Shri Saurashtra Lohana Mahajan, Anand v. The CIT-II,, Baroda

MA 112/AHD/2010 | misc
Pronouncement Date: 31-01-2011 | Result: Dismissed

Appeal Details

RSA Number 11220524 RSA 2010
Assessee PAN AAGTS6385N
Bench Ahmedabad
Appeal Number MA 112/AHD/2010
Duration Of Justice 8 month(s) 23 day(s)
Appellant Shri Saurashtra Lohana Mahajan, Anand
Respondent The CIT-II,, Baroda
Appeal Type Miscellaneous Application
Pronouncement Date 31-01-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 31-01-2011
Assessment Year misc
Appeal Filed On 07-05-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL : A BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA J.M. & HONBLE SH RI D.C. AGARWAL A.M.) M.A. NO. 112/AHD/2010 (ARISING OUT OF I.T.A. NO. 3700/AHD./2007) SHRI SAURASHTRA LOHANA MAHAJAN -VS.- COMMISSIONER OF INCOME TAX-II BARODA AMRUTWADI NEAR GOPI CINEMA ANAND-388001 (PAN : AAGTS 6385 N) (APPLICANT) (RESPONDENT) APPLICANT BY : N O N E RESPONDENT BY : SHRI M. MATHIVANAM D .R. O R D E R THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSE SSEE UNDER SECTION 254(2) 0N 28.04.2010 BY SHRI JAYAMAL THAKORE C.A. POINTING O UT THAT TRIBUNAL HAS COMMITTED CERTAIN MISTAKES IN THE ORDER OF THE TRIBUNAL DATED 26.03.2 010 IN ITA NO. 3700/AHD/2007. THE CONTENTS OF THE MISCELLANEOUS APPLICATION ARE AS UN DER :- APPLICATION UNDER SECTION 254(2) HON'BLE TRIBUNAL BENCH-A ;PASSED AN ORDER FOR REGI STERING THE ABOVE TRUST WITH A LITTLE DIRECTION TO THE APPELLANT TRUST AND HENCE IT IS NE CESSARY TO FILE THIS APPLICATION. HON'BLE TRIBUNAL IN PARA 6 ON PAGE 8 OF THE ORDER H AS MENTIONED THUS WE SET ASIDE THE IMPUGNED ORDER OF THE CIT-II BA RODA U/S. 12AA(1)(B)(I) R.W. PROVISO (II) TO SECTION 12A(A) OF THE I.T. ACT DIR ECT THE ASSESSEE TO FURNISH WHATEVER WRITTEN SUBMISSIONS FILED BEFORE THE SAID COMMISSIO NER WHO WILL EXAMINE THE SAME AND PASS A FRESH ORDER U/S. 12AA(1)(B)(I) R.W. PROVISO (II) TO SECTION 12A(A) OF THE IT ACT IN ACCORDANCE WITH LAW. AFTER GOING THROUGH THE WHOLE WRITTEN SUBMISSIONS A ND CONSIDERING VARIOUS JUDGMENTS FILED BY THE APPELLANT THERE IS NO REASON TO GO AGA IN TO CIT FOR REFILLING WRITTEN SUBMISSION. IN THE ORDER OF CIT IN PARA 2 HE HAS NO T AT ALL SAID THAT THE TRUST IS NOT GENUINE OR ITS FUNDS WERE NOT PROPERLY APPLIED OR I TS OBJECTS ARE NOT CHARITABLE. HE REJECTED THE APPLICATION ON THE GROUND OF THE DECIS ION OF HON'BLE SUPREME COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS.- PALGHAT SH ADI MAHAL TRUST (254 ITR 212). NOW ON THIS COUNT THE HON'BLE TRIBUNAL MEMBERS ARE SATISFIED THAT THE SAID DECISION IS INAPPLICABLE THEN IT IS NOT NECESSARY AGAIN GO TO T HE CIT. ONLY THING HON'BLE TRIBUNAL WOULD HAVE DONE IS TO DIRECT THE CIT-II BARODA TO REGISTER THE TRUST FROM THE DATE OF 2 M.A. NO. 112/AHD/2010 APPLICATION. THIS IS THE JUST WAY TO DO INSTEAD OF ASKING THE APPELLANT TO GO AGAIN BEFORE THE BUTCHER. WE REQUEST THE HON'BLE MEMBERS TO AGAIN CONSIDER TH IS AND DIRECT THE CIT-II BARODA TO GRANT REGISTRATION FROM THE DATE OF THE APPLICATION . SD/- PLACE : AHMEDABAD (JAYAMAL THAKORE) DATE : 28.04.2010 CH ARTERED ACCOUNTANT 2. THE AFORESAID MISCELLANEOUS APPLICATION WAS FIXE D FOR HEARING ON 10.12.2010 FOR WHICH A NOTICE OF HEARING DULY SERVED ON THE ASSESSEE. TH E ACKNOWLEDGMENT (A/D CARD) RECEIVED FROM THE POSTAL AUTHORITY AND IS PLACED ON RECORD. DESPI TE THE SERVICE OF NOTICE NEITHER ANYBODY APPEARED FROM THE SIDE OF THE ASSESSEE NOR AN APPLI CATION FOR ADJOURNMENT RECEIVED. WE THEREFORE PROCEED TO DECIDE THE MISCELLANEOUS APPL ICATION UNDER SECTION 254(2) OF THE INCOME TAX ACT ON THE BASIS OF SUBMISSIONS OF LD. D.R. AND THE MATERIAL AVAILABLE ON RECORD. 