SARAF EXPORT PALACE, CHURU v. ACIT, JHUNJHUNU

ITA 247/JPR/2016 | 2012-2013
Pronouncement Date: 21-10-2016 | Result: Dismissed

Appeal Details

RSA Number 24723114 RSA 2016
Assessee PAN ABMFS0322G
Bench Jaipur
Appeal Number ITA 247/JPR/2016
Duration Of Justice 7 month(s) 6 day(s)
Appellant SARAF EXPORT PALACE, CHURU
Respondent ACIT, JHUNJHUNU
Appeal Type Income Tax Appeal
Pronouncement Date 21-10-2016
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted Not Allotted
Tribunal Order Date 21-10-2016
Assessment Year 2012-2013
Appeal Filed On 15-03-2016
Judgment Text
VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCHES JAIPUR JH HKKXPAN] YS[KK LNL; OA JH YFYR DQEKJ] U;KF;D LN L; DS LE{K BEFORE: SHRI BHAGCHAND AM & SHRI LALIET KUMAR JM VK;DJ VIHY LA-@ ITA NO. 247/JP/2016 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2012-13 M/S SARAF EXPORT PALACE RIICO INDUSTRIAL AREA SARDARSAHAR CHURU. CUKE VS. ASSISTANT COMMISSIONER OF INCOME TAX JHUNJHUNU. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: ABMFS 0322 G VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI SURESH OJHA (ADV) JKTLO DH VKSJ LS@ REVENUE BY : SHRI R.A. VERMA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 07/10/2016 MN?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 21/10/2016 VKNS'K@ ORDER PER: LALIET KUMAR J.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 19/02/2016 PASSED BY THE LD CIT(A)-3 JAIPUR FOR TH E A.Y. 2012-13 U/S 154 OF THE INCOME TAX ACT 1961 (IN SHORT THE ACT). THE GROUNDS TAKEN BY THE ASSESSEE IN APPEAL IS AS UNDER:- 1 THAT THE ORDER PASSED BY THE CIT(A) IS ILLEGAL A ND AGAINST THE LAW. 2. THAT THE CIT(A) SHOULD HAVE RECTIFIED THE MISTAKE AS POINTED OUT BECAUSE SAME ARE THE MISTAKE APPARENT ITA 247/JP/2016_ M/S SARAF EXPORT PALACE VS ACIT 2 FROM RECORD SQUARELY COVERED UNDER SECTION 154 OF INCOME TAX ACT. 3. THAT THE ORDER PASSED MAY KINDLY BE DECLARED AGAI NST THE JUDICIAL DECORUM AND DISCIPLINE BECAUSE CIT(A) REASON BEST KNOWN TO HIM NOT FOLLOWED THE JUDGMENT OF JURISDICTIONAL HON'BLE HIGH COURT. 2. IN THE PRESENT CASE ASSESSMENT ORDER WAS PASSED AGAINST THE ASSESSEE ON 13/3/2015 WITH THE FOLLOWING EFFECT: 3.8 IN VIEW OF THE ABOVE DISCUSSION THE DEDUCTION C LAIMED U/S 80IA AMOUNTING TO RS. 43 46 710/- IS WITHDRAWN AND AD DED BACK TO THE TOTAL INCOME OF THE ASSESSEE. PENALTY PROCEEDINGS U/S 271(1)(C) IS SEPARATELY INITIATED F OR FURNISHING INACCURATE PARTICULARS OF INCOME. WITH THE ABOVE REMARKS TOTAL INCOME OF THE ASSESSE E IS COMPUTED AS UNDER:- INCOME DECLARED BY THE ASSESSEE 8069060 ADDITION ON ACCOUNT OF WITHDRAWAL OF DEDUCTION CLA IMED U/S 80IA AS PER PARA 3 4346710 TOTAL INCOME 12415770 ROUNDED OFF 12415770 ASSESSED ACCORDINGLY U/S 143(3) AT RS. 1 24 15 770/ - OF THE ACT. ISSUE DEMAND NOTICE & CHALLAN AFTER CHARGING A PPLICABLE INTEREST. PENALTY NOTICE U/S 274 R.W.S. 271(1)(C) IS SEPARATELY ISSUED FOR FURNISHING INACCURATE PARTICU LARS OF HIS TRUE INCOME. ITA 247/JP/2016_ M/S SARAF EXPORT PALACE VS ACIT 3 3. AGAINST THE SAID ORDER THE ASSESSEE PREFERRED A PPEAL BEFORE THE LD. CIT(A) WITH THE FOLLOWING GROUNDS:- I. THAT THE ORDER PASSED BY THE ASSESSING AUTHORITY IS ILLEGAL AND AGAINST THE LAW. II. THAT THE ASSESSING AUTHORITY SHOULD HAVE ALLOWED THE DEDUCTION/ EXEMPTION AS CLAIMED BY THE ASSESSEE. III. THAT THE ASSESSING AUTHORITY