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Income Tax Appellate Tribunal - Bangalore

Smt. M K Rajeshwari , Raichur vs The Income Tax Officer Ward-3 , Raichur on 20 February, 2019

              IN THE INCOME TAX APPELLATE TRIBUNAL
                    "SMC A" BENCH : BANGALORE

           BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENT


                            M.P. No.370/Bang/2018
                         [in ITA No.1723/Bang/2018]
                          Assessment year : 2015-16

Smt. M.K. Rajeshwari,                  Vs.   The Income Tax Officer,
Propx.: Laxminarayana Agri                   Ward 3,
Industries, Beside Raichur Solvent           Raichur.
Hyderabad Road,
Raayachuru - 584 102.
PAN: ACYPR 8709F
           APPLICANT                                    RESPONDENT

               Applicant by       : Shri H.N. Khincha, CA
               Respondent by      : Shri S. Venkatesh, JDIT

                 Date of hearing       : 25.01.2019
                 Date of Pronouncement : 20.02.2019

                                   ORDER

This miscellaneous petition is filed by the assessee u/s. 254(2) of the Income-tax Act, 1961 ["the Act"] stating that the order of Tribunal dated 12.10.2018 suffers from mistake apparent on the face of record and praying that the order of Tribunal should be recalled and the appeal be posted for hearing afresh.

2. The first mistake pointed out in the order of Tribunal is that the total income assessed by the AO in this case for AY 2015-16 was a sum of RS.55,91,720. As per the provisions of section 255(3) of the Act, this case M.P. No.370/Bang/2018 Page 2 of 3 should not have been heard by a Single Member Bench since it is only in cases where the total income computed by the AO does not exceed Rs.50 lakhs that a Single Member can hear a case. Our attention was drawn to the decision of the Hon'ble Punjab & Haryana High Court in the case of Gee City Builders P. Ltd. v CIT [2017] 88 taxmann.com 688 (P&H) wherein the Hon'ble High Court in an identical case set aside the order of Tribunal holding that the same was not in accordance with law. Our attention was also drawn to the decision of the Hon'ble Supreme Court in the case of Saurashtra Kutch Stock Exchange Ltd. [2008] 173 taxmann.com 322 (SC), Honda Siel Power Products Ltd. v. CIT, 295 ITR 466 (SC) and the decision of the Hon'ble High Court of Karnataka in CIT v. Sankala Polymers P. Ltd., 388 ITR 617 (Kar). These decisions are on the scope of powers u/s. 254(2) of the Act. In the decision of Hon'ble High Court of Karnataka, it has been held that when a specific provision of the Act has not been applied while passing an order, that case gives rise to a mistake apparent on the record.

3. The ld. DR could not dispute the factual position that as on the date when the Tribunal heard the matter, the total income assessed in the case of assessee was above Rs.50 lakhs.

4. We have considered the rival submissions and are of the view that since the income assessed in the hands of assessee was more than Rs.50 lakhs, the appeal ought not to have been heard by a Single Member Bench. Since the case was heard in violation of the provisions of section 255(3) of the Act, the order of the Tribunal suffers from a mistake apparent on the face of record and the order of the Tribunal dated 12.10.2018 is accordingly recalled. The Registry is directed to fix the case for hearing before the Division Bench in due course.

5. In view of the above conclusion, the other contentions put forth in the miscellaneous petition are not taken up for consideration.

6. In the result, the miscellaneous petition filed by the assessee is allowed.

Pronounced in the open court on this 20th day of February, 2019.

Sd/-

( N.V. VASUDEVAN ) VICE PRESIDENT Bangalore, Dated, the 20th February, 2019.

/ Desai Smurthy / Copy to:

1. Applicant

2. Respondent

3. CIT

4. CIT(A)

5. DR, ITAT, Bangalore.

6. Guard file By order Assistant Registrar, ITAT, Bangalore.