Krishna Kumar D Shah (HUF), Hyderabad v. Dy.CIT, Central Circle-2, Hyderabad

MA 89/HYD/2013 | 2006-2007
Pronouncement Date: 26-07-2013 | Result: Dismissed

Appeal Details

RSA Number 8922524 RSA 2013
Assessee PAN AAEHK4597A
Bench Hyderabad
Appeal Number MA 89/HYD/2013
Duration Of Justice 5 month(s) 10 day(s)
Appellant Krishna Kumar D Shah (HUF), Hyderabad
Respondent Dy.CIT, Central Circle-2, Hyderabad
Appeal Type Miscellaneous Application
Pronouncement Date 26-07-2013
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 26-07-2013
Assessment Year 2006-2007
Appeal Filed On 15-02-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B' HYDERABAD BEFORE SHRI CHANDRA POOJARI ACCOUNTANT MEMBER AND SMT. ASHA `VIJAYARAGHAVAN JUDICIAL MEMBER MA NO. 89/HYD/2013 IN ITA NO. 1164/HYD/2010 A.Y. 2006-07 M/S . KRISHNA KUMAR D. SHAH (HUF) HYDERABAD PAN: AAEHK4597A VS. THE DEPUTY COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-2 HYDERABAD APPELLANT RESPONDENT MA NO. 90/HYD/2013 ITA NO. 1165/HYD/2010 A.Y. 2007-08 M/S. PRAMOD SHAH (HUF) HYDERABAD PAN: AAFHP5091P VS. THE DEPUTY COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-2 HYDERABAD APPELLANT RESPONDENT MA NO. 91/HYD/2013 ITA NO. 1166/HYD/2010 A.Y. 2007-08 M/S. BRIJ GOPAL P. SHAH (HUF) HYDERABAD PAN: AADHB8251M VS. THE DEPUTY COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-2 HYDERABAD APPELLANT RESPONDENT MA NO. 92/HYD/2013 ITA NO. 1167/HYD/2010 A.Y. 2007-08 M/S. SANDEEP P. SHAH (HUF) HYDERABAD PAN: AAJHS8511F VS. THE DEPUTY COMMISSIONER OF INCOME-TAX CENTRAL CIRCLE-2 HYDERABAD APPELLANT RESPONDENT APPELLANT BY: SHRI A.V. RAGHURAM RESPONDENT BY: DR. SHAKIR HUSSAIN DATE OF HEARING: 26. 0 7 .201 3 DATE OF PRONOUNCEMENT: 26.07.2013 MA NOS. 89-92/ HYD/2013 M/S. KRISHNA KUMAR D. SHAH (HUF) & ORS. =============================== 2 O R D E R PER CHANDRA POOJARI AM: THE ABOVE MISCELLANEOUS APPLICATIONS (MAS) BY DIFFE RENT ASSESSEES ARE SEEKING RECTIFICATION IN THE ORDER OF THE TRIBUNAL DATED 12 TH JULY 2012. 2. THE LEARNED AR SUBMITTED THAT IN THE ABOVE APPEALS THE ASSESSEE RAISED A GROUND AS UNDER: 'WITHOUT PREJUDICE TO THE ABOVE THE CIT(A) OUGHT T O HAVE DETERMINED THE MARKET VALUE BASED ON RECORDS O F THE REGISTRAR OF ASSURANCE.' 3. THE AR SUBMITTED THAT THOUGH THE TRIBUNAL HEARD THE PARTIES ON THIS GROUND DISMISSED THE GROUND IN PAR A 18 OF ITS ORDER DATED 12 TH JULY 2012 HOLDING AS UNDER: '18. THE ASSESSEE RAISED ONE MORE GROUND THAT CIT(A ) OUGHT HAVE DETERMINED THE MARKET VALUE BASED ON THE RECORDS OF THE REGISTRAR OF ASSURANCE. WE HAVE GONE THROUGH THE CASE RECORDS. THIS GROUND DOES NOT EMANATES FROM ORDER OF THE CIT(A) BEING SO WE DEC LINE TO ENTERTAIN THE SAME.' 4. ACCORDING TO THE LEARNED AR THE TRIBUNAL MUST HAVE GIVEN CLEAR FINDINGS INSTEAD OF HOLDING THAT THIS GROUND IS NOT EMANATING FROM THE ORDER OF THE CIT(A). HE PLACED RELIANCE O N THE JUDGEMENT OF SUPREME COURT IN THE CASE OF NTPC VS. CIT (229 I TR 383). 