Income Tax Appellate Tribunal - Kolkata
Sagar Saha, Jalpaiguri vs Assessee on 4 May, 2012
आयकर अपीलीय अधीकरण, Ûयायपीठ - "ए", कोलकाता,
IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH "A", KOLKATA
(सम¢)Before ौी,
ौी, सी.
सी.डȣ.
डȣ.राव,
राव,लेखा सदःय एवं/and
Shri C.D.Rao, Accountant
Member
ौी जाज[ माथन,
माथन, Ûयाियक सदःय
Shri George Mathan, Judicial Member
आयकर अपील संÉया /
M.A.Nos.26&27/Kol/2012
A/o C.O.Nos.23&24/Kol/2009
In ITA No.2082&2083/Kol/2008
िनधॉरण वषॅ/Assessment Years : 2003-04
& 2004-05
-वनाम-
(अपीलाथȸ/APPELLANT ) - (ू×यथȸ/RESPONDENT)
Sri Sagar Saha, Jalpaiguri Versus- A.C.I.T., Circle-2,
(PAN: AIYPS 6754 M) . Jalpaiguri
अपीलाथȸ कȧ ओर से/ For the Appellant: Shri A.K.Chakraborty &
Shri Piyal Gupta
ू×यथȸ कȧ ओर से/For the Respondent: Shri S.K.Sinha
सुनवाई कȧ तारȣख/Date of Hearing : 04.05.2012
घोषणा कȧ तारȣख/Date of Pronouncement : 16.05.2012.
आदे श/ORDER
(सी.
सी.डȣ.
डȣ.राव)
राव), लेखा सदःय
Per Shri C.D.Rao, AM
The above Miscellaneous Applications have been filed by assessee to recall the orders of the Tribunal dated 23.12.2009 vide C.O. Nos 23 & 24/Kol/2009 in ITA Nos.2082 & 2083/Kol/2008 pertaining to A.Yrs. .2003-04 & 2004-05 respectively.
2. By these Miscellaneous Applications assessee wants to recall the orders of Tribunal dated 23.12.2009 on two issues. The first one is relating to the issue of re-
2opening of assessment u/s 147 of the IT Act. The submissions of assessee on this issue are as under :
"4. That the Ld. Tribunal while discussing the initiation of the proceedings u/s.
147. simply discussed the same in the manner in which normal proceedings u/s. 147 is dealt with in law when there is escapement of Income in assessment u/s. 143(1) or u/s. 143(3) following other previous years cases as initiated and passed orders by lower authorities.
5. That in the present case relating to Assessment Year 2003-04, the whole argument which was advanced on behalf of the cross objector was on the basis of the fact that the assessment order in which expenses claimed by the assessee were disallowed against the incentive Bonus and the Additional Conveyance allowances was appealed against and in appeal, the disallowances of the claim were reduced and accordingly, the original assessment order being merged with the appellate order, the Ld. Assessing Officer lost the jurisdiction to re-open the same by initiating proceedings u/s. 147 of the I. T. Act, 1961.
In support of the said submission, the cross objector filed the Xerox copy of Memo of Appeal to CIT (A) in Form -- 35, statement of fact and grounds of appeal with submission and the original Assessment Order dated 25/07/2005 for Assessment Year 2003-04 vide Paper Book Page 55 to 59A, 59B, 59C and 59D. The appellate order dated 20/01/2006 thereunder in Appeal Case No. 386/CIT(A)/JAL. was also filed before the Ld. Bench.
6. It is therefore apparent that Ld. Bench while passing the said combined order dated 23/12/2009 for the Assessment Year 2003-04 totally omitted to consider the arguments based on ground no. 7 of the cross objection and the supporting evidences filed. A number of cases were also cited in support of the ground during the argument of the case for the said Assessment Year,references of which are stated below but the said cases do not appear to have been discussed and considered and the order needs be amended accordingly.
a) 264-ITR-566(S.C.), (b) 307-ITR-1 15(Guj), (c) 308-ITR-190 (Born), (d) 308-ITR-
195(Bom) and 169-Itr-533(S.C.)."
Therefore he requested to recall this issue for fresh adjudication.
4. On the other hand, the ld. DR appearing on behalf of the revenue by referring to para no.14 at page no.7 contended that the Tribunal has decided the issue. There is no need to re-adjudicate the issue since the Tribunal is not having review powers. Therefore he requested to reject the plea of the assessee.
5. After hearing the rival submissions and on careful perusal of the Tribunal's order at para nos. 11 to 14 wherein the Tribunal has discussed ground no.2 raised by the assessee in Cross Objection and then given the findings at para no.14 on which the ld. DR has relied. Since the ld. Counsel for assessee has not pointed out any mistake 3 apparent from record and he further requested to review the order, in our considered opinion, since the Tribunal is not having reviewing power u/s 254(2) of the IT Act unable to accept the contention of the assessee on this issue.
6. As regarding the other issue, the ld.Counsel for assessee submitted that regarding disposal of the claim about conveyance/additional conveyance allowance. He submitted that the Tribunal has set aside this matter to the file of AO for his discretion and all the material and papers and evidences are available in the records instead of setting aside the matter to the file of AO the Tribunal should have taken the decision. Therefore he requested to recall the order on this issue to decide the same afresh.
7. On the other hand, the ld. DR appearing on behalf of the revenue contended that once the tribunal has taken the decision of setting aside the issue they cannot recall the same for fresh adjudication since they are not having the reviewing power. He requested to reject the claim of the assessee.
8. After hearing the rival submissions and on careful perusal of the Tribunal's order since the ld. Counsel for assessee has not pointed out any mistake apparent from record and he further requested to review the order, in our considered opinion, since the Tribunal is not having reviewing power u/s 254(2) of the IT Act unable to accept the contention of the assessee on this issue.
9. In the result the Miscellaneous applications of the assessee are dismissed.
Order pronounced in the court on 16.05.2012.
Sd/- Sd/-
जाज[ माथन,
माथन, Ûयाियक सदःय सी.
सी.डȣ.
डȣ.राव,
राव, लेखा सदःय,
सदःय
George Mathan, Judicial Member C.D.Rao, Accountant Member.
(तारȣख)
तारȣख)Date: 16.05.2012.
R.G.(.P.S.)
4
आदे श कȧ ूितिलǒप अमेǒषतः-
Copy of the order forwarded to:
1. Shri Sagar Saha, D.O.(L.I.C.), Kadamtala P.O., & Dist.Jalpaiguri.
2 A.C.I.T., Circle-2, Jalpaiguri
3. The CIT-Jalpaiguri 4. The CIT(A)-Jalpaiguri
5. DR, Kolkata Benches, Kolkata स×याǒपत ूित/True Copy, आदे शानुसार/ By order, Deputy /Asst. Registrar, ITAT, Kolkata Benches