Padam Prakash (HUF),, Meerut v. DCIT,, Meerut

MA 57/DEL/2010 | 1995-1996
Pronouncement Date: 07-01-2011 | Result: Dismissed

Appeal Details

RSA Number 5720124 RSA 2010
Bench Delhi
Appeal Number MA 57/DEL/2010
Duration Of Justice 11 month(s) 17 day(s)
Appellant Padam Prakash (HUF),, Meerut
Respondent DCIT,, Meerut
Appeal Type Miscellaneous Application
Pronouncement Date 07-01-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted E
Tribunal Order Date 07-01-2011
Assessment Year 1995-1996
Appeal Filed On 21-01-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL DELHI SPECIAL BENCH E : NEW DELHI DELHI SPECIAL BENCH E : NEW DELHI DELHI SPECIAL BENCH E : NEW DELHI DELHI SPECIAL BENCH E : NEW DELHI BEFORE SHRI G.E.VEERABHADRAPPA VICE PRESIDENT SHRI I.P.BANSAL JUDICIAL MEMBER AND SHRI A.K.GARODIA ACCOUNTANT MEMBER MISCELLANEOUS APPLICATION NO.57/DEL/2010 MISCELLANEOUS APPLICATION NO.57/DEL/2010 MISCELLANEOUS APPLICATION NO.57/DEL/2010 MISCELLANEOUS APPLICATION NO.57/DEL/2010 (IN M.A.NO.402/DE (IN M.A.NO.402/DE (IN M.A.NO.402/DE (IN M.A.NO.402/DEL/2009) L/2009) L/2009) L/2009) (IN M.A.NO.05/DEL/2008) (IN M.A.NO.05/DEL/2008) (IN M.A.NO.05/DEL/2008) (IN M.A.NO.05/DEL/2008) (IN ITA NO.2964/DEL/2002) (IN ITA NO.2964/DEL/2002) (IN ITA NO.2964/DEL/2002) (IN ITA NO.2964/DEL/2002) ASSESSMENT YEAR : 1995 ASSESSMENT YEAR : 1995 ASSESSMENT YEAR : 1995 ASSESSMENT YEAR : 1995 - -- - 96 9696 96 SHRI PADAM PRAKASH (HUF) SHRI PADAM PRAKASH (HUF) SHRI PADAM PRAKASH (HUF) SHRI PADAM PRAKASH (HUF) 21 SHIVAJI ROAD 21 SHIVAJI ROAD 21 SHIVAJI ROAD 21 SHIVAJI ROAD MEERUT. MEERUT. MEERUT. MEERUT. VS. VS. VS. VS. INCOME TAX OFFICER INCOME TAX OFFICER INCOME TAX OFFICER INCOME TAX OFFICER WARD WARD WARD WARD- -- -2(1) 2(1) 2(1) 2(1) MEERUT. MEERUT. MEERUT. MEERUT. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SANJAY MALI K ADVOCATE. RESPONDENT BY : SHRI JAYANT MISRA CIT - DR. ORDER ORDER ORDER ORDER PER I.P.BANSAL JM : PER I.P.BANSAL JM : PER I.P.BANSAL JM : PER I.P.BANSAL JM : VIDE MISCELLANEOUS APPLICATION FILED AS ABOVE THE ASSESSEE HAS SOUGHT RECALL OF THE ORDER PASSED BY THIS TRIBUNAL DATED 27.11.2009 PASSED IN MISCELLANEOUS APPLICATION NOS.402/DEL/200 9 AND 05/DEL/2008 IN ITA NO.2964/DEL/2002 FOR AY 1995-96. 2. THE SAID ORDER HAD DISPOSED OF THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE CONTENDING THEREIN THAT A MIST AKE HAD CREPT IN THE ORDER OF THE TRIBUNAL DATED 26.9.2008 PASSED IN MISCELLANEOUS APPLICATION NO.05/DEL/2008 ARISING IN ITA NO.2964/D EL/2002. TO BETTER UNDERSTAND THE CONTENTION OF THE ASSESSEE RAISED IN THE PRESENT MISCELLANEOUS APPLICATION THE SEQUENCE OF DATES IS TO BE MENTIONED WHICH IS AS UNDER:- (I) 29.9.2006 - ORDER WAS PASSED BY THE SPECIAL BEN CH U/S 254(1) WHEREIN IT WAS HELD THAT ENHANCED COMPENSATI ON RECEIVED BY THE ASSESSEE FROM THE ACQUISITION AUTHORITIES IN RE SPECT OF ITS LAND WAS MA-57/DEL/2010 2 TO BE ASSESSED ON RECEIPT BASIS. THE TRIBUNAL ALSO PASSED SOME DIRECTIONS RELATING TO INTEREST PAYABLE ON COMPENSA TION/ENHANCED COMPENSATION. (II) 3.1.2008 - MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE NUMBERED AS M.A.NO.05/DEL/2008. (III) THE AFOREMENTIONED MISCELLANEOUS APPLICATION NO.05/DEL/2008 WAS DISPOSED OF BY THIS TRIBUNAL VIDE ORDER DATED 2 6.9.2008 WHEN THE APPLICATION FILED BY THE ASSESSEE WAS DISMISSED ON THE GROUND THAT THE ORDER OF SPECIAL BENCH WAS CHALLENGED IN APPEAL U/S 260A BEFORE HONBLE HIGH COURT AND HONBLE HIGH COURT AS PER TH EIR DECISION DATED 25.2.2008 HAS HELD THAT THE ORDER OF SPECIAL BENCH IS NOT SUSTAINABLE. IT WAS THEREFORE OPINED THAT ORDER OF THE TRIBUNAL HAD MERGED WITH THE ORDER OF HONBLE HIGH COURT AND THEREFORE THERE WA S NO QUESTION OF RECTIFICATION OF ANY MISTAKE. (IV) 21.4.2009 - THE REVENUE SUBMITTED MISCELLANEO US APPLICATION DATED 15.7.2009 AGAINST THE ORDER PASSE D BY THE SPECIAL BENCH IN M.A.NO.05/DEL/2008 (ORDER DATED 26.9.2008) CONTENDING THEREIN THAT THE MERGER IF ANY WAS WITH THE ORDER O F HON'BLE PUNJAB & HARYANA HIGH COURT WHEREAS THE ASSESSEE IN THE PRES ENT CASE WAS RESIDENT OF UTTAR PRADESH AND JURISDICTION DID NOT VEST WITH HON'BLE PUNJAB & HARYANA HIGH COURT. (V) 27.11.2009 - THE TRIBUNAL DISPOSED OF AFOREMENT IONED MISCELLANEOUS APPLICATION FILED BY THE REVENUE BY T AKING NOTE OF THE FACT THAT SUBSEQUENT TO ALL THE ORDERS PASSED BY TH E TRIBUNAL HON'BLE SUPREME COURT VIDE DECISION DATED 16.7.2009 IN CIVI L APPEAL NO.4401/2009 IN CASE OF CIT VS. GHANSHYAM HUF THE DECISION RENDERED BY HON'BLE PUNJAB & HARYANA HIGH COURT WAS NO MORE A GOOD LAW. HENCE IT WAS OBSERVED THAT REVENUE MAY SUITA BLY MODIFY ITS MA-57/DEL/2010 3 MISCELLANEOUS APPLICATION HAVING REGARD TO THE FINA L DECISION OF THE HON'BLE SUPREME COURT AND TAKING NOTE OF THE FACT T HAT REVENUE DID NOT OPT FOR FILING SUCH MISCELLANEOUS APPLICATION A S THE SPECIAL BENCH WAS SITTING FOR THE THIRD TIME THE MISCELLANEOUS A PPLICATION FILED BY THE REVENUE WAS DISPOSED OF AND IT WAS NOTED THAT THE O BSERVATIONS CONTAINED IN THE ORDER DATED 26.9.2008 I.E. IN RESP ECT OF MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE (M.A.NO.05/DEL/20 08) WERE NOT SUSTAINABLE UNDER THE LAW AND CONSTITUTE MISTAKE AP PARENT FROM RECORD. IT WAS ALSO OBSERVED THAT THE SAID ORDER W OULD LEAD TO UNNECESSARY CONFUSION WHEN THE MATTER WAS CLARIFIED BY THE HON'BLE SUPREME COURT. ACCORDINGLY ORDER DATED 26.9.2008 WAS RECTIFIED AND WAS WITHDRAWN AND IT WAS OBSERVED THAT WHAT WAS STA TED IN THE SAID ORDER SHALL NOT AFFECT THE RIGHTS OF THE PARTIES AN D MISCELLANEOUS APPLICATION FILED BY THE REVENUE WAS ALLOWED. 3. IT IS AGAINST ORDER DATED 27.11.2009 THE ASSESSE E HAS FILED THE AFOREMENTIONED MISCELLANEOUS APPLICATION. 4. THE FIRST CONTENTION OF THE ASSESSEE WHILE ASSAI LING THE AFOREMENTIONED ORDER DATED 27.11.2009 IS THAT WHAT IS PERMISSIBLE U/S 254(2) IS ONLY AN ORDER PASSED UNDER SUB-SECTION (1 ) OF SECTION 254. MAKING REFERENCE TO PROVISIONS CONTAINED IN SECTION 254(2) IT IS THE CASE OF THE ASSESSEE THAT ORDER PASSED BY THE TRIBU NAL IN M.A.NO.402/DEL/2009 COULD NOT BE VALIDLY PASSED AS THE SAME WAS PASSED AGAINST THE EARLIER ORDER PASSED IN M.A.NO.0 5/DEL/2008 WHICH WAS AN ORDER PASSED U/S 254(2). 5. IT IS FURTHER THE CASE OF THE ASSESSEE THAT VIDE MISCELLANEOUS APPLICATION FILED BY THE REVENUE DATED 15.7.2009 A CLARIFICATION WAS SOUGHT AS TO WHETHER THE ORDER MERGED WITH THAT OF HON'BLE PUNJAB & HARYANA HIGH COURT ONLY TO THE EXTENT OF RESIDENT O F PUNJAB & HARYANA STATE AND NOT IN THE CASE OF THE ASSESSEE WHO IS A RESIDENT OF UTTAR MA-57/DEL/2010 4 PRADESH AND THE SAID APPLICATION OF THE REVENUE WAS ADJUDICATED WITHOUT AFFORDING OPPORTUNITY OF HEARING TO THE ASS ESSEE AND THE FINDINGS RECORDED AGAINST THAT APPLICATION ARE NOT BASED ON THE ISSUE RAISED IN THE PETITION U/S 254(2) AND THEREFORE TH E WITHDRAWAL OF ORDER DATED 26.9.2008 WAS NOT BASED ON THE ISSUE RAISED E ITHER BY THE ASSESSEE OR BY THE DEPARTMENT IN THE PETITION U/S 2 54(2). THEREFORE IT IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE. 6. LASTLY IT IS THE CASE OF THE ASSESSEE THAT THE SAID ORDER WAS PASSED BY THE TRIBUNAL WITHOUT AFFORDING THE ASSESS EE REASONABLE OPPORTUNITY OF HEARING. THE COUNSEL OF THE ASSESSE E HAD SOUGHT ADJOURNMENT ON THE GROUND OF INDISPOSITION OF THE C OUNSEL WHICH CONSTITUTE REASONABLE CAUSE AND REFERENCE IS MADE T O THE DECISION OF HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF MA HAVIR PRASAD JAIN VS. CIT 172 ITR 331 TO CONTEND THAT THE APPLICANT WHO HAS ENGAGED A COUNSEL WILL BE JUSTIFIED IN PRESUMING THAT COUNSEL WOULD ATTEND TO THE CASE AND THE APPLICANT CANNOT BE MADE TO SUFFER FOR THE NEGLIGENCE OF THE COUNSEL. IN VIEW OF ALL THESE SUBMISSIONS IT HAS BEEN PRAYED IN THE APPLICATION THAT THE ORDER PASSED BY THE TRIBUNAL O N 27.11.2009 SHOULD BE SET ASIDE AS PROVIDED IN RULE 25 OF THE INCOME T AX APPELLATE TRIBUNAL RULES. 7. THE SUBMISSIONS MADE IN THE RECTIFICATION APPLIC ATION HAVE BEEN REITERATED IN THE WRITTEN SUBMISSIONS FILED BEFORE US AND LEARNED COUNSEL FOR THE ASSESSEE ARGUED THE AFOREMENTIONED APPLICATION ON THE BASIS OF THESE WRITTEN SUBMISSIONS WHICH ARE PLACED ON RECORD. 8. ON THE OTHER HAND LEARNED DR SUBMITTED THAT THE AFOREMENTIONED ORDER OF THE TRIBUNAL DATED 27.11.20 09 IS NOTHING BUT IS STATING THAT IN VIEW OF SUBSEQUENT ORDER OF HON' BLE SUPREME COURT IN THE CASE OF CIT VS. GHANSHYAM (HUF) (SUPRA) THE OR DER PASSED ON 26.9.2008 COULD NOT STAND AND IT IS THEREFORE THE S AID ORDER WAS MA-57/DEL/2010 5 WITHDRAWN. IT IS SUBMITTED THAT NO MISTAKE HAS BEE N COMMITTED BY THE TRIBUNAL BY PASSING SUCH ORDER AND APPLICATION FILE D BY THE ASSESSEE SHOULD BE DISMISSED. 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS IN THE LIGHT OF MATERIAL PLACED BEFORE US. IT IS TRUE THAT SUB-SEC TION (2) OF SECTION 254 CAN BE INVOKED ONLY IN A SITUATION IF THERE IS A MI STAKE IN THE ORDER PASSED BY THE TRIBUNAL UNDER SUB-SECTION (1) OF SEC TION 254. THE IMPUGNED MISCELLANEOUS APPLICATION FILED BY THE ASS ESSEE IS AGAINST THE ORDER PASSED ON 27.11.2009 WHICH IS AN ORDER PA SSED U/S 254(2). THEREFORE PRINCIPALLY THE APPLICATION FILED BY TH E ASSESSEE HAS TO BE REJECTED ON THIS GROUND ALONE AND FOR THIS PURPOSE RELIANCE CAN BE PLACED ON THE FOLLOWING DECISIONS:- (I) CIT VS. PRESIDENT INCOME TAX APPELLATE TRIBUNAL 196 ITR 838 (ORISSA) WHEREIN IT HAS BEEN HELD THAT TO ATTRA CT APPLICABILITY OF SECTION 254(2) A MISTAKE WHICH IS SOUGHT TO BE RECTIFIED MUST BE APPARENT FROM RECORD AND THE S AME MUST BE IN ANY ORDER PASSED UNDER SUB-SECTION (1) O F SECTION 254. THE ORDER REFERRED TO IN SECTION 254( 1) IS ONE RELATING TO AN APPEAL FILED EITHER BY THE ASSESSEE OR BY THE REVENUE. THE APPEAL REFERRED TO IN THE PROVISION IS ONE FILED U/S 253. THEREFORE THE ORDER WHICH CAN BE R ECTIFIED MUST BE ONE WHICH HAS BEEN PASSED BY THE TRIBUNAL I N AN APPEAL FILED U/S 253. AN ORDER REJECTING AN APPLIC ATION FOR RECTIFICATION U/S 254(2) CANNOT BE RECTIFIED U/S 25 4(2). THE SAME MAY RELATE TO AN APPEAL BUT IS NOT AN ORDER PA SSED BY THE TRIBUNAL UNDER SUB-SECTION (1) OF SECTION 25 4 AND THUS IT WAS HELD THAT SUBSEQUENT APPLICATION FILED BY THE ASSESSEE WAS RIGHTLY REJECTED BY THE TRIBUNAL. MA-57/DEL/2010 6 (II) IN THE CASE OF MENTHA & ALLIED PRODUCTS CO.LTD. VS. ITAT 244 ITR 470 (DEL) AFTER REFERRING TO THE PROVISION S OF SECTION 254(1) AND (2) IT WAS HELD AS UNDER:- 7. THE RELEVANT PROVISIONS OF S. 254 READ AS UNDER: 254. ORDERS OF APPELLATE TRIBUNAL. (1) THE TRI BUNAL MAY AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD PASS SUCH ORDERS THEREO N AS IT THINKS FIT. (2) THE TRIBUNAL MAY AT ANY TIME WITHIN FOUR YEAR S FROM THE DATE OF THE ORDER WITH A VIEW TO RECTIFYING AN Y MISTAKE APPARENT FROM THE RECORD AMEND ANY ORDER PASSED BY IT UNDER SUB-S. (1) AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE B Y THE ASSESSEE OR THE AO;. THE AFORENOTED PROVISIONS OF LAW ARE CLEAR AND UNAMBIGUOUS. A BARE READING WHEREOF LEAVES NO DOUB T IN OUR MIND THAT THE TRIBUNAL IS COMPETENT TO RECTIFY A MISTAKE APPARENT FROM THE RECORD AND AMEND ANY ORDE R WHICH HAS BEEN PASSED UNDER SUB-S.(1). ADMITTEDLY BY THE IMPUGNED ORDER THE TRIBUNAL HAS SOUGHT TO RECT IFY THE ORDER PASSED BY IT UNDER S. 256(1) OF THE ACT A ND NOT AN ORDER PASSED UNDER S. 254(1). WE HAVE NO HESITA TION IN HOLDING THAT THE TRIBUNAL IS NOT CLOTHED WITH AN INHERENT POWER TO RECTIFY/RECALL AN ORDER PASSED UN DER S. 256(1) OF THE ACT BY TAKING RECOURSE TO S. 254(2) O F THE ACT AND THEREFORE THE IMPUGNED ORDER IS ILLEGAL A ND INVALID. THE VIEW TAKEN BY US FINDS SUPPORT FROM A DECISION OF THIS COURT IN CIT VS. KABIR DAS INVESTM ENT LTD. (1995) 124 CTR (DEL) 259 : (1994) 210 ITR 898 (DEL) : TC 55R.777. 10. IN THE CASE OF CIT VS. AISWARYA TRADING CO. 1 96 TAXMAN 385 (KER.) IT WAS HELD THAT THE TRIBUNAL WAS JUSTIFIED IN REFUSING TO ENTERTAIN AN APPLICATION FILED BY THE REVENUE UNDER SECTION 2 54(2) TO RECTIFY THE ORDER ISSUED BY THE TRIBUNAL IN AN EARLIER RECTIFIC ATION APPLICATION FILED BY THE ASSESSEE AS THE SECOND APPLICATION ON THE V ERY SAME ISSUE IS NOT MAINTAINABLE BEFORE THE TRIBUNAL. MA-57/DEL/2010 7 11. IN THE CASE OF DR.S.PANNEERSELVAM VS. ACIT 31 9 ITR 135 IT WAS HELD THAT THE TRIBUNAL HAVING ALLOWED FIRST RECTIFI CATION PETITION SECOND PETITION WAS NOT MAINTAINABLE; REMEDY BY WAY OF APP EAL WAS THE ONLY COURSE OPEN. 12. IF THE APPLICATION FILED BY THE ASSESSEE IS VIE WED IN THE LIGHT OF AFOREMENTIONED JUDICIAL PRONOUNCEMENTS THEN IT WIL L BECOME CLEAR THAT THE RELIEF WHICH IS BEING SOUGHT BY THE ASSESSEE BY WAY OF IMPUGNED RECTIFICATION APPLICATION IS NOT LEGALLY TENABLE FO R THE REASON THAT THE TRIBUNAL HAS NO POWER TO ADJUDICATE UPON SUBSEQUENT APPLICATION FILED U/S 254(2). HERE IT MAY BE THE CASE OF THE ASSESS EE THAT EARLIER ORDER AGAINST WHICH IMPUGNED RECTIFICATION APPLICATION IS FILED IS ALSO AN ORDER PASSED ON SUBSEQUENT APPLICATION THEN THE ONLY COU RSE PERMISSIBLE TO THE ASSESSEE IS TO FILE AN APPEAL AGAINST THAT ORDE R AND NOT TO APPROACH THE TRIBUNAL TO CONTEND THAT THE SAID ORDER WAS AN INVALID ORDER THEREFORE IT SHOULD BE RECALLED. 13. MOREOVER WHAT HAS BEEN DONE BY THE TRIBUNAL BY THE ORDER DATED 27.11.2009 IS THAT BY KEEPING IN VIEW THE LAT EST DECISION OF HON'BLE SUPREME COURT IT WAS OBSERVED THAT THE OBS ERVATIONS MADE BY IT IN EARLIER ORDER DATED 26.9.2008 ARE NOT MORE RE LEVANT AND THEREFORE THOSE OBSERVATIONS HAVE BEEN WITHDRAWN. ACCORDING TO THE WELL ESTABLISHED LAW THE ORDER OF THE TRIBUNAL HAS TO B ROUGHT IN CONFORMITY WITH THE DECISION OF THE APEX COURT EVEN IF THE SA ID DECISION IS RENDERED SUBSEQUENTLY TO THE PRONOUNCEMENT OF THE O RDER AND REFERENCE IN THIS REGARD CAN BE MADE TO THE DECISIO N OF HON'BLE SUPREME COURT IN THE CASE OF ACIT VS. SAURASHTRA KU TCH STOCK EXCHANGE LTD. 305 ITR 227 (SC). 14. SO FAR AS IT RELATES TO THE CONTENTION OF THE A SSESSEE THAT INDISPOSITION OF THE COUNSEL CONSTITUTE REASONABLE CAUSE FOR NON- APPEARANCE ON THE FIXED DATE OF HEARING WE MAY OBS ERVE THAT IN PARA MA-57/DEL/2010 8 5 OF THE ORDER DATED 27.11.2009 IT HAS BEEN RECORD ED BY THE TRIBUNAL THAT THERE IS NO COOPERATION FROM THE ASSESSEES SI DE WHO HAS ALSO SOUGHT AN ADJOURNMENT. THEREFORE THIS GROUND CANN OT CONSTITUTE ANY CAUSE TO RECALL OF THE SAID ORDER AS WHAT WAS DONE IN THAT ORDER WAS TO BRING THE EARLIER ORDER IN CONFORMITY WITH THE DECI SION OF THE HONBLE APEX COURT RENDERED SUBSEQUENTLY. 15. IN VIEW OF THE ABOVE DISCUSSION WE FIND NO FOR CE IN THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE WHI CH IS REJECTED AND DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 7 TH JANUARY 2011. SD/- SD/- SD/- (A.K.GARODIA) (A.K.GARODIA) (A.K.GARODIA) (A.K.GARODIA) (G.E.VEERABHADRAPPA) (I.P.BANSAL) (G.E.VEERABHADRAPPA) (I.P.BANSAL) (G.E.VEERABHADRAPPA) (I.P.BANSAL) (G.E.VEERABHADRAPPA) (I.P.BANSAL) ACCOUNTANT MEM ACCOUNTANT MEM ACCOUNTANT MEM ACCOUNTANT MEMBER VICE PRESIDENT JUDICIAL MEMBER BER VICE PRESIDENT JUDICIAL MEM BER BER VICE PRESIDENT JUDICIAL MEM BER BER VICE PRESIDENT JUDICIAL MEM BER DATED : 07.01.2011. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ITAT ASSISTANT REGISTRAR MA-57/DEL/2010 9