DCIT, CIR-40, KOLKATA, Kolkata v. Ganeshdas Ramgopal, Kolkata

MA 130/KOL/2017 | 1999-2000
Pronouncement Date: 30-11-2017 | Result: Dismissed

Appeal Details

RSA Number 13023524 RSA 2017
Assessee PAN AACFG8705A
Bench Kolkata
Appeal Number MA 130/KOL/2017
Duration Of Justice 4 month(s) 4 day(s)
Appellant DCIT, CIR-40, KOLKATA, Kolkata
Respondent Ganeshdas Ramgopal, Kolkata
Appeal Type Miscellaneous Application
Pronouncement Date 30-11-2017
Appeal Filed By Department
Tags No record found
Order Result Dismissed
Bench Allotted SMC
Tribunal Order Date 30-11-2017
Last Hearing Date 06-10-2017
First Hearing Date 06-10-2017
Assessment Year 1999-2000
Appeal Filed On 26-07-2017
Judgment Text
D IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH D KOLKATA BEFORE SHRI WASEEM AHMED ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI JUDICIAL MEMBER (MISC. APPLICATION) M.A.NO.130/KOL/2017 (ARISING OUT ITA NO.495/KOL/2015) / ASSESSMENT YEAR:1999-00 ACIT CIRCLE-40 3 GOVT. PLACE(WEST) KOLKATA-001 / V/S . SHRI GANESHDAS RAMGOPAL 1 CHITTARANJAN AVENUE KOLKATA-72 [ PAN NO.AACFG 8705 A ] (ORIGINAL RESPONDENT) (ORIGINAL APPLICANT) (APPLICANT) .. (RESPONDENT) / BY APPELLANT SHRI DAVID Z. CHAWNGHTHU ADDL. CIT-SR-DR !' / BY RESPONDENT SHRI S.M. SURANA ADVOCATE / DATE OF HEARING 06-10-2017 / DATE OF PRONOUNCEMENT 30-11-2017 / ORDER PER WASEEM AHMED ACCOUNTANT MEMBER:- BY WAY OF THIS MISCELLANEOUS APPLICATION (MA) THE R EVENUE IS SEEKING TO RECALL THE TRIBUNAL ORDER DATED 10-03-2017 PASSE D IN ITA NO495/KOL/2015 IN THE CASE OF ASSESSEES CASE. 2. LD. DR BEFORE US SUBMITTED THAT THE HON'BLE TRI BUNAL ERRED IN ARRIVING AT THE CONCLUSION THAT THERE WAS NO DIRECTION IN THE O RDER OF LD. CIT PASSED U/S 264 OF THE INCOME TAX ACT 1961 FOR ADDING THE MUNI CIPAL TAXES IN THE RENTAL VALUE OF THE PROPERTY. THEREFORE A MISTAKE APPAREN T FROM THE RECORD HAS OCCURRED IN THE ORDER OF TRIBUNAL INADVERTENTLY. TH EREFORE THE ORDER OF HON'BLE TRIBUNAL SHOULD BE RECALLED AND THE CASE SHOULD BE FIXED FOR HEARING. MA NO.130/KOL/2017 ACIT CIR-40 KOL V. SH. GANESHDS RAMGOPA L PAGE 2 3. ON THE OTHER HAND LD. AR FOR THE ASSESSEE SUBMI TTED THAT A DETAILED AND SPEAKING ORDER WAS PASSED BY THE HONBLE TRIBUN AL. THEREFORE THERE WAS NO MISTAKE APPARENT FROM THE RECORD AS SPECIFIED UN DER THE PROVISION OF SECTION 254(2) OF THE ITAT RULES 1963. HE FURTHER SUBMITTED THAT THE HON'BLE TRIBUNAL WAS PLEASED TO DISMISS THE APPEAL OF REVEN UE ON TECHNICAL GROUND I.E. THE RECTIFICATION ORDER U/S. 154 WAS NOT PASSE D WITHIN THE TIME AS ENVISAGED UNDER THE PROVISION OF SECTION 154 OF THE ACT. THEREFORE THERE IS NO MISTAKE IN THE ORDER OF HONBLE TRIBUNAL AND ACCORD INGLY THE ORDER PASSED BY THE TRIBUNAL CANNOT BE RECALLED. HE RELIED ON THE O RDER OF TRIBUNAL. 4. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IN THE INSTANT CASE REVENUE IS SEEKING TO RECALL THE ORDER PASSED BY HONBLE TRIBUNAL ON THE GROUND THAT THE HONBLE TRIBUNAL HAS ERRED IN OBSERVING THE FACT THAT THAT THERE WAS NO DIRECTION IN THE ORDER OF LD. CIT PASSED U/S 264 OF THE ACT FOR ADDING THE MU NICIPAL TAX IN THE RENTAL VALUE OF THE PROPERTY. 5. AT THIS JUNCTURE WE FIND IMPORTANT TO REFER THE PROVISION OF SECTION 254(2) OF THE ACT WHICH READS AS UNDER:- (2) THE APPELLATE TRIBUNAL MAY AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER WITH A VIEW TO RECTIFYING ANY MISTAKE AP PARENT FROM THE RECORD AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1) AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE B Y THE ASSESSEE OR THE [ASSESSING] OFFICER : PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCIN G AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INCREA SING THE LIABILITY OF THE ASSESSEE SHALL NOT BE MADE UNDER THIS SUB-SECTION UNLESS THE APPELLATE TRIBUNAL HAS GIVEN NOTICE TO THE ASSESSEE