Shri Patel BharatbhaiChaturbhai, Nadiad v. The CIT-II,, Baroda

MA 222/AHD/2012 | 2001-2002
Pronouncement Date: 25-07-2013 | Result: Dismissed

Appeal Details

RSA Number 22220524 RSA 2012
Assessee PAN ADDPP1519P
Bench Ahmedabad
Appeal Number MA 222/AHD/2012
Duration Of Justice 8 month(s) 3 day(s)
Appellant Shri Patel BharatbhaiChaturbhai, Nadiad
Respondent The CIT-II,, Baroda
Appeal Type Miscellaneous Application
Pronouncement Date 25-07-2013
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 25-07-2013
Assessment Year 2001-2002
Appeal Filed On 22-11-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD BEFORE SHRI A.K. GARODIA ACCOUNTANT MEMBER AND SHRI KUL BHARAT JUDICIAL MEMBER 1. MA NO.222/AHD/2012 ( IN I.T.A.NO.632/AHD/2012)A.Y.2001-02 2. MA NO.223/AHD/2012 ( IN I.T.A.NO.633/AHD/2012)A.Y.2000-01 1. PATEL BHARATBHAI CHATURBHAI LALA PASSA PIJ TAI. NADIAD PIN-387 230 PAN:ADDPP1519P 2. PATEL MANHARBHAI MANIBHAI NR.BHIVENDI TERRACE PIJ TAL.NADIAD PIN-387 230 PAN:ADUPP2313C (ORIGINAL APPELLANTS) / VS. 1. COMMISSIONER OF INCOME TAX-II RACE COURSE CIRCLE BARODA-390 007 2. COMMISSIONER OF INCOME TAX-II RACE COURSE CIRCLE BARODA-390 007 (ORIGINAL RESPONDENT) ( / // / APPLICANTS ) .. ( / RESPONDENT ) APPLICANTS BY : SHRI S.P. BHATT RESPONDENT BY : SHRI K.C. MATHEWS SR.D.R. ! ' #$ / / / / DATE OF HEARING : 19/07/2013 %&' ' #$ / DATE OF PRONOUNCEMENT : 25/07/2013 () / O R D E R PER SHRI KUL BHARAT JUDICIAL MEMBER : THESE TWO MISCELLANEOUS APPLICATIONS BY TWO DIFFER ENT ASSESSEES HAVE BEEN FILED FOR RECALLING THE ITAT D BENCH AH MEDABAD COMMON ORDER DATED 11/05/2012 PASSED IN ITA NOS.632 & 633 /AHD/2012 FOR ASST.YEARS 2001-02 & 2000-01 RESPECTIVELY. SINCE B OTH THE MA NO.222/AHD/2012 (IN ITA NO.632/AHD/2012) MA NO.223AHD/2012 ( IN ITA NO.633/AHD/2012) & ASST.YEARS - 2001-02 & 2000-01 RESPECTIVELY - 2 - MISCELLANEOUS APPLICATIONS INVOLVED SIMILAR FACTS THEREFORE THESE APPLICATIONS ARE TAKEN UP TOGETHER AND ARE BEING DI SPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 2. LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE H ONBLE CO-ORDINATE BENCH UNDER THE IDENTICAL FACTS WHILE DISPOSING OF THE MISCELLANEOUS APPLICATION HAS DIRECTED THE COMMISSIONER OF INCOME TAX TO CONSIDER THE CASE AFRESH INCLUDING THE ISSUE OF CONDONATION OF D ELAY. HE FURTHER SUBMITTED THAT THERE IS A MISTAKE IN THE ORDER OF T HE TRIBUNAL(SUPRA) WHICH REQUIRES RECTIFICATION. HE PLACED RELIANCE O N THE DECISION OF THE HONBLE CO-ORDINATE BENCH RENDERED IN MA NO.125/AHD /2012 (ARISING OUT OF ITA NO.335/AHD/2012 FOR AY 2000-01) DATED 19/10/2012 AND ALSO DECISION IN ITA NOS.188 & 189/AHD/2012 AND ITA NOS.190 & 191/AHD/2012 FOR AYS 2000-01 & 2001-02 RESPECTIVELY ) DATED31/05/2013. HE ALSO PLACED RELIANCE ON THE DE CISION OF THE HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF CIT VS. PATEL MAHESHBHAI DAHYABHAI IN SPECIAL CIVIL APPLICATION NO.8003 OF 2013. ON THE CONTRARY LD.SR.DR SUBMITTED THAT THERE IS NO MISTA KE APPARENT FROM THE RECORD. 