SHOULD HAVE ALLOWED THE DEDUCTION ON THE BASIS OF THE PREVIOUS YEAR IN THE IMMEDIATELY PRECEDING YEAR THE DEDUCTION WAS ALLOWED THEREFORE IN THE SUBSEQUENT YEAR REFUSAL IS ILLEGA L AND AGAINST THE LAW. IV. WITHOUT PREJUDICE TO ABOVE ALTERNATIVELY THE A SSESSING AUTHORITY SHOULD HAVE ACCEPTED THE REQUEST SO AS TO SWITCH OVER SUBSEQUENTLY IN WHICH YEAR THE ASSESSEE IS ELIG IBLE. V. WITHOUT PREJUDICE TO ABOVE THE ASSESSING AUTHORI TY SHOULD HAVE RECTIFY THE MISTAKE COMMITTED BY THE ASSESSEE INNOCENTLY FOLLOWING THE DUTY CASTED BY THE STATUE S O AS TO CORRECT THE CLAIM. VI. THAT THE CHARGING OF INTEREST IS ILLEGAL AND AG AINST THE LAW. VII. THAT THE INITIATION OF PENALTY PROCEEDINGS UNDE R SECTION 271(1)(C) IS NOT IN ACCORDANCE WITH THE LAW. ITA 247/JP/2016_ M/S SARAF EXPORT PALACE VS ACIT 4 4. THE LD CIT(A) HAD PASSED THE ORDER ON 29/12/2015 A ND THEREBY DISMISSED THE APPEAL ON ALL THE GROUNDS. 5. THE ASSESSEE WAS AGGRIEVED BY THE ORDER OF THE LD. CIT(A) HAD MOVED AN APPLICATION FOR RECTIFICATION U/S 154 OF T HE ACT AND HAS AVERRED AS UNDER:- IN THIS RESPECT IT IS SUBMITTED THAT AT THE TIME O F SUBMISSION OF THE APPEAL THE ASSESSEE SUBMITTED MEMO OF APPEAL IN THE PRESCRIBED PROFORMA AND THEREIN THE ASSESSEE TOOK 7 NOS. OF GROUNDS EVEN REPRODUCE BY YOU IN ORDER OF APPEAL. AT THE TIME OF DECIDING THE APPEAL ALL GROUNDS OF APPEAL TAKEN IN THE APPEAL HAVE NOT BEEN DECIDED BY YOU WH EREAS AS PER JUDICIAL PRONOUNCEMENT YOU ARE SUPPOSED TO DECI DE EACH GROUND TAKEN IN THE MEMO OF APPEAL. IN THIS RESPECT I WANT TO DRAW YOUR KIND ATTENTION TOWARDS THE JUDGMENT OF RAJA STHAN HIGH COURT DELIVERED IN CASE OF RAM CHAND KHATRI R EPORTED IN 249 ITR PAGE 323. THE JUDGMENT REFERRED ABOVE IS A JUDGMENT OF RAJAST HAN HIGH COURT AND YOU ARE SUPPOSED TO DECIDE EACH GROUND TA KEN IN THE MEMO OF APPEAL. THE QUESTION WHETHER EACH GROUND OF APPEAL SHOULD BE DEALT WITH OR NOT HAS BEEN DECIDED IN THE HONBLE RAJASTHA N HIGH COURT IN CASE OF M/S SRI RAM & COMPANY DBIT NO. 101 /2008 ITA 247/JP/2016_ M/S SARAF EXPORT PALACE VS ACIT 5 DATED 28.07.2008. THE RELEVANT PORTION OF THE ORDER OF HONBLE HIGH COURT IS REPRODUCED AS UNDER:- 'TRUE IT IS THAT LEARNED TRIBUNAL HAS NOT RECORDED THE FINDINGS GROUND WISE ' WHAT IS IMPORTANT IS THAT THE LEARNED TRIBUNAL SHO ULD HAVE DISCUSSED THE CONTENTION AND SHOULD HAVE DECI DED IT THIS WAY OR THAT WAY. OF COURSE THE LEARNED C OUNSEL IS RIGHT WHEN HE SUBMITS THAT LEARNED TRIBUNAL SHOULD HAVE DECIDED THE GROUND AS RAISED. BOTH THE JUDGMENTS REFERRED ABOVE ARE THE JUDGMENT OF TERRITORIAL JURISDICTION OF HIGH COURT AND HAVING T HE CHARACTER OF BINDING IN NATURE UPON YOU ALSO. IN VIEW OF ABOVE MENTIONED FACTS AND CIRCUMSTANCES I T IS HUMBLY PRAYED THAT EACH GROUND TAKEN IN THE MEMO OF APPEAL MAY KINDLY BE DECIDED. BESIDES THIS 1 WANT TO DRAW YOUR KIND ATTENTION TOWARD S THE PAGE NO. 17 OF APPELLATE ORDER PARA 4.3 SEVENTH LIN E WHICH IS AS UNDER:- BUT IT IS NOT CLEAR WHETHER ASSESSMENT WAS COMPLETE D UNDER SECTION 143(3) OR 143(1A). WHEREAS IN THE REPRODUCTION OF SUBMISSION YOU YOUR SELF HAVE REPRODUCED THE SUBMISSION WHEREIN IT HAS BEEN MENTIO NED AT PAGE 5 PARA 3 WHICH IS BEING REPRODUCED HERE UNDER: - AS FAR AS THE CLAIM IN THE IMMEDIATELY PRECEDING Y EAR I AM ENCLOSING HEREWITH COPY OF TRADING ACCOUNT AND P ROFIT AND LOSS ACCOUNT FOR THE ASSESSMENT YEAR 2011-12 ALONGWITH COMPUTATION OF INCOME IN WHICH THE ASSESS EE CLAIMED THE DEDUCTION OF U/S 80IA OF THE INCOME TAX ACT. ITA 247/JP/2016_ M/S SARAF EXPORT PALACE VS ACIT 6 I AM ALSO ENCLOSING HEREWITH THE COPY OF ASSESSMENT ORDER FOR THE IMMEDIATELY PRECEDING YEAR IN WHICH T HE ASSESSING AUTHORITY ALLOWED THE DEDUCTION AS CLAIME D U/S 80IA OF THE INCOME TAX ACT. AS SUCH YOU WILL OBSERVE THAT THE FACT MENTIONED IN THE ASSESSMENT ORDER IS NOT CORRECT THEREFORE REQUESTED TO KINDLY RECTIFY THE ORDER ACCORDINGLY. IT WILL BE WORTHWHILE TO SUBMIT HERE THAT'S THE ASSESS EE HAS TO PREFER AN APPEAL BEFORE THE HON'BLE TRIBUNAL AGAINS T YOUR ORDER THEREFORE IF THE OTHER GROUNDS ARE IF DECIDED WITHIN THE LIMITATION THE ASSESSEE WILL FEEL OBLIGED BECAUSE TH E SAME CAN ALSO BE INCORPORATED IN THE APPEAL BEFORE THE HON'B LE BENCH. 6. THE LD. CIT(A) PASSED AN ORDER ON THE APPLICATION U/S 154 OF THE ACT TO THE FOLLOWING EFFECT: ON PERUSAL OF APPLICATION IT IS SEEN THAT ASSESSE E HAS NOT SPECIFIED AS TO WHICH GROUND OF APPEAL WAS NOT DECIDE D WHEREAS I HAVE DECIDED ALL THE SEVEN GROUNDS OF APP EAL. SECTION 154 EMPOWERS ONLY FOR RECTIFICATION OF MISTA KE APPARENT FROM RECORD. FROM THE PERUSAL OF APPELLATE ORDER AND APPLICATION U/S 154 FILED BY APPELLANT IT IS F OUND THAT THERE IS NO SUCH ERROR POINTED OUT IN THE APPELLATE ORDER WHICH IS APPARENT FROM RECORD. THEREFORE THE APPLICA TION U/S 154 FILED BY THE ASSESSEE IS NOT MAINTAINABLE. 7. AGAINST THE SAID ABOVE ORDER THE ASSESSEE IS IN APPEAL BEFORE US. IT WAS CONTENDED BY THE LD. AR OF THE ASSESSEE THAT THE LD. CIT(A) WHILE ITA 247/JP/2016_ M/S SARAF EXPORT PALACE VS ACIT 7 PASSING THE ORDER U/S 154 OF THE ACT HAS NOT DECID ED THE APPLICATION ON MERIT. IT WAS POINTED OUT THAT IT IS THE DUTY OF THE CIT(A) TO DECIDE THE APPEAL ON EACH AND EVERY GROUND AND IT IS ALSO THE DUTY OF THE CIT TO POINT OUT WHETHER THE ASSESSING OFFICER HAS DECIDED THE APPEAL U/S 143(3) OR 143(1A) OF THE ACT. IT WAS SUBMITTED THAT THE ORDER PASSED BY THE AUTHORITIES BELOW IS CONTRARY TO THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT AND FOR THAT PURPOSES TH E ASSESSEE HAS REFERRED THE FOLLOWING JUDGMENTS:- 1. ITO V/S MEWAAR TEXTILE MILL ITAT (JODH) 64 TTJ 502. 2. MAHARAJA SHREE MAID MILLS LTD. 96 CTR 72 (RAJ). 3. CIT V/S PADAN CHAND RAM GOPAL 76 ITR 719 (SC). 4. ALLIED CONSTRUCTION COMPANY 106 TTJ 595(DELHI). 5. ANIL TANTIA ITAT (JODH). 6. CIT V/S RAJAH DHANRAJ GIRI JI 154 ITR 719 (AP) 7. TYCO VOLVES & CONTROLS (INDIA) V/S DEPT OF INCO ME TAX DATE:-23-08-2012. 8. SAMRUDDHI INDUSTRIES LTD. ITAT PUNE BENCH. 9. CIT V/S ART AND CRAFT EXPORT 246 CTR 463 (BOMBAY) . 10. SMT. URMILA BHANDARI ITA 766/2593/DEL/2013 ITA T (DELHI). 11. HINDUSTHAN TEA TRADI CO. LTD. V/S CIT 263 ITR 289( CAL). 12. INDORE MALWA UNITED MILLS LTD. 60 ITR 41(SC). 13. ITO V/S GHANSHYAM BHAI R THAKAR 56 TTJ 460 (ALLH A). ITA 247/JP/2016_ M/S SARAF EXPORT PALACE VS ACIT 8 7.1 IN THE CASE OF MULCHAND PATTI MFG. CO. VS. CIT [1995] 215 ITR 746 (RAJ) THE HON'BLE HIGH COURT HAS HELD AS UNDER :- WHILE INTERPRETING THE PROVISIONS OF SECTION 154 THE MISTAKE WHICH IS CONTEMPLATED TO BE RECTIFIED MUST BE A MANIFEST OR PATENT MISTAKE WHICH DOES NOT REQUIRE ELABORATE ARGUMENTS OR FOR WHICH TWO VIEWS ARE NOT POSSIBLE OR THE ORDER IS CONTRARY TO THE PROVISIONS OF THE ACT AND THE RULES