ACIT CEN CIR 7, v. NAYAN C. SHAH,

MA 750/MUM/2009 | misc
Pronouncement Date: 24-03-2010 | Result: Dismissed

Appeal Details

RSA Number 75019924 RSA 2009
Assessee PAN ALRPS1559E
Bench Mumbai
Appeal Number MA 750/MUM/2009
Duration Of Justice 4 month(s) 11 day(s)
Appellant ACIT CEN CIR 7,
Respondent NAYAN C. SHAH,
Appeal Type Miscellaneous Application
Pronouncement Date 24-03-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted SMC
Assessment Year misc
Appeal Filed On 12-11-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC MUMBAI BEFORE SHRI D.MANMOHAN VICE PRESIDENT & SHRI A.L.GEHLOT (A.M) MA NO.750/MUM/2009 (ARISING OUT OF ITA NO. 6333 TO 6337/M/08 & 6343 TO 6346/M/08) ASSESSMENT YEARS 2002-03 TO 2006-07) THE ACIT CEN.CIR. 7 MUMBAI. (APPLICANT) VS. NAYEN C SHAH/HASMUKH C. SHAH C/O. GEMS INTERNATIONAL 107 SHREEJI CHAMBERS OPERA HOUSE MUMBAI 400 004 PAN: ALRPS 1559E/ ALRPS 1554K (RESPONDENT) APPLICANT BY : SHRI VIVEK BAT RESPONDENT BY : S/SHRI PRAMOD KUMAR PARIDA/AN IL N.MISHRA ORDER PER A.L.GEHLOT A.M THIS IS A MISCELLANEOUS APPLICATION FILED BY THE R EVENUE. IN THE MISCELLANEOUS APPLICATION IT IS STATED BY THE REVEN UE THAT CIT(A) HAS PASSED AN EX-PARTE ORDER SINCE NOBODY HAD APPEARED BEFORE HI M ON THE DATE OF HEARING. BEFORE THE ITAT THE ASSESSEE FILED AN AFFIDAVIT STA TING THAT NO NOTICE HAD BEEN RECEIVED FROM THE CIT(A). THE DECISION OF THE ITAT IS NOT ACCEPTABLE BECAUSE THREE NOTICES HAVE BEEN ISSUED BY THE CIT(A) WHICH HAVE BEEN SERVED UPON THE ASSESSEE. THE CONTENTION OF THE ASSESSEE BEFORE TH E ITAT IS INCORRECT AND FALSE. THE ITAT HAS DECIDED THE ISSUE ON THE BASIS OF INCORRECT CONTENTION OF THE ASSESSEE WHICH IS NOT ACCEPTABLE TO THE REVENUE. THEREFORE IT WAS REQUESTED TO RECALL THE CONSOLIDATED ORDER DATED 4 TH JUNE 2009 AND DECIDE THE ISSUE ON MERIT. MA NO.750/M/09) 2 2. WE HAVE HEARD THE LD. REPRESENTATIVES AND PERUSE D THE RECORDS CAREFULLY. THE SCOPE OF SECTION 254(2) HAS BEEN EXAMINED BY TH E JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. RAMESH ELECTRIC AND TRADING CO. 203 ITR 497(BOM) WHEREIN IT WAS HELD AS UNDER:- (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 APPARE NT FROM THE RECORD AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1) WITHIN THE TIME PRESCRIBED THEREIN. IT IS AN ACCEPTED POSITION THA T THE APPELLATE 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. THE EXTENT OF THIS POWER OF RECTIFICATION WAS CONSIDERED BY THE SUPREME COURT A S FAR BACK AS IN 1971 IN THE CASE OF T.S. BALARAM ITO VS. VOLKART BROTHE RS (1971) 82 ITR 50. THE SUPREME COURT SAID :- (HEAD NOTE): A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NO T SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASO NING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DEC ISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM THE RE CORD. THIS VIEW OF THE SUPREME COURT HAS HELD THE FIELD F OR A LONG TIME AND HAS BEEN FOLLOWED BY OTHER HIGH COURTS. THUS FOR EXAM PLE IN THE CASE OF V.P.MINOCHA ITO V. ITAT (1977) 106 ITR 691 THE GU JARAT HIGH COURT RELYING UPON BALARAMS CASE (1971) 82 ITR 50 (SC) S AID THAT A DECISION GIVEN BY THE TRIBUNAL ON A DEBATABLE POINT OF LAW C ANNOT BE SUBSEQUENTLY CONSIDERED AS SHOWING ANY MISTAKE APPARENT FROM THE RECORD WHICH THE TRIBUNAL COULD CONSEQUENTLY RECTIFY. SIMILARLY TH E MADRAS HIGH COURT IN THE CASE OF CIT V. R. CHELLADURAI (1979) 118 ITR 10 8 SAID 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 RECTIFYING ANY ERRO R APPARENT FROM THE RECORD. 