ITO, Sunam v. The Rising Star Oil & Rice Mills (P) Ltd., Sunam

1 IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCHES B CHANDIGARH BEFORE SHRI D.K.SRIVASTAVA ACCOUNTANT MEMBER AND MS SUSHMA CHOWLA JUDICIAL MEMBER M.A. NO. 125/CHD/2009 (IN ITA NO. 643/CHD/2010) ASSESSMENT YEAR : 1998-99 THE ITO VS. SHRI LIPSY KUMAR SUNAM PROP M/S R.M. RICE MILLS SUNAM & M.A. NO. 126/CHD/2009 (IN ITA NO. 644/CHD/2010) ASSESSMENT YEAR : 1998-99 THE ITO VS. THE RISING STAR OIL & SUNAM RICE MILLS (P) LTD. SUNAM (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. SARITA KUMARI RESPONDENT BY: NONE ORDER PER SUSHMA CHOWLA JM THE PRESENT MISC. APPLICATIONS ARE MOVED BY THE AP PLICANT REVENUE AGAINST THE ORDER OF THE TRIBUNAL DATED 16 .10.2007 IN ITA NOS. 643 & 644/CHANDI/2007 BOTH RELATING TO ASSESSMENT Y EAR 2008-09. 2. IN BOTH THE MISC. APPLICATIONS THE REVENUE IS A GGRIEVED BY THE DISMISSAL OF THE APPEAL ON THE PRELIMINARY ISSUE OF TAX EFFECT BEING LESS THAN RS. 2 LACS. THE GRIEVANCE OF THE REVENUE IS T HAT WHILE DISMISSING THE APPEAL THE TRIBUNAL HAD FOLLOWED THE CBDT INSTRUCT ION NO. 1979 DATED 2 27.3.2000 BUT HAD NOT CONSIDERED THE BOARDS INSTRU CTION NO.2 OF 2005 DATED 24.10.2005 UNDER WHICH ALL SUCH APPEALS WHERE THE LEGAL ISSUES ARE INVOLVED CANNOT BE SUMMARILY DISMISSED ON ACCOUNT OF TAX EFFECT BEING LESS THAN THE PRESCRIBED LIMIT. 3. DESPITE SERVICE OF NOTICE NONE APPEARED ON BEHA LF OF THE ASSESSEE. THE LD. DR FOR THE REVENUE HAD FAILED TO POINT OUT WHETHER THE BOARDS INSTRUCTION NO.2 OF 2005 DATED 24.10.2005 WAS BROUG HT TO THE NOTICE OF THE TRIBUNAL WHILE ARGUING THE APPEAL. 4. WE HAVE HEARD THE LD. DR AND PERUSED THE RECORDS . THE APPEALS IN THE CASE OF BOTH THE ASSESSEES WERE DISMISSED BY TH E TRIBUNAL VIDE ORDER DATED 16.10.2007 FOLLOWING THE RATIO LAID DOWN BY T HE VARIOUS HIGH COURTS WITH REGARD TO THE TAX EFFECT BEING LESS THAN RS. 2 LACS IN THE APPEALS INSTITUTED BY THE REVENUE AUTHORITIES. VIDE PARA 7 OF THE ORDER WE FIND THE TRIBUNAL TO HAVE NOTED THE ARGUMENTS OF THE LD. DR THAT LEGAL ISSUE WERE INVOLVED IN THE CASE AND APPEAL WAS PERMISSIBL E TO BE FILED AS PER THE CBDT INSTRUCTIONS. HOWEVER A REFERENCE TO THE MADE TO THE CBDT INSTRUCTION NO. 1979 DATED 27.3.2000 IN PARA 8 BY T HE TRIBUNAL. NO REFERENCE IS INVITED TO THE BOARDS INSTRUCTION NO. 2 OF 2005 DATED 24.10.2005. IN THE CIRCUMSTANCES WE FIND NO MERIT IN THE MISC. APPLICATIONS MOVED BY THE REVENUE IN THIS REGARD AS THE ORDER OF THE TRIBUNAL HAS BEEN PASSED AFTER DUE DELIBERATION OF THE ISSUE BEFORE IT. UNDER SECTION 254(2) OF THE ACT THE LIMITED POWER OF RECTIFYING APPARENT MISTAKE IN THE ORDER IS CAST UPON THE TRIBUNAL. THE RE IS NO POWER TO REVIEW IT ORDER. IN THE CIRCUMSTANCES THE MISC. AP PLICATIONS MOVED BY THE REVENUE ARE DISMISSED. 3 5. IN THE RESULT BOTH THE MISC. APPLICATIONS OF THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 18 TH DAY OF FEBRUARY 2011. SD/- SD/- (D.K.SRIVASTAVA) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 18 TH FEBRUARY 2011 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR