Raj Kumar Mangla,, New Delhi v. ACIT, Investigation Circle,, Gurgaon

MA 28/DEL/2011 | 1991-1992
Pronouncement Date: 22-07-2011 | Result: Partly Allowed

Appeal Details

RSA Number 2820124 RSA 2011
Bench Delhi
Appeal Number MA 28/DEL/2011
Duration Of Justice 6 month(s) 10 day(s)
Appellant Raj Kumar Mangla,, New Delhi
Respondent ACIT, Investigation Circle,, Gurgaon
Appeal Type Miscellaneous Application
Pronouncement Date 22-07-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted H
Tribunal Order Date 22-07-2011
Assessment Year 1991-1992
Appeal Filed On 11-01-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH H : NEW DELHI) BEFORE SHRI I.P. BANSAL JUDICIAL MEMBER AND SHRI B.C. MEENA ACCOUNTANT MEMBER MA NOS.28 TO 31/DEL/2011 (IN ITA NOS.1364 TO 1367/DEL./2005) (ASSESSMENT YEARS : 1992-93 TO 1995-96) SHRI RAJ KUMAR MANGLA VS. ACIT INV. CIRCLE 584/3 ROSHAN PURA GURGAON. GURGAON (HARYANA) (APPLICANT) (RESPONDENT) APPLICANT/ASSESSEE BY : SHRI RAJ KUMAR MANGLA REVENUE BY : MS. SRUJANI MOHANTY SENIOR DR ORDER PER B.C. MEENA ACCOUNTANT MEMBER : ALL THESE MISC. APPLICATIONS ARE FILED AGAINST THE COMMON ORDER DATED 23.03.2007 OF ITAT FOR THE ASSESSMENT YEARS 1992-93 TO 1995-96. 2. ASSESSEE FILED THE APPEAL NOS.1364/DEL/2005 TO 1 367/DEL/2004 ON 22.03.2005. THESE APPEALS WERE DECIDED BY THE ITAT BY ITS ORDER DATED 23.03.2007. THEREAFTER THE ASSESSEE FILED THE MIS C. APPLICATIONS NOS.502 TO 505/DEL/2008. THESE MISC. APPLICATIONS WERE DISPOS ED OFF BY A DECISION OF ITAT DATED 06.03.2009 BY HOLDING AS UNDER :- 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AT T HE OUTSET WHAT IS NOTICED IS THAT THE MISCELLANEOUS APPLICATI ONS HAVE BEEN FILED BY THE ASSESSEE ALLEGING FACTUAL MISTAKES. I T IS ALSO NOTICED THAT THE MISTAKES WHICH HAVE BEEN ALLEGED BY THE AS SESSEE ARE IN MA NOS.28 TO 31/DEL/2011 (IN ITA NOS.1364 TO 1367/DEL./2005) 2 THE NATURE OF REQUEST FOR RE-ADJUDICATION ON AN ISS UE ON WHICH THE TRIBUNAL HAS ALREADY APPLIED ITS MIND AND HAS COME TO A CONCLUSION. THE SUPREME COURT IN THE CASE OF HONDA SEIL POWER PRODUCT LTD. REPORTED IN 295 ITR 466 HAS CLEARLY H ELD THAT IF PREJUDICE HAS RESULTED TO THE PARTY WHICH PREJUDIC E IS ATTRIBUTABLE TO THE TRIBUNAL'S MISTAKE/ERROR OR OMI SSION AND WHICH ERROR IS A MANIFEST ERROR THEN THE TRIBUNAL WOULD BE JUSTIFIED IN RECTIFYING ITS MISTAKE. THE SUPREME CO URT IN THE CASE OF SAURASHTRA KUTCH STOCK EXCHANGE REPORTED IN 219 CTR 90 HAS CATEGORICALLY HELD THAT THE NON-CONSIDERATION O F A DECISION OF THE JURISDICTIONAL HIGH COURT OR THE SUPREME COURT AS A MISTAKE APPARENT FROM RECORD WHICH COULD BE RECTIFIED U/S 2 54(2) OF THE ACT. OBVIOUSLY THE ISSUE WHETHER THE ACIT(INV.) CI RCLE GURGAON HAD JURISDICTION IN SPITE OF HIS LETTER DAT ED 12.4.93 ADDRESSED TO THE CIT HARYANA ROHTAK REQUESTING FO R THE TRANSFER OF THE ASSESSEE'S FILE TO THE ITO WARD 10 (1) NEW DELHI AS ALSO THE LETTER FROM THE OFFICE OF THE CIT HARY ANA ROHTAK DATED 22.3.95 DIRECTING THE ITO WARD 10(1) NEW DE LHI TO OBTAIN THE RELEVANT RECORDS FROM THE ACIT(INV.) CI RCLE GURGAON AND WHETHER THE ACIT(INV.) CIRCLE GURGAON HAD THE JURISDICTION TO ISSUE NOTICE U/S 148 ON 21..4.95 FOR THE RELEVAN T ASSESSMENT YEARS HAVE ALL BEEN CONSIDERED BY THIS TRIBUNAL IN ITS ORDER AFTER DETAILED DISCUSSION. A REAPPRAISAL OF THESE EVIDENC ES AS SOUGHT FOR BY THE ASSESSEE THROUGH HIS MISCELLANEOUS APPLI CATIONS WOULD AMOUNT TO A REVIEW OF THE CASE WHICH IS NOT WITHIN THE POWERS OF THIS TRIBUNAL U/S 254(2) OF THE ACT. IT IS FURTHER NOTICED THAT THE SUBMISSIONS IN THE MISCELLANEOUS APPLICATIONS DOES NOT BRING OUT ANY MISTAKE ERROR OR OMISSION MUCH LESS A MANIFEST ERROR WHICH COULD BE RECTIFIED BY INVOKING THE POWERS U/S 254(2 ) OF THE ACT. THE ISSUE WHICH WAS BEFORE THE TRIBUNAL IN THE APPE ALS BEING A PURELY FACTUAL ISSUE IT CANNOT BE SAID THAT THE TRI BUNAL HAD NOT REFERRED TO THE DECISION OF THE JURISDICTIONAL HIGH COURT OR THE HON'BLE SUPREME COURT. THE DECISION HAS BEEN RENDER ED BY THIS TRIBUNAL ON THE FACTS OF THE CASE. A CONSIDERED VIE W OF THE MATTER WAS TAKEN BY TRIBUNAL ORDER BUT IT CANNOT B E SAID THAT IT AMOUNTS TO MISTAKE MUCH LESS APPARENT ERROR WHICH C OULD BE JUSTIFIABLY RECTIFIED BY THE TRIBUNAL. THUS ITAT HAD REJECTED THE MISC. APPLICATIONS BY HO LDING THAT MISTAKES NOT APPARENT WHICH COULD BE RECTIFIED. THEREAFTER THE ASSESSEE FILED AGAIN MISC. MA NOS.28 TO 31/DEL/2011 (IN ITA NOS.1364 TO 1367/DEL./2005) 3 APPLICATIONS NO.431 TO 434/DEL/2009 WHICH HAS BEEN DECIDED BY ITAT VIDE ORDER DATED 07.01.2001 BY HOLDING AS UNDER :- 3. THE POWERS OF RECTIFICATION U/S 254 (2) CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFI ED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM THE RECORD AND NOT A MISTAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENT AND A LONG DRAWN PROCESS OF REASONING FROM POINTS ON WHICH THERE MAY BE CONCEIVABLY BE TWO OPINIONS. THE ASSESSEE IN THE GARB OF THE MISCELLANEOUS APPLICATI ON WANTS TO GET REVIEW THE DETAILED ORDER OF THE TRIBUNAL DATE D 23RD MARCH 2007 PASSED ON HIS APPEAL. WE HAVE CONFRONTE D THE ASSESSEE AT THE TIME OF HEARING THAT THESE ARE THE MISCELLANEOUS APPLICATIONS POINTING OUT ERROR IN THE ORDER OF THE ITAT PASSED ON MISCELLANEOUS APPLICATION. THESE ARE NOT MAINTA INABLE IN THE PRESENT FORM. OUR VIEW IS FORTIFIED BY THE DE CISION OF HON'BLE DELHI HIGH COURT RENDERED IN THE CASE OF ME NTHA AND ALLIED PRODUCTS PVT. LTD. VS ITAT REPORTED IN 244 I TR 470 ATLAS SHOE COMPANY VS. CIT REPORTED IN 163 TAXMAN 2 14 (DELHI). THE PRESENT APPLICATIONS ARE NOT MAINTAIN ABLE HENCE DISMISSED. 