ACIT, Thanjavur v. Sri S.N.M.Ismail, Thanjavur

MA 281/CHNY/2009 | 1999-2000
Pronouncement Date: 13-01-2011 | Result: Dismissed

Appeal Details

RSA Number 28121724 RSA 2009
Assessee PAN AAFFA9280A
Bench Chennai
Appeal Number MA 281/CHNY/2009
Duration Of Justice 1 year(s) 6 month(s) 25 day(s)
Appellant ACIT, Thanjavur
Respondent Sri S.N.M.Ismail, Thanjavur
Appeal Type Miscellaneous Application
Pronouncement Date 13-01-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 13-01-2011
Date Of Final Hearing 07-01-2011
Next Hearing Date 07-01-2011
Assessment Year 1999-2000
Appeal Filed On 18-06-2009
Judgment Text
IN THE INCOMETAX APPELLATE TRIBUNAL:D- BENCH:CHENNA I (BEFORE SHRI HARI OM MARATHA JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE. ACCOUNTANT MEMBER) MA NO.281/MDS/09 ITA NO. 1489/MDS/06 ASSESSMENT YEAR 1999-2000 THE ACIT CIR.I. THANJAVUR VS SHRI S.N.M.ISMAIL 37/2 RAMASAMY PETTAL ST. M.CHAVADI THANJAVUR PAN AAFFA9280A (APPLICANT) (RESPONDENT) MA NO.182/MDS/10 ITA NO. 1489/MDS/06 ASSESSMENT YEAR 1999-2000 & SHRI S.N.M. ISMAIL THANJAVUR (APPLICANT) DEPARTMENT BY: ASSESSEE BY: VS. THE ACIT CIR.I THANJAVUR (RESPONDENT) SHRI SHAJI P.JACOB. SHRI N.DEVANATHAN ORDER PER ABRAHAM P.GEORGE ACCOUNTANT MEMBER THESE ARE CROSS-MISCELLANEOUS PETITIONS BY THE DEPA RTMENT AND THE ASSESSEE AGAINST THE ORDER OF THIS TRIBUNAL DATED 18-09-2008. 2. GRIEVANCE OF THE DEPARTMENT IS THAT THIS TRIBUN AL HAD QUASHED THE ORDER OF THE CIT UNDER SEC.263 OF THE INCOME-TAX AC T 1961 (THE ACT FOR MA 281 & 182/MDS/10 2 SHORT) AGAINST WHICH ASSESSEE HAD FILED THE APPEAL CONSIDERING SUCH ORDER TO HAVE BEEN PASSED FOR ASST. YEAR 1999-2000. ACCOR DING TO THE REVENUE THE ORDER UNDER SECTION 263 OF THE ACT WAS IN FACT FOR ASST. YEAR 2001-02 AND THE CIT HAD CORRECTED THE ASST. YEAR IN HIS ORD ER PASSED UNDER SEC.154 OF THE ACT ON 15-09-2006. THEREFORE ACCORD ING TO THE REVENUE THERE WAS NO ORDER WHATSOEVER OF THE CIT FOR THE IM PUGNED ASST. YEAR WHICH COULD HAVE BEEN QUASHED AND ON WHICH ANY APPE AL COULD HAVE BEEN FILED BY THE ASSESSEE. 3. AS AGAINST THIS ASSESSEE IN HIS MISC. PETITION SUBMITTED THAT THE ASST. YEAR WAS BY ERROR MENTIONED IN THE ORDER OF T HE TRIBUNAL AS 1999- 2000 WHEREAS THE ACTUAL ASST. YEAR WAS 2001-02 IN VIEW OF THE RECTIFICATION ORDER PASSED BY THE CIT UNDER SEC. 15 4 OF THE ACT AS MENTIONED IN THE PRECEDING PARA. 4. BOTH PARTIES ARGUED VEHEMENTLY IN SUPPORT OF THE IR RESPECTIVE MISC. PETITIONS. WE HAVE VERIFIED THE ORDER OF THE TRIBUN AL AS WELL AS HEARD THE RIVAL CONTENTIONS. AVERMENT OF THE LD. DR IS THAT A SSESSEE HAD NOT BROUGHT TO THE ATTENTION OF THE TRIBUNAL THE FACT THAT THE ORDER UNDER SEC. 263 ON WHICH HE HAD FILED APPEAL BEFORE THIS TRIBUNAL PER TAINED TO ASST. YEAR 2001-02. ACCORDING TO HIM MENTIONING OF THE YEAR A S A. Y 1999-2000 IN THE SAID ORDER OF LD. CIT WAS ONLY AN ERROR WHICH W AS RECTIFIED BY HIM THROUGH HIS ORDER PASSED UNDER SEC. 154 OF THE ACT ON 15-09-2006. MA 281 & 182/MDS/10 3 THEREFORE ACCORDING TO HIM THERE WAS MIS-REPRESEN TATION BY THE ASSESSEE ON FACTS AND THE TRIBUNAL HAD WENT AHEAD ADJUDICAT ING ON THE VALIDITY OF A NON-EXISTING ORDER. AS AGAINST THIS AS PER ASSESSE E THE MENTIONING IN THE ORDER AS ASST. YEAR 1999-2000 WAS ONLY A MISTAKE IN THE ORDER OF THE TRIBUNAL WHICH WAS RECTIFIABLE. 4. THE FINDINGS OF THE TRIBUNAL ARE REPRODUCED HERE UNDER: WE HAVE CONSIDERED THE RIVAL SUBMISSIONS IN THE LI GHT OF MATERIAL ON RECORD. IT IS SEEN THAT THE CIT-II TIRUCHIRAPPALLI HAD GIVEN A CLEAR FINDING IN HIS ORDER U/S 264 DATED 03-03-2005 THAT THE IMPUGNED LIABILITY WAS ALLOWABLE FOR A.Y 2001-02. IN THE CON SEQUENTIAL ORDER PASSED BY THE AO ON 14-07-2005 TOO IT WAS CLEARLY NOTED THAT THE IMPUGNED CLAIM WOULD BE DECIDED IN A.Y 2001-02. IT IS ABUNDANTLY CLEAR THAT IN AY 1999-00 THE IMPUGNED LIABILITY WA S NOT ALLOWED BY THE AO. MANIFESTLY THEREFORE THE ORDER OF CIT OS D TIRUCHIRAPPALLI PASSED U/S 263 ON 31-03-2006 DIRECTING THE AO TO A DD BACK ` 13 14 810/- BECAME UNSUSTAINABLE. THERE COULD BE N O QUESTION OF ADDING BACK AN AMOUNT WHICH WAS NOT ALLOWED BY THE AO IN THE FIRST INSTANCE. THE ORDER OF CIT U/S 263 DATED 31-3-2006 IS THEREFORE QUASHED. SO THE CRUX OF THE ORDER OF THE TRIBUNAL WAS THAT T HERE BEING A REVISION DONE BY THE CIT UNDER SEC.264 OF THE ACT THERE COU LD NOT HAVE BEEN A FURTHER REVISION UNDER SEC. 263 OF THE ACT FOR THE SAME YEAR. IF WE LOOK AT THE ORDER DATED 03-03-2005 OF THE CIT UNDER SEC. 26 4 OF THE ACT IT IS CLEAR THAT SUCH ORDER PERTAINED TO ASST. YEARS 1999-2000 2000-01 AND 2001-02. THEREFORE IN RESPECT OF THESE THREE ASST. YEARS TH E CIT COULD NOT HAVE PASSED FURTHER ORDERS ON THE SAME ISSUE UNDER SEC. 263 OF THE ACT. THE ISSUE INVOLVED WAS WHETHER MUNICIPAL CHARGES OF ` 13 14 810/- COULD BE MA 281 & 182/MDS/10 4 ALLOWED OR NOT. IN OUR OPINION THERE WAS NO ERROR IN THE ORDER OF THE TRIBUNAL IN THE CRITICAL ASPECT OF ITS FINDING. NO DOUBT IF THE AO HAD NOT FOLLOWED THE DIRECTIONS OF THE CIT GIVEN UNDER SEC. 264 OF THE ACT THEN APPROPRIATE PROCEEDINGS COULD HAVE BEEN TAKEN BY HI M FOR ENSURING ADHERENCE TO SUCH ORDERS BY THE AO FOR ENSURING TH AT HIS ORDERS WERE COMPLIED WITH. ASSESSEE HAD FILED THE APPEAL FOR AS ST. YEAR 1999-2000 AND THE TRIBUNAL HAVING GIVEN A DECISION FOR SUCH ASST. YEAR BASED ON A PRIMARY REASON THAT THE ISSUE WAS DEALT WITH EARLIE R BY THE CIT UNDER SEC. 264 OF THE ACT WE CANNOT SAY THAT THERE WAS ANY MI STAKE APPARENT IN THE ORDER OF THE TRIBUNAL WHICH IS AMENABLE TO A RECTI FICATORY PROCEEDING UNDER SEC. 254(2) OF THE ACT. ASSESSEE ALSO COULD NOT BE ALLOWED TO CHANGE THE ASST. YEAR INVOLVED IN THE APPEAL BY FILING A MISC. PETITION SINCE FORM NO.36 CLEARLY MENTIONS THE ASSESSMENT YEAR AS ASST. YEAR 1999-2000. THUS WE FIND NO MERIT IN THE MISC. PETITIONS FILED BY BOTH THE PARTIES. 5. IN THE RESULT MISC. PETITIONS OF THE REVENUE AS WELL AS ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 13-01-2011. SD/- SD/- ( HARI OM MARATHA) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI: 13TH JANUARY 2011 NBR MA 281 & 182/MDS/10 5 CC: ASSESSEE/ ASSESSING OFFICER/ CIT(A)/ CIT/ D .R/ GUARD FILE.