Income Tax Appellate Tribunal - Amritsar
Smt. Satinder Kaur W/O Sh. Paramjit ... vs Pr.Commissioner Of Income Tax -1, ... on 14 November, 2022
IN THE INCOME TAX APPELLATE TRIBUNAL
AMRITSAR BENCH, AMRITSAR.
BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER
AND SH. ANIKESH BANERJEE, JUDICIAL MEMBER
MA No.04/Asr/2020
(In I.T.A. No. 243/Asr/2019)
Assessment Year: 2008-09
Smt. Satinder Kaur W/o Sh. Vs. Pr. CIT-1,
Paramjit Singh, VPO Dakoha Jalandhar.
Jalandhar.
[PAN:BBNPS6491L]
(Appellant) (Respendent)
MA No.08/Asr/2020
(In I.T.A. No. 243/Asr/2019)
Assessment Year: 2008-09
Pr. CIT-1, Vs. Smt. Satinder Kaur W/o
Jalandhar. Sh. Paramjit Singh, VPO
Dakoha Jalandhar.
[PAN:BBNPS6491L ]
(Appellant) (Respondent)
Appellant by Sh. Y.K. Sud, CA.
Respondent by Sh.Rahul Dhawan, CIT. DR.
Date of Hearing 14.10.2022
Date of Pronouncement 14.11.2022
ORDER
Per:Anikesh Banerjee, JM:
The miscellaneous applications were filed by both the assessee and revenue against the order of ITAT, Amritsar Bench in ITA No. 243/Asr/2019 date of order MA No.04 & 08/Asr/2020 2 (In I.T.A. No. 243/Asr/2016) 26.11.2019. The assessee has challenged the order of the ld. Pr. CIT-1 Jalandhar passed u/s 263 of the Income Tax Act 1961 (in brevity the Act) date of order 30th March 2019.
2. Tersely, we advert the fact of the case that the order passed by the ITAT Amritsar Bench bearing ITA 243/Asr/2019 related to assessment year 2008-09. The assessee filed a petition of the miscellaneous application within the limitation period specified under section 254(2) of the Act and agitated the point that the assessment year which was mentioned in the order of the ITAT, Amritsar Bench is mistake apparent from the record. The correct assessment year is 2009-10 which is duly mentioned in the order u/s 263 and the assessment order duly passed u/s 143(3) dated 30.08.2016 by mentioning same assessment year. The revenue has a separate plea against the order of the ITAT, Amritsar Bench. The ITAT, Amritsar Bench in the order has mentioned that the assessee had not get a reasonable opportunity during the proceeding u/s 263. But the plea of the ld. CIT DR is that assessee has given the opportunity and the assessee was unable to submit the documents. There may be insufficient but there was no absence of opportunity so the principle of audi alteram partem was not violated. For paucity of time both the issues are taken together in a single order.
2.1 In the miscellaneous application of the assessee, the ld. Counsel has submitted the judgment of Hon'ble Delhi High Court in the case of Federal Mogul MA No.04 & 08/Asr/2020 3 (In I.T.A. No. 243/Asr/2016) Goetze (India) Ltd. vs. ACIT, 439 ITR 204 (Del). The ld. Counsel further drawn our attention in para no. 2 of the order of the ITAT, Amritsar Bench bearing ITA No. 243/Asr/2019. The relevant para is extracted as below:
"2. At the outset itself ld. Counsel for the assessee submitted that ld. Pr. CIT issued notice to the assessee u/s 263 of the Act on 27/03/2019. In response to the show cause notice, the assessee appeared and requested the ld. Pr. CIT to grant him some time to reply the notice. However, the ld. Pr. CIT without waiting the reply of the assessee passed the order after two days i.e. on 30/03/2019. Therefore ld. Counsel for the assessee submitted that it is against the principle of natural justice and therefore, the order of the ld. Pr. CIT should be quashed."
2.2 In the assessee's submission, the ld. CIT DR had not made any strong objection about the mistake apparent from the record in the order of the ITAT related to wrong mentioning of assessment order.
3. We heard the rival submission and considered the documents available in the record. In the order the ITAT, Amritsar Bench has mentioned the assessment order as 2008-09 but in Form No. 36 of the assessee was also mentioned the AY 2008-
09. No rectification was made by the assessee during the hearing before the ITAT. The impugned order of the PCIT passed u/s 263 was well defined which is related to Assessment Year 2009-10 also the documents which are attested are clearly related to Assessment Year 2009-10. In our thoughtful consideration we accept the petition of the ld. Counsel and the mistake on the order is apparent from the record MA No.04 & 08/Asr/2020 4 (In I.T.A. No. 243/Asr/2016) and the order of the bench is rectified. The said order is related to assessment year 2009-10 instead of A.Y. 2008-09.
4. Accordingly, the Miscellaneous Application of the assessee bearing M.A. No. 04/Asr/2020 is allowed.
REVENUE'S APPEAL
5. The ld. CIT DR vehemently argued and had drawn our attention to page no. 2 of order of ITAT. The relevant para is extracted as follows:
"We note that Hon'ble Supreme Court in the case of Gita Devi Aggarwal vs. CIT 76 ITR 496 (SC) held that section 263 does not in express terms require a notice to be served as in the case of section 147 of the Act. Section 263 merely requires that an opportunity of being heard should be given to the assessee. We note that in assessee's case under consideration, the opportunity has not been given by the ld. Pr. CIT and he passed the order within two days without getting the submissions of the assessee which is against the principle of natural justice. The principle of "audi alteram partem" only means that the party affected should be given sufficient opportunity to meet the case against him. Hence we note that order passed by the ld. Pr. CIT is against the principles of natural justice. Therefore, we quash the order of ld. Pr. CIT."
5.1 The ld. CIT DR further drawn our attention in the revision order u/s 263 in para 2, 3 and 3.1 which is extracted as below:
"2. The show cause notice was duly served upon the assessee on 27.03.2019. In response to the show cause notice, Sh. J.S.Bhasin, Advocate, Counsel for the assessee attended the proceedings and MA No.04 & 08/Asr/2020 5 (In I.T.A. No. 243/Asr/2016) requested for more time to submit reply to the notice. The counsel was intimated that in view of the time barring nature of the proceedings, no adjournment can be granted. He then expressed his inability to file reply.
3. Keeping in view the fact that no reply/explanation has been received from the assessee, the issue involved in the instant proceedings has been examined in the light of facts/material on record viz-a-viz the legal provisions.
3.1 In this case no written submissions or documents have been filed by the counsel of the assessee during the proceedings u/s 263 of the Act. However the objections generally raised during 263 proceedings are being thrashed out in absence of any concrete reply on behalf of the assessee. Any challenge to the assumption of jurisdiction by the undersigned u/s 263 of the Act is not maintainable as the presumptions of the assessee are not based upon any empirical observations. The view taken by the undersigned is based upon an independent perception of the assessment record. It is further clarified that with regard to normal objection that is raised with regard to the difference of opinion between the Assessing Officer and the Commissioner of Income Tax, the position of law stands substantially altered with the insertion of Explanation 2 in section 263, by the Finance Act, 2015. As the deeming provision in that section has been specifically invoked, the decisions pertaining to the pre-amended provisions of section 263, would no longer hold good. Reliance is also placed upon recent decision of Ahmedabad ITAT wherein the hon'ble MA No.04 & 08/Asr/2020 6 (In I.T.A. No. 243/Asr/2016) bench has upheld Sec.263-order; Cites AO's non-examination of sale consideration through Sec. 50C lens."
5.2 The ld. CIT DR pleaded that the bench had made a mistake that there is no opportunity was given and which is violation of 'audi alteram partem'. In the revisional order it is clearly mentioned that the opportunity was allowed to assessee during the hearing. In this respect the ld. CIT DR has submitted the orders of the Hon'ble Apex Court and the Coordinate Bench of Chandigarh:
i. DCIT vs. Subhash Kumar Jain, ITAT (Chd) 69 ITD 313 ii. Tin Box Co. Vs. CIT', 249 ITR 216 (SC)
iii. CIT vs. Jasbir Singh', 88 CCH 0086 (PH.HC) (2014) iv. State of U.P. vs. Sudhir Kumar Singh vs. O Civil Appeal No.3499/2020.
6. The ld. Counsel of the assessee had not made any objection and only to argue that the relevant cases are not related to the miscellaneous petition.
7. We heard the rival submission and relied on the documents available in the record. The ld. CIT DR had pointed out the observation of the bench & the analysis of opportunity before the revisional authority. In fact, the ITAT had mentioned that no opportunity was given to the assessee. The observation of Bench in respect to order U/s 263 is itself debatable issue. The ITAT in this stage during adjudicating the Miscellaneous Application was not empowered to adjudicate the issue in MA No.04 & 08/Asr/2020 7 (In I.T.A. No. 243/Asr/2016) relation to section 254(2) of the Act. The judgments which are mentioned by the ld. CIT DR, are respectfully considered. All the judgmentsare related to legal issue of reasonable opportunity and natural justice. But in this stage by considering the Miscellaneous Application we are unable to adjudicate this debatable issue or not to able the recall the order of the ITAT for further adjudication. We respectfully relied on the order of Apex Court, CIT(IT-4) Mumbai vs Reliance Telecom Ltd. 133 taxmann.com 41 (SC). The observation is extracted as below:-
"4. In the present case, a detailed order was passed by the ITAT when it passed an order on 6-9- 2013, by which the ITAT held in favour of the Revenue. Therefore, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under section 254(2) of the Act. If the Assessee was of the opinion that the order passed by the ITAT was erroneous, either on facts or in law, in that case, the only remedy available to the Assessee was to prefer the appeal before the High Court, which as such was already filed by the Assessee before the High Court, which the Assessee withdrew after the order passed by the ITAT dated 18-11-2016 recalling its earlier order dated 6-9-2013. Therefore, as such, the order passed by the ITAT recalling its earlier order dated 6-9-2013 which has been passed in exercise of powers under section 254(2) of the Act is beyond the scope and ambit of the powers of the Appellate Tribunal conferred under section 254(2) of the Act. Therefore, the order passed by the ITAT dated 18-11-2016 recalling its earlier order dated 6-9-2013 is unsustainable, which ought to have been set aside by the High Court.
5. From the impugned judgment and order passed by the High Court, it appears that the High Court has dismissed the writ petitions by observing that (i) the Revenue itself had in detail gone into merits of the case before the ITAT and the parties filed detailed submissions based on which the ITAT passed its order recalling its earlier order; (ii) the Revenue had not contended that the ITAT had become functus officio after delivering its original order and that if it had to relook/revisit the order, it must be for limited purpose as permitted by section 254(2) of the Act; and (iii) that the merits might have been decided erroneously but ITAT had the jurisdiction and within its powers it may pass an erroneous order and that such objections had not been raised before ITAT.
6. None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors section 254(2) of the Act. As observed hereinabove, the powers under section 254(2) of the Act are only to correct and/or rectify the mistake apparent from the record and not beyond that.
MA No.04 & 08/Asr/2020 8 (In I.T.A. No. 243/Asr/2016) Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted. As observed hereinabove, if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the High Court, but later on the Assessee withdrew the same in the instant case."
The recalling the observation of a speaking order of ITAT is beyond the jurisdiction of Bench. So, the MA application of the revenue is dismissed.
8. In the result, the miscellaneous application of the assessee bearing M.A. No. 04/Asr/2020 is allowed and the miscellaneous application of revenue bearing M.A. No. 08/Asr/2020 is dismissed.
Order pronounced in the open court on 14.11.2022
Sd/- Sd/-
(Dr. M. L. Meena) (ANIKESH BANERJEE)
Accountant Member Judicial Member
AKV
Copy of the order forwarded to:
(1)The Appellant
(2) The Respondent
(3) The CIT
(4) The CIT (Appeals)
(5) The DR, I.T.A.T.
True Copy
By Order