Enso Secutrack Limited, Hyderabad V. ACIT, Circle 2(2), Hyderabad

MA 99/HYD/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0581 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-07-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 15-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: GOPINATH
• Assessee Lawyers: BALA KRISHNA
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIA L MEMBER MISC APPLN. NO.99/HYD/2013 (IN ITA NO.363/HYD/12) : ASSESSMENT YEA R 2008-09 M/S. ENSO SECUTRACK LTD., HYDERABAD ( PAN AABCL 0590) V/S. ASST. COMMISSIONER OF INCOME-TAX, CIRCLE 2(2), HYDERABAD (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI BALAKRISHNA, AR RESPONDENT BY : SHRI GOPINATH DR DATE OF HEARING 21.06.2013 DATE OF PRONOUNCEMENT 12.7.2013 O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER: BY THIS APPLICATION UNDER S.254(2) OF THE INCOME-TA X ACT, 1961, THE APPLICANT-ASSESSEE SEEKS RECTIFICATION/R ECALL OF THE ORDER OF THIS TRIBUNAL DATED 10.10.2012 ON ITS APPEAL, BEING ITA NO.363/HYD/2012 FOR THE ASSESSMENT YEAR 2008-09, ON THE GROUND THAT CER TAIN MISTAKES APPARENT FROM RECORD HAVE CREPT INTO THE SAME. 2. REITERATING THE AVERMENTS MADE IN THE PRESENT A PPLICATION, THE LEARNED AUTHORISED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE CAME IN APPEAL BEFORE THE TRIBUNAL CONTEST ING THE ACTION OF THE CIT(A) IN DISMISSING THE APPEAL IN TERMS OF S.249(4 ) ON THE GROUND OF SHORT-PAYMENT OF TAX ON ADMITTED INCOME. DURING TH E APPEAL HEARING BEFORE THE TRIBUNAL, IT WAS SUBMITTED, THE LEARNED COUNSEL PLEADED THAT AN AMOUNT OF RS.93 LAKHS WAS APPROXIMATELY DUE BY WAY OF INTEREST AND NO TAX DUE WAS THERE AND ALSO REQUESTED TO GRANT TIME TO MAKE STATEMENT OF AMOUNTS PAID TOWARDS TAX. IN FACT, IT IS POINTED, BY THIS TIME, THE DIRECTORY REQUIREMENT OF TAX PAYMENT WAS COMPLIED WITH AND AS SUCH THE IRREGULARITY M.A. NO.99/HYD/2013 (IN NO.ITA NO.363/ HYD/2012) M/S. ENSO SECUTRACK LTD., HYDERABAD, 2 OF THE PROVISIONS OF S.249(4) WAS CURED AND VALIDAT ED. IT IS SUBMITTED THAT THE PETITIONER HAD BY THAT TIME PAID AN AMOUNT OF R S.3,58,36,089 AS AGAINST A SUM OF RS.3,32,00,487, WHICH IS MORE THAN THE AX ADMITTED, BEING TAX COMPONENT PAYABLE ON THE INCOME RETURNED. AS PER THE DEMAND RAISED UNDER S.143(1), THE AMOUNT IS RS.4,43,58,945 IN WHICH RS.1,11,58,458 WAS TOWARDS INTEREST. IF THE EXCESS PAYMENT OF RS.26,35,602 WAS DEDUCTED, INTEREST PAYABLE, ACCORD ING TO HIM, REMAINED AT RS.85,22,856. THIS REQUEST OF THE ASSESSEE WAS REJECTED AND THE APPEAL WAS DISMISSED, WHICH ACCORDING TO THE LEARNE D COUNSEL, IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 3. IT IS FURTHER SUBMITTED THAT THE ASSESSEE WRON GLY FILED A MISCELLANEOUS PETITION EARLIER, BEING NO.01/HYD/201 3 BEFORE THE TRIBUNAL UNDER S.254(2) ON THE GROUND OF WRONG APPLICATION O F LAW AS A MISTAKE APPARENT FROM RECORD, AND THE HONBLE TRIBUNAL DISM ISSED THE SAID PETITION ON 