ITO, Wd-36(2), Kolkata, Kolkata v. Surat Prakash Brahmabhatt, Kolkata

MA 56/KOL/2017 | 2004-2005
Pronouncement Date: 10-11-2017 | Result: Allowed

Appeal Details

RSA Number 5623524 RSA 2017
Assessee PAN ADPPB3047A
Bench Kolkata
Appeal Number MA 56/KOL/2017
Duration Of Justice 6 month(s) 22 day(s)
Appellant ITO, Wd-36(2), Kolkata, Kolkata
Respondent Surat Prakash Brahmabhatt, Kolkata
Appeal Type Miscellaneous Application
Pronouncement Date 10-11-2017
Appeal Filed By Department
Tags No record found
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 10-11-2017
Assessment Year 2004-2005
Appeal Filed On 18-04-2017
Judgment Text
SMC IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI N.V.VASUDEVAN JUDICIAL MEMBER AND SHRI WASEEM AHMED ACCOUNTANT MEMBER (MISC. APPLICATION) M.ANO.56/KOL/2017 (ARISING OUT MA NO.116/KOL/2015 IN C/W ITA NO.80/KOL/2014) / ASSESSMENT YEAR:2004-05 INCOME TAX OFFICER WARD-36(2) KOLKATA / V/S . SURAT PRAKASH BRAHMBHATT C/O AGRWAL & ASSOCIATES 7 BENTINCK STREET 2ND FLOOR KOLKATA-001 [ PAN NO.ADPPB 3047 A ] (ORIGINAL APPELLANT) (ORIGINAL R ESPONDENT) (APPLICANT) .. (RESPONDENT) / BY APPLICANT SHRI SALONG YADEN ADDL. CIT-SR-DR !' / BY RESPONDENT SHRI RAJKUMAR AGARWAL CA / DATE OF HEARING 22-09-2017 / DATE OF PRONOUNCEMENT 10-11-2017 / ORDER PER WASEEM AHMED ACCOUNTANT MEMBER:- BY WAY THIS MISCELLANEOUS APPLICATION (MA) THE REVE NUE IS SEEKING TO RECALL THE MA ORDER OF TRIBUNAL PASSED IN MA NO. 11 6/KOL/2015 DATED 18-03- 2016 IN CONNECTION WITH ITA NO.80/KOL/2014. 2. BEFORE US LD. DR SUBMITTED THAT THE HON'BLE TRI BUNAL HAS DISMISSED THE APPEAL FILED BY THE REVENUE BY OBSERVING THE FA CT THAT THE TAX EFFECT IN THE INSTANT CASE IS LESS THAN 4 LAKH. THUS THE APPEAL FILED BY REVENUE IS NOT MAINTAINABLE AS PER THE INSTRUCTION NO. 5/2014 ISSU ED BY CBDT DATED 10.07.2014 WHEREIN THE MONETARY LIMIT WAS FIXED FO R 4 LAKH FOR FILING THE APPEAL BEFORE TRIBUNAL. HOWEVER THERE WERE CERTAIN EXCEPTIONS PROVIDED IN MA NO56/KOL/2017 ITO WD. 36(2) KOL VS. S.P. BRAHMBHATT PA GE 2 THE IMPUGNED CBDT INSTRUCTION WHEREIN THE MONETARY LIMIT OF TAX FOR EFFECT OF 4 LACS NEED NOT TO BE CONSIDERED. ONE OF SUCH EXCEP TION WAS REVENUE AUDIT OBJECTION. THUS LD. DR SUBMITTED THAT THE INSTANT CASE INVOLVES REVENUE AUDIT OBJECTION WHICH WAS DULY ACCEPTED BY THE DEPARTMENT . THEREFORE APPEAL FILED BY THE REVENUE CANNOT BE DISMISSED ON THE GROUND OF LOW TAX EFFECT. LD. DR IN SUPPORT OF ITS CLAIM HAS FILED COPY OF REVENUE A UDIT OBJECTION AS WELL AS ACCEPTANCE OF THE SAME BY THE DEPARTMENT. ACCORDING LY LD. DR SUBMITTED THAT THE APPARENT MISTAKE HAS OCCURRED IN THE ORDER OF HONBLE ITAT AND PRAYED BEFORE THE BENCH TO RECALL THE ORDER U/S. 25 4(2) OF THE INCOME TAX ACT. ON THE OTHER HAND LD. AR SUBMITTED THAT AT THE TIM E OF HEARING THE HON'BLE BENCH SPECIFICALLY RAISED THE ISSUE TO LD. DR TO CL ARIFY WHETHER THE IMPUGNED CASE FALLS IN ANY OF THE EXCEPTION CATEGORY PROVIDE D IN INSTRUCTION NO.5/2014 ISSUED BY CBDT DATED 10.07.2014. TO THIS POINT LD. DR FAILED TO BRING ANY EVIDENCE SUGGESTING THAT THE IMPUGNED CASE FALLS UN DER THE EXCEPTION CATEGORY AS SPECIFIED BY THE CBDT IN INSTRUCTION NO .5/2014 ISSUED DATED 10.07.2014. THE LD AR FURTHER SUBMITTED THAT THE HON'BLE TRIBUN AL HAS ALREADY DISMISSED THE MA (MA 116/KOL/2015) ARISING OUT ITA NO. 80/KOL /2014 FILED BY REVENUE ON THE GROUND THAT NO AUDIT OBJECTION WAS PRODUCED BY DEPARTMENT. THUS THE PRESENT MA NO.56/KOL/2017 ARISING OUT MA NO.116/KOL /2015 IN CONNECTION WITH ITA NO.80/KOL/2014 SHOULD NOT BE ACCEPTED. THE REFORE THE MA FILED BY REVENUE SHOULD BE DISMISSED IN LIMINE . 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE UNDISPUT ED FACT ARE THAT THE PRESENT APPEAL FILED BY REVENUE WAS DISMISSED BY THE TRIBUN AL ON THE GROUND OF LOW TAX EFFECT IN PURSUANCE TO INSTRUCTION NO.5/2014 IS SUED BY CBDT DATED 10.07.2014. 4. AGAINST THIS ORDER OF HONBLE TRIBUNAL REVENUE PREFERRED MA ON THE GROUND THAT IMPUGNED CASE FALLS UNDER THE EXCEPTION CATEGORY I.E. REVENUE MA NO56/KOL/2017 ITO WD. 36(2) KOL VS. S.P. BRAHMBHATT PA GE 3 AUDIT OBJECTION. ACCORDINGLY LD. DR PRAYED TO RECA LL THE ORDER PASSED BY TRIBUNAL. HOWEVER LD. DR FAILED TO BRING ANY EVIDE NCE SUGGESTING THAT THE PRESENT MA (116/KOL/2015) INVOLVED REVENUE AUDIT OB JECTION. THUS THE MA NO. 116/KOL/2015 FILED BY REVENUE WAS DISMISSED BY THE TRIBUNAL ON 18.03.2016. 5. SUBSEQUENTLY REVENUE AGAIN FILED THE PRESENT MA NO.56/KOL/2017 REGARDING AUDIT OBJECTION AND ITS ACCEPTANCE BY THE DEPARTMENT WHICH IS PLACED ON RECORD. LD. DR FURTHER SUBMITTED THAT THE RE IS APPARENT MISTAKE IN THE ORDER PASSED BY TRIBUNAL AND THEREFORE SAME SHO ULD BE RECALLED U/S 254(2) OF INCOME TAX APPELLATE RULES 1963. 6. AFTER CONSIDERING THE FACTS IN TOTALITY WE FIND THAT THERE IS NO AMBIGUITY THAT THE PRESENT MA FILED BY REVENUE ON THE GROUND THAT AN AUDIT OBJECTION WAS RAISED AND SAME WAS ACCEPTED BY DEPARTMENT. THU S IN OUR CONSIDERED VIEW MERELY THE REVENUE FAILED TO PRODUCE THE COPY OF REVENUE AUDIT OBJECTION BEFORE THE TRIBUNAL AT THE RELEVANT TIME DOES NOT D ISENTITLE IT TO RECALL THE ORDER PASSED BY TRIBUNAL U/S 254(2) OF THE ACT. IN HOLDIN G SO WE FIND SUPPORT AND GUIDANCE FROM THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LIMITED VS. CIT REPORTED IN 295 ITR 466 (SC) WHEREIN THE HON'BLE COURT HAS HELD UNDER:- THE PURPOSE BEHIND ENACTMENT OF S. 254(2) IS BASED ON THE FUNDAMENTAL PRINCIPLE THAT NO PARTY APPEARING BEFORE THE TRIBUNAL BE IT AN ASSESSEE OR THE DEPARTMENT SHOULD SUFFER ON ACCOUNT OF ANY MISTAKE COMMITTED B Y THE TRIBUNAL. THIS FUNDAMENTAL PRINCIPLE HAS NOTHING TO DO WITH THE INHERENT POWER S OF THE TRIBUNAL. ONE OF THE IMPORTANT REASONS FOR GIVING THE POWER OF RECTIFICA TION TO THE TRIBUNAL IS TO SEE THAT NO PREJUDICE IS CAUSED TO EITHER OF THE PARTIES APPEAR ING BEFORE IT BY ITS DECISION BASED ON A MISTAKE APPARENT FROM THE RECORD. IN VIEW OF THE ABOVE PROPOSITION WE HOLD THAT AN A PPARENT MISTAKE HAS OCCURRED IN THE ORDER PASSED BY TRIBUNAL WHICH NEED S TO BE RECTIFIED. ACCORDINGLY WE RECALL THE ORDER PASSED DATED 18.03 .2016 AFTER KEEPING IN VIEW OF THE PROVISION OF RULE 24 OF THE APPELLATE T RIBUNAL RULES 1963 AND RESTORE THE APPEAL AT ITS ORIGINAL NUMBER. THE REGI STRY IS DIRECTED TO FIX THE MA NO56/KOL/2017 ITO WD. 36(2) KOL VS. S.P. BRAHMBHATT PA GE 4 SAME FOR HEARING BEFORE REGULAR BENCH IN DUE COURSE UNDER INTIMATION OF BOTH THE PARTIES. 7. IN THE RESULT MA OF REVENUE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10/11/2017 . SD/- SD/- ( () ( () (N.V.VASUDEVAN) (WASEE M AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA *DKP *- 10/11 /201 7 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-ITO WD-36(2) KOLKATA 2. !' /RESPONDENT-SURAT P. BRAHMBHATT C/O AGARWAL & ASSO CIATES 7 BENTINCK ST 2 ND FLOOR.KOLAKTA-700001 3. 5 6 / CONCERNED CIT 4. 6- / CIT (A) 5. !5 5 KOLKATA / DR ITAT KOLKATA 6. / GUARD FILE. BY ORDER/ /TRUE COPY/ SR. PRIVATE SECRETARY HEAD OF OFFICE/DDO 5