5. THE DR SUBMITTED THAT THERE IS NO MISTAKE APPARENT ON RECORD WHICH WARRANTS RECALL OF TRIBUNAL ORDER. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. THE ARGUMENT OF THE AR IS TOTALLY MISCONCE IVED. THE TRIBUNAL CONSIDERED THE ISSUE IN DISPUTE IN ITS ORD ER AND GIVEN A CATEGORICAL FINDING THAT THE ISSUE DOES NOT EMANATE FROM THE ORDER OF THE CIT(A). NOW THE ASSESSEE'S COUNSEL WANTS T O RE-ARGUE THE CASE FOR WHICH THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER. MA NOS. 89-92/ HYD/2013 M/S. KRISHNA KUMAR D. SHAH (HUF) & ORS. =============================== 3 7. IT IS WELL SETTLED THAT STATUTORY AUTHORITY CANNOT EXERCISE POWER OF REVIEW UNLESS SUCH POWER IS EXPRESSLY CONF ERRED. THERE IS NO EXPRESS POWER OF REVIEW CONFERRED ON THIS TRI BUNAL. EVEN OTHERWISE THE SCOPE OF REVIEW DOES NOT EXTENT TO R E-HEARING OF THE CASE ON MERIT. IT IS HELD IN THE CASE OF CIT VS. P EARL WOOLLEN MILLS (330 ITR 164): HELD THAT THE TRIBUNAL COULD NOT READJUDICATE THE MATTER UNDER SECTION 254(2). IT IS WELL SETTLED TH AT A STATUTORY AUTHORITY CANNOT EXERCISE POWER OF REVIEW UNLESS SUCH POWER IS EXPRESSLY CONFERRED. THERE WA S NO EXPRESS POWER OF REVIEW CONFERRED ON THE TRIBUNA L. EVEN OTHERWISE THE SCOPE OF REVIEW DID NOT EXTENT TO REHEARING A CASE ON THE MERITS. NEITHER BY INVOKIN G INHERENT POWER NOR THE PRINCIPLE OF MISTAKE OF COUR T NOT PREJUDICING A LITIGANT NOR BY INVOLVING DOCTRINE OF INCIDENTAL POWER COULD THE TRIBUNAL REVERSE A DECI SION ON THE MERITS. THE TRIBUNAL WAS NOT JUSTIFIED IN RECALLING ITS PREVIOUS FINDING RESTORING THE ADDITI ON MORE SO WHEN AN APPLICATION FOR THE SAME RELIEF HAD BEEN EARLIER DISMISSED. 8. THE SCOPE AND AMBIT OF APPLICATION OF SECTION 254(2 ) IS VERY LIMITED. THE SAME IS RESTRICTED TO RECTIFICATION O F MISTAKES APPARENT FROM THE RECORD. WE SHALL FIRST DEAL WITH THE QUESTION OF THE POWER OF THE TRIBUNAL TO RECALL AN ORDER IN ITS ENTIRETY. RECALLING THE ENTIRE ORDER OBVIOUSLY WOULD MEAN PAS SING OF A FRESH ORDER. THAT DOES NOT APPEAR TO BE THE LEGISLATIVE INTENT. THE ORDER PASSED BY THE TRIBUNAL UNDER S. 254(1) IS THE EFFEC TIVE ORDER SO FAR AS THE APPEAL IS CONCERNED. ANY ORDER PASSED UNDER S. 254(2) EITHER ALLOWING THE AMENDMENT OR REFUSING TO AMEND GETS MERGED WITH THE ORIGINAL ORDER PASSED. THE ORDER AS AMEND ED OR REMAINING UN-AMENDED IS THE EFFECTIVE ORDER FOR ALL PRACTICAL PURPOSES. AN ORDER UNDER S. 254(2) DOES NOT HAVE E XISTENCE DE HORS THE ORDER UNDER S. 254(1). RECALLING OF THE ORDER IS NOT PERMISSIBLE UNDER S. 254(2). RECALLING OF AN ORDER AUTOMATICALLY NECESSITATES REHEARING AND RE-ADJUDICATION OF THE E NTIRE SUBJECT- MA NOS. 89-92/ HYD/2013 M/S. KRISHNA KUMAR D. SHAH (HUF) & ORS. =============================== 4 MATTER OF APPEAL. THE DISPUTE NO LONGER REMAINS RE STRICTED TO ANY MISTAKE SOUGHT TO BE RECTIFIED. POWER TO RECALL AN ORDER IS PRESCRIBED IN TERMS OF RULE 24 OF THE ITAT RULES 1 963 AND THAT TOO ONLY IN CASE WHERE THE ASSESSEE SHOWS THAT IT H AD A REASONABLE CAUSE FOR BEING ABSENT AT A TIME WHEN THE APPEAL WA S TAKEN UP AND WAS DECIDED EX-PARTE. JUDGED IN THE ABOVE BACK GROUND THE ORDER PASSED BY THE TRIBUNAL IS INDEFENSIBLE. 9. THE WORDS USED IN S. 254(2) ARE SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE . CLEARLY IF THERE IS A MISTAKE THEN AN AMENDMENT IS REQUIRED T O BE CARRIED OUT IN THE ORIGINAL ORDER TO CORRECT THAT PARTICULA R MISTAKE. THE PROVISION DOES NOT INDICATE THAT THE TRIBUNAL CAN R ECALL THE ENTIRE ORDER AND PASS A FRESH DECISION. THAT WOULD AMOUNT TO A REVIEW OF THE ENTIRE ORDER AND THAT IS NOT PERMISSIBLE UNDER THE IT ACT. THE POWER TO RECTIFY A MISTAKE UNDER S. 254(2) CANNOT B E USED FOR RECALLING THE ENTIRE ORDER. NO POWER OF REVIEW HAS BEEN GIVEN TO THE TRIBUNAL UNDER THE IT ACT. THUS WHAT IT COULD NOT DO DIRECTLY COULD NOT BE ALLOWED TO BE DONE INDIRECTLY. 10. IN THE CASE OF CIT VS. HINDUSTAN COCA COLA BEVERAGE S (P) LTD. (2007) 207 CTR (DEL) 119; (2007) 293 ITR 163 ( DEL) THEIR LORDSHIPS WHILE CONSIDERING THE POWERS OF THE TRIBU NAL UNDER S. 254(2) OF THE IT ACT 1961 OBSERVED AS UNDER: UNDER S. 254(2) OF THE IT ACT 1961 THE TRIBUNAL HAS THE POWER TO RECTIFY MISTAKES IN ITS ORDER. HOWEVE R IT IS PLAIN THAT THE POWER TO RECTIFY A MISTAKE IS NOT EQUIVALENT TO A POWER TO REVIEW OR RECALL THE ORDER SOUGHT TO BE RECTIFIED. RECTIFICATION IS A SPECIES OF THE LARGER CONCEPT OF REVIEW. ALTHOUGH IT IS POSSIBLE THAT THE PRE-REQUISITE FOR EXERCISE OF EITHER POWER MAY BE S IMILAR (A MISTAKE APPARENT FROM THE RECORD) BY ITS VERY N ATURE THE POWER TO RECTIFY A MISTAKE CANNOT RESULT IN THE RECALL AND REVIEW OF THE ORDER SOUGHT TO BE RECTIFIED. 