31.1.2013 HOLDING THE APPLICATION FILED AS DEVOI D OF MERITS. IT IS SUBMITTED THAT STATUTORY REQUIREMENTS OF S.249(4) A RE DIRECTORY AND NOT MANDATORY AND THE DEFECT OR IRREGULARITY OF THE COM PLIANCE OF THE SAID SECTION CAN BE REMOVED IF THE SHORT-FALL OF THE DUE ADMITTED TAX DUE IS PAID. THE PETITIONER HAS, SINCE PAID THE ADMITTED TAX, EVEN BEFORE THE DISMISSAL OF THE APPEAL ON 10.10.2012 BY THE TRIBUN AL, AND THUS GOT THE IRREGULARITY/DEFECT CURED, THE TRIBUNAL SHOULD HAVE ALLOWED THE APPEAL AND GRANTED RELIEF OF RESTORING THE MATTER TO THE FILE OF THE CIT(A) FOR FRESH DISPOSAL OF THE APPEAL BY HIM. 4. IT IS FURTHER SUBMITTED THAT THE ASSESSEE SUBSE QUENTLY PAID A FURTHER SUM OF RS.1,00,00,000 MORE, BY WHICH THE AD MITTED TAX AND INTEREST THEREON AS PER ORDER UNDER S.143(1) WAS TO TALLY MET AND A SUM OF RS.9,52,628 REMAINS IN EXCESS THAN WHAT IS DUE TOWA RDS PAYMENT OF ADMITTED TAX ON THE INCOME RETURNED. M.A. NO.99/HYD/2013 (IN NO.ITA NO.363/ HYD/2012) M/S. ENSO SECUTRACK LTD., HYDERABAD, 3 5. IN VIEW OF THE ABOVE, LEARNED COUNSEL FOR THE A SSESSEE PRAYED FOR RECALL OF THE ORDER OF THE TRIBUNAL DATED 10.10 .2012, AND RESTORATION OF THE APPEAL, ITA NO.363/HYD/2012, FOR FRESH ADJUDICA TION IN ACCORDANCE WITH LAW. 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE CONTRARY, OPPOSING THE ABOVE CONTENTIONS OF THE ASSESSEE, STR ONGLY SUPPORTING THE ORDER OF THE TRIBUNAL DATED 10.10.2012 SUBMITTED TH AT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL, AND ALL THAT THE ASSESSEE IS SEEKING THROUGH ITS ELABORATE ARGUMENTS, IS ONLY A REVIEW OF THE ORDER OF THE TRIBUNAL DATED 10.10.2012, BY RE-ARGUING ITS CA SE. SINCE SUCH A REVIEW IS NOT POSSIBLE IN THESE PROCEEDINGS UNDER S .254(2) OF THE ACT, IT IS SUBMITTED THAT THE PRESENT APPLICATION OF THE ASSES SEE IS LIABLE TO BE REJECTED. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE ORDER OF THIS TRIBUNAL DATED 10.10.2012, IN THE LIG HT OF THE DETAILED AVERMENTS MADE ON VARIOUS ASPECTS BY THE ASSESSEE I N THE PRESENT APPLICATION. WE FIND THAT THE ASSESSEES BY THE PRE SENT APPLICATION IS SEEKING A MERE REVIEW OF THE EARLIER ORDER OF THE T RIBUNAL DATED 10.10.2012, WITHOUT POINTING OUT ANY SPECIFIC MISTA KE THEREIN. A CAREFUL READING OF THE ORDER OF THE TRIBUNAL, CLEARLY REVEA LS THAT ALL THE CONTENTIONS OF THE PARTIES BEFORE IT HAVE BEEN DULY CONSIDERED AND FINDINGS HAVE BEEN GIVEN BASED ON THE MATERIAL APPARENT FROM RECORD. WE DO NOT FIND ANY MATERIAL OMISSION OR MISTAKE ON THE PART OF THE TRI BUNAL IN RECORDING THE CONTENTIONS OF LEARNED AUTHORISED REPRESENTATIVE FO R THE ASSESSEES BEFORE IT. IT IS NEITHER EXPECTED NOR PRACTICABLE TO EXP ECT AN APPELLATE AUTHORITY TO RECORD ALL THE CONTENTIONS OF THE PARTIES VERBAT IM IN THE ORDER OF THE TRIBUNAL, AND IT WOULD BE SUFFICE AND MEET THE ENDS OF JUSTICE, IF TOTALITY OF THE APPELLATE ORDER REFLECTS THE CONSIDERATION OF A LL THE CONTENTIONS URGED BY THE