TIO OF ANY JUDGMENT CANNOT BE SEEN DIVORCED FROM ITS FACTS. 5 FURTHER, IT IS A SETTLED LAW THAT THE JUDGMENT MUST BE READ AS A W HOLE AND THE OBSERVATIONS MADE IN A JUDGMENT ARE TO BE REA D IN THE CONTEXT IN WHICH THEY ARE MADE AND FOR WHICH REFERENCE IS MADE TO THE DECISION IN THE CASE OF GOA CARBON LTD. VS. CIT REPORTED IN (2011 ) 332 ITR 209 (BOM). 9. WE FIND THAT THE HONBLE GUJARAT HIGH COURT IN THE C ASE OF CIT VS. MUNI SEVA ASHRAM REPORTED IN (2013) 38 TAXMANN.COM 110 (GUJ) HAS HELD THAT WHEN APPEAL HAS BEEN FILED BEFORE THE H ONBLE HIGH COURT, THE APPEAL IS ADMITTED AND SUBSTANTIAL QUESTIO N OF LAW HAS BEEN FRAMED IN THE SAID APPEAL, THEN THE TRIBUNAL CA NNOT RECALL THE ORDER. THE RELEVANT PORTION OF THE ORDER READS AS UNDER : 6. IN VIEW OF THE ABOVE STAND TAKEN BY THE LEARNED COUNSEL APPEARING ON BEHALF OF THE RESPONDENT ASSESSEE RECORDED HER EINABOVE, MORE PARTICULARLY WHEN AGAINST THE IMPUGNED JUDGEMENT AN D ORDER DTD.11/7/2008 PASSED IN ITA NO.633/AHD/2008, WHICH HAS BEEN RECALLED SUBSEQUENTLY BY THE ITAT, TAX APPEAL NO.12 31 OF 2008, WAS ALREADY ADMITTED ON THE SUBSTANTIAL QUEST IONS OF LAW FRAMED IN THE SAID APPEAL, IMPUGNED ORDERS CANN OT BE SUSTAINED. [EMPHASIS SUPPLIED] 10. CONSIDERING THE TOTALITY OF THE FACTS INVOLVED IN THE PRESENT CASE AND IN VIEW OF THE DECISIONS CITED HEREINABOVE, WE ARE OF TH E VIEW THAT IN THE PRESENT CASE SINCE THE APPEAL AGAINST THE ORDER OF THE TRIBUNAL HAS ALREADY BEEN ADMITTED AND A SUBSTANTIAL QUESTION OF LAW HAS BEEN FRAMED BY THE HON'BLE HIGH COURT, THE TRIBUNAL CANNO T PROCEED WITH THE MISCELLANEOUS APPLICATION U/S 254(2) OF THE ACT. 11. IN VIEW OF THE AFORESAID FACTS AND FOLLOWING THE DECISION CITED ABOVE, THE MISCELLANEOUS APPLICATION U/S 254(2) OF THE ACT SE EKING RECTIFICATION IN THE ORDER OF TRIBUNAL IS HEREBY DISMISSED, BE ING NOT MAINTAINABLE. 6 12. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF TH E ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON 15 TH DAY OF MARCH, 2019. SD/- SD/- ( VIKAS AWASTHY ) ( ANIL CHATURVEDI ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER PUNE; DATED : 15 TH MARCH, 2019. YAMINI !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3 . 4. 5. 6. CIT(APPEALS) 2, NASHIK. CIT-II, NASHIK. '#$ %%&',) &', / DR, ITAT, A PUNE; $,-./ GUARD FILE. / BY ORDER , // TRUE COPY // /01%2&3 / SR. PRIVATE SECRETARY ) &', / ITAT, PUNE.