M/s. Valarmathi Silks, Kancheepuram v. ACIT, Vellore

MA 234/CHNY/2003 | misc
Pronouncement Date: 18-08-2010 | Result: Dismissed

Appeal Details

RSA Number 23421724 RSA 2003
Bench Chennai
Appeal Number MA 234/CHNY/2003
Duration Of Justice 6 year(s) 9 month(s) 29 day(s)
Appellant M/s. Valarmathi Silks, Kancheepuram
Respondent ACIT, Vellore
Appeal Type Miscellaneous Application
Pronouncement Date 18-08-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 18-08-2010
Date Of Final Hearing 06-08-2010
Next Hearing Date 06-08-2010
Assessment Year misc
Appeal Filed On 20-10-2003
Judgment Text
IN THE INCOME-TAX APPELLATE TRIBUNAL: B- BENCH: CHENNAI (BEFORE SHRI HARI OM MARATH A JUDICIAL MEMBER AND SHRI ABRAHAM P GEORGE ACCOUNTANT MEMBER) M.A NO. 234/MDS/03 (IN ITA NO.2541/MDS/92) ASSESSMENT YEAR 1988-89 M/S VALARMATHI SILKS VS. THE ACIT CIR. I. V ELLORE 46 (57-B) METTU ST. KANCHEEPURAM 631501 GIR 11309-VACIT/VLR (APPLICANT) (RESPONDENT) APPLICANT BY: SHRI A.SATYANARAYANA RESPONDENT BY: SHRI TAPPAS KUMAR DUTTA ORDER PER ABRAHAM P.GEORGE ACCOUNTANT MEMBER THROUGH THIS MISC. APPLICATION ASSESSEE SEEKS RECAL L OF THE ORDER DATED 17-3-2003 OF THIS TRIBUNAL IN MISC. PETITION NOS.72/MDS/2002 166 & 167/MDS/97 IN ITA NOS.2541 & 2542/MDS/92. ACCORDING TO THE ASSESSEE THE MISC. APPLICATIONS NUMBERED AS 72/MDS/02 166 & 167/MDS/97 WERE DISMISSED BY THIS TRIBUNAL HOLDING THAT THEY ARE TIME BARRED. SUBMISSION OF THE ASSESSEE IS THAT MP NOS. 166 & 167/MDS/97 WERE ACTUALLY FILED ON 18-8-1997 AND NOT ON 22-8-1997 AS PRESUMED BY THE TRIBUNAL. ASSESSEE ALSO PLEADS THAT THIS MISC. APPLICATION IS NOT FILED U/S 254(2) OF THE INCOME-TAX ACT 1961 BUT SEEKS INVOCATION OF ITS INCIDENTAL AN D ANCILLARY POWERS AS MENTIONED BY THE HONBLE APEX COURT IN THE CASE OF ITO VS. M.K. MOHD. KUNHI ( 71 ITR 815). MA NO.234/MDS/03 2 2. WHEN THE MISC. APPLICATION CAME UP FOR HEARING LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT MP NOS. 166&167/MDS/97 WERE FILED IN TIME AND MP NO.72/MDS/2002 WAS IN CONTINUATION OF THE FORMER M.PS. ACCORDING TO THE ASSESSEE THE TRIBUNAL ON ITS OWN SHOULD HAVE RECALLED THE ORDER DATED 13-3-2003 IN M.P NO.72/MDS/2002 AND 166 & 167/MDS/97 WHICH HAD THEREIN A PATENT MISTAKE. LD. COUNSEL POINTED OUT THAT MISC. PETITIONS WERE FILED ON 18-8-1997 WITHIN THE FOUR Y EAR PERIOD AND THE TRIBUNAL HAD COMMITTED GROSS INJUSTICE IN DISMISSING THE MISC. P ETITIONS CONSIDERING THAT THESE WERE FILED ON 22-8-1997. 3. PER CONTRA THE LD. DR SUBMITTED THAT EVEN THE N EW MISC. APPLICATION NOW FILED BY THE ASSESSEE FOR INVOKING INCIDENTAL AND ANCILLARY POWERS VESTED WITH THE TRIBUNAL WAS OUT OF TIME. 4. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL S UBMISSIONS. NO DOUBT ASSESSEE HAS CLEARLY MENTIONED IN HIS WRITTEN SUBMISSION THA T THIS MISC. APPLICATION NO.234/MDS/03 IS FILED BY IT NOT IN CONTINUATION O F THE EARLIER PETITION NOS. 72/MDS/2002 166 & 167/MDS/97. ACCORDING TO THE ASS ESSEE THIS TRIBUNAL IS VESTED WITH INCIDENTAL AND ANCILLARY POWERS TO RECALL THE ORDER EVEN IF A PETITION IS FILED AFTER FOUR YEARS. 5. POWERS OF THIS TRIBUNAL ARE CIRCUMSCRIBED BY TH E STATUTE. VIDE SEC. 254(1) OF THE ACT THIS TRIBUNAL MIGHT AFTER GIVING BOTH THE PAR TIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD PASS SUCH ORDERS AS IT DEEMS FIT. IT I S NOT DISPUTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THIS PETITION HAS BEEN FILED AFTE R FOUR YEARS FROM THE DATE OF THE MA NO.234/MDS/03 3 ORIGINAL ORDER. IN ACCORDANCE WITH THE RULING OF TH E HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF DR.S. PANNEERSELVAM V. ACIT (319 ITR 13 5) THE ORDER IN MISC. PETITIONS NUMBERED AS 72/MDS/2002 166&167/MDS/97 WHEN DISPOSE D OF BY THIS TRIBUNAL ON 13- 3-2003 HAD MERGED WITH THE ORIGINAL ORDER DATED 18 -8-1993. THEREFORE THE PRESENT PETITION IF CONSIDERED AS FILED U/S 254(2) OF THE ACT CANNOT BE ENTERTAINED. SEC. 254(2) OF THE ACT HAS SET A TIME PERIOD OF FOUR YEARS FOR THIS TRIBUNAL FOR RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD. HENCE THE ONLY QUESTION LEFT HERE IS WHETHER THIS TRIBUNAL CAN INVOKE ANY INCIDENTAL AND ANCILLARY POWERS VEST ED IN IT IN THE GIVEN CASE. FOR RESOLVING THIS IT IS NECESSARY TO HAVE A LOOK AT W HAT ARE THE INCIDENTAL AND ANCILLARY POWERS VESTED WITH THE TRIBUNAL AS ELABORATED BY T HE HONBLE APEX COURT IN THE CASE OF ITO VS. M.K. MOHD. KUNHI (SUPRA) RELIED ON STRONGL Y BY THE LD. AR. IN THAT CASE THE ISSUE BEFORE THE HONBLE APEX COURT WAS REGARDING P OWERS OF THE TRIBUNAL FOR STAY OF RECOVERY PROCEEDINGS. IT WAS HELD THAT SEC. 254 OF THE ACT GRANTED THIS TRIBUNAL BY IMPLICATION POWER OF STAYING RECOVERY PROCEEDINGS IN APPEALS PENDING BEFORE IT. IT SHOULD BE EXERCISED ONLY IN APPROPRIATE CASES WHER E THE TRIBUNAL WAS SATISFIED THAT THE ENTIRE PURPOSE OF THE APPEAL WILL BE FRUSTRATED OR RENDERED NUGATORY BY ALLOWING THE RECOVERY PROCEEDINGS TO CONTINUE DURING THE PENDENC Y OF THE APPEAL BEFORE IT. AFTER GOING THROUGH THE ACT AND THE INCOME-TAX RULES HON BLE APEX COURT NOTED THAT NO POWERS WERE EXPRESSLY CONFERRED UPON THE TRIBUNAL T O STAY PROCEEDINGS REGARDING RECOVERY OF TAX OR PENALTY DUE FROM THE ASSESSEE. A RGUMENT OF THE REVENUE BEFORE THE HONBLE APEX COURT WAS THAT IN THE ABSENCE OF ANY E XPRESS PROVISION IN SEC.254 AND 255 OF THE ACT FOR STAY OF RECOVERY NO SUCH POWER COULD BE EXERCISED BY THE TRIBUNAL. MA NO.234/MDS/03 4 HONBLE APEX COURT NOTED THAT RIGHT OF APPEAL WAS A SUBSTANTIVE RIGHT AND QUESTIONS OF FACT AND LAW WERE OPEN TO REVIEW BY THE TRIBUNALS A T THIS STAGE. ACCORDING TO THE HONBLE APEX COURT IF THE ASSESSEE COULD MOVE FOR STAY BEFORE THE AO U/S 220(6) OF THE ACT WHEN AN APPEAL WAS PRESENTED BY THE ASSESSEE U /S 246 THEN IT WOULD BE DIFFICULT TO HOLD THAT THE TRIBUNAL WAS ENTIRETY HELPLESS IN THE MATTER OF STAY OF RECOVERY. IT IS UNDER THESE CIRCUMSTANCES HONBLE APEX COURT HELD THAT AN EXPRESS GRANT OF STATUTORY POWER CARRIED BY IT BY NECESSARY IMPLICATION AUTHOR ITY TO USE ALL REASONABLE MEANS TO MAKE SUCH GRANT EFFECTIVE. HONBLE APEX COURT FURTH ER HELD THAT THE POWERS WHICH WERE CONFERRED U/S 254 OF THE ACT ON THE APPELLATE TRIBU NAL WITH WIDEST POSSIBLE AMPLITUDE MUST CARRY WITH THEM BY NECESSARY IMPLICATION ALL POWERS AND DUTIES INCIDENTAL AND NECESSARY TO MAKE THE EXERCISE OF THESE POWERS FUL LY EFFECTIVE. 6. A CAREFUL READING OF THE ABOVE APEX COURT JUDGEM ENT WOULD SHOW THAT THE POWERS OF THE TRIBUNAL ARE CIRCUMSCRIBED BY SEC. 25 4 OF THE ACT BUT NEVERTHELESS IT HAD TO BE CONSTRUED WITH WIDEST POSSIBLE AMPLITUDE. IT WAS SPECIFICALLY NOTED THAT SEC.255(5) OF THE ACT THOUGH IT EMPOWERED THE TRIB UNAL TO REGULATE ITS OWN PROCEDURE IT WAS VERY DOUBTFUL WHETHER SUCH POWER INCLUDED A POWER OF STAY. THUS WHERE SEC. 220(6) DEALT WITH A SITUATION WHERE AN APPEAL WAS P ENDING BEFORE THE AAC UNDER THE ACT IT WAS SILENT ON THE MATTER OF GRANT OF STAY W HEN AN APPEAL WAS PENDING BEFORE THE TRIBUNAL. IT WAS FOR THIS REASON HONBLE APEX COURT HELD THAT SEC.254 OF THE ACT WHICH CONFERRED APPELLATE JURISDICTION ON THE TRIBUNAL IM PLIEDLY GRANTED POWERS OF DOING ALL SUCH ACTS SUCH ACTS OR EMPLOYING SUCH MEANS AS WERE ESSENTIALLY NECESSARY TO ITS EXECUTION. IN THE SAME BREATH HONBLE APEX COURT AL SO HELD THAT FOR INVOKING THE MA NO.234/MDS/03 5 IMPLIED POWERS IN STAY MATTER ONLY MOST DESERVING A ND APPROPRIATE CASE COULD BE CONSIDERED. THAT THE IMPLIED GRANT OF POWER WAS LIM ITED BY THE EXPRESS GRANT AND THEREFORE IT COULD ONLY BE SUCH POWERS AS WERE TRU LY INCIDENTAL AND ANCILLARY FOR DOING ALL SUCH ACTS OR EMPLOYING ALL SUCH MEANS AS WERE R EASONABLY NECESSARY TO MAKE THE GRANT EFFECTIVE WAS AGAIN EMPHASIZED BY THE HONBL E APEX COURT IN THE CASE OF UNION OF INDIA VS. PARAS LAMINATES (P) LTD. (186 ITR 722) . THIS POSITION WAS REITERATED BY THE HONBLE APEX COURT AGAIN IN THE CASE OF J.K. SYNTHE TICS V. COLLECTOR OF CENTRAL EXCISE 142 CTR 521. IN THE LATTER CASE THE HONBLE APEX C OURT WAS CONSIDERING THE POWERS VESTED WITH THIS TRIBUNAL WHEN A PARTY PREVENTED FR OM APPEARING ON THE DATE OF HEARING DUE TO SUFFICIENT CAUSE HAD PETITIONED FOR THE REC ALL OF THE ORDER WHICH WAS MADE EXPARTE. 7. THUS WE FIND THAT INVOKATION OF THE INHERENT P OWERS HAVE BEEN CONFINED SO FAR TO TWO PARTICULAR MATTERS NAMELY FOR CONSIDERATIO N OF STAY APPLICATION AND FOR RECALL OF AN EXPARTE ORDER. IN OUR OPINION GREATEST CAUTION HAS TO BE EXERCISED BEFORE EXPANDING THE PERIPHERAL PARAMETERS OF THE SO CALLED INHERENT POWER AS OTHERWISE IT WOULD BE EQUIVALENT TO OPENING A PANDORAS BOX. BEING A CREA TURE OF THE STATUTE THIS TRIBUNAL HAS TO BE VERY CAREFUL WHILE EXERCISING ITS POWERS U/S 254 OF THE ACT AND ONLY VERY NECESSARY IMPLIED POWER COULD BE PRESUMED THAT IS TO SAY JUST ENOUGH FOR MAKING THE EXPLICIT POWERS FULLY EFFECTIVE. 8. IN THE GIVEN CASE BEFORE US THE FIRST ORDER OF THIS TRIBUNAL DATED 13-3-2003 IN MP NOS.72/MDS/02 166 /MDS/97 & 161/MDS/97 HAVE ALRE ADY GOT MERGED WITH THE ORIGINAL ORDER OF THIS TRIBUNAL. ENTERTAINING ANY RE CTIFICATION APPLICATION AFTER A FOUR YEAR MA NO.234/MDS/03 6 PERIOD IS NOT POSSIBLE IN VIEW OF THE SPECIFIC WORD INGS IN SECTION 2542(2) OF THE ACT. THIS BEING SO IN OUR OPINION THE INHERENT POWERS CANNOT BE RESORTED TO FOR EXPANDING THE LAW SO AS TO BRING IN SOMETHING INDIRECTLY THA T WHICH IS SPECIFICALLY DISABLED. IN ANY CASE ASSESSEE HAD FILED THE FIRST MISC. APPLICATIO N ITSELF AFTER A VERY LONG PERIOD AND THIS BY ITSELF WOULD BE SUFFICIENT CAUSE FOR NOT CALLING INTO OPERATION ANY OF THE INHERENT POWERS VESTED IN THIS TRIBUNAL. THUS WE FIND NO MER ITS IN THIS MISC. APPLICATION FILED BY THE ASSESSEE. SUCH MISC. APPLICATION IS THEREFORE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 18 TH AUGUST 2010. SD/- (HARI OM MARATHA) SD/- (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI: 18TH AUG 2010 NBR CC: THE ASSESSEE 2)THE ASSESSING OFFICER 3)THE C IT(A) 4) THE CIT 5)THE D.R 6)GUARD FILE. MA NO.234/MDS/03 7