SHREE CHANGDEO SUGAR MILLS LTD, v. JT CIT SP RG. 13,

MA 494/MUM/2010 | 1996-1997
Pronouncement Date: 18-11-2011 | Result: Dismissed

Appeal Details

RSA Number 49419924 RSA 2010
Assessee PAN AAACS8401N
Bench Mumbai
Appeal Number MA 494/MUM/2010
Duration Of Justice 1 year(s) 3 month(s) 15 day(s)
Appellant SHREE CHANGDEO SUGAR MILLS LTD,
Respondent JT CIT SP RG. 13,
Appeal Type Miscellaneous Application
Pronouncement Date 18-11-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 18-11-2011
Assessment Year 1996-1997
Appeal Filed On 03-08-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B MUMBAI BEFORE SHRI B.R.MITTAL JM AND SHRI R.S.SYAL AM M.A.NO.494/MUM/2010 (ARISING OUT OF ITA NO.380/MUM/2002 : ASST. YEAR 19 96-97) M/S.SHREE CHANGDEO SUGAR MILLS LIMITED N.M.WADIA BUILDING 123 M.G.ROAD FORT MUMBAI 400 023. PAN : AAACS8401N. THE JOINT COMMISSIONER OF INCOME-TAX SPECIAL RANGE 13 MUMBAI. (APPLICANT) VS. (RESPONDENT) APPLICANT BY : SHRI ADITYA KUMAR RESPONDENT BY : SHRI D.S.SUNDER SINGH DATE OF HEARING : 18.11.2011 DATE OF PRONOUNCEMENT : 18.11.2011 O R D E R PER R.S.SYAL AM : THIS MISCELLANEOUS APPLICATION U/S.254(2) OF THE IN COME-TAX ACT 1961 HAS BEEN MOVED BY THE ASSESSEE PRAYING FOR THE RECTIFIC ATION OF THE ORDER OF THE TRIBUNAL DATED 22.03.2010 IN ITA NO.380/MUM/2002. 2. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED T HAT THE ASSESSMENT ORDER PASSED IN THIS CASE U/S 143(3) WAS INVALID ON THE Q UESTION OF ISSUANCE OF NOTICE U/S 143(2). IT HAS BEEN STATED IN THE MISCELLANEOUS APP LICATION THAT ALTHOUGH IT WAS INADVERTENTLY NOT RAISED BY THE APPLICANT BUT WHICH WAS APPARENTLY CLEAR FROM THE FACE OF THE ASSESSMENT ORDER SHOULD HAVE BEEN TAKE N INTO CONSIDERATION. THE LD. AR ARGUED THAT IF INVALIDITY IS TAKEN INTO CONSIDER ATION THE ASSESSMENT ORDER BECOMES NULL AND VOID AND RESULTANTLY THE PROCEEDIN G FLOWING FROM SUCH ORDER ARE ALSO NULLITY. IN THE OPPOSITION THE LEARNED DEPARTM ENTAL REPRESENTATIVE SUPPORTED THE IMPUGNED ORDER. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS NOTICED THAT THE IMPUGNED ORDER HAS B EEN PASSED PURSUANT TO THE MA NO.494/MUM/2010 M/S.SHREE CHANGDEO SUGAR MILLS LIMITED. 2 JUDGMENT OF THE HONBLE BOMBAY HIGH COURT DATED 30. 11.2009 FROM THE CROSS APPEALS FILED BY THE ASSESSEE AS WELL AS THE REVENU E AGAINST THE EARLIER ORDER OF THE TRIBUNAL DATED 18.08.2003. THE HONBLE BOMBAY HIGH COURT DIRECTED THE TRIBUNAL TO TAKE A FRESH DECISION ON ISSUES SPECIFIED IN THE JUDGMENT. IN SO FAR AS THE APPEAL OF THE ASSESSEE WAS CONCERNED THE HONBLE HIGH COU RT SET OUT FOUR QUESTIONS FOR FRESH ADJUDICATION AND DECISION BY THE TRIBUNAL WH ICH HAVE BEEN REPRODUCED ON PAGE 2 OF THE IMPUGNED ORDER. THEREAFTER IN PARA 4 OF THE IMPUGNED ORDER IT HAS BEEN CATEGORICALLY MENTIONED THAT ONLY FOUR ISSUES AT SERIAL NO. (A) TO (D) SURVIVE FOR CONSIDERATION. THESE FOUR ISSUES HAVE BEEN THOROUG HLY DISCUSSED IN THE AFORESAID ORDER OF THE TRIBUNAL. 4. THE ASSESSEE THROUGH THE PRESENT MISCELLAN EOUS APPLICATION IS CONTENDING THAT THE ASSESSMENT ORDER PASSED BY THE AO WAS ITSE LF INVALID AND HENCE THE ENTIRE PROCEEDINGS SHOULD HAVE BEEN QUASHED. THIS ISSUE W AS NEITHER TAKEN UP BEFORE THE TRIBUNAL IN ORIGINAL ROUND NOR THE HONBLE HIGH COU RT REMITTED THIS MATTER TO THE FILE OF TRIBUNAL FOR A FRESH CONSIDERATION AND DECI SION. WE ARE UNABLE TO APPRECIATE AS TO HOW A FRESH ISSUE CAN BE RAISED IN THE MISCEL LANEOUS APPLICATION MORE SPECIFICALLY WHEN THE TRIBUNAL HAS PASSED THE ORDER PURSUANT TO THE JUDGMENT OF THE HONBLE HIGH COURT ON THE SPECIFIC ISSUES SENT BACK TO IT. 5. HERE IT IS IMPORTANT TO NOTE THAT THE SCOPE OF SECTION 254(2) IS LIMITED IN RECTIFYING THE MISTAKES APPARENT FROM RECORD. SUCH MISTAKE MUST BE GLARINGLY APPARENT. IF CERTAIN LONG DRAWN PROCESS OF REASONIN G IS REQUIRED TO PROVE A POINT SUCH ISSUE BECOMES DEBATABLE AND GOES OUTSIDE THE A MBIT OF SECTION 254(2). PRESENTLY WE ARE CONFRONTED WITH A MISCELLANEOUS A PPLICATION BY THE ASSESSEE BY WHICH IT IS ARGUED THAT A PARTICULAR GROUND WHICH W AS NOT TAKEN BY THE ASSESSEE AND THE HONBLE HIGH COURT HAS ALSO NOT REQUIRED THE TR IBUNAL TO ADJUDICATE ON THIS ISSUE SHOULD BE NOW TAKEN UP IN THE MISCELLANEOUS PETITION AND DECIDED. IT IS A CLEAR CUT CASE OF THE ASSESSEE GOING MUCH BEYOND TH E KEN OF SECTION 254(2). IN MA NO.494/MUM/2010 M/S.SHREE CHANGDEO SUGAR MILLS LIMITED. 3 SUPPORT OF HIS CONTENTION THE LEARNED A.R. RELIED ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN KIRAN SINGH V. CHAMAN PASWAN [(1955) 1 SCR 117] IN WHICH IT HAS BEEN HELD THAT A DECREE PASSED BY THE COURT WIT HOUT JURISDICTION IS NULLITY AND THAT ITS INVALIDITY CAN BE SET UP WHENEVER AND WHER EVER. IT IS BEYOND OUR COMPREHENSION AS TO HOW THIS JUDGMENT ADVANCES THE ASSESSEES CASE IN THE CONTEXT OF RECTIFICATION PROCEEDINGS. FOR A RECTIFICATION THERE MUST BE PRIMARILY A MISTAKE APPARENT FROM RECORD. NON-RENDERING OF A DECISION ON A POINT NEITHER RAISED NOR ARGUED BY ANY OF THE PARTIES CAN BE NO STRETCH OF IMAGINATION BE CONSIDERED AS A MISTAKE APPARENT FROM RECORD. IN OUR CONSIDERED OPI NION THERE IS NO MISTAKE MUCH LESS MISTAKE APPARENT FROM RECORD REQUIRING ANY REC TIFICATION IN THE IMPUGNED ORDER. 6. IN THE RESULT THE MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 18 TH DAY OF NOVEMBER 2011. SD/- SD/- (B.R.MITTAL) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 18 TH NOVEMBER 2011. DEVDAS* COPY TO : 1. THE APPLICANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) II MUMBAI. 5. THE DR/ITAT MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI.