The ACIT, Circle-4,, Baroda v. M/s. 20 Microns Ltd, Baroda

MA 238/AHD/2008 | 1995-1996
Pronouncement Date: 24-12-2010 | Result: Dismissed

Appeal Details

RSA Number 23820524 RSA 2008
Assessee PAN AAACZ0580B
Bench Ahmedabad
Appeal Number MA 238/AHD/2008
Duration Of Justice 2 year(s) 2 month(s) 7 day(s)
Appellant The ACIT, Circle-4,, Baroda
Respondent M/s. 20 Microns Ltd, Baroda
Appeal Type Miscellaneous Application
Pronouncement Date 24-12-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 24-12-2010
Assessment Year 1995-1996
Appeal Filed On 17-10-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL : C BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA J.M. & HONBLE SH RI N.S. SAINI A.M.) M.A. NO. 238/AHD/2008 (ARISING OUT OF I.T.A. NO. 3385/AHD./2002) ASSESSMENT YEAR : 1995-1996 INCOME TAX OFFICER WARD-4(1) BARODA -VS.- 20 MICRONS LTD. BARODA (PAN : AAACZ 0580 B) (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI R.K. DHANI STA SR. D.R. RESPONDENT BY : SHRI BHAVIN MARFATIA 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 PASSI NG THE ORDER DATED 20.12.2007 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. THE CONTENTS OF THE MISCELLANEOUS APPLICATION READS AS UNDER :- THE HON'BLE ITAT VIDE THEIR ORDER DATED 20.12.200 7 IN ITA NO. 3385/AHD/2002 FOLLOWING THE DECISION OF APEX COURT IN THE CASE OF GKN DRIVE SHAFT (INDIA) LTD. [259 OTR 19] AND ALSO THE DECISION OF THE HON. ITAT AHMEDABAD BENCH IN THE CASE OF MATUSHITA LAKHANPAL BATTERY INDIA LTD. [ITA NO 655 & 656/AHD/2003 DATED 15.2.007] HAS SET-ASIDE THE ASSESSMENT BACK TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO PROVIDE THE REASONS FOR REOPENING OF ASSESSMENTS TO THE ASSESSEE AND DECIDE THE MATTER AFRESH IN ACCORDANCE WITH LAW . FROM THE RECORDS IT WAS NOTICED THAT THAT THE ASSE SSEE HAD NOT FILED ANY RETURN OF INCOME IN RESPONSE TO NOTICE ISSUED U/S.148 OF THE INCOME-TAX ACT 1961 ON 30.5.2001 WHICH WAS DULY SERVED UPON THE ASSESSEE ON 31.5.2001. FURTHER THE ASSESSEE HAD ALSO NOT REQUESTED FOR FURNISHING OF T HE REASONS FOR REOPENING OF THE ASSESSMENT. IT WAS SUBMITTED BY THE ASSESSEE IN THE WRITTEN SUBMISSION BEFORE THE HON'BLE ITAT THAT THE REASONS WERE ASKED FOR AT THE TIME OF ASSESSMENT CAN ALSO BE NOTED FROM THE ORDER OF THE CIT [APPEALS] AS STATED IN PARA 2.2 ON PAGE 3 OF HIS ORDER. HOWEVER IN HIS ORDER THE ID. CIT [APPEALS] HAD HELD THAT THE ASSESSING OFFICER HAD RECORDED THE REASONS AND IT WAS NOT NEC ESSARY FOR HIM TO DISCLOSE SUCH REASONS TO THE ASSESSEE. IT IS THEREFORE PRAYED T HAT THE HON. ITAT MAY PASS A RECTIFICATION ORDER TO THAT EFFECT AS IT MAY DEEM F IT. 2 M.A. NO. 238/AHD/2008 2. RELYING ON THE CONTENTS OF THE AFORESAID MISCELL ANEOUS APPLICATION SHRI R.K. DHANISTA LD. SR. D.R. APPEARING ON BEHALF OF THE REVENUE POI NTED OUT THAT THE TRIBUNAL MAY PASS A RECTIFICATION ORDER. 3. SHRI BHAVIN MARFATIA LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE VEHEMENTLY OPPOSED TO THE PRAYER OF THE LD. DEPARTMENTAL REPRE SENTATIVE OF THE REVENUE. THE LD. COUNSEL OF THE ASSESSEE POINTED OUT THAT THE ITAT VIDE ITA NO. 3385/AHD/2002 DATED 20.12.2007 HAD SET ASIDE THE ASSESSMENT ORDER UNDER SECTION 147 TO BE FRAMED DE NOVO ON THE GROUND THAT THE ASSESSING OFFICER HAD NOT PROVIDED THE REASONS FOR REOPENING OF ASSESSMENT UNDER SECTION 148. HE CONTENDED THAT THE DEPARTMENT HAS FILED THE MISC ELLANEOUS APPLICATION UNDER SECTION 254(2) BEFORE THE ITAT FOR RECTIFICATION OF ITS ORDER. THE ASSESSING OFFICER HAS STATED IN THE MISCELLANEOUS APPLICATION THAT THE ASSESSEE HAS NOT FILED RETURN OF INCOME IN RESPONSE TO NOTICE UNDER SECTION 148 AND THE ASSESSEE HAS NOT MADE ANY REQUEST FOR SUPPLY OF REASONS RECORDED FOR REOPENING OF ASSESSMENT. THE LD. COUNSEL OF THE ASS ESSEE STATED THAT IN RESPONSE TO NOTICE UNDER SECTION 148 THE ASSESSEE HAD FILED A LETTER REQUES TING ASSESSING OFFICER TO CONSIDER RETURN FILED UNDER SECTION 139(1) AS THE RETURN FILED UNDER SECT ION 148 BY RELYING ON THE FOLLOWING JUDGMENTS :- (I) KIRAN NAGJI NISAR VS.- ITO 300 ITR (AT) 286 (MUM.); (II) TIWARI KANHAIYA LAL VS.- CIT 154 ITR 109 (R AJ.); (III) MANMOHAN SINGH VS.- ACIT 203 ITR 74 (ALL.) ; (IV) IQBAL SINGH ATWAL VS.- CIT 147 ITR 599 (CAL .). THE LD. COUNSEL OF THE ASSESSEE ALSO CONTENDED THAT SINCE THE ASSESSEE HAS FILED THE RETURN OF INCOME AND REQUESTED FOR SUPPLYING REASON RECORDED FOR REOPENING OF ASSESSMENT AND ALSO KEEPING IN VIEW THE FACT THAT THE HON'BLE TRIBUNAL HAS ONLY DIRECTED TO FRAME THE ASSESSMENT AFRESH THEREFORE THERE IS NO NEED TO RECALL THE T RIBUNALS ORDER DATED 20.12.2007. HE ALSO ARGUED THAT WHEN LEARNED COMMISSIONER OF INCOME TAX (APPEA LS) HAD HELD THAT THE ASSESSING OFFICER HAD RECORDED THE REASONS AND IT WAS NOT NECESSARY F OR HIM TO DISCLOSE THE REASONS TO THE ASSESSEE THEREFORE THE REQUEST OF THE ASSESSING OFFICER TAN TAMOUNT TO REQUEST FOR REVIEW OF ITATS ORDER DATED 20.12.2007 WHICH IS NOT VALID THEREFORE TH E APPLICATION OF THE REVENUE BE REJECTED. 3 M.A. NO. 238/AHD/2008 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 20.12.2007 IN ITA NO. 33 853/AHD/2002. IT IS PERTINENT TO NOTE THAT AFTER CONSIDERING EACH AND EVERY CONTENTION THE TR IBUNAL HAS PASSED THE ORDER AND NO MISTAKE IS APPARENT FROM THE RECORD WITHIN THE MEANING OF SECT ION 254(2). ADMITTEDLY THE 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). 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 24.12.2010 SD/- SD/- (N.S. SAINI) (T.K. SHARMA ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 24 /12 / 2010 4 M.A. NO. 238/AHD/2008 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.