3. NOW THE ASSESSEE HAS AGAIN FILED THESE MISC. AP PLICATIONS WHICH ARE UNDER CONSIDERATION BEFORE US. WE HAVE HEARD ASS ESSEE ON THESE ISSUES IN DETAIL. WE HAVE CONSIDERED ALL THE CASE RECORDS AN D CASE LAWS RELIED UPON. 4. VIDE THESE MISC. APPLICATIONS THE ASSESSEE HAD RAISED THE ISSUES AT SL.NOS.1 TO 5 AND 9 IN ALL THESE MISC. APPLICATIONS ARE AS UNDER :- 1. AT PAGE 1 PARA 4 LINE 3 '484/3' TO BE CORRECTED AS '584/3'- KINDLY REFER TO PAGE 58 OF PAPER BOOK. 2. AT PAGE 2 PARA 2 LINE 5 '1767/6A' TO BE CORRECTED AS '1767/68'-KINDLY REFER TO PAGE 118 OF PAPER BOOK. 3. AT PAGE 5 PARA 3 LINE 3 'LETTER DATED 11/1/19 93' TO BE CORRECTED AS '11/4/1993' - KINDLY REFER TO PAGE 41 OF THE PAPER BOOK. MA NOS.28 TO 31/DEL/2011 (IN ITA NOS.1364 TO 1367/DEL./2005) 4 4. AT PAGE 5 PARA 3 LINE 14 'RS.12 LACS' TO BE CORRECTED AS 'RS.2 LACS' - KINDLY REFER TO PAGE 27 OF PAPER BOOK . 5. AT PAGE 8 PARA 4 LINE 12 'U/S 143(1)(C)' TO BE CORRECTED AS 'U/S 143(1)(A)' - KINDLY REFER TO PAGE 33 OF PAPER BOOK. 9. AT PAGE 12 PARA 4.5 LINE 5 'PAGE 46' TO BE CORRECTED AS 'PAGE 48'-KINDLY REFER TO PAGE 48 OF THE PAPER BOOK . 5. THESE MISTAKES POINTED OUT BY SL.NOS.1 TO 5 AN D 9 IN ALL THESE MISC. APPLICATIONS ARE TYPOGRAPHICAL ERROR. THEREFORE W E ALLOW THE CORRECTED FIGURE TO BE REPLACED FOR THE TYPOGRAPHICAL MISTAKEN FIGUR ES. 6. IN THE MISC. APPLICATIONS THE OTHER ISSUES RAIS ED AT SL.NOS.6 TO 8 ARE AS UNDER - 6. AT PAGE 9 PARA 4.1 LINE 3 'REQUESTING THEM T O PASS ORDER U/S 127 TRANSFERRING JURISDICTION AND THE CASE RECO RDS' TO BE CORRECTED AS 'REQUESTING THEM TO PASS ORDER TRANSFERRING ASSESSMENT RECORDS PERTAINING UP TO A.Y 1988-89' - KINDLY REFER TO PAGE 41 OF THE PAPER BOOK. 7. AT PAGE 9 PARA 4.1 LINE 6 'TRANSFER OF JURISD ICTION' TO BE CORRECTED AS 'TRANSFER OF RECORDS PERTAINING UP TO A.Y. 1988-89' - KINDLY REFER TO PAGE 39 TO 41 OF THE PAPER BOOK. 8. AT PAGE 9 PARA 4.1 LINE 7 'THE ASSESSEE WAS N OT CO- OPERATING IN THE MATTER' TO BE DELETED - KINDLY REF ER TO ALL MATERIAL BEFORE THE TRIBUNAL. 7. ON THESE ISSUES RAISED IN SL.NOS.6 TO 8 ASSESSE E SEEKING REVIEW OF ORDER DATED 23.3.2007 PASSED U/S 254(1) OF THE INCOME-TAX ACT WHICH IS NOT PERMISSIBLE IN LAW. 8. THE ISSUES RAISED AT SL.NOS.10 AND 11 ARE AS UND ER - MA NOS.28 TO 31/DEL/2011 (IN ITA NOS.1364 TO 1367/DEL./2005) 5 10. THAT M.A. NO.502 TO 505/DEL/2008 WERE DECIDED BY A COMMON ORDER ON 06-03-2009 WHEREIN AT PAGE 1-2 PAR A 2 THE THEN HON'BLE MEMBERS WERE PLEASED TO AMEND FOLLOWIN G STATEMENT OF FACT:- 'THE ASSESSMENT RECORDS IN THE CASE OF THE ASSESSEE WERE ALSO CALLED FOR BUT THE REVENUE HAS NOT BEEN ABLE TO PL ACE BEFORE US ANY RECORDS TO SHOW THAT THE A.O. BEING ACIT (I NV.) GURGAON HAS REFERRED THE MATTER OF JURISDICTION TO THE CCIT.' RECTIFICATION SOUGHT URGING TO INCORPORATE ABOVE AMENDED FACT IN THE FOLLOWING PARAS OF MAIN ORDER DATED 23-03- 2007. A. AT PAGE 2 PARA 2.1 5TH LINE 'THE A.O. REFERRED THE ISSUE OF JURISDICTION TO CC (INV.) CHANDIGARH U/S 124(3)' TO BE CORRECTED AS 'THE ASSESSMENT RECORDS IN THE CASE OF THE ASSESSEE WERE ALSO CALLED FOR BUT THE REVENUE HAS NOT BEEN ABLE TO PLACE BEFORE US ANY RECORDS TO SHOW THAT THE AO BEING AC IT (INV.) GURGAON HAS REFERRED THE MATTER OF JURISDICTION TO THE CCIT.' B. AT PAGE 8 PARA 4.1 LINE 1 'THE A.O. DID REFER THE MATTER OF JURISDICTION TO THE CCIT - HR' TO BE CORRECTED AS 'THE ASSESSMENT RECORDS IN THE CASE OF THE ASSESSEE WERE ALSO CALLED FOR BUT THE REVENUE HAS NOT BEEN ABLE TO PLACE BEF ORE US ANY RECORDS TO SHOW THAT THE AO BEING ACIT (INV.) GUR GAON HAS REFERRED THE MATTER OF JURISDICTION TO THE CCIT.' C. AT PAGE 13 PARA 4.6 9TH LINE 'IN THIS CASE T HOUGH THE A.O. HAD REFERRED THE ISSUE OF JURISDICTION TO THE CIT ' TO BE CORRECTED AS ' THE ASSESSMENT RECORDS IN THE CASE OF THE ASSESSE E ALSO CALLED FOR BUT THE REVENUE HAS NOT BEEN ABLE TO PLACE BEFORE US ANY RECORDS TO SHOW THAT THE AO BEING ACIT (INV .) GURGAON HAS REFERRED THE MATTER OF JURISDICTION TO THE CCIT .' D. AT PAGE 14 PARA 4.6 16TH LINE 'IN THIS CASE THE A.O. HAD REFERRED THE ISSUE OF JURISDICTION TO CIT' TO BE CORRECTED AS 'THE ASSESSMENT RECORDS IN THE CASE OF THE ASSESSEE WERE ALSO CALLED FOR BUT THE REVENUE HAS NOT BEEN ABLE TO PL ACE BEFORE US MA NOS.28 TO 31/DEL/2011 (IN ITA NOS.1364 TO 1367/DEL./2005) 6 ANY RECORDS TO SHOW THAT THE AO BEING ACIT (INV.) GURGAON HAS REFERRED THE MATTER OF JURISDICTION TO THE CCIT .' 11. THE HON'BLE MEMBERS CORRECTLY APPRECIATED THE S TATUTORY PROVISIONS CONTAINED IN SECTION 124 OF THE ACT AS R EPRODUCED HEREUNDER:- AT PAGE 8 PARA 4 LAST 7 LINES' THE ASSESSEE CHALL ENGED THE JURISDICTION OF ACIT (INV. CIRCLE) GURGAON WITHIN THE PERIOD PRESCRIBED U/S 124(3). IN CASE WHERE THE ASSESSEE Q UESTIONS THE JURISDICTION OF THE A.O. AND THE A.O. IS NOT SATISF IED ABOUT THE CORRECTNESS OF THE CLAIM THE A.O. IS REQUIRED TO R EFER THE MATTER OF JURISDICTION TO THE CHIEF COMMISSIONER OF INCOME TAX U/S 124(4) AND THE ISSUE OF JURISDICTION HAS TO BE DETE RMINED BY THE LATTER' AT PAGE 10 PARA 4.2 4TH LINE FROM TOP' IN THIS CA SE IT IS ADMITTED THAT THE BUSINESS AND COMMISSION INCOME HA D ACCRUED OR ARISEN AT DELHI AND THE INCOME OF THE PROPERTY H AD ACCRUED AT BHIWADI-RAJASTHAN I.E. THE ASSESSEE HAD INCOME UNDE R DIFFERENT TERRITORIAL JURISDICTIONS. THEREFORE PROVISIONS OF SUB-SECTION (5) OF SECTION 124 WILL NOT