The ACIT, Circle-10,, Ahmedabad v. Shri Nareshchandra Popatlal Shah, Ahmedabad

MA 160/AHD/2010 | 2003-2004
Pronouncement Date: 10-12-2010 | Result: Dismissed

Appeal Details

RSA Number 16020524 RSA 2010
Assessee PAN ADFPS9289K
Bench Ahmedabad
Appeal Number MA 160/AHD/2010
Duration Of Justice 5 month(s) 2 day(s)
Appellant The ACIT, Circle-10,, Ahmedabad
Respondent Shri Nareshchandra Popatlal Shah, Ahmedabad
Appeal Type Miscellaneous Application
Pronouncement Date 10-12-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 10-12-2010
Assessment Year 2003-2004
Appeal Filed On 08-07-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL : B BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA J.M. & HONBLE SH RI N.S. SAINI A.M.) M.A. NO. 160/AHD/2010 (ARISING OUT OF I.T.A. NO. 1033/AHD./2009 & C.O. 70 /AHD/2009)) ASSESSMENT YEAR : 2003-2004 ASSISTANT COMMISSIONER OF INCOME TAX -VS.- SH RI NARESHCHANDRA POPATLAL SHAH CIRCLE-10 AHMEDABAD AHMEDABAD (PAN : ADFPS 9289 K) (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI ROHIT MEHR A SR. D.R. RESPONDENT BY : SHRI M.K. PATEL O R D E R PER SHRI T.K. SHARMA JUDICIAL MEMBER :- THIS MISCELLANEOUS APPLICATION IS FILED BY THE REVENUE WHEREIN IT IS POINTED OUT THAT WHILE CANCE LLING THE PENALTY LEVIED UNDER SECTION 271(1)(C) IN RESPECT OF ADDITION OF INTEREST EXPENS ES OF RS.27 75 708/- TRIBUNAL HAS NOT CONSIDERED ALL THE RELEVANT FACTS. THE ORDER OF ITA T IS BASED ON INCORRECT OBSERVATION AND ALSO CONTRARY TO THE FACTS OF THE CASE AS MENTIONED BELO W :- THE HON'BLE ITAT DELETED THE PENALTY BY SIMPLY REL YING ON THE KARNATAKA HIGH COURTS DECISION 192 ITR 165 WHEREIN IT WAS H ELD THAT IF THE DISALLOWANCE IS NOT MADE IN EARLIER YEARS THEN THE INTEREST CANNOT BE DISALLOWED IN SUBSEQUENT YEAR. THE CASE IS NOT AT ALL RELEVANT TO THE PRESENT CASE. THE HON'BLE ITAT HAS FAILED TO APPRECIATE THE FACT THAT THE A.O. IN THE ASSESSMENT ORDER ITSELF HAS MENTIONED THAT NECESSAR Y ACTION AS PER LAW IS BEING TAKEN FOR EARLIER YEARS IN THE CASE OF THE AS SESSEE TO WITHDRAW THE CLAIM OF ASSESSEE ON ACCOUNT OF INTEREST PAYMENT U/S. 36( 1)(III) OF THE I.T. ACT IF ITS FOUND THAT THE ASSESSEE HAS CLAIMED SIMILAR DEDUCTI ON IN THOSE YEARS. THE HON'BLE ITATS DECISION THAT IF THE DISALLOWANCE IS NOT MADE IN THE EARLIER YEAR THEN INTEREST CANNOT BE DISALLOWED IN SUBSEQU ENT YEAR IS NOT ACCEPTABLE AS IT IS AGAINST THE PROVISIONS OF LAW. THERE IS NO PROVISION DEBARRING THE A.O. FROM MAKING ANY ADDITION OR LEVYING PENALTY IN THE CURRENT YEAR IF IT IS FOUND TO BE BOGUS/ NOT GENUINE EVEN THOUGH SUCH ADD ITIONS ON SIMILAR ISSUES WERE NOT MADE IN THE EARLIER YEARS. OTHERWISE PROV ISIONS OF SECTION 147 AND PENALTY U/S. 271(1)(C) ON THE ADDITIONS MADE IN REO PENED ASSESSMENT BECOME INFRUCTUOUS AND REDUNDANT. 