OF ITS IN TENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BE ING HEARD : FROM THE ABOVE PROVISION OF LAW WE FIND THAT THE P OWER OF TRIBUNAL IS LIMITED TO THE EXTENT OF THE MISTAKE WHICH IS APPARENT FROM RECORD. THE HON'BLE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER. IN T HE INSTANT CASE WE FIND THAT REVENUE HAS NOT POINTED OUT ANY ERROR WHICH IS APPA RENT FROM THE RECORD. THE MA NO.130/KOL/2017 ACIT CIR-40 KOL V. SH. GANESHDS RAMGOPA L PAGE 3 IMPUGNED APPEAL WAS DECIDED BY THE HONBLE ITAT ON THE TECHNICAL ISSUE I.E. LIMITATION OF TIME FOR PASSING THE ORDER UNDER SECT ION 154 OF THE ACT. THE RELEVANT EXTRACT IS REPRODUCED BELOW:- WE FURTHER FIND THAT IN CASE THE AO WISHES TO RECTI FY ITS ORIGINAL ORDER U/S 147 OF THE ACT THEN ALSO THE SAME NEEDS TO BE RECTIFIED WITHIN FOUR YEARS AS CONTEMPLATED UNDER THE PROVISION OF SECTION 154 OF THE ACT. IN THE INSTANT CASE THE AO HAS RECTIFIED THE ORDER AFTER THE EXPIRY OF FOUR YEARS WHICH IS ALSO NOT VALID IN THE EYES OF LAW. IN THIS REGARD WE FIND G UIDANCE FROM THE ORDER OF THIS CO-ORDINATE BENCH IN THE CASE OF SHRI HANUMAN SUGAR VS ACIT IN ITA NO.341/KOL/2010 VIDE ORDER DATED 08.06.2016 WHEREIN IT HAS WAS HE LD AS UNDER :- WE FIND THAT FROM THE END OF THE FINANCIAL YEAR I. E. 1997-98 THE AO IS BOUND TO MAKE THE RECTIFICATION ORDER WITHIN FOUR Y EARS AND IN THIS CASE THE AO IS BEYOND FOUR YEARS FROM THE ORIGINAL ASSES SMENT ORDER DATED 30.03.2001. THEREFORE WE ARE OF THE OPINION THAT T HE IMPUGNED ORDER DT.30.03.2009 PASSED BY THE AO IS HELD TO BE INVALI D BY TREATING THE SAME AS BARRED BY LIMITATION. ACCORDINGLY RESPECTFULLY FOLLOWING THE PRECEDENT AS ABOVE WE HOLD THAT THE ORDER PASSED U/S 154 OF THE ACT IS NOT MAINTAINABLE IN THE EYES OF LAW. THEREFORE WE DIRECT THE LOWER AUTHORITIES TO DELET E THE ADDITION AS DISCUSSED ABOVE. HOWEVER THE REVENUE HAS FILED MA WITH THE PRAYER T O RECALL THE ORDER OF TRIBUNAL AS REPRODUCED BELOW:- THEREFORE THE OBSERVATION OF THE HON'BLE ITAT THA T THERE WAS NO DIRECTION IN THE REVISION ORDER OF THE LD. CIT UNDE R SECTION264 OF THE INCOME TAX ACT 1961 FOR ADDING THE MUNICIPAL TAXES IN THE ANNUAL VALUE OF THE PROPERTIES IS RESTRICTIVE IN NATURE A ND SIDELINE THE PRINCIPLE OF NATURAL JUSTICE VIS--VIS DEPARTMENT. SINCE THE TAX EFFECT COMES TO RS.3 09 092/- AS PER THE CBDTS CIRCULAR NO.21/2015 DATED 10/12/2015 DATED 10/12/2015 WHICH HAS RETROSPECTIVE EFFECT APPLICABLE FOR ALL PENDING APP EAL CASES THIS CASE IS BELOW THE PRESCRIBED LIMIT FOR REFERRING THE CASE F OR FURTHER APPEAL. HOWEVER TO EMPHASIZE THE CORRECTION MADE FOR APPAR ENT MISTAKE OF FACTS U/S.154 OF THE INCOME TAX ACT 1961 THE UNDE RSIGNED APPEAL BEFORE YOUR KINDSELF TO RECONSIDER THE ORDER ALLOWI NG THE APPEAL OF ASSESSEE AND RESTORE THE SAME FOR REGULAR HEARING. FROM THE ABOVE SUBMISSION OF LD. DR FOR THE REVENUE WE FIND THAT THE LD. DR HAS NOT POINTED OUT ANY MISTAKE WHICH IS APPAREN T FROM THE RECORD IF WE RECALL THE ORDER THEN IT WILL TANTAMOUNT TO REVIEW OUR OWN ORDER WHICH IS PROHIBITED UNDER THE PROVISION OF LAW. THEREFORE I N THE ABSENCE OF ANY MA NO.130/KOL/2017 ACIT CIR-40 KOL V. SH. GANESHDS RAMGOPA L PAGE 4 APPARENT MISTAKE WE HOLD THAT REVENUE HAS NO MERIT IN THE INSTANT CASE. THUS MA OF REVENUE STANDS DISMISSED. 6. IN THE RESULT MA OF REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30/11/2017 SD/- SD/- ( () ( () (S.S.VISWANETHRA RAVI) (WASEEM A HMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA *DKP *- 30 / 11 /201 7 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ACIT CIRCLE-40 3 GOVT. PLACE (WEST) K OLKAT-001 2. !' / RESPONDENT-SHRI GANESHDAS RAMGOPAL 1 CHITTARANJA N AVENUE KOLKATA-72 3. 5 6 / CONCERNED CIT 4. 6- / CIT (A) 5. !5 5 KOLKATA / DR ITAT KOLKATA 6. / GUARD FILE. BY ORDER/ /TRUE COPY/ SR. PRIVATE SECRETARY HEAD OF OFFICE/DDO 5