APPLY AND THE CASE OF THE A SSESSEE WILL FALL UNDER THE PROVISIONS OF SUB-SECTION (4) IN WHI CH CASE AS HELD BY THE HON'BLE HIGH COURT OF DELHI THE JURISDICTIO N HAS TO BE DETERMINED HAS TO BE RESOLVED BY THE ADMINISTRATIVE AUTHORITIES AS PRESCRIBED U/S 124(4)' AT PAGE 11 PARA 4.4 7TH LINE FROM TOP 'UNDER THE PROVISIONS OF INCOME TAX ACT 1961 ANY OBJECTION RELATING TO THE JURISDICTION HAS TO BE DECIDED BY THE CHIEF COMMISSIONER/DIRECTO R GENERAL/COMMISSIONER IN TERMS OF SUB-SECTION (2) OF SECTION 124. AT PAGE 11 PARA 4.4 14TH LINE FROM TOP 'BUT IN C ASE SUCH AN OBJECTION IS RAISED IN TIME THE A.O. IS REQUIRED T O REFER THE ISSUE OF JURISDICTION TO THE CHIEF COMMISSIONER/DIRECTOR GENERAL/COMMISSIONER FOR GETTING THE JURISDICTION D ETERMINED UNDER SUB-SECTION (4) OF SECTION 124. AT PAGE 13 PARA 4.6 1ST LINE FROM TOP ' IN ANY C ASE THE PRESENT CASE AS POINTED OUT IN PARA 4.2 EARLIER IS COVERED BY THE PROVISIONS OF SUB-SECTION (4) OF SECTION 124 AND TH E ASSESSEE HAS MA NOS.28 TO 31/DEL/2011 (IN ITA NOS.1364 TO 1367/DEL./2005) 7 RAISED OBJECTION TO THE JURISDICTION BEFORE THE A.O . IN TIME. THE JURISDICTION HAS THEREFORE TO BE DETERMINED BY THE CHIEF COMMISSIONER/DIRECTOR GENERAL/COMMISSIONER AND SUCH ORDER DETERMINING JURISDICTION IS NON APPEALABLE' 7. AS IT CAN BE SEEN FROM THE ABOVE THE ASSESSEE I S SEEKING RECTIFICATION OF THE ORDER PASSED U/S 254(1) DATED 23.3.2007 ON THE BASIS OF CERTAIN OBSERVATIONS IN THE ORDER PERTAINING TO MISC. APPLI CATIONS NO.502 TO 505/DEL/2008 WHICH HAVE ALREADY BEEN DECIDED VIDE O RDER DATED 6.3.2009. ON THE BASIS OF THOSE OBSERVATIONS VIDE WHICH THE M ISC. APPLICATIONS HAVE ALREADY BEEN DISMISSED NO RECTIFICATION CAN BE MAD E IN THE ORDER DATED 23.3.2007. THEREFORE THE MISTAKES WHICH HAVE BEEN POINTED OUT BY THE ASSESSEE DO NOT FALL WITHIN THE AMBIT OF RECTIFICAT ION AS ENVISAGED U/S 254(2) OF THE ACT. THEREFORE THESE GROUNDS OF THE ASSESS EE ARE DISMISSED. THE SO- CALLED MISTAKES POINTED OUT BY THE ASSESSEE IN PARA NOS.6 TO 8 10 & 11 ARE NOT MANIFEST ERROR OR MISTAKE WHICH COULD BE SAID AS AP PARENT ERROR. THE AMENDED VERSION AS REQUESTED IN MA.S ARE NOT THE MI STAKES APPARENT FROM THE RECORD. THEREFORE UNDER THE GARB OF MISC. APPLI CATIONS THE ASSESSEE WANTS THE REVIEW OF THE ORDER DATED 23.03.2007 WHICH IS N OT PERMISSIBLE IN LAW. 7. IN THE RESULT THE MISC. APPLICATIONS ARE PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THIS 22 ND DAY OF JULY 2011. SD/- SD/- (I.P. BANSAL) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED THE 22 ND DAY OF JULY 2011/TS MA NOS.28 TO 31/DEL/2011 (IN ITA NOS.1364 TO 1367/DEL./2005) 8 COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A) 5.CIT(ITAT) NEW DELHI. AR ITAT NEW DELHI.