MADE THEREUNDER OR IN IGNORANCE OF THE PROVISIONS OF THE ACT OR A BINDING DECISION. IF IT IS THE DISCRETION OF THE INCOME-TAX OFFICER WHILE FINALISING THE ASSESSMENT TO CHARGE THE INTEREST OR NOT TO CHARGE THE INTEREST WITHOUT ANY REQUIREMENT ON THE PART OF THE ASSESSEE THEN IT COULD BE CONSIDERED THAT THE AUTHORITY HAS EXERCISED ITS DISCRETION NOT TO CHARGE INTEREST. BUT IF THERE IS NO DISCRETION NOT TO CHARGE INTEREST OR THE DISCRETION IS COUPLED WITH CERTAIN CONDITIONS TO BE FULFILLED BY THE ASSESSEE THEN UNLESS THOSE CONDITIONS ARE FULFILLED NON-CHARGING OF INTEREST WOULD BE A MISTAKE APPARENT FROM THE RECORD. RULE 117A HAS CONTEMPLATED THAT THE POWER OF REDUCTION OR WAIVER COULD BE EXERCISED ONLY WITH THE PREVIOUS APPROVAL OF THE DEPUTY COMMISSIONER OF INCOME-TAX WHERE THE AMOUNT OF INTEREST EXCEEDS RS. 1 000 IN CASES COVERED BY CLAUSES (IV) AND (V) OF RULE 117A. IT SHOWS THAT THE INCOME-TAX OFFICER HAS NO POWER TO REDUCE OR WAIVE THE INTEREST WHERE THE AMOUNT OF INTEREST CHARGEABLE EXCEEDS RS. 1 000. THE FAILURE ON THE PART OF THE INCOME-TAX OFFICER TO CHARGE THE INTEREST THEREFORE IS CONTRARY TO THE PROVISIONS OF THE ACT AND IS LIABLE TO BE RECTIFIED UNDER SECTION 154 OF THE ACT. THIS COURT IN THE CASE OF GOLECHA PROPERTIES (P.) LTD. V. CIT [1988] 171 ITR 47 HAS HELD THAT THE PENAL INTEREST UNDER SECTIONS 139 215 AND 217 COULD BE LEVIED EVEN WITHOUT NOTICE TO THE ASSESSEE AND FOR REDUCTION OR WAIVER OF INTEREST THE INCOME-TAX OFFICER HAS NO JURISDICTION TO WAIVE OR REDUCE THE INTEREST ITA 247/JP/2016_ M/S SARAF EXPORT PALACE VS ACIT 9 WITHOUT APPLICATION BY THE ASSESSEE. THE PATNA HIGH COURT IN THE CASE OF CIT V. TIWARY BECHAR AND CO. [1987] 165 ITR 78 HAS ALSO TAKEN THE SAME VIEW. SINCE THE ASSESSEE HAS NOT SUBMITTED ANY APPLICATION FOR REDUCTION OR WAIVER OF INTEREST AS CONTEMPLATED UNDER RULE 117A OF THE INCOME-TAX RULES OF 1962 THE INCOME- TAX OFFICER HAS NO DISCRETION TO WAIVE THE INTEREST. AS SUCH NOT CHARGING OF THE INTEREST AMOUNTED TO A MISTAKE APPARENT FROM THE RECORD AND WAS LIABLE TO BE RECTIFIED UNDER SECTION 154 OF THE ACT. 7.2 IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD. VS . CIT [2007] 213 CTR 425 (SC) HON'BLE SUPREME COURT HAS H ELD AS UNDER:- AS STATED ABOVE IN THIS CASE WE ARE CONCERNED WITH THE APPLICATION UNDER S. 254(2) OF THE 1961 ACT. AS STATED ABOVE THE EXPRESSION 'RECTIFICATION OF MISTAKE FROM THE RECORD' OCCURS IN S. 154. IT ALSO FINDS PLACE IN S. 254(2). THE PURPOSE BEHIND ENACTMENT OF S. 254(2) IS BASED ON THE FUNDAMENTAL PRINCIPLE THAT NO PARTY APPEARING BEFORE THE TRIBUNAL BE IT AN ASSESSEE OR THE DEPARTMENT SHOULD SUFFER ON ACCOUNT OF ANY MISTAKE COMMITTED BY THE TRIBUNAL. THIS FUNDAMENTAL PRINCIPLE HAS NOTHING TO DO WITH THE INHERENT POWERS OF THE TRIBUNAL. IN THE PRESENT CASE THE TRIBUNAL IN ITS ORDER DT. 10TH SEPT. 2003 ALLOWING THE RECTIFICATION APPLICATION HAS GIVEN A FINDING THAT SAMTEL COLOR LTD. (SUPRA) WAS CITED BEFORE IT BY THE ASSESSEE BUT THROUGH OVERSIGHT IT HAD MISSED OUT THE SAID JUDGMENT WHILE DISMISSING THE APPEAL FILED BY THE ASSESSEE ON THE QUESTION OF ADMISSIBILITY/ ALLOWABILITY OF THE CLAIM OF THE ASSESSEE FOR ENHANCED DEPRECIATION UNDER S. 43A. ONE OF THE IMPORTANT REASONS FOR GIVING THE POWER OF RECTIFICATION TO THE TRIBUNAL IS TO SEE THAT NO PREJUDICE IS CAUSED TO EITHER OF THE PARTIES APPEARING ITA 247/JP/2016_ M/S SARAF EXPORT PALACE VS ACIT 10 BEFORE IT BY ITS DECISION BASED ON A MISTAKE APPARENT FROM THE RECORD. 'RULE OF PRECEDENT' IS AN IMPORTANT ASPECT OF LEGAL CERTAINTY IN RULE OF LAW. THAT PRINCIPLE IS NOT OBLITERATED BY S. 254(2) OF THE IT ACT 1961. WHEN PREJUDICE RESULTS FROM AN ORDER ATTRIBUTABLE TO THE TRIBUNAL'S MISTAKE ERROR OR OMISSION THEN IT IS THE DUTY OF THE TRIBUNAL TO SET IT RIGHT. ATONEMENT TO THE WRONGED PARTY BY THE COURT OR TRIBUNAL FOR THE WRONG COMMITTED BY IT HAS NOTHING TO DO WITH THE CONCEPT OF INHERENT POWER TO REVIEW. IN THE PRESENT CASE THE TRIBUNAL WAS JUSTIFIED IN EXERCISING ITS POWERS UNDER S. 254(2) WHEN IT WAS POINTED OUT TO THE TRIBUNAL THAT THE JUDGMENT OF THE CO-ORDINATE BENCH WAS PLACED BEFORE THE TRIBUNAL WHEN THE ORIGINAL ORDER CAME TO BE PASSED BUT IT HAD COMMITTED A MISTAKE IN NOT CONSIDERING THE MATERIAL WHICH WAS ALREADY ON RECORD. THE TRIBUNAL HAS ACKNOWLEDGED ITS MISTAKE IT HAS ACCORDINGLY RECTIFIED ITS ORDER. IN OUR VIEW THE HIGH COURT WAS NOT JUSTIFIED IN INTERFERING WITH THE SAID ORDER. WE ARE NOT GOING BY THE DOCTRINE OR CONCEPT OF INHERENT POWER. WE ARE SIMPLY PROCEEDING ON THE BASIS THAT IF PREJUDICE HAD RESULTED TO THE PARTY WHICH PREJUDICE IS ATTRIBUTABLE TO THE TRIBUNAL'S MISTAKE ERROR OR OMISSION AND WHICH ERROR IS A MANIFEST ERROR THEN THE TRIBUNAL WOULD BE JUSTIFIED IN RECTIFYING ITS MISTAKE WHICH HAD BEEN DONE IN THE PRESENT CASE. 7.3 IT WAS ALSO CONTENDED BY THE AR OF THE ASSESSEE THAT THE AUTHORITIES HAVE PASSED THE ORDER WITHOUT AFFORDING OPPORTUNITY OF HEARING AND WITHOUT ISSUING NOTICE ON THE APPLICATIO N. THE LD AR HAS ALSO ITA 247/JP/2016_ M/S SARAF EXPORT PALACE VS ACIT 11 SHOWN JUDGMENT OF DELHI TRIBUNAL IN THE CASE OF RAJIN DRA PRESTRESS CONCRETE INDUSTRIES VS ACIT 52 TTJ 178 WHEREIN IT HA S BEEN HELD AS UNDER:- 8. WE HAVE GIVEN OUR CAREFUL CONSIDERATION TO THE RIV AL CONTENTIONS. THE CLAIM OF THE ASSESSEE IS THAT THE AUDIT REPORT HAD BEEN FILED ALONG WITH THE RETURN OF INCOM E. ASSESSING OFFICER HAS REJECTED THE CLAIM OF THE ASSESSEE SOLELY ON THE GROUND THAT THE AUDIT REPORT HAD NOT B EEN ATTACHED TO THE RETURN OF INCOME. IMMEDIATELY ON RECEIPT OF THE ASSESSMENT ORDER THE ASSESSEE FILED AN APPLICATION UNDER S. 154 BEFORE THE ASSESSING OFFICER CLAIMING THAT THE REPORT HAD BEEN FILED ALONGWITH TH E RETURN OF INCOME. SINCE A CLAIM HAD BEEN MADE BY THE ASSESSEE IT WAS INCUMBENT UPON THE ASSESSING OFFICER TO ALLOW HIM THE OPPORTUNITY OF SUPPORTING THE CLAIM. THE ASSESSING OFFICER HAS COME TO A CONCLUSION THAT THE CLAIM MADE BY THE ASSESSEE IS INCORRECT. THIS CONCLUSION HAS BEEN ARRIVED AT WITHOUT CONFRONTING THE ASSESSEE AND WITHOUT ALLOWING HIM THE OPPORTUNITY OF SUBSTANTIATING THE CLAIM. THERE HAS BEEN A VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. THE CIT(A) IN OUR VIEW IS NOT JUSTIFIED IN OBSERVING THAT THERE WAS NO REQUIREM ENT FOR AN OPPORTUNITY OF BEING HEARD TO BE GIVEN TO TH E ASSESSEE BEFORE DISPOSING OF THE APPLICATION UNDER S. 154. IN THE CASE OF SMART P. LTD. VS. ITAT (1990) 82 CTR (DEL) 34 : (1990) 182 ITR 384 (DEL) THEIR LORDSHIPS OF THE DELHI HIGH COURT WHILE DECIDING THE ISSUE UNDER S. 254 HAVE HELD THAT AN OPPORTUNITY OF BEING HEARD BEFORE DISPOSAL OF THE APPLICATION WAS NECESSARY NOTWITHSTANDING THE FACT THAT THERE IS NO