3. WE HAVE HEARD THE RIVAL CONTENTIONS PERUSED THE MATERIAL AVAILABLE ON RECORD AND THE DECISIONS RELIED BY THE LD.COUNSE L FOR THE ASSESSEE. IN THIS CASE THE APPEAL WAS DISMISSED ON THE GROUND O F MAINTAINABILITY. THE TRIBUNAL HAD TAKEN A CONSCIOUS DECISION AFTER EXAMI NING THE STATUTORY PROVISIONS THAT NO APPEAL LIES AGAINST THE ORDER PA SSED U/S.119(2)(B) OF MA NO.222/AHD/2012 (IN ITA NO.632/AHD/2012) MA NO.223AHD/2012 ( IN ITA NO.633/AHD/2012) & ASST.YEARS - 2001-02 & 2000-01 RESPECTIVELY - 3 - THE IT ACT 1961 (HEREINAFTER REFERRED TO AS THE A CT). DURING THE COURSE OF HEARING A QUERY WAS RAISED BY THE BENCH TO DEMO NSTRATE THE MISTAKE APPARENT FROM THE RECORD. LD.COUNSEL FOR THE ASSES SEE SIMPLY PLACED RELIANCE ON THE DECISIONS OF THE CO-ORDINATE BENCH AND ALSO THE JUDGEMENT OF THE HONBLE HIGH COURT OF GUJARAT PASS ED IN SPECIAL CIVIL APPLICATION NO.8003 OF 2013 IN THE CASE OF CIT VS. PATEL MAHESHBHAI DAHYABHAI. THE UNDISPUTED FACTS REMAINS THAT THE D ECISION OF THE HONBLE GUJARAT HIGH COURT WAS RENDERED WHILE EXERC ISING THE WRIT JURISDICTION. MORE PARTICULARLY THE HONBLE GUJAR AT HIGH COURT HAS HELD VIDE PARA-7 WHICH READS AS UNDER:- 7. WE HAVE NO HESITATION IN HOLDING THAT THE TRIB UNALS ORDER ON RECTIFICATION APPLICATION SUFFERED FROM SERIOUS LEG AL DEFECT. IF IN THE ORIGINAL ORDER THE TRIBUNAL WAS OF THE OPINION THAT THE ORDER PASSED BY THE PETITIONER WAS NOT APPELLABLE IN EXE RCISE OF RECTIFICATION POWERS THE TRIBUNAL SIMPLY COULD NOT HAVE GIVEN DIRECTIONS TO THE COMMISSIONER TO PASS FRESH ORDER ON THE RESPONDENTS APPLICATION. IN ESSENCE THE TRIBUNAL NULLIFIED THE ORIGINAL ORDER OF THE COMMISSIONER AND DIRECTED HIM TO PASS A FRESH ORDER AFTER HEARING THE RESPONDENT. THE TRIB UNAL COULD HAVE DONE THIS IF THE APPEAL WAS MAINTAINABLE. WHEN THE TRIBUNAL WAS OF THE OPINION THAT THE APPEAL WAS NOT MAINTAINABLE THERE WAS NO QUESTION OF GIVING SUCH A DIRECTION PARTICULARLY I N THE ORDER ON APPLICATION FOR RECTIFICATION THE TRIBUNAL DID NOT COME TO ANY DIFFERENT CONCLUSION. IN OTHER WORDS WITHOUT HOLD ING THAT THE APPEAL WAS MAINTAINABLE THE ORDER UNDER CHALLENGE COULD NOT HAVE BEEN INTERFERED WITH. 4. ON A BARE READING OF ABOVE DECISION IT IS CLEAR THAT THE ORDER OF THE TRIBUNAL AS RELIED BY THE LD.COUNSEL FOR THE ASSESS EE WAS HELD TO BE SUFFERING FROM SERIOUS LEGAL DEFECT. IN THE PRESEN T CASE APPEAL OF THE MA NO.222/AHD/2012 (IN ITA NO.632/AHD/2012) MA NO.223AHD/2012 ( IN ITA NO.633/AHD/2012) & ASST.YEARS - 2001-02 & 2000-01 