2.1 FROM THE ABOVE JUDGMENT OF JURISDICTIONAL HIGH COURT WE FIND THAT THE POWER OF RECTIFICATION UNDER SECTION 254(2) OF THE INCOME-TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM THE RECORD. FAILURE BY THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR A RRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD ALTHOUGH IT MAY B E AN ERROR OF JUDGMENT. IN OUR MA NO.750/M/09) 3 VIEW THE TRIBUNAL HAD NO JURISDICTION UNDER SECTIO N 254(2) TO PASS THE SECOND ORDER. 3. IN THE LIGHT OF THE ABOVE DISCUSSION IF CONSIDER THE FACTS OF THE CASE UNDER CONSIDERATION WE NOTICED THAT THE LD. COUNSEL FOR T HE ASSESSEE HAS FILED AN AFFIDAVIT OF THE ASSESSEE TO SUPPORT THE CLAIM THAT NO NOTICE HAD BEEN RECEIVED FROM THE CIT(A) AND IT WAS PRAYED THAT THE ORDER OF CIT(A) MAY BE SET ASIDE IN BOTH THE CASES AND APPEALS BE RESTORED FOR FRESH D ISPOSAL. THE LD. D.R. SHRI AJAY APPEARED ON BEHALF OF THE REVENUE HAD NOT MADE ANY OBJECTION. ON THE BASIS OF THE ABOVE FACTS THE ITAT SET ASIDE THE OR DER OF THE CIT(A) AND RESTORED THE APPEALS TO HIS FILE FOR FRESH DECISION. FOR THE PURPOSE OF READY REFERENCE THE FINDING OF THE ITAT AND NO OBJECTION OF THE LD. D. R NOTED BY THE ITAT IN PARA -2 IS REPRODUCED AS UNDER:- 2. THE CIT(A) IN ALL THESE APPEALS HAS PASSED AN E X-PARTE ORDER AS NOBODY HAD APPEARED BEFORE HIM ON THE DATE OF HEARI NG. THE LEARNED COUNSEL FOR THE ASSESSEE HAS FILED AFFIDAVITS OF TH E ASSESSEES IN BOTH THE CASES TO SUPPORT THE CLAIM THAT NO NOTICE HAD BEEN RECEIVED FROM THE CIT(A). IT HAS BEEN ACCORDINGLY PRAYED THAT THE OR DER OF THE CIT(A) MAY BE SET ASIDE IN BOTH THE CASES AND APPEALS BE REST ORED FOR FRESH DISPOSAL. THE LD. D.R HAS NO OBJECTION . (UNDERLINED BY US) FROM THE ABOVE DISCUSSIONS WE ARE OF THE CONSIDERED VIEW THAT THE FINDING OF THE ITAT IS ON THE BASIS OF FACTS POINTED OUT AT THE TI ME OF HEARING AND THE LD. D.R APPEARING ON BEHALF OF THE REVENUE DID NOT MAKE ANY OBJECTION TO THE SUBMISSION OF THE LD. A.R. WE ARE THEREFORE OF THE CONSIDE RED VIEW THAT THERE IS NO MISTAKE IN THE ORDER OF THE ITAT WHICH CAN BE RECTIFIED UND ER SECTION 254(2). BEFORE PARTING FROM THE MATTER WE MAY STATE THAT THE LD. A.R SUBMITTED THAT THE REVENUE HAS FILED ONLY ONE MISCELLANEOUS APPLICATION WHERE AS THE ITAT HAS DECIDED NINE MA NO.750/M/09) 4 APPEALS BY THE COMMON ORDER. SINCE ON MERIT WE D ISMISSED THE MISCELLANEOUS APPLICATION OF THE REVENUE AND THE REVENUE IS NOT REQUIRED TO DEPOSIT ANY FILING FEES UNDER THE CIRCUMSTANCES THE SUBMISSION OF TH E LD. A.R BECOME INFRUCTUOUS. 4. IN THE RESULT THE MISCELLANEOUS APPLICATION FI LED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THE 24 TH DAY OF MARCH 2010. SD/- SD/- (D.MANMOHAN) (A.L.GEHLOT) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI DATED. 24 TH MARCH 2010. COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CITY 22 MUMBAI 4. THE CIT(A)- XXII 5. THE D.RC BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR I TAT MUMBAI BENCHES MUMBAI. VM. MA NO.750/M/09) 5 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 19/3/2010 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 22/3/2010 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER MA NO.750/M/09) 6