STATUTORY REQUIREMENT FOR THE SAME. APPLYING THE SAME PRINCIPLE TO THE PROCEEDINGS UNDER S. 154 WE HOLD THAT AN OPPORTUNITY OF BEING HEARD IS NECESSARY BEFORE THE DISPOSAL OF THE APPLICATION MADE UNDER S. 154. IN THIS CASE SINCE ASSESSEE HAD MADE A CLAIM IT WAS ITA 247/JP/2016_ M/S SARAF EXPORT PALACE VS ACIT 12 NECESSARY FOR THE ASSESSING OFFICER TO ALLOW HIM THE OPPORTUNITY OF SUBSTANTIATING THE SAME. THE ORDER OF THE ASSESSING OFFICER HAVING BEEN PASSED WITHOUT GIVING AN OPPORTUNITY TO THE ASSESSEE IS ACCORDINGLY VITIATED. WE ACCORDINGLY SET ASIDE THE ORDER OF THE CIT(A) AND THAT OF THE ASSESSING OFFICER AND RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH DETERMINATION. 7.4 IN THE CASE OF ACIT VS SAURASHTRA KUTCH STOCK EX CHANGE LTD. (2008) 305 ITR 227 (SC) THE HON'BLE SUPREME COURT HAS HELD AS UNDER:- 37. IN OUR JUDGMENT THEREFORE A PATENT MANIFEST AND SELF-EVIDENT ERROR WHICH DOES NOT REQUIRE ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENT TO ESTABLISH IT CAN BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORD AND CAN BE CORRECTED WHILE EXERCISING CERTIORARI JURISDICTION. AN ERROR CANNOT BE SAID TO BE APPARENT ON THE FACE OF THE RECORD IF ONE HAS TO TRAVEL BEYOND THE RECORD TO SEE WHETHER THE JUDGMENT IS CORRECT OR NOT. AN ERROR APPARENT ON THE FACE OF THE RECORD MEANS AN ERROR WHICH STRIKES ON MERE LOOKING AND DOES NOT NEED A LONG DRAWN OUT PROCESS OF REASONING ON POINTS WHERE THERE MAY CONCEIVABLY BE TWO OPINIONS. SUCH ERROR SHOULD NOT REQUIRE ANY EXTRANEOUS MATTER TO SHOW ITS INCORRECTNESS. TO PUT IT DIFFERENTLY IT SHOULD BE SO MANIFEST AND CLEAR THAT NO COURT WOULD PERMIT IT TO REMAIN ON RECORD. IF THE VIEW ACCEPTED BY THE COURT IN THE ORIGINAL JUDGMENT IS ONE OF POSSIBLE VIEWS THE CAS E CANNOT BE SAID TO BE COVERED BY AN ERROR APPARENT ON THE FACE OF THE RECORD. FURTHER LD AR HAS ALSO DRAWN OUR ATTENTION TO THE O RDERS PASSED BY THE VARIOUS CIT(A)S WHEREBY THEY HAD DECIDED THE APPLIC ATION U/S 154 OF THE ACT AFTER GIVING OPPORTUNITIES TO THE PETITIONER. TH E LD AR HAS ALSO ITA 247/JP/2016_ M/S SARAF EXPORT PALACE VS ACIT 13 SUBMITTED THAT THE ASSESSEE HAD ALSO PREFERRED APPE AL AGAINST THE ORDER DATED 29/12/2015 BEFORE THIS TRIBUNAL BY FILING APPE AL ON 25/1/2016. HOWEVER IT WAS SUBMITTED THAT TILL DATE THE NUMBER HAS NOT BEEN ASSIGNED TO THE SAID APPEAL. 8. ON THE CONTRARY THE LD DR HAS DRAWN OUR ATTENTIO N TO THE APPLICATION AND HAS SUBMITTED THAT THE GROUNDS RAIS ED IN THE APPEAL AS WELL AS IN THE APPLICATION FOR RECTIFICATION WERE GEN ERAL IN NATURE AND THE LD. CIT(A) WAS RIGHT IN ADJUDICATING THE GROUNDS TOG ETHER AS THE MAIN CRUX OF THE MATTER WAS HINGING AGAINST THE WHETHER THE INITIAL YEAR CAN BE CHANGED IN THE SUBSEQUENT YEAR AFTER INITIALLY O PTING IT OR NOT.? HE HAS ALSO DRAWN OUR ATTENTION TO PAGE NO. 2 OF THE OR DER DATED 29/12/2015 TO THE FOLLOWING EFFECT: 4. GROUND NO 1 TO 7 4.1 THE AO HAS REFUSED DEDUCTION U/S 80IA ON THE GRO UND THAT NO SEPARATE BOOKS OF ACCOUNTS WERE PRODUCED BEFORE H IM. THEREFORE IT IS NOT POSSIBLE TO DETERMINE GENUINENES S OF THE DEDUCTION CLAIMED. THE ASSESSEE CLAIMED THAT THE ENT IRE SALES WERE ELIGIBLE FOR DEDUCTION AND LATER FILED CO RRIGENDUM WITHOUT REVISING RETURN OF INCOME FOR MODIFICATION I N THE AMOUNT OF DEDUCTION U/S 80IA. THE AO ALSO SAID THAT THE ASSESSEE HAD NO PROFITS FROM THE ELIGIBLE BUSINESS AS AGAINST THE TOTAL TURNOVER OF RS. 44 24 430/-. AS PER CORRI GENDUM ITA 247/JP/2016_ M/S SARAF EXPORT PALACE VS ACIT 14 REPORT DEPRECIATION OF RS. 16860767/- WAS CLAIMED LEADING TO A LOSS IN THE ELIGIBLE BUSINESS. THEREFORE HE WIT HDREW THE DEDUCTION GRANTED IN THIS YEAR. SIMILARLY HE HAS ALSO DRAWN OUR ATTENTION TOWARDS OR DER OF THE LD. CIT(A) WHICH IS AS UNDER:- CONSIDERING THE OVERALL FACTS OF THE CASE AND IN V IEW OF THE ACTION OF ASSESSEE IN CHOOSING A.Y. AS 2011-12 THE RE REMAINS LOSS IN THE YEAR UNDER CONSIDERATION RESULT ING INTO NIL DEDUCTION. THE VARIOUS DECISIONS REFERRED BY THE ASSESSEE DO NOT RELATE TO SWITCHING OF INITIAL ASSES SMENT YEAR AND THEREFORE THE SAME ARE IRRELEVANT. ACCORDINGLY ACTION OF THE AO IN WITHDRAWING DEDUCTION IS U/S 80IA IS CONFIR MED. THE LD DR HAS ALSO POINTED OUT THAT THERE WAS NO REQU IREMENT OF FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE IN THE PRESENT CASE WHILE DECIDING THE APPLICATION U/S 154 OF THE ACT. HE HAS DRAWN OUR ATTENTION TO SECTION 154. IT WAS ALSO POINTED OUT BY HIM THAT THE ASSESSEE HAS FAILED TO POINT OUT ANY MISTAKE COMMITTED BY THE LD . CIT(A) WHILE PASSING THE ORDER AND HAS FAILED TO POINT OUT AS TO HOW THE ORDER PASSED BY THE LD. CIT(A) REQUIRED RECTIFICATION ON WHAT BASIS. 9. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON THE RECORD. SECTI ON 154(3) OF THE ACT PROVIDES AS UNDER:- ITA 247/JP/2016_ M/S SARAF EXPORT PALACE VS ACIT 15 154(3) AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCIN G AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INCREASING THE LIABILITY OF THE ASSESSEE [OR THE DEDUCTOR] [OR THE COLLECTOR] SHALL NOT BE MADE UNDER THIS SECTION UNLESS THE AUTHORITY CONCERNED HAS GIVEN NOTICE TO THE ASSESSEE [OR THE DEDUCTOR] [OR THE COLLECTOR] OF ITS INTENTION SO TO DO AND HAS ALLOWED THE ASSESSEE [OR THE DEDUCTOR] [OR THE COLLECTOR] A REASONABLE OPPORTUNITY OF BEING HEARD. A BARE READING OF THE PROVISION MAKE IT CLEAR THAT THE AUTHORITY CONCERNED IS REQUIRED TO GIVE A NOTICE TO THE ASSES SEE OR THE DEDUCTOR IF THE AMENDMENT HAS AN EFFECT OF (A) ENHANCING AN ASS ESSMENT OR (B) REDUCING A REFUND OR (C) OTHERWISE INCREASING THE LI ABILITY OF THE ASSESSEE. WE HAVE ENQUIRED THE LD. AR FOR THE ASSESSEE AS TO IN WHICH CATEGORY THE CASE OF THE ASSESSEE FALLS FOR RECTI FICATION AS MENTIONED IN SUB-SECTION (3) OF SECTION 154 OF THE ACT AND FURT HER WE HAD ALSO ASKED WHAT PREJUDICE HAVE BEEN CAUSED BY DECIDING THE APPL ICATION WITHOUT ISSUING THE NOTICE TO THE ASSESSEE. WE WOULD LIKE TO RECORD THAT THE LD AR FOR THE ASSESSEE WAS NOT ABLE TO ANSWER IN WHICH CLAS S THE CASE FILED U/S 154(3) OF THE ACT WOULD FALL OR IN ANY OF THE CATEGO RY MENTIONED IN SECTION 154(3) OF THE ACT. THE LD AR OF THE ASSESSE E HAS FURTHER FAILED TO POINT OUT AS TO WHAT PREJUDICE WAS CAUSED TO THE ASSE SSEE BY ADJUDICATING THE APPLICATION BY THE LD. CIT(A) WITHOU T ISSUING THE NOTICE. INVARIABLY IT IS INCUMBENT UPON THE AUTHORITIES BE LOW TO DECIDE THE ITA 247/JP/2016_ M/S SARAF EXPORT PALACE VS ACIT 16 APPLICATION U/S 154 AFTER ISSUING THE NOTICE IN CAS E IF THE CASE OF THE ASSESSEE FALLS IN ANY OF THE THREE CATEGORIES MENTI ONED IN SECTION 154 OF THE ACT. HOWEVER IN ANY OTHER MATTER ALSO IF THE OF FICER CONCERNED IS NOT ABLE TO FIND OUT CLEARLY AS TO IN WHICH