The ITO, Ward-2(1),, RAJKOT-GUJARAT v. M/s. Maruti Oil Mill,, Dhoraji

MA 7/RJT/2011 | 1995-1996
Pronouncement Date: 30-11-2011 | Result: Dismissed

Appeal Details

RSA Number 724924 RSA 2011
Assessee PAN AAHFS3506N
Bench Rajkot
Appeal Number MA 7/RJT/2011
Duration Of Justice 9 month(s) 3 day(s)
Appellant The ITO, Ward-2(1),, RAJKOT-GUJARAT
Respondent M/s. Maruti Oil Mill,, Dhoraji
Appeal Type Miscellaneous Application
Pronouncement Date 30-11-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 30-11-2011
Date Of Final Hearing 23-09-2011
Next Hearing Date 23-09-2011
Assessment Year 1995-1996
Appeal Filed On 25-02-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH RAJKOT BEFORE SHRI T.K. SHARMA (JM) AND SHRI A.L. GEHLOT ( AM) M.A. NO.4 & 5/RJT/2011 (ARISING OUT OF I.T.A. NO.752 & 753/RJT/2010) (ASSESSMENT YEARS 1994-95 & 1995-96) ITO WD.2(1) VS M/S KIRAN OIL MILL RAJKOT 8-B NATIONAL HIGHWAY DHORAJI PAN : AAHFS3506N (APPLICANT) (RESPONDENT) M.A. NO.06 & 07/RJT/2011 (ARISING OUT OF I.T.A. NO.754 & 755/RJT/2010) (ASSESSMENT YEARS 1994-95 & 1995-96) THE ITO WD.2(1) VS M/S MARUTI OIL MILL RAJKOT C/O D.R. ADHIA OM SHRI PADMALAYA BESIDE TRIKAMRAIJI HAWELI OPP HOTEL IMPERIAL PALACE 16 JAGNATH PLOT DR. YAGNIK ROAD RAJKOT PAN : AADFM2218J DATE OF HEARING : 25-11-2011 DATE OF PRONOUNCEMENT : 30-11-2011 APPELLANT BY : SHRI CJ MANIAR RESPONDENT BY : WRITTEN SUBMISSION O R D E R PER AL GEHLOT (AM) THESE MISCELLANEOUS APPLICATIONS FILED BY THE REVE NUE ARISE OUT OF THE ORDER 26-05-2010 AND 12-07-2010 FOR THE ASSESSMENT YEARS 1994-95 AND 1995- 06 RESPECTIVELY. MA 4 & 5/RJT/2011 2 2. SINCE COMMON POINTS ARE RAISED BY THE REVENUE IN THE MISCELLANEOUS APPLICATION FOR THE SAKE OF CONVENIENCE THESE MIS CELLANEOUS APPLICATIONS ARE DISPOSED OF BY THIS CONSOLIDATED ORDER. 3. THE CASE OF THE REVENUE IN GIST IS THAT THE IT AT IN ITS RESPECTIVE ORDER HAS PUT EMPHASIS MAINLY ON THE PROVISO TO SECTION 275(1 )(A) OF THE ACT. ACCORDING TO THE REVENUE THE MAIN PROVISION OF SECTION 275(1)(A ) IS VERY CLEAR AND THE ITAT SHOULD HAVE APPLIED THE MAIN PROVISION INSTEAD OF D RAWING SUPPORT FROM THE PROVISO WHILE HOLDING THAT THE IMPUGNED PENALTY REL IED IN BOTH THE YEARS UNDER CONSIDERATION ARE BARRED BY LIMITATION. THE REVENU E HAS RELIED UPON A JUDGMENT OF THE MADRAS HIGH COURT IN THE CASE OF RAYALA CORP ORATION (P) LTD 288 ITR ITR 452 (MAD). THE ASSESSEE IN ITS WRITTEN SUBMISSION FILED ON 24-11-2011 HAS COUNTERED THE ARGUMENT OF THE REVENUE BY RELYING ON THE JUDGMENT OF THE PUNJAB & HARYANA HIGH COURT REPORTED IN 226 ITR 296 (P&H) IN THE CASE OF VARDHMAN SPINNING WHEREIN IT HAS BEEN HELD THAT NON CONSIDE RATION OF HIGH COURT DECISION WHICH IS NOT JURISDICTIONAL HIGH COURT BY THE TRIB UNAL IS NOT A MISTAKE APPARENT FROM RECORD THEREFORE ACTION TAKEN BY THE TRIBUNA L UNDER SECTION 254(2) CONSIDERING ITS EARLIER DECISION ON THE BASIS OF HI GH COURTS DECISION WAS REVIEW OF ITS EARLIER ORDER WHICH IS NOT PERMISSIBLE UNDER SECTION 254(2). 4. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND ON P ERUSAL OF THE MATERIAL PLACED BEFORE US WE FIND THAT ON EXACTLY IDENTICAL FACTS AND CIRCUMSTANCES THE ITAT RAJKOT BENCH IN THE CASE OF ITO VS DHIRAJLAL KANJI & OR IN MA NOS 8 & MA 4 & 5/RJT/2011 3 9/RJT/2011 VIDE ORDER DATED 26-08-2011 HAS REJECTED THE MISCELLANEOUS APPLICATIONS BY HOLDING AS FOLLOWS: 5. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF TH E PARTIES PERUSED RECORD. FOR BETTER APPRECIATION TO THE ISS UE WE WOULD LIKE TO REFER A JUDGMENT OF THE BOMBAY HIGH COURT IN THE CASE OF CIT VS. RAMESH ELECTFIC AND TRADING CO 203 ITR 497 (BOM). THE RELEVANT FINDING IS REPRODUCED AS BELOW:- (PAGES 500 AND 501) UNDER SECTION 254(2) OF THE INCOME-TAX ACT 1961 THE APPELLATE TRIBUNAL MAY WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD AMEND ANY OR DER PASSED BY IT UNDER SUB-SECTION (1) WITHIN THE TIME PRESCRIBED THEREIN. IT IS AN ACCEPTED POSITION THAT THE APPEL LATE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UN DER THE PROVISIONS OF THE INCOME=-TAX ACT 1961. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO RECTIFY ANY MISTAKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD. THIS IS MERELY A POWER OF AMENDING ITS ORDER. TE EXTENT OF THIS POWER OF REC TIFICATION WAS CONSIDERED BY THE SUPREME COURT AS FAR BACK AS IN 1 971 IN THE CASE OF T.S. BALARAM ITO V. VOLKART BROTHERS (1971 ) 82 ITR 50. THE SUPREME COURT SAID (HEADNOTE): A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIO US AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTAB LISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHIC H THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A D EBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM THE REC ORD. THIS VIEW OF THE SUPREME COURT HAS HELD THE FIELD FOR A LONG TIME AND HAS BEEN FOLLOWED BY OTHER HIGH COURTS. THUS FOR EXAMPLE IN THE CASE OF V.P. MINOCHA ITO V. ITAT [ 1977] 106 ITR 691 THE GUJARAT HIGH COURT RELYING UPON BALARAMS CASE [1971] 82 ITR 50 (SC) SAID THAT A DECISION GIVEN BY THE TRIB UNAL ON A DEBATABLE POINT OF LAW CANNOT BE SUBSEQUENTLY CONSI DERED AS SHOWING ANY MISTAKE APPARENT FROM THE RECORD WHICH THE TRIBUNAL COULD CONSEQUENTLY RECTIFY. SIMILARLY THE MADRAS HIGH COURT IN THE CASE OF CIT V. R. CHELLADURAI [1979] 118 ITR 108 S AID THAT THE TRIBUNALS POWER UNDER SECTION 254(2) IS NOT TO REV IEW ITS EARLIER ORDER BUT ONLY TO AMEND IT WITH A VIEW TO RECTIFYIN G ANY ERROR APPARENT FROM THE RECORD. MA 4 & 5/RJT/2011 4 