11. THUS THE SCOPE AND AMBIT OF APPLICATION U/S. 254(2) IS AS FOLLOWS: MA NOS. 89-92/ HYD/2013 M/S. KRISHNA KUMAR D. SHAH (HUF) & ORS. =============================== 5 (A) FIRSTLY THE SCOPE AND AMBIT OF APPLICATION OF S. 2 54(2) OF IT ACT IS RESTRICTED TO RECTIFICATION OF THE MISTAKES APPARENT FROM THE RECORD. (B) SECONDLY THAT NO PARTY APPEARING BEFORE THE TRIBUN AL SHOULD SUFFER ON ACCOUNT OF ANY MISTAKE COMMITTED B Y THE TRIBUNAL AND IF THE PREJUDICE HAS RESULTED TO THE P ARTY WHICH PREJUDICE IS ATTRIBUTABLE TO THE TRIBUNALS MISTAKE/ERROR OR OMISSION AND WHICH AN ERROR IS A MANIFEST ERROR THEN THE TRIBUNAL WOULD BE JUSTIFIED IN RECT IFYING ITS MISTAKE. THE RULE OF PRECEDENT IS AN IMPORTANT A SPECT OF LEGAL CERTAINTY IN THE RULE OF LAW AND THAT PRINCIP LE IS NOT OBLITERATED BY S. 254(2) OF THE ACT AND NON-CONSIDE RATION OF PRECEDENT BY THE TRIBUNAL CAUSES A PREJUDICE TO THE ASSESSEE. (C) THIRDLY POWER TO RECTIFY A MISTAKE IS NOT EQUIVALE NT TO A POWER TO REVIEW OR RECALL THE ORDER SOUGHT TO BE RE CTIFIED. (D) FOURTHLY UNDER S. 254(2) AN OVERSIGHT OF A FACT CA NNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER TH E SECTION. (E) FIFTHLY FAILURE ON THE PART OF THE TRIBUNAL TO CON SIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON RECORD ALTH OUGH IT MAY BE AN ERROR OF JUDGEMENT. (F) SIXTHLY EVEN IF ON THE BASIS OF A WRONG CONCLUSION THE TRIBUNAL HAS NOT ALLOWED A CLAIM OF THE PARTY IT WI LL NOT BE A GROUND FOR MOVING AN APPLICATION UNDER S. 254(2) OF THE ACT. (G) LASTLY IN THE GARB OF AN APPLICATION FOR RECTIFICA TION UNDER S. 254(2) THE ASSESSEE CANNOT BE PERMITTED TO REOPEN A ND REARGUE THE WHOLE MATTER AS THE SAME IS BEYOND THE SCOPE OF S. 254(2) OF THE IT ACT. MA NOS. 89-92/ HYD/2013 M/S. KRISHNA KUMAR D. SHAH (HUF) & ORS. =============================== 6 12. IN VIEW OF THE ABOVE DISCUSSION WE FIND NO MERIT I N THE ARGUMENT OF THE ASSESSEE'S COUNSEL. THE TRIBUNAL C ANNOT REVIEW ITS OWN ORDER AND THE REMEDY LIES ELSEWHERE. WE DO NOT FIND ANY MISTAKE APPARENT ON RECORD WHICH WARRANTS RECTIFICA TION OF TRIBUNAL'S ORDER. ACCORDINGLY THE GROUND RAISED B Y THE AR IS REJECTED. 13. IN THE RESULT ALL THE MAS BY DIFFERENT ASSESSEES A RE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH JULY 2013 SD/ - (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD DATED THE 26 TH JULY 2013 COPY FORWARDED TO: 1. M/S. PRAMOD SHAH (HUF) C/O. M/S. MAHESH VIRENDER & SRIRAM CHARTERED ACCOUNTANTS 6-3-788/36 & 37A AMEERPET HYDERABAD. 2. M/S. KRISHNA KUMAR D. SHAH (HUF) C/O. M/S. MAHESH VIRENDER & SRIRAM CHARTERED ACCOUNTANTS 6-3-788/3 6 & 37A AMEERPET HYDERABAD. 3. M/S. BRIJ GOPAL P. SHAH (HUF) C/O. M/S. MAHESH VI RENDER & SRIRAM CHARTERED ACCOUNTANTS 6-3-788/36 & 37A AMEERPET HYDERABAD. 4. M/S. SANDEEP P. SHAH (HUF) C/O. M/S. MAHESH VIREN DER & SRIRAM CHARTERED ACCOUNTANTS 6-3-788/36 & 37A AMEERPET HYDERABAD. 5. THE DEPUTY COMMISSIONER OF INCOME-TAX CENTRAL CIRC LE-2 HYDERABAD. 6. THE CIT(A)-I HYDERABAD 7. THE CIT (CENTRAL) HYDERABAD 8. THE DR B BENCH ITAT HYDERABAD. TPRAO