M Mahesh Kumar, Hyderabad v. ITO, Ward 5(3), Hyderabad

MA 162/HYD/2013 | misc
Pronouncement Date: 11-10-2013 | Result: Partly Allowed

Appeal Details

RSA Number 16222524 RSA 2013
Assessee PAN ACBPK9139K
Bench Hyderabad
Appeal Number MA 162/HYD/2013
Duration Of Justice 3 month(s) 20 day(s)
Appellant M Mahesh Kumar, Hyderabad
Respondent ITO, Ward 5(3), Hyderabad
Appeal Type Miscellaneous Application
Pronouncement Date 11-10-2013
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 11-10-2013
Assessment Year misc
Appeal Filed On 21-06-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCHES A : HYDERABAD BEFORE SHRI CHANDRA POOJARI ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN JUDICIAL MEMBER MISC. PETITION NO.162/HYD/2013 ARISING OUT OF ITA.NO.1902/HYD/2011 - ASSESSMENT YEAR 2006-2007 SHRI M MAHESH KUMAR HYDERABAD PANACBPK9139K VS. ITO WARD 5(3) HYDERABAD (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI S. RAMA RAO (A.R.) FOR RESPONDENT : SHRI PHANI KISHORE (D.R.) DATE OF HEARING : 02.08.2013 DATE OF PRONOUNCEMENT : 11.10.2013 ORDER PER SMT. ASHA VIJAYARAGHAVAN J.M. THIS MISCELLANEOUS PETITION IS FILED BY THE ASSESS EE SEEKING FOR RECALL / RECTIFICATION OF THE ORDER DATED 31.01.201 3 IN ITA. NO. 1902/HYD/2011 FOR THE ASSESSMENT YEAR 2006-2007. 2. BRIEF FACTS ARE THAT THE ASSESSEE IS AN INDIVIDU AL AND FILED HIS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2006-2007 ON 01.08.2006 ADMITTING AN INCOME OF RS.4 60 300/- AND THE ASSESS MENT WAS COMPLETED EX-PARTE UNDER SECTION 144 ON 22.12.2008 DETERMINING TOTAL INCOME AT RS.17 27 000/-. THE ASSESSEE FILED APPEAL BEFORE THE CIT(A) AND THE LEARNED CIT(A) PARTLY ALLOWED THE AP PEAL OF THE ASSESSEE. ON FURTHER APPEAL BEFORE THE TRIBUNAL TH E TRIBUNAL VIDE ITS ORDER IN ITA.NO.1902/HYD/2011 DATED 31.01.2013 DISMISSED THE 2 MA.162/H/2013 IN ITA.1902/H/2011 SHRI M. MAHESH KUMAR APPEAL FILED BY THE ASSESSEE. THE ASSESSEE PRAYED T O THE HONBLE TRIBUNAL BY THIS MISCELLANEOUS APPLICATION TO MODIF Y THE ORDER PASSED BY THE TRIBUNAL UNDER SECTION 254(2) OF THE I.T. ACT 1961. 3. WITH REGARD TO GROUND NOS. 2 AND 3 THE ASSESSEE/ PETITIONER SUBMITTED THAT THE NOTICE UNDER SECTION 143(2) WAS NOT SERVED ON THE ASSESSEE HEREIN WITHIN THE TIME ALLOWED AND SUB MITTED THAT THE ASSESSMENT IS NOT VALID. THE HONBLE ITAT AT PARA 6 OF THE APPELLANT ORDER DISCUSSED THE ISSUE AND DISMISSED GROUNDS NO. 2 AND 3. 