THE APEX COURT IN THE CASE OF ACIT VS SAURASHTRA K UTCH STOCK EXCHANGE LTD 305 ITR 227 (SC) HELD THAT MISTA KE APPARENT IN ERROR APPARENT ON THE RECORD MEANS AN ERROR WH ICH STRIKES ONE ON MERE LOOKING AND IT DOES NOT NEED A LONG DRAWN O UT PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVAB LY TWO OPINIONS. IF THE VIEW ACCEPTED BY THE COURT IN THE ORIGINAL JUDGMENT IS ONE OF POSSIBLE VIEWS THE CASE CANNOT BE SAID T O BE COVERED BY AN ERROR APPARENT ON THE FACE OF THE RECORD. A PAT IENT MANIFEST AND SELF-EVIDENT ERROR WHICH DOES NOT REQUIRE ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENT TO ESTABLISH IT. 7. IF WE APPLY THE ABOVE DISCUSSIONS AND LAW LAID D OWN BY THE APEX COURT TO THE FACTS OF THE CASE UNDER CONSIDERA TION WE FIND THAT THE ITAT HAS TAKEN CONSCIOUSLY PARTICULAR VIEW AFTER CONSIDERING ALL MATERIAL FACTS INCLUDING EARLIER DE CISIONS OF ITAT IN ITA NO.752/RJT/2010 DATED 26-05-2010 & OTHERS WHERE SIMILAR VIEW WAS TAKEN. IT MAY STATE THAT AT THAT TIME JUDGMENT OF MADRAS HIGH COURT IN THE CASE OF RAYALA CORPORATION (P) LTD 288 ITR 452 (MAD) WAS NOT CITED BEFORE THE ITAT. THE REVENUE WANTS T O DECIDE THE ISSUE IN A PARTICULAR FASHION THAT THE VIEW SHOULD BE DECIDED UNDER THE MAIN PROVISIONS OF SECTION 275(1)(A) OF THE ACT INSTEAD OF PROVISO TO THE SECTION WHICH HAS BEEN CONSIDERED BY THE ITAT. APPARENTLY SUCH THINGS NEVER BE A MISTAKE APPARENT FROM RECORD. ALTHOUGH IT MAY BE AN ERROR IN JUDGMENT ACCORDING TO THE REVENUE IT CANNOT BE SAID THAT THERE IS A MISTAKE WHICH CAN BE RECTIFIED U/S 254(2) OF THE ACT. WE THEREFORE DO NOT FIND SUBS TANCE IN MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE. T HEREFORE SAME ARE REJECTED. 5. AT THE COST OF REPETITION WE MAY AGAIN STATE THE FACTS AND CIRCUMSTANCES IN THE CASES ARE EXACTLY IDENTICAL TO THE CASE ALREADY DECIDED BY THE TRIBUNAL AS ABOVE. IN THAT CASE ALSO THE CASE OF THE REVENUE W AS THAT THE TRIBUNAL INSTEAD OF RELYING UPON THE PROVISO TO SECTION 275(1)(A) WO ULD HAVE RATHER RELIED UPON THE MAIN PROVISION OF THE SECTION WHICH WAS FOUND NOT T ENABLE BY THE TRIBUNAL FOR THE REASONS NARRATED IN THE TRIBUNAL BY FOLLOWING THE A UTHORITY OF APEX COURT. AS SUCH WE RESPECTFULLY FOLLOWING THE PRECEDENT WE H AVE TO NECESSARILY REJECTED ALL THE MISCELLANEOUS APPLICATIONS FILED BEFORE US. MA 4 & 5/RJT/2011 5 6. IN THE RESULT THE MISCELLANEOUS APPLICATIONS FI LED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30-11-2011. SD/- SD/- (T.K. SHARMA) (A.L. GEHLOT) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT DT : 30 TH NOVEMBER 2011 PK/- COPY TO: 1. APPLICANT 2. ASSESSEE 3. THE CIT(A)-III RAJKOT 4. THE CIT-II RAJKOT 5. THE DR I.T.A.T. RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR ITAT RAJKOT .