RESPECTIVELY - 4 - ASSESSEE(S) WAS REJECTED ON THE GROUND OF MAINTAIN ABILITY. LD.COUNSEL FOR THE ASSESSEE COULD NOT POINT OUT AS TO HOW THIS APPEAL FILED BEFORE THE TRIBUNAL AGAINST THE ORDER PASSED U/S.119(2)(B) OF THE ACT IS MAINTAINABLE. THERE IS NO MISTAKE APPARENT FROM TH E RECORD. FURTHER THE HONBLE HIGH COURT OF GUJARAT WHILE EXERCISING ITS WRIT JURISDICTION HAS REFUSED TO CORRECT THE TRIBUNAL ORDER UNDER THE PEC ULIAR FACTS. LD.COUNSEL FOR THE ASSESSEE HAS FAILED TO DEMONSTRA TE AS TO HOW THE APPEAL AGAINST ORDER PASSED U/S.119(2)(B) IS MAINTA INABLE BEFORE THE TRIBUNAL. THE ASSESSEE HAS NOT FURNISHED ANY JUDIC IAL PRONOUNCEMENT WHICH HOLDS THAT THE APPEAL AGAINST SUCH ORDER IS M AINTAINABLE EVEN NO STATUTORY PROVISION IS POINTED OUT. IN OUR CONSID ERED OPINION THE TRIBUNAL BEING CREATURE OF THE STATUTE THEREFORE CANNOT GO BEYOND THE AMBIT OF THE STATUTORY PROVISIONS. THE TRIBUNAL HA S NO WIDE POWERS AS CONFERRED ON THE HONBLE HIGH COURTS AND THE HONBL E APEX COURT IN THE NATURE OF WRIT JURISDICTION. WHILE DISPOSING OF TH E APPLICATION FOR RECTIFICATION OF MISTAKE THE TRIBUNAL HAS JUST TO FIND OUT THE MISTAKE APPARENT FROM THE RECORDS. SINCE THESE DECISIONS A S RELIED BY THE LD.COUNSEL FOR THE ASSESSEE DO NOT ADJUDICATE THE I SSUE WHETHER THE APPEAL AGAINST THE ORDER PASSED U/S.119(2)(B) BY THE CIT I S MAINTAINABLE. HENCE IN THE ABSENCE OF THE SAME WE ARE OF THE CO NSIDERED OPINION THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD AND T HEREFORE THE PRESENT MISCELLANEOUS APPLICATIONS ARE HEREBY REJECTED. MA NO.222/AHD/2012 (IN ITA NO.632/AHD/2012) MA NO.223AHD/2012 ( IN ITA NO.633/AHD/2012) & ASST.YEARS - 2001-02 & 2000-01 RESPECTIVELY - 5 - 5. IN THE RESULT MISCELLANEOUS APPLICATION NOS.222 & 223/AHD/2012 FILED BY THE DIFFERENT ASSESSEES ARE D ISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE SD/- SD/- ( A.K. GARODIA ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 25 /07 /2013 S *.. .../ T.C. NAIR SR. PS () ' # -( '# () ' # -( '# () ' # -( '# () ' # -( '#/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPLICANTS 2. / THE RESPONDENT 3. .. # / / CONCERNED CIT 4. /() / THE CIT(A)-II BARODA 5. 23 # / DR ITAT AHMEDABAD 6. 34 5! / GUARD FILE. () () () () / BY ORDER # # //TRUE COPY// 6 66 6/ // / .7 .7 .7 .7 ( DY./ASSTT.REGISTRAR) / ITAT AHMEDABAD 1. DATE OF DICTATION 24.7.13(DICTATION-PAD 12 PAGES ATTACHED WITH THIS F ILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 24.7.13 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH FAIR ORDER PLACED BEFORE OTHER MEMBER 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.25.7.13 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 25.7.13 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER