Recon Valves Company, Kolkata v. DCIT, CIR-50, KOLKATA, Kolkata

MA 84/KOL/2016 | misc
Pronouncement Date: 19-10-2016

Appeal Details

RSA Number 8423524 RSA 2016
Assessee PAN AAEFR2520C
Bench Kolkata
Appeal Number MA 84/KOL/2016
Duration Of Justice 3 month(s) 25 day(s)
Appellant Recon Valves Company, Kolkata
Respondent DCIT, CIR-50, KOLKATA, Kolkata
Appeal Type Miscellaneous Application
Pronouncement Date 19-10-2016
Appeal Filed By Assessee
Bench Allotted C
Tribunal Order Date 19-10-2016
Assessment Year misc
Appeal Filed On 24-06-2016
Judgment Text
M.A.NO.84/KOL/2016 A/O ITA NO.2680/KOL/2013-RECON VALVES COMPANY. A.Y.2000-01 1 IN THE INCOME TAX APPELLATE TRIBUNAL BENCH C KOL KATA [BEFORE HONBLE SHRI N.V.VASUDEVAN JM & SHRI WAS EEM AHMED AM ] M.A.NO.84/KOL/2016 (A/O ITA NO.2680/KOL/2013) ASSESSMENT YEAR : 2000-01 RECON VALVES COMPANY -VERSUS- D.C.I.T.- CIRCLE-50 KOLKATA KOLKATA (PAN:AAEFR 2520C) (APPELLANT) (RESPONDENT) FOR THE APPELLANT: SHRI G.R.SHARMA ADVOCATE FOR THE RESPONDENT: SHRI RAJAT KUMAR KUREEL JCIT S R.DR DATE OF HEARING : 23.09.2016. DATE OF PRONOUNCEMENT : 19.10.2016. ORDER PER N.V.VASUDEVAN JM: THIS IS A MISCELLANEOUS APPLICATION FILED BY THE AS SESSEE U/S.254(2) OF THE INCOME TAX ACT 1961 (ACT) PRAYING FOR RECTIFICATTI ON OF CERTAIN APPARENT ERRORS IN THE ORDER OF THE TRIBUNAL DATED 14.08.2015. 2. IN THE ABOVE APPEALS BY THE ASSESSEE THE ASSE SSEE HAD IN THE GROUNDS OF APPEAL BOTH THE ASSESSMENT YEARS AMONG OTHER GROUNDS ALS O RAISED A GROUND WITH REGARD TO THE VALIDITY OF INITIATION OF PROCEEDINGS U/S 147 O F THE ACT. THE CASE WAS HEARD ON 03.07.2015 AND ON THAT DATE THE LD. COUNSEL FOR THE ASSESSEE SHRI S.BAGCHI ADVOCATE HAD ENDORSED IN THE GROUNDS OF APPEAL THAT THE GROU NDS AGAINST THE INITIATION OF PROCEEDINGS U/S 147/148 OF THE ACT ARE NOT PRESSED. THE TRIBUNAL IN THE IMPUGNED ORDER HAS OBSERVED THAT THE GROUND OF JURISDICTIONA L ISSUE FOR INITIATION OF PROCEEDINGS U/S 147 OF THE ACT WAS NOT PRESSED AND HENCE THE SA ME IS BEING DISMISSED AS NOT PRESSED. M.A.NO.84/KOL/2016 A/O ITA NO.2680/KOL/2013-RECON VALVES COMPANY. A.Y.2000-01 2 3. IN THIS MISCELLANEOUS APPLICATION THE ASSESS EE HAS CONTENDED THAT THE TRIBUNAL OMITTED TO CONSIDER THE ISSUE WITH REGARD TO THE VA LIDITY OF INITIATION OF RE-ASSESSMENT PROCEEDINGS. IT HAS FURTHER BEEN CONTENDED THAT THE OMISSION TO CONSIDER THE GROUNDS AGAINST THE INITIATION OF VALIDITY OF RE-ASSESSMENT PROCEEDINGS IS A MISTAKE APPARENT FROM THE RECORD. THE ASSESSEE HAS MADE A PRAYER TH AT THE TRIBUNAL SHOULD HEAR THE PARTIES ON THE ISSUE OF JURISDICTION AFRESH AND DEC IDE THE SAME. IT HAS ALSO BEEN CONTENDED IN PARA-6 OF THE MISCELLANEOUS APPLICATIO N AS FOLLOWS :- 6. THE OMISSION TO CONSIDER THE GROUNDS AGAINST IN ITIATION OF THE PROCEEDING IS A MISTAKE APPARENT FROM THE RECORD AND IS ALSO INCONS ONANT WITH LAW AS IT IS IMPERATIVE TO DECIDE IN APPEAL THE DISPUTE OVER WANT OF INHERENT AND INITIAL JURISDICTION AND THE QUESTION NEVER ABATES. THERE IS NO ESTOPPEL AGAINST THE QUESTION OF JURISDICTION. EVEN THE ASSESSEE CANNOT WAIVE THE QUESTION OF JURISDICTION BECAUSE THAT WOULD LEAD TO VIOLATION OF THE MANDATE IN ART. 265 OF THE CONSTITUTION ENJO INING THAT THERE CANNOT BE ANY LEVY AND COLLECTION WITHOUT THE AUTHORITY OF LAW. LACK O F JURISDICTION MEANS ABSENCE OF SUCH AUTHORITY. 4. WE HAVE HEARD THE SUBMISSIONS OF THE LD. COU NSEL FOR THE ASSESSEE WHO REITERATED THE STAND OF THE ASSESSEE AS CONTAINED IN THE MISCE LLANEOUS APPLICATION. HE FURTHER PLACED RELIANCE ON THE DECISION OF THE HONBLE GUJA RAT HIGH COURT IN THE CASE OF P.V.DOSHI VS CIT 113 ITR 22 (GUJ). IN THE AFORESAID DECISION THE HONBLE GUJARAT HIGH COURT HELD THAT THE QUESTION OF JURISDICTION I S PURE QUESTION OF LAW AND MERELY BECAUSE THE POINT WAS INITIALLY RAISED AND NOT PRES SED DOES NOT MEAN THAT IT CANNOT BE RE-ADJUDICATED. HE FURTHER DREW OUR ATTENTION TO CE RTAIN PARAGRAPHS OF THE AFORESAID JUDGMENT OF THE HONBLE GUJARAT HIGH COURT AND SUBM ITTED THAT THE ISSUE OF VALIDITY OF ASSUMPTION OF JURISDICTION CANNOT BE GIVEN UP AN D THE TRIBUNAL OUGHT TO HAVE ADJUDICATED ON THE SAID ISSUE. 5. THE LD. DR SUBMITTED THAT IN THE LIGHT OF TH E ADMITTED POSITION THAT THE ASSESSEE DID NOT PRESS FOR ADJUDICATION OF THE GROUND WITH R EGARD TO THE VALIDITY OF INITIATION OF RE-ASSESSMENT PROCEEDINGS IT CANNOT BE SAID THAT T HERE WAS ANY MISTAKE APPARENT IN THE FACE OF THE ORDER OF THE TRIBUNAL. THEREFORE THE MI SCELLANEOUS APPLICATION IS LIABLE TO BE DISMISSED. M.A.NO.84/KOL/2016 A/O ITA NO.2680/KOL/2013-RECON VALVES COMPANY. A.Y.2000-01 3 6. WE HAVE GIVEN A VERY CAREFUL CONSIDERATION T O THE RIVAL SUBMISSIONS. AS ALREADY STATED THE APPEAL WAS HEAD ON 03.07.2015. THE LD. C OUNSEL FOR THE ASSESSEE HAS MADE AN ENDORSEMENT IN THE RECORD THAT THE GROUND WITH R EGARD TO THE INITIATION OF VALIDITY OF RE-ASSESSMENT PROCEEDINGS U/S 147 OF THE ACT IS NOT PRESSED. THE TRIBUNAL HAS THEREFORE NOT ADJUDICATED THE AFORESAID GROUND. EVE N IN THE MISCELLANEOUS PETITION THE FACT THAT THE LD. COUNSEL FOR THE ASSESSEE MADE AN ENDORSEMENT GIVING UP THE GROUND REGARDING THE VALIDITY OF RE-ASSESSMENT PROCEEDINGS IS NOT DISPUTED. IN SUCH CIRCUMSTANCES WE ARE OF THE VIEW THAT IT CANNOT BE SAID THAT THERE WAS ANY MISTAKE APPARENT FROM THE FACE OF THE ORDER OF THE TRIBUNAL CALLING FOR RECTIFICATION U/S 254(2) OF THE ACT. AS FAR AS THE DECISION OF THE HONBLE G UJARAT HIGH COURT IN THE CASE OF P.V.JOSHI (SUPRA) IS CONCERNED IT WAS A CASE WHERE THE ORIGINAL ASSESSMENT OF THE ASSESSEE WAS COMPLETED AND IN AN APPEAL AGAINST THE AFORESAID ORDER THE VALIDITY OF INITIATION OF RE-ASSESSMENT PROCEEDINGS U/S 147 OF THE ACT WAS CHALLENGED BY THE ASSESSEE BEFORE AAC. THE ASSESSEE HOWEVER GAVE UP T HE SAID GROUND OF APPEAL BEFORE THE AAC. THE AAC CONFIRMED THE ORDER OF THE AO ON MERITS. THE ASSESSEE FILED AN APPEAL AGAINST THE ORDER OF THE AAC BEFORE THE TRIB UNAL. THE ASSESSEE HAD NOT CHALLENGED THE VALIDITY OF ASSUMPTION OF JURISDICTI ON U/S 147 OF THE ACT BEFORE THE TRIBUNAL. THE TRIBUNAL RESTORED THE CASE TO THE FIL E OF AO ON THE ADDITION MADE IN THE ASSESSMENT PROCEEDINGS. THE AO AGAIN MADE AN ADDITI ON TO THE INCOME AS WAS DONE IN THE ORIGINAL ASSESSMENT PROCEEDINGS. AGAINST THE SA ID ORDER AN APPEAL WAS FILED BEFORE THE AAC. BEFORE THE AAC THE VALIDITY OF ASSUMPTION OF JURISDICTION U/S 147 OF THE ACT WAS CHALLENGED AND THE AAC HELD THAT THE JURISDICTI ON WAS NOT VALIDLY ASSUMED. AGAINST THE ORDER OF AAC AN APPEAL WAS FILED BEFORE THE TRIBUNAL. THE TRIBUNAL HELD THAT SINCE THE ISSUE ON MERITS ALONE WAS RESTORED T O THE FILE OF AO ONLY THAT POINT COULD HAVE BEEN ADJUDICATED BY THE AO. THE TRIBUNAL HELD THAT THE AAC COULD NOT HAVE ENTERTAINED THE ISSUE OF JURISDICTION AND CONSEQUEN TLY ALLOWED THE APPEAL OF THE REVENUE. AGAINST THE ORDER OF THE TRIBUNAL THE ASSE SSEE PREFERRED A REFERENCE BEFORE THE HONBLE GUJARAT HIGH COURT. THE HONBLE GUJARAT HIGH COURT HELD AS FOLLOWS :- THE PROVISION OF SECTION 147 BEING FOR REOPENING T HE FINALLY CONCLUDED ASSESSMENT THIS SPECIAL PROVISION HAS BEEN CONSIDERED AS PROPERLY H EDGED IN BY THESE VARIOUS STATUTORY SAFEGUARDS BECAUSE THE INCOME HAS ESCAPED THE ORIG INAL ASSESSMENT EVEN WHEN THE PROCEDURE OF ORIGINAL ASSESSMENT CONTEMPLATED SUCH WIDE POWERS OF APPEAL REVISION M.A.NO.84/KOL/2016 A/O ITA NO.2680/KOL/2013-RECON VALVES COMPANY. A.Y.2000-01 4 AND EVEN RECTIFICATION UNDER THE VARIOUS PROVISIONS OF THE ACT. THAT IS WHY THE CONDITIONS LAID DOWN FOR THE REASONABLE BELIEF TO B E REACHED BY THE ITO UNDER SUB- CLAUSE (A) OR UNDER SUB-CLAUSE (B) AND HIS RECORDI NG OF THE REASONS UNDER SECTION 148(2) AND FOR THE SANCTION BEFORE ISSUING THE SAI D NOTICE UNDER SECTION 148 BY THE HIGHER AUTHORITIES UNDER SECTION 151 HAVE BEEN CONS IDERED AS MANDATORY CONDITIONS. THE REASONS WHICH ARE NOW IN TERMS UNDER SECTION 14 8(2) REQUIRED TO BE RECORDED BY THE ITO HAVE NOT TO BE COMMUNICATED TO THE ASSESSEE BUT THEY ARE TO BE AVAILABLE FOR THE AUTHORITIES WHO HAVE TO GIVE THE SANCTION. THE LEGA L POSITION ABOUT WAIVER OF SUCH A MANDATORY PROVISION CREATED IN THE WIDER PUBLIC INT EREST TO OPERATE AS FETTER ON THE JURISDICTION OF THE AUTHORITY IS WELL SETTLED THAT THERE COULD NEVER BE WAIVER FOR THE SIMPLE REASON THAT IN SUCH CASES JURISDICTION COULD NOT BE CONFERRED ON THE AUTHORITY BY MERE CONSENT BUT ONLY ON CONDITIONS PRECEDENT FOR THE EXERCISE OF JURISDICTION BEING FULFILLED. IF THE JURISDICTION CANNOT BE CONFERRED BY CONSENT THERE WOULD BE NO QUESTION OF WAIVER ACQUIESCENCE OR ESTOPPEL OR THE BAR OF R ES JUDICATA BEING ATTRACTED BECAUSE THE ORDER IN SUCH CASES WOULD LACK INHERENT JURISDI CTION UNLESS THE CONDITIONS PRECEDENT ARE FULFILLED AND IT WOULD BE A VOID ORDER OR A NUL LITY. BESIDES THE QUESTION OF WAIVER COULD NEVER BE RAISED IF THE PERSON HAD NO KNOWLEDG E OF HIS LEGAL RIGHTS SO THAT HE COULD MAKE ANY SUCH CONSCIOUS WAIVER. IN THE INSTANT CASE THE AAC IN HIS ORDER HAD POINTED OUT THAT IT WAS WHEN HE PERUSED THE ORDER SHEET THA T HE FOUND THAT THERE WERE NO REASONS RECORDED BY THE ITA FOR ISSUING NOTICE UNDER SECTIO N 148. THE ENTRY ON THE ORDER SHEET SIMPLY CONTAINED THE DIRECTION: 'ISSUE NOTICE UNDER SECTION 148' AND NO REASONS WERE RECORDED BY THE ITO BEFORE REOPENING THE ASSESSMENT . EVEN THE RELEVANT SUB-SECTION OF SECTION 147 UNDER WHICH THE ASSESSMENT WAS SOUGHT T O BE REOPENED WAS NOT MENTIONED. THESE FACTS PRIMA FACIE DISCLOSED THAT THE REASON S CAME TO THE NOTICE OF THE ASSESSEE FOR THE FIRST TIME WHEN THE AAC PERUSED THIS ORDER SHEET AND BROUGHT THIS FACT TO THE NOTICE OF THE ASSESSEE. EVEN ON THAT GROUND THEREF ORE THERE COULD BE NO QUESTION OF ANY WAIVER ON THE FACTS OF THE INSTANT CASE. EVEN THE A LTERNATIVE GROUND OF FINALITY OF THIS ORDER OF THE TRIBUNAL SUFFERED FROM THE SEME INFIRM ITY AS THE TRIBUNAL HAD FAILED TO NOTICE THIS MATERIAL DISTINCTION BETWEEN A MERE PRO CEDURAL PROVISION WHICH COULD BE WAIVED AND SUCH JURISDICTIONAL PROVISION OR A MANDA TORY