Income Tax Appellate Tribunal - Lucknow
M/S Baba Vishwanath Gramodyog Sewa ... vs Astt. Commissioner Of Income Tax-1, ... on 22 February, 2019
M.A. No.35/Lkw/2018
(in M.A. No.02/Lkw/2018 1
(in I.T.A. No.671/Lkw/2016)
Assessment Year:2013-14
IN THE INCOME TAX APPELLATE TRIBUNAL
LUCKNOW BENCH 'SMC', LUCKNOW
BEFORE SHRI A. D. JAIN, VICE PRESIDENT AND
SHRI T. S. KAPOOR, ACCOUNTANT MEMBER
M.A. No.35/Lkw/2018
(in M.A. No.02/Lkw/2018
(in I.T.A. No.671/Lkw/2016)
Assessment Year:2013-14
M/s Baba Vishwanath Gramodyog Vs. A.C.I.T.-1,
Sewa Sansthan, Kanpur.
Village Tilak Nagar,
Kanpur.
PAN:AABTB 1377 L
(Appellant) (Respondent)
Appellant by Shri Pradeep Seth, F.C.A.
Respondent by Shri C. K. Singh, D.R.
Date of hearing 08/02/2019
Date of pronouncement 22/02/2019
ORDER
PER T. S. KAPOOR, A.M.
This Misc. Application has been filed by the assessee against the order of the Tribunal dated 01/05/2018 passed in M.A.No.02/Lkw/2018 vide which the Misc. Application of the assessee was dismissed. Against the dismissal of the Misc. Application, the assessee has again filed the Misc. Application whereby he has challenged the dismissal of Misc. Application by the Hon'ble Tribunal and has requested for its recall.
2. Learned D. R., on the other hand, submitted that Misc. Application against Misc. Application is not allowed as has been held by Hon'ble Special M.A. No.35/Lkw/2018 (in M.A. No.02/Lkw/2018 2 (in I.T.A. No.671/Lkw/2016) Assessment Year:2013-14 Bench of Hon'ble Delhi Tribunal in the case of Padam Prakash (HUF) vs. Income Tax Officer [2011] 136 TTJ (Del) 257.
3. We have heard the rival parties and have gone through the material placed on record and the contents of the Misc. Application. We find that against the dismissal of its Misc. Application, the assessee has again filed the Misc. Application whereby it has challenged the dismissal of Misc. Application by the Hon'ble Tribunal and has requested for its recall. However, we find that Special Bench of Hon'ble Delhi Tribunal in the case of Padam Prakash (HUF) vs. Income Tax Officer [2011] 136 TTJ (Del) 257, while dealing with the maintainability of Misc. Application for rectification of earlier order u/s 254(2) has held as under:
"9. It is true that sub-s. (2) of s. 254 can be invoked only in a situation if there is a mistake in the order passed by the Tribunal under sub-s. (1) of s. 254. The impugned miscellaneous application filed by the assessee is against the order passed on 27th Nov., 2009 which is an order passed under s. 254(2). Therefore, principally, the application filed by the 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, ITAT (1992) 102 CTR (Ori) 296: (1992) 196 ITR 838(Ori) wherein it has been held that to attract applicability of s.
254(2), a mistake which is sought to be rectified must be apparent from record and the same must be in any order passed under sub-s.
(1) of s. 254. The order referred to in s. 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 under s. 253. Therefore, the order which can be rectified must be one which has been passed by the Tribunal in an appeal filed under s. 253. An order rejecting an application for rectification under s. 254(2) cannot be rectified under s. 254(2). The same may relate to an appeal but is not an order passed by the Tribunal under sub-s. (1) of s. 254 and thus, it was held that subsequent application filed by the assessee was rightly rejected by the Tribunal.
(ii) In the case of Mentha & Allied Products Co. (P) Ltd. vs. ITAT (2000) 163 CTR (Del) 25: (2000) 244 ITR 470(Del), after referring to the provisions of s. 254(1) and (2), it was held as under :
M.A. No.35/Lkw/2018 (in M.A. No.02/Lkw/2018 3(in I.T.A. No.671/Lkw/2016) Assessment Year:2013-14 "7. The relevant provisions of s. 254 read as under :
'254. Orders of Appellate Tribunal.'(1) The Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit.
(2) The Tribunal may, at any time within four years from the date of the order, with a view to rectifying any 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 by the assessee or the AO;''.' The aforenoted provisions of law are clear and unambiguous. A bare reading whereof leaves no doubt in our mind that the Tribunal is competent to rectify a mistake apparent from the record and amend any order which has been passed under sub-s. (1). Admittedly, by the impugned order, the Tribunal has sought to rectify the order passed by it under s. 256(1) of the Act and not an order passed under s. 254(1). We have no hesitation in holding that the Tribunal is not clothed with an inherent power to rectify/recall an order passed under s. 256(1) of the Act by taking recourse to s. 254(2) of the Act and, therefore, the impugned order is illegal and invalid. The view taken by us finds support from a decision of this Court in CIT vs. Kabir Das Investment Ltd. (1995) 124 CTR (Del) 259: (1994) 210 ITR 898(Del) : TC 55R.777."
10. In the case of CIT vs. Aiswarya Trading Co. (2010) 236 CTR (Ker) 334: (2010) 46 DTR (Ker) 126: (2011) 192 Taxman 385(Ker), it was held that the Tribunal was justified in refusing to entertain an application filed by the Revenue under s. 254(2) to rectify the order issued by the Tribunal in an earlier rectification application filed by the assessee, as the second application on the very same issue is not maintainable before the Tribunal.
11. In the case of Dr. S. Panneerselvam vs. Asstt. CIT (2010) 228 CTR (Mad) 423: (2009) 32 DTR (Mad) 357: (2009) 319 ITR 135(Mad), it was held that the Tribunal having allowed first rectification petition, second petition was not maintainable; remedy by way of appeal was the only course open.
12. If the application filed by the assessee is viewed in the light of aforementioned judicial pronouncements, then it will become clear that the relief which is being sought by the assessee by way of impugned rectification application is not legally tenable for the reason that the Tribunal has no power to adjudicate upon subsequent application filed under s. 254(2). Here, it may be the case of the assessee that earlier order against which impugned rectification application is filed is also an order passed on subsequent M.A. No.35/Lkw/2018 (in M.A. No.02/Lkw/2018 4 (in I.T.A. No.671/Lkw/2016) Assessment Year:2013-14 application, then the only course permissible to the assessee is to file an appeal against that order 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 dt.
27th Nov., 2009 is that by keeping in view the latest decision of Hon'ble Supreme Court, it was observed that the observations made by it in earlier order dt. 26th Sept., 2008 are no more relevant and therefore, those observations have been withdrawn. According to the well established law, the order of the Tribunal has to be brought in conformity with the decision of the apex Court, even if the said decision is rendered subsequent to the pronouncement of the order and reference in this regard can be made to the decision of Hon'ble Supreme Court in the case of Asstt. CIT vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 219 CTR (SC) 90: (2008) 12 DTR (SC) 346:
(2008) 305 ITR 227(SC).
14. So far as it relates to the contention of the assessee that indisposition of the counsel constituted reasonable cause for non- appearance on the fixed date of hearing, we may observe that in para 5 of the order dt. 27th Nov., 2009, it has been recorded by the Tribunal that there is no co-operation from the assessee's side who has also sought an adjournment. Therefore, this ground cannot constitute any cause to recall the said order as what was done in that order was to bring the earlier order in conformity with the decision of the Hon'ble apex Court rendered subsequently.
15. In view of the above discussion, we find no force in the miscellaneous application filed by the assessee which is rejected and dismissed.
4. Respectfully following the above decision of Hon'ble Special Bench of the Delhi Tribunal, we dismiss the present Misc. Application filed by the assessee.
5. In the result, the Misc. Application of the assessee is dismissed.
(Order pronounced in the open court on 22/02/2019) Sd/. Sd/.
( A. D. JAIN ) ( T. S. KAPOOR ) Vice President Accountant Member Dated:22/02/2019 *Singh M.A. No.35/Lkw/2018 (in M.A. No.02/Lkw/2018 5 (in I.T.A. No.671/Lkw/2016) Assessment Year:2013-14 Copy of the order forwarded to : 1. The Appellant 2. The Respondent. 3. Concerned CIT 4. The CIT(A) 5. D.R., I.T.A.T., Lucknow