CATEGORY CA SE OF THE ASSESSEE WOULD FALL SHOULD CALL UPON THE ASSESSEE OR AR OF TH E ASSESSEE TO EXPLAIN THE CASE AFTER ISSUING THE NOTICE. IN THE PRESENT C ASE IF WE GO THROUGH THE AVERMENTS MADE IN THE APPLICATION FOR RECTIFICA TION WE FOUND THAT THE APPLICATION IS GENERAL IN NATURE AND THE LD AR HAS NOT MENTIONED AS TO WHICH GROUND HAS NOT BEEN DECIDED BY THE LD. CIT(A) THEREFORE TO DECIDE THIS KIND OF APPLICATION NOTICE FOR HEARING IS NOT REQUIRED. IN FACT THE GROUNDS RAISED BY THE ASSESSEE IN APPEAL BEFORE THE LD. CIT(A) WERE GENERAL IN NATURE WHICH HAVE BEEN DIVIDED INTO SEVE N. IN FACT ALL THESE SEVEN GROUNDS HAVE BEEN CLUBBED AND THE LD. CIT(A) H AS RIGHTLY DONE SO BY ADJUDICATING ALL THE GROUNDS COLLECTIVELY. WE AR E ALSO CONSCIOUS OF THE FACT THAT IT IS THE INCUMBENT DUTY OF THE TRIBUNAL A S WELL AS THE AUTHORITIES BELOW TO DECIDE EACH AND EVERY LEGAL GROUND SEPARATE LY BUT IF THE GROUNDS RAISED BEFORE THE TRIBUNAL AS WELL AS BEFORE THE AUTHORITIES BELOW ARE FRACTIONS OR SHADES OF ONE GROUND THEN THE ALL GROUNDS CAN BE CLUBBED TOGETHER AND CAN BE DECIDED COLLECTIVELY BY THE AUTHORITIES BELOW AS WELL AS THE TRIBUNAL. IN OUR VIEW THERE IS NO ERRO R OR MISTAKE APPARENT ITA 247/JP/2016_ M/S SARAF EXPORT PALACE VS ACIT 17 FROM THE RECORD BROUGHT TO OUR NOTICE WHICH CALL FO R MODIFICATION OR AMENDMENT OF THE ORDER PASSED BY THE LD. CIT(A). IN OUR VIEW THE ORDER PASSED BY THE LD. CIT(A) WHILE DISMISSING THE RECTIFI CATION APPLICATION WAS CORRECT AND IN ACCORDANCE WITH LAW. FROM BARE PERUSAL OF THE IMPUGNED ORDER AND THE MA IN ORDER OF THE LD. CIT(A) WE ARE OF THE OPINION THAT THE PRESE NT APPEAL SHOULD NOT HAVE BEEN INSISTED BY THE ASSESSEE AS THE ASSESSEE CAN TAKE ALL THESE LEGAL OBJECTION IN THE SUBSTANTIAL APPEAL. THE LD AR HAS INFORMED DURING THE COURSE OF ARGUMENT THAT THE ASSESSEE HAS ALREAD Y PREFERRED AN APPEAL AGAINST THE MAIN ORDER DATED 29/12/2015 BEFO RE THIS TRIBUNAL. HOWEVER THIS FACT IS DISPUTED BY THE DR. AS THE CAS E MAY BE IN CASE THE SAID APPEAL IS FILED/PENDING OR IS LIKELY TO H E LISTED IN DUE COURSE OF TIME THAN THE ASSESSEE HAS ALL THE LIBERTIES AND O PTIONS AVAILABLE AT ITS COMMAND TO TAKE ALL THE LEGAL GROUNDS AT THE TIME O F ADJUDICATION OF THE QUANTUM APPEAL AGAINST THE ORDER PASSED ON MERIT. F OR THESE REASONS ALSO THE PRESENT APPEAL AGAINST THE RECTIFICATION ORDER IS ALSO NOT MAINTAINABLE. IN OUR VIEW THE PRESENT APPEAL AGAINS T THE RECTIFICATION ORDER IS AN ABUSE OF PROCESS OF LAW AND IS DEVOID OF ANY MERIT AND DESERVE TO BE REJECTED. WE THEREFORE DISMISS THE APPEAL OF THE ITA 247/JP/2016_ M/S SARAF EXPORT PALACE VS ACIT 18 ASSESSEE. NOTHING STATED HEREINABOVE SHALL EFFECT T HE ADJUDICATION OF THE APPEAL AGAINST THE MAIN ORDER DATED 29/12/2015 IF FILLED BY THE ASSESSEE. 10. IN THE RESULT THE APPEAL OF THE ASSESSEE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 21/10/2016. SD/- SD/- HKKXPAN YFYR DQEKJ (BHAGCHAND) (LALIET KUMAR) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 21 ST OCTOBER 2016 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- M/S SARAF EXPORT PALACE CHURU. 2. IZR;FKHZ @ THE RESPONDENT- THE ACIT JHUNJHUNU. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR ITAT JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 247/JP/2016) VKNS'KKUQLKJ @ BY ORDER LGK;D IATHDKJ @ ASST. REGISTRAR