PROVISION ENACTED IN PUBLIC INTEREST WHICH COULD NOT BE WAIVED BECAUSE BY CONS ENT NO JURISDICTION COULD BE CONFERRED ON THE AUTHORITY UNLESS THE CONDITIONS PR ECEDENT WERE FIRST FULFILLED. THE TRIBUNAL'S VIEW WAS CLEARLY ERRONEOUS THAT THE MATT ER BECAME FINAL WHEN THE TRIBUNAL PASSED THE EARLIER REMAND ORDER SO THAT THIS POINT OF JURISDICTION GOT FINALLY SETTLED WHICH COULD NOT BE AGITATED UNLESS THE ASSESSEE HAD COME IN THE REFERENCE TO THE HIGH COURT AT THIS STAGE. THE TRIBUNAL'S VIEW WAS ALSO I NCORRECT THAT IN RESTORING THE CASE TO THE FILE OF THE ITO BY THE EARLIER ORDER THE ONLY POINT LEFT OPEN WAS IN RESPECT OF ADDITION ON MERITS AND THAT THE LEGAL OR JURISDICTI ONAL ASPECT WHETHER THE RE-ASSESSMENT PROCEEDINGS WERE LEGALLY INITIATED WAS NOT KEPT OPE N. EVEN THE TRIBUAL'S VIEW WAS ERRONEOUS THAT EVEN THOUGH THIS POINT WENT TO THE R OOT OF THE JURISDICTION AND WAS A PURE QUESTION OF LAW MERELY BECAUSE THE POINT WAS INITI ALLY RAISED AND NOT PRESSED WHEN THE MATTER WAS TAKEN UP BEFORE THE AAC IT COULD BE WAI VED AND IT COULD NOT BE REAGITATED. 7. IT CAN BE SEEN FROM THE AFORESAID DECISION O F THE HONBLE GUJARAT HIGH COURT WHAT WAS HELD BY THE COURT IS THAT AT THE SUBSEQUEN T STAGE OF THE SAME PROCEEDINGS THE ASSESSEE COULD ADJUDICATE THE ISSUE OF JURISDICTION . IN THE PRESENT CASE HOWEVER WHEN M.A.NO.84/KOL/2016 A/O ITA NO.2680/KOL/2013-RECON VALVES COMPANY. A.Y.2000-01 5 THE ISSUE OF JURISDICTION WAS GIVEN UP BY THE ASSES SE AND THE TRIBUNAL ACTED ON THE BASIS OF THE SUBMISSION OF THE AR IT CANNOT BE SA ID THAT ORDER OF THE TRIBUNAL SUFFERS FROM A MISTAKE APPARENT FROM THE FACE OF THE RECORD . IF THE ASSESSEE IS STILL AGGRIEVED IT HAS TO SEEK REMEDIES IN ACCORDANCE WITH LAW. IT CAN NOT BE SAID THAT THE ORDER OF THE TRIBUNAL SUFFERS FROM A MISTAKE APPARENT FROM THE F ACE OF THE RECORD. WE THEREFORE ARE OF THE VIEW THAT THERE IS NO MERIT IN THE MISCELLAN EOUS APPLICATION FILED BY THE ASSESSEE. CONSEQUENTLY THE SAME IS DISMISSED. 8. IN THE RESULT THE MISCELLANEOUS APPLICATIO N OF THE ASSESSEE IS DISMISSED. O RDER PRONOUNCED IN THE COURT ON 19.10.2016. SD/- SD/- [WASEEM AHMED ] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 19.10.2016. [RG PS] COPY OF THE ORDER FORWARDED TO: 1.RECON VALVES COMPANY 98 M.M.GHOSH ROAD DUM DUM KOLKATA-700074. 2. .D.C.I.T. CIRCLE-50 KOLKATA 3. C.I.T.(A)-XXXII KOLKATA 4. C.I.T.- XV II KOLKATA. 5. CIT(DR) KOLKATA BENCHES KOLKATA. TRUE COPY BY ORDER ASST. REGISTRAR ITAT KOLKATA BENCHES