PARTIES BEFORE IT. BY THE CONTENTIONS URGED IN THE PRESENT APPLICATION, WE FIND THAT THE ASSESSEE IS MERELY SE EKING A REVIEW OF THE M.A. NO.99/HYD/2013 (IN NO.ITA NO.363/ HYD/2012) M/S. ENSO SECUTRACK LTD., HYDERABAD, 4 ORDER OF THE TRIBUNAL, WHICH IS NOT POSSIBLE IN THE SE PROCEEDINGS UNDER S.254(2) OF THE ACT. 8. BEFORE PARTING, IT IS PERTINENT TO NOTE, AS ALR EADY STATED IN THE ARGUMENTS OF THE LEARNED COUNSEL FOR THE ASSESSEE, THE ASSESSEE HAS PREFERRED SIMILAR APPLICATION EARLIER, SEEKING RECT IFICATION/RECALL OF THE ORDER OF THE TRIBUNAL DATED 10.10.2012, AND THE SAME HAS BEEN REJECTED BY THE TRIBUNAL, AFTER DETAILED CONSIDERATION OF VARIOUS C ONTENTIONS OF THE ASSESSEE, VIDE ITS ORDER DATED 31.1.2013 IN MA NO.1 /HYD/2013. THE EARLIER APPLICATION OF THE ASSESSEE UNDER S.254(2), HAVING BEEN REJECTED ALREADY, IT IS NOT PERMISSIBLE TO MOVE ONCE AGAIN A PPLICATION UNDER S.254(2) FOR THE VERY SAME RELIEF OF REVIEW OF OUR DECISION, IN THE GUISE OF RECTIFICATION/RECALL OF THE ORDER DATED 10.10.2012, WHATEVER MAY BE THE GROUNDS TAKEN, RIGHTLY OR WRONGLY, FOR RECTIFICATIO N/RECALL IN THE EARLIER MISCELLANEOUS PETITION. BY PREFERRING THE PRESENT APPLICATION FOR RECTIFICATION AGAIN, THE ASSESSEE IS SEEKING NOT ON LY A REVIEW OF OUR DECISION ON THE APPEAL IN OUR ORDER DATED 10.10.201 2, BUT ALSO OUR ORDER DATED 31.1.2013 ON THE EARLIER MISCELLANEOUS APPLIC ATIONS OF THE ASSESSEE. THE ACTION OF PREFERRING MISCELLANEOUS APPLICATION REITERATING THE VERY SAME CONTENTIONS FOR A SECOND TIME, OR ON NEW GROUN DS ON THE PLEA THAT THE CONTENTIONS RAISED IN THE EARLIER MISCELLANEOUS PETITION WERE WRONGLY MADE, CANNOT BE APPROVED, AND SUCH SUBSEQUENTLY FIL ED MISCELLANEOUS APPLICATION CANNOT BE ENTERTAINED. WE ARE SUPPORTED IN THIS BEHALF BY THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CAS E OF CIT V/S. THE CHEMICAL AND ALLIED PRODUCTS (296 ITR 297) AND THE DECISIONOF THE ALLAHABAD BENCH OF THE TRIBUNAL IN THE CASE OF SMT. POONAM KUMARI V/S. ITO(59 ITD 106). FOR THIS REASON ALSO, THE PRESENT MISCELLANEOUS APPLICATION OF THE ASSESSEE CANNOT BE ENTERTAINED, AND AS SUCH, IT IS LIABLE TO BE REJECTED. 9. IN THE LIGHT OF THE FOREGOING DISCUSSION, WE FI ND NO MERIT IN THE PRESENT APPLICATION OF THE ASSESSEE, WHICH IS ACCOR DINGLY REJECTED. M.A. NO.99/HYD/2013 (IN NO.ITA NO.363/ HYD/2012) M/S. ENSO SECUTRACK LTD., HYDERABAD, 5 10. IN THE RESULT, ALL THESE MISCELLANEOUS APPLICA TION OF THE ASSESSEE IS REJECTED. ORDER PRONOUNCED IN THE COURT ON 12.7.2013 SD/- SD/- (CHANDRA POOJARI) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED/- JULY, 2013 COPY FORWARDED TO: 1 M/S. ENSO SECUTRACK LTD., 13 - 6 - 436/A/26, LAKSHMI NAGAR COLONY, MEHDIPATNAM, HYDERABAD 500 038 2 ASST. COMMISSIONER OF INCOME-TAX CIRCLE 2(2), HYDE RABAD 3 COMMISSIONER OF INCOME-TAX(APPEALS) III, HYDERABAD 4 COMMISSIONER OF INCOME - TAX II, HYDERABAD 5 DEPARTMENTAL REPRESENTATIVE ITAT, HYDERABAD B.V.S