Income Tax Appellate Tribunal - Kolkata
Shri Anil Kumar Nevatia, Kolkata vs Ito, Ward - 40(1), Kolkata, Kolkata on 24 February, 2021
IN THE INCOME TAX APPELLATE TRIBUNAL
KOLKATA BENCH 'A', KOLKATA
VIRTUAL HEARING
[Before Shri J. Sudhakar Reddy, Hon'ble Accountant Member & Shri Aby T. Varkey, Hon'ble Judicial Member]
M.A. No. 132/Kol/2019
(A/O. ITA No. 1479 /Kol/2017)
Assessment Year: 2009-10
Shri Anil Kumar Nevatia............................................................................................................Appellant
18/1, Maharshi Devendra Road
Kolkata - 700 007
[PAN :AADCS 5486 L]
Vs.
Income Tax Officer, Ward-40(1), Kolkata..........................................................................Respondent
Appearances by:
Shri S.M. Surana, Advocate, appeared on behalf of the assessee.
Shri Jayanta Khanra, JCIT, D/R. appearing on behalf of the Revenue.
Date of concluding the hearing : February 12th, 2021
Date of pronouncing the order : February 24th, 2021
ORDER
Per J. Sudhakar Reddy, AM :-
This Bench of the Tribunal disposed off this miscellaneous application vide order dt. 06/09/2019, holding that the miscellaneous application is filed with a delay of 66 days and that the same is beyond limitation and the Tribunal has no powers to pass any order u/s 254(2) of the Act, after the period of limitation specified in the Act. Aggrieved the assessee carried the matter by way of appeal u/s. 260A of the Act, before the Hon'ble Calcutta High Court. The Hon'ble Calcutta High Court, vide its judgment dt. 23/12/2020, considered the submissions of the assessee and while allowing the appeal of the assessee directed the Tribunal to hear out the application u/s 254(2) of the Act, taken out by the assessee on merit and dispose off the same within a period of six(6) weeks from the date of communication of this order. In obidience of this order of the Hon'ble High Court, we have heard this miscellaneous application today.
2. By this miscellaneous application, the assessee seeks recall of the order of the Tribunal dt. 19/09/2018 in ITA No. 1479/Kol/2017, for the reason that the submissions and the case-law filed by the assessee were not considered at all by the Bench. The ld. Counsel for the assessee submitted that, certain case-law were cited during the course of hearing and copies of these judgments were part of the paper book filed by the assessee. The Tribunal has not considered any of these case-law cited, as it is evident from the order of the ITAT and has also, without considering the written submissions of the assessee, which are at pages 1 to 6 of the paper books, had passed an order. Thus, he 2 M.A. No. 132/Kol/2019 (A/O. ITA No. 1479 /Kol/2017) Assessment Year: 2009-10 Shri Anil Kumar Nevatia submits that there is a mistake apparent on record requiring rectification by way of recall. For the proposition, that non-consideration of the case-law relied upon by the assessee and the decision of co-ordinate bench of the Tribunal, results in a mistake apparent on record in the order of the Tribunal, the ld. Counsel for the assessee relied on the judgment of the Hon'ble Supreme Court in the case of Honda Siel Power Products Ltd. vs. C.I.T., (2007) 295 ITR 466 (SC). He also relied on the judgment of the Hon'ble Supreme Court in the case of ACIT V. Saurashtra Kutch Stock Exchange Ltd., 305 ITR 227 (SC) for the proposition that non-consideration of the judgment of the Hon'ble Jurisdictional High Court, whether brought to the notice of the Tribunal or not, is a mistake apparent on record. He took this Bench through the submissions made in the paper book wherein at page 5, the following five case-law were relied upon by the assessee and copies of the same were furnished but were not considered by the ITAT:-
"(i) [2011] 45 SOT 13 (Cuttack)(URO)/[2010] 129 TTJ 1 (Cuttack)(URO)- Chandrakant Thackar vs. Assistant Commissioner of Income-tax.
(ii) [2008] 174 Taxman 286 (Punjab & Haryana)High Court Of Punjab & Haryana Commissioner of Income-tax, (TDS) Chandigarh vs. United Rice Land Ltd.
(iii) [1994] 76 Taxman 334 (Bombay) High Court Of Bombay -Bombay Goods Transport Association vs. Central Board of Direct taxes.
(iv) [2015] 57 taxmann.com 189 (Madras) HIGH COURT OF MADRAS Commissioner of Income-tax, Central Circle II, Chennai vs. R.S. Suriya.
(v) ACIT vs. Niten Shah ITA No. 776/Del/2012 (Supra)"
Thus, he submits that the order of the Tribunal be recalled and decided de-novo after considering the arguments as well as the judgments cited.
2.1. The ld. D/R, submitted that, it is a fact that the judgments referred to and relied upon by the assessee during the course of hearing, copies of which were filed in the paper book, were not referred to or considered in the order of this Tribunal dt. 19/09/2018. Nevertheless, he argued that it should be presumed that the ITAT has considered all these decisions before adjudicating the issue. He did not object to the pleading of the ld. Counsel for the assessee for recall of the order, for fresh adjudication.
3. We have heard rival contentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, and our impugned order dt. 19/09/2018, we hold as follows:-
3 M.A. No. 132/Kol/2019(A/O. ITA No. 1479 /Kol/2017) Assessment Year: 2009-10 Shri Anil Kumar Nevatia
4. The assessee has relied upon the following case-law during the course of hearing as it is evident from the written submissions filed by the assessee along with the paper books; a fact not disputed by the ld. D/R:-
"(i) [2011] 45 SOT 13 (Cuttack)(URO)/[2010] 129 TTJ 1 (Cuttack)(URO)- Chandrakant Thackar vs. Assistant Commissioner of Income-tax.
(ii) [2008] 174 Taxman 286 (Punjab & Haryana)High Court Of Punjab & Haryana Commissioner of Income-tax, (TDS) Chandigarh vs. United Rice Land Ltd.
(iii) [1994] 76 Taxman 334 (Bombay) High Court Of Bombay -Bombay Goods Transport Association vs. Central Board of Direct taxes.
(iv) [2015] 57 taxmann.com 189 (Madras) HIGH COURT OF MADRAS Commissioner of Income-tax, Central Circle II, Chennai vs. R.S. Suriya.
(v) ACIT vs. Niten Shah ITA No. 776/Del/2012 (Supra)"
5. The Hon'ble Supreme Court in the case of Honda Siel Power Products Ltd. (supra) held as follows:-
"Section 254 of the Income-tax Act, 1961 - Appellate Tribunal - Powers of - Assessment year 1991-92 - Whether when prejudice results from an order attributable to Tribunal's mistake, error or omission, then it is duty of Tribunal to set it right - Held, yes - During relevant year, assessee had taken a term 'loan' in foreign exchange for import of machinery - On account of fluctuation in foreign exchange rate, liability of assessee to repay loan in terms of rupees went up - By referring to provisions of section 43A, assessee enhanced figure of WDV of block of assets and claimed depreciation accordingly - Assessing Officer disallowed assessee's claim of enhanced depreciation - Tribunal held that since there was no actual payment after fluctuation, assessee was not entitled to claim benefit under section 43A - Assessee filed rectification application under section 254(2) stating that in deciding ground against assessee, Tribunal inadvertently had not referred to decision of Samtel Color Ltd. dated 10- 12-2001 wherein Tribunal held that enhanced depreciation was allowable even on notional increase in cost of asset on account of fluctuation in exchange rates and despite fact that additional liability resulting from said fluctuation had not been paid by assessee and, therefore, an error apparent from record had crept in Tribunal's order, and same should be rectified - Tribunal acknowledged its mistake of not considering aforesaid judgment of co- ordinate Bench of Tribunal even when same was cited before it and, accordingly, rectified its order by allowing assessee's claim - However, High Court set aside Tribunal's order holding that in guise of rectification, Tribunal had, in fact, reviewed its earlier order which fell outside scope of section 254(2) - Whether High Court was justified in interfering with order of Tribunal passed under section 254(2) - Held, no"
6. The Hon'ble Supreme Court in the case of Saurashtra Kutch Stock Exchange Ltd., (supra), held as follows:-
"Section 254 of the Income-tax Act, 1961 - Appellate Tribunal - Powers of - Assessment year 1996-97 - Whether non-consideration of a decision of Jurisdictional High Court or of Supreme Court can be said to be a 'mistake apparent from record' which can be rectified under section 254(2) - Held, yes"4 M.A. No. 132/Kol/2019
(A/O. ITA No. 1479 /Kol/2017) Assessment Year: 2009-10 Shri Anil Kumar Nevatia
7. The ld. D/R, could not controvert the submissions and the case-law cited cited by the assessee. Under these circumstances, we hold that a mistake apparent on record has crept into the order of this Tribunal dt. 19/09/2018. Hence, we recall the same. The registry is directed to post the case for fresh hearing in due course. Ordered accordingly.
8. In the result, this miscellaneous application of the assessee is allowed.
Kolkata, the 24th day of February, 2021
Sd/- Sd/-
[Aby T. Varkey] [J. Sudhakar Reddy]
Judicial Member Accountant Member
Dated : 24.02.2021
{SC SPS}
Copy of the order forwarded to:
1. Shri Anil Kumar Nevatia
18/1, Maharshi Devendra Road
Kolkata - 700 007
2. Income Tax Officer, Ward-40(1), Kolkata
3. CIT(A)-
4. CIT- ,
5. CIT(DR), Kolkata Benches, Kolkata.
True copy
By order
Assistant Registrar
ITAT, Kolkata Benches