4. THE ASSESSEE SUBMITTED AS FOLLOWS : IN THE ORDER OF THE TRIBUNAL IT IS OBSERVED THAT NOTICE WAS SERVED IN TIME. THE PETITIONER INVITED THE ATTENTIO N OF THE TRIBUNAL TO THE PAPER BOOK AT PAGE 9 WHERE THE NOTI CE WAS ISSUED ON 5.7.2007 BUT WAS DISPATCHED ON 5.9.2007 A ND WAS NOT SERVED ON THE ASSESSEE. THE PETITIONER FURTHER SUBMITTED THAT THE DATE OF DISPATCH IS ALSO NOTED IN THE NOTI CE ITSELF. THE PETITIONER ALSO SUBMITS THAT IN ACCORDANCE WITH THE PROVISO TO SEC.143(2) NO NOTICE UNDER CLAUSE (II) SHALL BE SE RVED ON THE ASSESSEE AFTER THE EXPIRY OF SIX MONTHS FROM THE EN D OF THE FINANCIAL YEAR IN WHICH THE RETURN WAS FILED. THE R ETURN OF INCOME WAS FILED ON 2.8.2006. THE NOTICE U/S. 143(2 ) HAS TO BE SERVED BY 31.8.2007. IT WAS DISPATCHED ON 5.9.2007. THEREFORE NO NOTICE WAS SERVED U/S. 143(2) WITHIN THE TIME. IT IS A FACT THAT ANOTHER NOTICE AFTER THE PERIOD WAS SERVED ON THE ASSESSEE. THE ASSESSEE FILED A LETTER BEFORE THE A. O. (WHICH IS AT PAGE 8 OF ASSESSEES PAPER BOOK) WHEREIN IT WAS BROUGHT TO THE NOTICE OF THE A.O. THAT NO VALID NOTICE WAS SER VED TO HIM. HOWEVER THE ASSESSEE COMPLIED WITH THE NOTICES ISS UED. IN SUCH CIRCUMSTANCES THE PROVISIONS OF SEC.292BB HAV E NO 3 MA.162/H/2013 IN ITA.1902/H/2011 SHRI M. MAHESH KUMAR APPLICATION. THE PROVISO BELOW SEC.292BB MENTIONS T HAT PROVIDED THAT NOTHING CONTAINED IN THIS SECTION SH ALL APPLY WHERE THE ASSESSEE HAS RAISED SUCH OBJECTION BEFORE THE COMPLETION OF SUCH ASSESSMENT OR RE-ASSESSMENT. TH EREFORE THE EXCEPTION MENTIONED IN SEC.292BB WOULD NOT APPL Y TO THE FACTS OF THE CASE AS THE ASSESSEE OBJECTED TO THE I SSUE OF NOTICE. IN THE CIRCUMSTANCES THERE IS AN ERROR IN THE ORDE R TO THIS EFFECT. 5. WITH REGARD TO GROUND NO.4 THE PETITIONER POINT ED OUT THAT THE TRIBUNAL WAS OF THE VIEW THAT NO EVIDENCE WAS B ROUGHT BEFORE THE TRIBUNAL ALSO. THE PETITIONER SUBMITS AS FOLLOW S : THAT THE MS. MAYA DEVI IS THE ELDER SISTER OF THE PETITIONER. HER RETURN OF INCOME ALONG WITH ANNEXURES WAS FILED BEF ORE THE HONBLE TRIBUNAL IN THE PAPER BOOK AT PAGES NO. 10- 13. THE STATEMENT OF AFFAIRS CLEARLY INDICATE THAT AN AMOUN T OF RS.11 17 000/- WAS GIVEN TO MAHESH KUMAR I.E. THE PETITIONER. THE PETITIONER ALSO FILED THE SHARE PURCHASES ACCOU NT AT PAGES 14 TO 17 OF THE ASSESSEES PAPER BOOK. ON 31.3.2006 AN ENTRY IS MADE FOR PURCHASE OF SHARES TO THE EXTENT OF RS. 11 17 000/-. AS THE PAYMENT WAS MADE THROUGH BANK ACCOUNT OF MRS . MAYA DEVI SUCH AN ENTRY IS MADE IN THE SAID ACCOUNT. THE