3. AT THE OUTSET SHRI M. MATHIVANAM LD. D.R. APPE ARING ON BEHALF OF THE REVENUE POINTED OUT THAT AS PER PROVISIONS OF SECTION 254(2) OF THE ACT AND RELEVANT RULE MISCELLANEOUS APPLICATION UNDER SECTION 254(2) IS REQUIRED TO BE SIGNED BY THE ASSESSEE. SINCE THIS MISCELLANEOUS APPLICATION IS NOT SIGNED BY THE ASSE SSEE THEREFORE ON THIS GROUND ALONE THE MISCELLANEOUS APPLICATION FILED BY THE CHARTERED AC COUNTANT OF THE ASSESSEE IS DISMISSED. 4. WITHOUT PREJUDICED TO ABOVE THE LD. D.R. DREW O UR ATTENTION TO RULE 34A OF APPELLATE TRIBUNAL RULES 1963 WHICH PROVIDES PROCEDURE FOR DEALING WITH APPLICATIONS UNDER SECTION 254(2) WHICH READS AS UNDER :- 34A (1) AN APPLICATION UNDER SECTION 254(2) OF THE ACT SHALL CLEARLY AND CONCISELY STATE THE MISTAKE APPARENT FROM THE RECOR D OF WHICH THE RECTIFICATION IS SOUGHT. (2) EVERY APPLICATION MADE UNDER SUB-RULE (1) SHALL BE IN TRIPLICATE AND THE PROCEDURE FOR FILING OF APPEALS IN THESE RULES WILL APPLY MUTATIS MUTANDIS TO SUCH APPLICATIONS. (3) THE BENCH WHICH HEARD THE MATTER GIVING RISE TO THE APPLICATION (UNLESS THE PRESIDENT THE SENIOR VICE-PRESIDENT THE VICE- PRESIDENT OR THE SENIOR MEMBER PRESENT AT THE STATION OTHERWISE DIRECTS) SH ALL DISPOSE IT AFTER GIVING BOTH THE PARTIES TO THE APPLICATION A REASONABLE OP PORTUNITY OF BEING HEARD : PROVIDED IT SHALL NOT BE NECESSARY TO POST MISCELLA NEOUS APPLICATION FOR HEARING IF IT PRIMA FACIE APPEARS TO BE A PETITION FOR REVIEW. 3 M.A. NO. 112/AHD/2010 (4) AN ORDER DISPOSING OF AN APPLICATION UNDER SUB -RULE (3) SHALL BE IN WRITING GIVING REASONS IN SUPPORT OF ITS DECISION. ORDER TO BE COMMUNICATED TO PARTIES. 4.1. THE LD. D.R. ALSO SUBMITTED THAT THE AFORESAID RULE OF INCOME TAX APPELLATE TRIBUNAL RULES 1963 WAS INSERTED WITH EFFECT FROM 25 TH JULY 1991 AND PROVIDES THAT AN APPLICATION SHALL CLEARLY AND CONCISELY SET OUT THE MISTAKE APPARENT FROM THE RECORD ON WHICH RECTIFICATION IS SOUGHT. THE PROVISO TO SUB-RULE (3) OF RULE 34A PRO VIDES THAT IT WOULD NOT BE NECESSARY TO POST A MISCELLANEOUS APPLICATION FOR HEARING IF IT PRIMA F ACIE APPEARS TO BE A PETITION FOR REVIEW. 4.2. ALTERNATIVELY THE LD. D.R. POINTED OUT THAT D ESPITE THE SERVICE OF NOTICE THERE IS NO RESPONSE FROM THE SIDE OF THE ASSESSEE THEREFORE I T SHOULD BE PRESUMED THAT THE ASSESSEE IS NOT INTERESTED TO PROSECUTE HIS APPLICATION UNDER SECTI ON 254(2) OF THE ACT. ON THIS GROUND ALSO THE MISCELLANEOUS APPLICATION FILED BY THE CHARTERED AC COUNTANT OF THE ASSESSEE DESERVES TO BE DISMISSED. 5. WE FOUND CONSIDERABLE FORCE IN THE SUBMISSIONS M ADE BY THE LD. DEPARTMENTAL REPRESENTATIVE. IN OUR CONSIDERED OPINION THIS MIS CELLANEOUS FILED BY THE ASSESSEE IS LIABLE TO BE DISMISSED IN LIMINE BECAUSE (I) IT IS NOT SIGNED BY THE ASSESSEE (II) DESPITE THE SERVICE OF NOTICE NEITHER ANYBODY APPEARED ON BEHALF OF THE ASSESSEE NOR AN APPLICATION FOR ADJOURNMENT RECEIVED AND (III) WITHOUT PREJUDICE TO ABOVE IN THE MISCEL LANEOUS APPLICATION THE ASSESSEE IS MERELY SEEKING REVIEW AND IT IS WELL SETTLED LAW AND TRIBU NAL HAS NO POWER TO REVIEW ITS OWN ORDER. 6. IN VIEW OF THE FOREGOING DISCUSSION WE ARE CONV INCED THAT THERE CANNOT BE ANY DISPUTE WITH THE PROPOSITION THAT POWER UNDER SUB-SECTION ( 2) OF SECTION 254 IS TO RECTIFY THE MISTAKE APPARENT FROM THE RECORD BUT THAT POWER DOES NOT C LOTHE THE TRIBUNAL WITH THE JURISDICTION TO REVIEW OF ITS EARLIER ORDER OR RE-WRITE A FRESH DEC ISION. BY PRESENT MISCELLANEOUS APPLICATION ASSESSEE VIRTUALLY SEEKING REVIEW THEREFORE THE M ISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. THE ORDER PRONOUNCED IN THE COURT ON 31.01.2011 SD/- SD/- (D.C. AGARWAL) (T.K. SHARM A) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 31 /01 / 2011 4 M.A. NO. 112/AHD/2010 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE RESPONDENT 3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R. ITAT AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT AHMEDABAD LAHA/SR.P.S.