2. RELYING ON THE CONTENTS OF THE AFORESAID MISCELL ANEOUS APPLICATION SHRI ROHIT MEHRA LD. SR. D.R. APPEARING ON BEHALF OF THE REVENUE POINTED OUT THAT THE TRIBUNAL MAY AMEND ITS ORDER 2 M.A. NO. 160/AHD/2010 AND THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS) CANCELLING THE PENALTY IN RESPECT OF DISALLOWANCE OF INTEREST AMOUNTING TO RS .27 75 708/- BE RESTORED. 3. SHRI M.K. PATEL LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE VEHEMENTLY OPPOSED TO THE PRAYER OF THE LD. DEPARTMENTAL REPRESENTATIVE O F THE REVENUE. THE LD. COUNSEL OF THE ASSESSEE POINTED OUT THAT NO MISTAKE WITHIN THE MEANING OF S ECTION 254(2) IS POINTED IN THE MISCELLANEOUS APPLICATION THEREFORE THE APPLICATION OF THE REVE NUE BE REJECTED. 4. AFTER HEARING BOTH THE SIDES WE HAVE CAREFULLY PERUSED THE CONTENTS OF THE MISCELLANEOUS APPLICATION. IN OUR CONSIDERED OPINION THE REVENUE IS MERELY SEEKING REVIEW OF DECISION TAKEN BY THE ITAT IN ORDER DATED 19.06.2009 IN ITA NO. 10 33/AHD/2009 & C.O. NO. 70/AHD/2009 (IN ITA NO. 1033/AHD/2009). IT IS PERTINENT TO NOTE THAT AFTER CONSIDERING EACH AND EVERY CONTENTION THE TRIBUNAL HAS CANCELLED THE PENALTY AND NO MISTAKE IS APPARENT FROM THE RECORD WITHIN THE MEANING OF SECTION 254(2). ADMITTEDLY T HE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER. 4.1. THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. KA RAM CHAND THAPAR AND BROSS P. LTD. REPORTED IN 176 ITR 535 (SC) HELD THAT THE DE CISION OF THE TRIBUNAL HAS NOT TO BE SCRUTINIZED SENTENCE BY SENTENCE MERELY TO FIND OUT WHETHER SOM E INCIDENTAL FACT WHICH APPEARS ON THE RECORD HAS NOT BEEN NOTICED BY THE TRIBUNAL IN ITS JUDGMENT. IN OUR OPINION THERE IS NO MISTAKE APPARENT FROM RECORD WITHIN THE MEANING OF SECTION 254 (2). HOWEVER IT IS WELL SETTLED LAW THAT WHAT CAN BE RECTIFIED U/S. 254 (2) IS A MISTAKE WH ICH IS APPARENT AND PATENT FROM THE RECORD. UNLESS THERE ARE MANIFEST ERRORS WHICH ARE OBVIOUS CLEAR AND SELF-EVIDENT THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER IN AN ATTEMPT TO REVIEW T HE ORDER. THE MISTAKE HAS TO BE SUCH FOR WHICH NO ELABORATE REASON OR ENQUIRY IS NECESSARY. THE PO WERS SO CONFERRED U/S. 254 (2) DO NOT CONTEMPLATE REHEARING WHICH WOULD HAVE THE EFFECT O F RE-WRITING AN ORDER AFFECTING THE MERITS OF THE CASE. OTHERWISE THERE WOULD BE NO DISTINCTION B ETWEEN THE POWER TO REVIEW AND THE POWER TO RECTIFY A MISTAKE. THE POINT RAISED IN THE MISC. AP PLICATION SUBMITTED BY THE REVENUE VIRTUALLY SEEKS A REVIEW OF THE ORDER PASSED BY THIS TRIBUNAL WHICH IS CLEARLY BEYOND THE SCOPE OF SECTION 254 (2). 3 M.A. NO. 160/AHD/2010 5. 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 JUD GMENT. BY PRESENT MISCELLANEOUS APPLICATION REVENUE VIRTUALLY SEEKING REVIEW THEREFORE THE MI SCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. THE ORDER PRONOUNCED IN THE COURT ON 10.12.2010 SD/- SD/- (N.S. SAINI) (T.K. SHARMA ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 10 /12 / 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.