PETITIONER ALSO FILED JOURNAL REGISTER AT PAGE NO. 17 OF THE P APER BOOK INDICATING THE JOURNAL ENTRY MADE BY TRANSFERRING T HE AMOUNT TO MRS. MAYA DEVI. THEREFORE THE PETITIONER HUMBLY SU BMITS THAT THERE IS EVIDENCE TO SHOW THAT MR. MAYA DEVI PAID A MOUNT AND RECORDED IN HER BOOKS OF ACCOUNT. IT IS ALSO CLEAR FROM THE FACTS THAT THE AMOUNT WAS PAID THROUGH CHEQUE TO KARVY AN D COMPANY AGAINST PURCHASE OF SHARES AND THE SAME WAS RECORDED IN THE BOOKS OF THE PETITIONER AND THAT OF MRS. MAYA 4 MA.162/H/2013 IN ITA.1902/H/2011 SHRI M. MAHESH KUMAR DEVI. THE PETITIONER HUMBLY SUBMITTED THAT THERE IS AN INADVERTENT ERROR IN THE ORDER OF THE HONBLE TRIBU NAL AND THEREFORE APPROPRIATE MODIFICATION MAY KINDLY BE M ADE BY PASSING AN ORDER UNDER SECTION 254(2) OF THE I.T. A CT. 6. THE LEARNED D.R. ON THE OTHER HAND STRONGLY OBJ ECTED TO THE SUBMISSIONS OF THE ASSESSEE AND SUBMITTED THAT THER E IS NO MISTAKE APPARENT ON RECORD WHICH WARRANTS RECALL OF THE TRI BUNAL ORDER AND RELIED ON THE IMPUGNED ORDER OF THE TRIBUNAL. THE L EARNED D.R. FURTHER RELIED ON THE DECISION IN THE CASE OF CIT V S. PEARL WOOLLEN MILLS 330 ITR 164. 7. WE HAVE HEARD BOTH THE PARTIES. THE TRIBUNAL HAS APPLIED THE DECISION OF THE COORDINATE BENCH IN THE CASE OF RAJ ENDRA PRASAD VIDE ITA. NO. 637/HYD/2011 AND 768/HYD/2011 ORDER D ATED 07.09.2012 AND DECIDED THE PRESENT CASE. IT HAS ALS O BEEN POINTED OUT THAT THE ASSESSEE IS ESTOPPED FROM RAISING A PL EA OF INITIATING INVALID NOTICE AS HE HAS PARTICIPATED AND APPEARED FOR HEARING BEFORE THE A.O. AND LATER ON THE ASSESSEE FOUND MIS TAKE IN SERVICE OF NOTICE UNDER SECTION 143(2) OF THE ACT. 8. THE SCOPE AND AMBIT OF APPLICATION OF SECTION 25 4(2) IS VERY LIMITED. THE SAME IS RESTRICTED TO RECTIFICATION OF MISTAKES APPARENT FROM THE RECORD. IN THE CASE OF CIT VS. HINDUSTAN C OCA COLA BEVERAGES (P) LD. (2007) 207 CTR (DEL.) 119 (2007) 293 ITR 163 (DEL.) THEIR LORDSHIPS WHILE CONSIDERING THE POWER S OF THE TRIBUNAL UNDER SEC. 254(2) OF THE I.T. ACT 1961 OBSERVED AS UNDER : UNDER SEC. 254(2) OF THE IT ACT 1961 THE TRIBUNA L HAS THE POWER TO RECTIFY MISTAKES IN ITS ORDER. HOWEVER IT IS PLAIN THAT THE POWER TO RECTIFY A MISTAKE IS NOT EQUIVALENT TO A POWER TO REVIEW OR RECALL THE ORDER SOUGHT TO BE RECTIFIED. RECTIFICATION IS 5 MA.162/H/2013 IN ITA.1902/H/2011 SHRI M. MAHESH KUMAR A SPECIES OF THE LARGER CONCEPT OF REVIEW. ALTHOUGH IT IS POSSIBLE THAT THE PRE-REQUISITE FOR EXERCISE OF EITHER POWER MAY BE SIMILAR (A MISTAKE APPARENT FROM THE RECORD) BY IT S VERY NATURE THE POWER TO RECTIFY A MISTAKE CANNOT RESULT IN THE RECALL AND REVIEW OF THE ORDER SOUGHT TO BE RECTIFIED. 