Paras Pharmaceuticals Ltd.,, Ahmedabad v. The CIT-III,, Ahmedabad

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI BHAVNESH SAINI JUDICIAL MEMBER AND SHRI D.C.AGRAWAL ACCOUNTANT MEMBER DATE OF HEARING : 22/01/2010 DRAFTED ON: 22/01 /2010 MA NO.293/AHD/2009 ( ARISING OUT OF ITA NO.1393/AHD/2007 ) ASSESSMENT YEAR : 2000-01 PARAS PHARMACEUTICALS LTD. PARAS HOUSE 6-B SATTAR TALUKA SOCIETY AHMEDABAD-380 014 VS. THE CIT-III AHMEDABAD PAN/GIR NO. : AAACP 9268 J (APPLLICANT) .. (RESPONDENT) APPLICANT BY : SHRI A.C. SHAH A.R. RESPONDENT BY: SMT. NEETA SHAH SR. D.R. O R D E R PER BHAVNESH SAINI JUDICIAL MEMBER: WE HAVE HEARD LEARNED REPRESENTATIVES OF BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. 2. THE RECORD REVEALED THAT EARLIER APPEAL OF THE A SSESSEE IN ITA NO.1393/AHD/2007 WAS DECIDED BY THE TRIBUNAL VIDE O RDER DATED 24/08/2007 AND THE APPEAL OF THE ASSESSEE WAS DISMI SSED. THE ASSESSEE FILED MISCELLANEOUS APPLICATION NO.221/AHD/2007 P OINTING OUT THAT GROUND NOS.1 & 2 IN THE APPEAL WERE NOT DEALT IN T HE ORDER. THE MISCELLANEOUS APPLICATION OF THE ASSESSEE WAS ALLO WED VIDE ORDER DATED MA NO2 93/AHD/2009 (ARISING OUT OF ITA NO.1393 /AHD/2007) PARAS PHARMACEUTICALS LTD. VS. CIT ASST.YEAR 2000-01 - 2 - 04/01/2008 AND THE EARLIER ORDER OF THE TRIBUNAL DA TED 24/08/2007 WAS RE-CALLED FOR DECIDING ONLY THE ISSUE NUMBERS 1 & 2 AS STATED IN THE APPLICATION. THE REGISTRY WAS DIRECTED TO FIX THE APPEAL FOR HEARING FOR THE ABOVE LIMITED PURPOSE IN DUE COURSE. ACCORDING LY THE APPEAL OF THE ASSESSEE WAS AGAIN RE-FIXED FOR HEARING AS DIRECTED IN THE MISCELLANEOUS APPLICATION DECIDED VIDE ORDER DATED 04/01/2008. THE TRIBUNAL VIDE ORDER DATED 29/05/2009 WHILE CONSIDERING GROUND NOS .1 & 2 AND ADDITIONAL GROUND DISMISSED THE APPEAL ON THESE GROUNDS ALSO. 3. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE TRIBUNAL HAS NOT CONSIDERED THE DECISION OF HON'BLE GUJARAT HIGH COU RT IN THE CASE OF CIT VS. VIKRANT CRIMPERS (2006)282 ITR 503 (GUJ.) AND ALSO THE DECISION OF THE ITAT DELHI BENCH IN THE CASE OF POONAM RANI SI NGH 97 ITD 390(DELHI). THE LD. COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THAT THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE O F ACIT VS. RAJESH JHAVERI STOCK BROKERS (P) LTD. (2007) 291 ITR 500(S C) IS WRONGLY APPLIED IN THIS CASE. THE LD. COUNSEL FOR THE ASSE SSEE ALSO SUBMITTED THAT THE TRIBUNAL HAS RELIED UPON THE DECISION OF HON'BL E GUJARAT HIGH COURT IN THE CASE OF ADDL.CIT VS. MUKUR CORPORATION (1978)11 1 ITR 312(GUJ) MA NO2 93/AHD/2009 (ARISING OUT OF ITA NO.1393 /AHD/2007) PARAS PHARMACEUTICALS LTD. VS. CIT ASST.YEAR 2000-01 - 3 - WHILE DECIDING THE APPEAL OF THE ASSESSEE. HOWEVER THIS DECISION WAS NOT BROUGHT TO THE NOTICE OF THE ASSESSEE AT THE TIME O F HEARING OF THE APPEAL. THE LD. COUNSEL FOR THE ASSESSEE THEREFORE SUBMIT TED THAT THERE IS MISTAKE APPARENT ON RECORD AND THE ORDER OF THE TRIBUNAL DA TED 29/05/2009 MAY BE RE-CALLED. 4. ON THE OTHER HAND LEARNED DEPARTMENTAL REPRESEN TATIVE SUBMITTED THAT THERE IS NO MISTAKE APPARENT ON RECORD AND ALL THE ISSUES HAVE BEEN PROPERLY CONSIDERED BY THE TRIBUNAL INCLUDING THE D ECISIONS. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT TRIBUNAL HAS NO POWER TO REVIEW ITS EARLIER ORDER AND RELIED UPON THE DECISI ON OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF NIRANJAN & CO.LTD. VS. I TAT & ORS.(1980) 122 ITR 519(CAL.) AND THE DECISION OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF POPULAR ENGINEERING CO. VS. ITAT &AN R. (2001)248 ITR 577(P&H). THE LD. COUNSEL FOR THE ASSESSEE ALSO S UBMITTED THAT THE TRIBUNAL HAS NOT GIVEN ANY FINDING IN THE ORDER TH AT THE ASSESSMENT ORDER WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF TH E REVENUE. MA NO2 93/AHD/2009 (ARISING OUT OF ITA NO.1393 /AHD/2007) PARAS PHARMACEUTICALS LTD. VS. CIT ASST.YEAR 2000-01 - 4 - 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND MAT ERIAL AVAILABLE ON RECORD. AS NOTED ABOVE THE APPEAL OF THE ASSESSEE ON MERITS WAS DISPOSED OF BY THE TRIBUNAL VIDE ORDER DATED 24/08/ 2007. THE GROUNDS OF APPEAL AND MERITS HAVE BEEN CONSIDERED AND THE APP EAL OF THE ASSESSEE WAS DISMISSED. WHILE DISPOSING OF THE MISCELLANE OUS APPLICATION OF THE ASSESSEE VIDE ORDER DATED 04/01/2008 THE TRIBUNAL RE-CALLED ITS EARLIER ORDER DATED 24/08/2007 ONLY ON THE GROUND NOS.1 & 2 . WHEN THE APPEAL WAS RE-FIXED FOR FINAL HEARING OF GROUND NOS.1 & 2 THE ASSESSEE FILED ADDITIONAL GROUND OF APPEAL BY LETTER DATED 09/04/2 008. THE ADDITIONAL GROUND OF THE ASSESSEE WAS ADMITTED AND THE TRIBUNA L CONSIDERING THE SUBMISSIONS OF THE ASSESSEE THAT THE ORDER OF THE L EARNED CIT IS BEYOND THE TIME LIMIT OF TWO YEARS FROM THE END OF THE FIN ANCIAL YEAR DISMISSED THE ADDITIONAL GROUND OF APPEAL BY RELYING UPON THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF RAJESH JHAVERI STOCK B ROKERS P.LTD.(SUPRA). THE TRIBUNAL ALSO NOTED THAT WHEN THERE IS A FAILU RE TO MAKE PROPER ENQUIRIES IS ITSELF AN ERROR TO THE PREJUDICE OF T HE REVENUE BY RELYING UPON THE DECISION OF THE HON'BLE GUJARAT HIGH COURT IN T HE CASE OF MUKUR CORPORATION (SUPRA). IT IS SPECIFICALLY MENTIONED IN THE ORDER OF THE MA NO2 93/AHD/2009 (ARISING OUT OF ITA NO.1393 /AHD/2007) PARAS PHARMACEUTICALS LTD. VS. CIT ASST.YEAR 2000-01 - 5 - TRIBUNAL IN PARA 7 THAT GROUND NO.1 & 2 OF GROUNDS ARE NOT SPECIFICALLY ARGUED BEFORE THE TRIBUNAL. CONSIDERING THE HISTOR Y OF THE ASSESSEE AND FINDING OF THE FACT RECORDED TWICE BY THE TRIBUNAL IN TWO ORDERS AS NOTED ABOVE WE ARE OF THE VIEW THAT TRIBUNAL HAS ALREADY ARRIVED AT THE FINAL CONCLUSION AND AGAIN DISMISSED THE APPEAL OF THE AS SESSEE LATER ON BY THE SUBSEQUENT ORDER DATED 29/05/2009. WHETHER THE DE CISION OF HON'BLE SUPREME COURT IN THE CASE OF RAJESH JHAVERI STOCK B ROKERS (P) LTD.(SUPRA) IS APPLICABLE OR NOT SHOULD NOT BE A SUBJECT MATTER FOR CONSIDERING THE PRESENT MISCELLANEOUS APPLICATION. SIMILARLY WHE N THE TRIBUNAL HAS APPLIED THE DECISION OF THE HON'BLE GUJARAT HIGH CO URT IN THE CASE OF MUKUR CORPORATION (SUPRA) THERE IS NO APPARENT MIS TAKE IN APPLYING ANY CASE LAW IN SUPPORT OF THE FINDING GIVEN BY THE TRI BUNAL. THERE IS NO NEED TO QUOTE ANY CASE LAW TO THE PARTIES WHILE PASSING JUDICIAL ORDER BECAUSE DECISIONS OF HIGH COURT AND SUPREME COURT ARE BIND ING ON THE COURTS TRIBUNAL AS WELL AS THE PARTIES. IN THIS VIEW O F THE MATTER WE DO NOT FIND THERE WAS ANY MISTAKE APPARENT ON RECORD IN THIS MA TTER. THE SCOPE OF THE SECOND ROUND MISCELLANEOUS PROCEEDINGS BEFORE THE TRIBUNAL WAS LIMITED ONLY TO THE GROUND NOS.1 & 2 AS NOTED IN THE ORDER DATED 04/01/2008 ON MA NO2 93/AHD/2009 (ARISING OUT OF ITA NO.1393 /AHD/2007) PARAS PHARMACEUTICALS LTD. VS. CIT ASST.YEAR 2000-01 - 6 - MISCELLANEOUS APPLICATION ON WHICH THE ASSESSEE CH OSE NOT TO ARGUE BEFORE THE TRIBUNAL. THEREFORE SUBMISSIONS OF THE LD. C OUNSEL FOR THE ASSESSEE THAT THE DECISIONS CITED BY THE ASSESSEE AT THE BAR HAVE NOT BEEN TAKEN INTO CONSIDERATION ARE NOT TENABLE AND ARE LIABLE TO BE REJECTED. IT IS SETTLED LAW THAT TRIBUNAL HAS NO POWER TO TAKE A CONTRARY V IEW AGAINST THE VIEW ALREADY TAKEN WHILE DECIDING THE APPEAL. WE RELY UPON THE DECISION OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. ANAMIKA BUILDERS (2001)251 ITR 585(CAL.). IT IS ALSO SETTLED LAW THA T ONCE A PARTICULAR VIEW IS TAKEN BY THE TRIBUNAL THE SAME COULD NOT BE REV IEWED WHILE EXERCISING POWER U/S.254(2) OF THE I.T. ACT 1961. WE ARE FO RTIFIED IN OUR VIEW BY THE JUDGEMENTS OF DELHI HIGH COURT IN THE CASE OF J .N. SAHNI VS. INCOME TAX APPELALTE TRIBUNAL 257 ITR 16 (DELH.) DECISION OF HON'BLE ANDHRA PRADESH HIGH COURT IN THE CASE OF CIT VS. IDEAL ENG INEERS 251 ITR 743(A.P.) AND JUDGMENT OF MADHYA PRADESH HIGH COURT IN THE CASE OF AGARWAL WAREHOUSING & LEASING LTD. VS. CIT 257 ITR 235(M.P.). 6. SINCE IN THIS CASE THE ISSUES HAVE ALREADY BEEN DECIDED BY THE TRIBUNAL ON MERIT WE DO NOT FIND ANY JUSTIFICATI ON TO INTERFERE IN THIS CASE. THE POWERS OF THE TRIBUNAL U/S.254(2) OF TH E I.T. ACT 1961 ARE MA NO2 93/AHD/2009 (ARISING OUT OF ITA NO.1393 /AHD/2007) PARAS PHARMACEUTICALS LTD. VS. CIT ASST.YEAR 2000-01 - 7 - LIMITED TO THE EXTENT TO AMEND ITS ORDER IF THERE APPEARS ANY MISTAKE APPARENT ON RECORD. IN THIS CASE THE ASSESSEE HAS ALREADY EXHAUSTED REMEDY IN TWO ROUNDS OF PROCEEDINGS BEFORE THE TRIB UNAL. THERE SHOULD BE END OF LITIGATION SOMEWHERE BECAUSE TWICE THE TR IBUNAL DECIDED APPEAL ON MERIT CONSIDERING SUBMISSIONS OF ASSESSEE. TH E MISCELLANEOUS APPLICATION IS DEVOID OF ANY MERIT AND IS ACCORDIN GLY DISMISSED. 7. AS A RESULT MISCELLANEOUS APPLICATION STANDS DISMISSED. ORDER DICTATED AND PRONOUNCED IN THE OPEN COURT ON 22 ND JANUARY-2010. SD/- SD/- ( D.C.AGRAWAL ) ( BHAVNESH SAINI ) ACCOUNTANT MEMBER JUDICIAL M EMBER AHMEDABAD; DATED 22/01/2010 T.C. NAIR COPY OF THE ORDER FORWARDED TO : 1. THE APPLICANT-ASSESSEE. 2. THE RESPONDENT. 3. THE CIT CONCERNED. 4. THE LD. CIT(APPEAL S)-III AHMEDABAD 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD