Prima Family Trust, Nani Daman v. The Jt.CIT., Vapi Range,, Vapi

MA 142/AHD/2009 | 2004-2005
Pronouncement Date: 16-07-2010 | Result: Dismissed

Appeal Details

RSA Number 14220524 RSA 2009
Assessee PAN AAATP7074R
Bench Ahmedabad
Appeal Number MA 142/AHD/2009
Duration Of Justice 1 year(s) 2 month(s) 19 day(s)
Appellant Prima Family Trust, Nani Daman
Respondent The Jt.CIT., Vapi Range,, Vapi
Appeal Type Miscellaneous Application
Pronouncement Date 16-07-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 16-07-2010
Assessment Year 2004-2005
Appeal Filed On 27-04-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD (BEFORE SHRI BHAVNESH SAINI JM AND A. N. PAHUJA A M) MA NO. 142 AND 143/AHD/2009 (IN ITA NO.6/AHD/2008 AND 3500/AHD/07 AY 2004-05) PRIMA FAMILY TRUST PROP. PRIMA FRUIT PRODUCTS 55-A PANCHAL UDHYOG NAGAR BHIMPORE NANI DAMAN VS THE J. C. I. T. VAPI RANGE VAPI PA NO. AAATP 7074 R (APPLICANT) (RESPONDENT) APPLICANT BY SHRI P. F. JAIN AR RESPONDENT BY SHRI C. K. MISHRA DR O R D E R PER BHAVNESH SAINI: BOTH THE MISC. APPLICATIONS ARE FILED BY THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL DATE D 16-05-2008 FOR THE ABOVE ASSESSMENT YEAR. THE MAIN APPEALS AGAINST WHI CH THE MISC. APPLICATIONS HAVE BEEN FILED WERE DISPOSED OF BY TH E TRIBUNAL VIDE ORDER DATED 16-05-2008. 2. WE HAVE HEARD LEARNED REPRESENTATIVES OF BOTH THE P ARTIES PERUSED THE FINDINGS OF THE AUTHORITIES BELOW AND CONSIDERE D THE MATERIAL ON RECORD POINTED OUT BY THE PARTIES. M.A. NO.143/AHD/2009 3. THE LEARNED COUNSEL FOR THE ASSESSEE WHILE REFER RING TO THE CONTENTS OF THE MISC. APPLICATION REFERRED TO LAST PARA OF THE MISC. APPLICATION IN WHICH IT WAS POINTED OUT THAT WHILE PASSING MISC. APPLICATION ORDER ITAT HAS OBSERVED THAT THE AMOUN T OF RS.4 293/- AND RS.1 16 450/- ARE PART OF ADDITION OF RS.3 03 138/- SINCE DELETED BY THE TRIBUNAL AND HENCE THERE IS NO QUESTION OF ALLOWING ANY FURTHER RELIEF MA NO.142 AND 143/AHD/2009 (IN ITA NO.6/AHD/2008 AND 3500/AHD/2007) PARIMA FAMILY TRUST VS JCIT VAPI 2 THEREOF. THE ADDITION OF RS.30 03 138/- DELETED BY THE TRIBUNAL IS A SEPARATE ADDITION THE AMOUNT OF RS.4 293 AND RS.1 16 450/- ARE NOT PART OF THE DELETED ADDITION OF RS.30 03 138/-. THE REFORE ERROR POINTED OUT BY THE ASSESSEE WITH REGARD TO ADDITION OF RS.4 293/- AND RS.1 16 450/- IN THE ORDER OF THE ITAT IS NARRATED ABOVE STILL CONTINUES. 4. THE LEARNED COUNSEL FOR THE ASSESSEE ADMITTED TH AT THE ASSESSEE ON THE SAME MATTER IN ISSUE EARLIER FILED M.A. NO.1 26/AHD/2008 IN ITA NO.3500/AHD/2007 AND THE SAME MISC. APPLICATION WAS DISPOSED OF BY VIDE ORDER DATED 16-01-2009. THE TRIBUNAL NOTED IN THE ORDER DATED 16-01-2009 THAT THERE IS NO MISTAKE WHICH COULD BE RECTIFIED U/S 254(2) OF THE IT ACT AND FURTHER AS REGARDS OTHER AMOUNT O F RS.4 293/- AND RS.1 16 450/- ARE CONCERNED THE SAME BEING PART OF THE ADDITION OF RS.30 03 138/- SINCE DELETED BY THE TRIBUNAL THER E IS NO QUESTION OF ALLOWING ANY FURTHER RELIEF THEREOF. THE LEARNED CO UNSEL FOR THE ASSESSEE SUBMITTED THAT THE ABOVE AMOUNT OF RS.4 293/- AND R S.1 16 450/- ARE NOT PART OF THE DELETED ADDITION OF RS.30 03 138/0. THEREFORE THE MISTAKE STILL CONTINUES IN THE ORIGINAL ORDER. 