9. WITH REGARD TO GROUND NO.4 THE ASSESSEE HAS PROD UCED THE JOURNAL ENTRY AT PAGES 17 OF THE PAPER BOOK INDICAT ING JOURNAL ENTRY MADE BY TRANSFERRING THE AMOUNT TO MS. MAYA DEVI. H ENCE THE PETITIONER HAS PROVIDED EVIDENCE TO SHOW THAT MS. M AYA DEVI HAS BROUGHT THE AMOUNT AND RECORDED IN HER BOOKS OF ACC OUNTS. WE FIND THAT AN INADVERTENT ERROR HAS CREPT IN THE ORDER OF THE TRIBUNAL BY OVERLOOKING THE JOURNAL REGISTER AT PAGE 17 OF THE PAPER BOOK. HENCE WE SUBSTITUTE PARA 8 OF THE APPELLATE ORDER OF TRIBUNAL WHICH SHALL READ AS UNDER : AFTER HEARING THE PARTIES AND PERUSING THE MATERIA L ON RECORD WE FIND THAT THE STATEMENT OF AFFAIRS CLEAR LY INDICATE THAT AN AMOUNT OF RS.11 17 000/- WAS GIVEN TO SHRI MAHESH KUMAR I.E. THE PETITIONER. THE PETITIONER HAS ALSO FILED SHARE PURCHASES ACCOUNT AT PAGES 14 TO 17 OF THE ASSESSEE S PAPER BOOK AND ON 31.3.2006 AN ENTRY IS MADE FOR PURCHASE OF SHARES TO THE EXTENT OF RS.11 17 000/- AND THE PAYM ENT WAS MADE THROUGH BANK ACCOUNT OF MS. MAYA DEVI AND HENC E SUCH ENTRY IS MADE IN THE SAID ACCOUNT. THE PETITIO NER HAS ALSO FILED JOURNAL REGISTER AT PAGE 17 OF THE PAPER BOOK INDICATING THAT THE JOURNAL ENTRY MADE BY TRANSFERR ING THE AMOUNT TO MS. MAYA DEVI. HENCE THERE IS A EVIDENCE TO SHOW THAT MS. MAYA DEVI PAID AMOUNT AND RECORDED IT IN H ER BOOKS OF ACCOUNTS. THE AMOUNT WAS PAID THROUGH CHEQUE TO KARVY & COMPANY FOR PURCHASE OF SHARES AND THE SAME WAS REC ORDED 6 MA.162/H/2013 IN ITA.1902/H/2011 SHRI M. MAHESH KUMAR IN THE BOOKS OF ACCOUNTS OF THE PETITIONER AND THAT OF MS. MAYA DEVI. HENCE THE ADDITION OF RS.11 17 000/- MA DE ON ACCOUNT OF UNSECURED LOAN FROM MS. MAYA DEVI IS DEL ETED. 10. TO THIS EXTENT OUR ORDER DATED 31.01.2013 IN ITA.NO.1902/H/2011 IS MODIFIED. 11. IN THE RESULT M.A. OF THE ASSESSEE IS PARTLY A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 11.10.2013. SD/- SD/- (CHANDRA POOJARI) (SMT. ASHA VIJAYARAGHAVAN ) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD DATE 11.10.2013 VBP/- 1. SHRI M MAHESH KUMAR C/O. SHRI S. RAMA RAO FLAT NO.102 SHRIYAS ELEGANCE NO.3-6-543 STREET NO.9 HIM AYATNAGAR HYDERABAD. PANACBPK9139K 2. INCOME TAX OFFICER WARD NO.5(3) HYDERABAD. 3. CIT(A)-V HYDERABAD. 4. CIT-IV HYDERABAD 5. D.R. ITAT A BENCH HYDERABAD.