5. THE LEARNED DR HOWEVER SUBMITTED THAT SINCE SIM ILAR CONTENTION OF THE ASSESSEE HAS BEEN REJECTED IN M. A. NO.126/A HD/2008 THEREFORE NO MISC. APPLICATION LIES AGAINST THE ORDER PASSED IN MISC. APPLICATION DATED 16-01-2009. THE LEARNED DR SUBMITTED THAT ONC E FIRST MISC. APPLICATION OF THE ASSESSEE ON THE SAME MATTER IN I SSUE HAS ALREADY BEEN CONSIDERED AND DISPOSED OF AND NO RELIEF WAS ALLOWE D TO THE ASSESSEE THEREFORE SECOND MISC. APPLICATION WOULD NOT BE MA INTAINABLE. 6. ON CONSIDERATION OF THE RIVAL SUBMISSIONS WE ARE OF THE VIEW THAT MISC. APPLICATION OF THE ASSESSEE IS NOT MAINTAINAB LE. ON GOING THROUGH THE CONTENTS OF MISC. APPLICATION NO. 126/AHD/2008 AND THE PRESENT MISC. APPLICATION NO. 143/AHD/2009 WE FIND THAT SU M AND SUBSTANCE OF MA NO.142 AND 143/AHD/2009 (IN ITA NO.6/AHD/2008 AND 3500/AHD/2007) PARIMA FAMILY TRUST VS JCIT VAPI 3 THE FIRST AND SECOND MISC. APPLICATIONS ARE SAME. I N THE EARLIER MISC. APPLICATION THE ASSESSEE MADE SAME PRAYER WHICH IS NOW MADE IN THE PRESENT MISC. APPLICATION. THE TRIBUNAL WHILE CONSI DERING THE FIRST MISC. APPLICATION NO.126/AHD/2008 NOTED THAT SINCE THE OT HER AMOUNT OF RS.4 293/- AND RS.1 16 450/- ARE PART OF THE ADDITI ON DELETED BY THE TRIBUNAL THEREFORE THERE IS NO QUESTION OF ALLOWI NG FURTHER RELIEF THEREOF. IT WOULD SHOW THAT SIMILAR CONTENTION OF THE ASSESS EE WAS ALREADY CONSIDERED IN THE FIRST MISC. APPLICATION NO.126/AH D/2008 AND CONTENTION OF THE ASSESSEE HAS BEEN REJECTED. THERE IS NO CHANGE IN THE FACTS AND CIRCUMSTANCES. THE HONBLE ORISSA HIGH CO URT IN THE CASE OF CIT VS ITAT 196 ITR 838 HELD AS UNDER: SECTION 254(2) OF THE INCOME-TAX ACT 1961 EMPOWERS THE TRIBUNAL TO AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1) WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER. THEREFORE T O ATTRACT THE APPLICABILITY OF SECTION 254(2) THE MI STAKE WHICH IS SOUGHT TO BE RECTIFIED MUST BE APPARENT FR OM THE RECORD AND THE SAME MUST BE IN ANY ORDER PASSE D UNDER SUB-SECTION (1) OF SECTION 254. AN ORDER REJE CTING AN APPLICATION FOR RECTIFICATION UNDER SECTION 254( 2) IS NOT AN ORDER PASSED UNDER SECTION 254(1) AND IT CAN NOT BE RECTIFIED UNDER SECTION 254(2). HONBLE M. P. HIGH COURT IN THE CASE OF CIT VS GUNW ANTI BAI 219 ITR 632 HELD THAT MISC. APPLICATION AGAINST ORDER PASSED IN MISC. APPLICATION DOES NOT LIE. CONSIDERING THE FACTS OF THE CASE IT APPEARS THAT THE ASSESSEE FELT AGGRIEVED AGAINST THE FINDIN G GIVEN IN THE ORDER PASSED IN MISC. APPLICATION NO.126/AHD/2008 DATED 1 6-01-2009. THEREFORE SUBSEQUENT MISC. APPLICATION OF THE ASSE SSEE ON THE SAME MATTER IN ISSUE WOULD NOT BE MAINTAINABLE. MOREOVER SIMILAR PRAYER OF THE ASSESSEE NOW MADE IN THE PRESENT MISC. APPLICAT ION HAS ALREADY BEEN REJECTED BY THE TRIBUNAL VIDE ORDER DATED 16-01-200 9. THEREFORE THERE IS MA NO.142 AND 143/AHD/2009 (IN ITA NO.6/AHD/2008 AND 3500/AHD/2007) PARIMA FAMILY TRUST VS JCIT VAPI 4 NO MISTAKE APPARENT ON RECORD. MISC. APPLICATION OF THE ASSESSEE IS ACCORDINGLY DISMISSED. M.A. NO. 142/AHD/2009 7. THE LEARNED COUNSEL FOR THE ASSESSEE REFERRING T O THE ORDER OF THE TRIBUNAL DATED 16-05-2008 AT PAGE 67 AND 68 SUBMITT ED THAT WHILE CONSIDERING THE APPEAL OF THE ASSESSEE IN ITA NO.6/ AHD/2008 THE TRIBUNAL HAS NOT CONSIDERED AND ADJUDICATED UPON GR OUND NO.2 OF THE APPEAL OF THE ASSESSEE BECAUSE THE ADDITION CANNOT BE MADE ON ACCOUNT OF SALE PRICE ONLY NET PROFIT COULD HAVE BEEN APPL IED. HE HAS SUBMITTED THAT THE ISSUE WOULD BE COVERED BY JUDGMENT OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF PRESIDENT INDUSTRIES REPORTED IN 258 ITR 654 IN WHICH IT WAS HELD THAT ADDITION CANNOT BE MADE OF ENTIRE SALE PROCEEDS ONLY PROFIT EMBEDDED IN THE SALE PROCEEDS CAN BE TAXED. THE LEARNED COUNSEL FOR THE ASSESSEE THEREFORE SU BMITTED THAT GROUND NO.2 OF THE APPEAL OF THE ASSESSEE SINCE NOT ADJUDI CATED BY THE TRIBUNAL EARLIER MAY BE DECIDED NOW BY RECALLING THE ORDER O F THE TRIBUNAL DATED 16-05-2008. 8. ON THE OTHER HAND THE LEARNED DR REFERRED TO TH E FINDING OF THE TRIBUNAL IN PARA 40 IN WHICH THE TRIBUNAL HAS NOTED THAT SINCE THE ASSESSEES MAIN APPEAL HAS BEEN ALLOWED AND ASSESSE ES CLAIM OF DEDUCTION U/S 80 IB OF THE IT ACT AT MORE THAN THE AMOUNT INVOLVED IN ITS APPEAL AGAINST THE ORDER U/S 154 OF THE ACT THEREF ORE ASSESSEES APPEAL DOES NOT SURVIVE SAME WAS ACCORDINGLY DISMISSED. T HE LEARNED DR SUBMITTED THAT THE ASSESSEE HAS RAISED 3 GROUNDS OF APPEAL IN ITS APPEAL RAISING ISSUE OF MODIFICATION OF COMPUTATION OF DED UCTION U/S 80 IB OF THE IT ACT APPLICATION OF NET PROFIT AND MISTAKE APPAR ENT ON RECORD AND ALL THE 3 GROUNDS WERE HEARD BY THE TRIBUNAL AND ALL TH E 3 GROUNDS ARE INCORPORATED IN THE APPELLATE ORDER AND ALL THE GRO UNDS HAVE BEEN MA NO.142 AND 143/AHD/2009 (IN ITA NO.6/AHD/2008 AND 3500/AHD/2007) PARIMA FAMILY TRUST VS JCIT VAPI 5 DECIDED TOGETHER. THEREFORE CONTENTION OF THE ASSE SSEE IS INCORRECT. THE LEARNED DR REFERRED TO PARA 20 AT PAGE 50 OF THE AP PELLATE ORDER IN WHICH THE TRIBUNAL WAS OF THE OPINION THAT THE ASSESSEE S CLAIM OF DEDUCTION U/S 80 IB OF THE IT ACT WAS ONLY TO THE TUNE OF RS. 84 33 000/- AND THEREFORE THE TRIBUNAL RESTRICTED THE DISALLOWANCE ON THIS ACCOUNT TO THIS AMOUNT. THE LEARNED DR SUBMITTED THAT THE TRIBUNAL CONSIDERING THE RELIEF ALLOWED U/S 80 IB OF THE IT ACT NOTED THAT S INCE ASSESSEES CLAIM HAS BEEN ALLOWED AT MORE THAN THE AMOUNT INVOLVED IN ITS APPEAL AGAINST THE ORDER U/S 154 OF THE IT ACT THEREFORE THE TRI BUNAL HELD THAT ASSESSEES APPEAL DOES NOT SURVIVE. THE LEARNED DR ACCORDINGLY SUBMITTED THAT SINCE THE GROUNDS OF APPEAL OF THE A SSESSEE HAVE BEEN CONSIDERED AND DISPOSED OF THEREFORE THERE IS NO MISTAKE APPARENT ON RECORD AND IT WOULD AMOUNT TO REVIEW OF THE EARLIER ORDER OF THE TRIBUNAL WHICH IS NOT PERMISSIBLE UNDER LAW. HE HAS SUBMITTE D THAT CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE IS INCORRECT T HAT GROUND NO.2 OF THE APPEAL OF THE ASSESSEE WAS NOT ADJUDICATED BY THE T RIBUNAL. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND THE MATERIAL AVAILABLE ON RECORD. IT IS SETTLED LAW THAT TRIBUNA L CANNOT REVIEW ITS EARLIER ORDERS PASSED ON MERIT. ONLY MISTAKE APPARE NT ON RECORD COULD HAVE BEEN RECTIFIED U/S 254(2) OF THE IT ACT BY AME NDING THE ORDER EARLIER PASSED. HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS ANAMIKA BUILDERS PVT. LTD. 251 ITR 585 HELD THAT TRIBUNAL SHOULD NOT CHANGE ITS VIEW ALREADY TAKEN . IT IS ALSO HELD BY VARIOUS HIGH COURTS THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS EARLIER ORDER P ASSED ON MERIT . WE ARE FORFEITED IN OUR VIEW BY THE JUDGMENT OF HON BLE ANDHRA PRADESH HIGH COURT IN THE CASE OF IDEAL ENGINEERING 251 ITR 743 DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF J. N. SAHAN I 257 ITR 16 AND DECISION OF THE HONBLE M. P. HIGH COURT IN THE CAS E OF AGRAWAL WAREHOUSE 257 ITR 235. ON GOING THROUGH THE EARLIER ORDER OF THE TRIBUNAL IN PARA 36 TO 42 WE FIND THAT THE TRIBUNA L HAS RECORDED ALL THE MA NO.142 AND 143/AHD/2009 (IN ITA NO.6/AHD/2008 AND 3500/AHD/2007) PARIMA FAMILY TRUST VS JCIT VAPI 6 3 GROUNDS OF APPEAL IN THE ORDER AND CONSIDERED THA T SINCE IT WAS AN APPEAL AGAINST ORDER PASSED U/S 154 OF THE IT ACT A ND THAT CLAIM OF THE ASSESSEE IN HIGHER AMOUNT HAS ALREADY BEEN ALLOWED THEREFORE IT WAS HELD THAT ASSESSEES APPEAL DOES NOT SURVIVE AND WA S ACCORDINGLY DISMISSED. THE CRUX OF THE FINDING OF THE TRIBUNAL SHOWS THAT ALL THE GROUNDS OF APPEAL OF THE ASSESSEE WERE CONSIDERED O N MERIT AND HAVE BEEN DISMISSED. THEREFORE CONTENTION OF THE ASSESS EE IS NOT CORRECT THAT GROUND NO.2 OF THE APPEAL OF THE ASSESSEE WAS NOT A DJUDICATED UPON BY THE TRIBUNAL. CONSIDERING THE FACTS AND CIRCUMSTANC ES NOTED ABOVE WE DO NOT FIND ANY MISTAKE APPARENT ON RECORD. THE SUB MISSION OF THE ASSESSEE IF CONSIDERED WOULD AMOUNT TO REVIEW OF T HE EARLIER ORDER OF THE TRIBUNAL WHICH IS NOT PERMISSIBLE UNDER LAW. WE ACC ORDINGLY DO NOT FIND ANY MERIT IN THE MISC. APPLICATION. THE SAME IS ACC ORDINGLY DISMISSED. 10. AS A RESULT BOTH THE MISC. APPLICATIONS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED ON 16-07-2010. SD/- SD/- (A. N.PAHUJA) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 16-07-2010 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) 5. THE DR ITAT AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR ITAT AHMEDABAD