TaxTMI 
TaxTMI 
TaxTMI 
2014 (3) TMI 843
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....itation for recovery of tax was provided by Sec. 231 r.w.s 201(1) and 201(1A) of the Income-tax Act, 1961 and that with the omission of Sec. 231 by Direct Tax Laws (Amendment) Act, 1987 w.e.f. 1-4-1989, there was no limitation period prescribed for recovery of taxes. The Department also submitted that the CIT(A) relied on the decision given by the Tribunal in the case of AP State Civil Supplies Corporation in ITA No. 1117 to 1122/Hyd/07 for A.Ys. 1999-00 to 2004-05 by its order dated 01.08.2008 but that the Department did not accept the said decision and went in appeal u/s. 260A before the High Court of A.P. The Department also relied on the order of the Special Bench of the Tribunal, Mumbai in the case of M/s. Mahindra and Mahindra Ltd. vs DCIT (ITA Nos. 2606,2607, 2613 and 2614/Mum/2000 for A.Y. 1998-99). Based on the ratio of the said decision it was submitted by the Department that tax due as a result of Assessing Officer's order being much more than Rs. One lakh rupees each, the proceedings in the assessee's case were initiated and completed well within the time limit of 6 years prescribed for completing the reassessment proceedings u/s. 147 r.w.s. 149 of the Act and h....
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....cial Bench, Mumbai in the case of Mahindra & Mahindra (supra) wherein it was held that maximum time limit for passing the order u/s 201(1) and 201(lA) is the same as prescribed under section 149 of the Act, i.e., 4 years or 6 years from the end of the relevant AY, as the case may be depending upon the amount of income in respect of which the person responsible is sought to be treated as the assessee in default. The order passed u/s 201(1) or 201(lA) cannot be held as barred by limitation if it is passed within 4 years from the end of the relevant A.Ys. or 6 years as the case may be. In the present case, time limit available for passing the order u/s 201(1) and 201 (lA) is as follows: Sl. No. A.Y. Time limit available for passing order Actual date of passing order 1. 2001-02 31.03.2008 02.04.2008 2. 2002-03 31.03.2009 -do- 3. 2003-04 31.03.2010 -do- 5. The AR submitted that the Special Bench, Mumbai, ITAT held as under in the case of M/s. Mahindra and Mahindra (supra) and drew our attention particularly to the last sentence in paragraph 17.10 of the said order: "the completion of proceedings u/s.201(1), that is the passing of the order under this sub-section....
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.... is based on the ratio of the decision of Spl. Bench Mumbai in the case of M/s. Mahindra and Mahindra, the conclusions reached and the decision recorded in respect of validity or otherwise of the orders passed by the Assessing Officer constitute mistake apparent from record because the said conclusions are not in accordance with the Tribunal Spl. Bench Mumbai decision in the case of M/s. Mahindra and Mahindra (supra). The AR also submitted that the sub-paragraph in quotes, extracted at the bottom of paragraph 15 of the order of the Tribunal is stated to have been extracted from the judgment of the Apex court in the case of ITO vs Delhi Development Authority (252 ITR 772) (SC). However, the said subparagraph does not appear in the said judgment. Therefore the insertion of the said sub-paragraph constitutes a mistake apparent from record. The AR further submitted that in the light of the AR's submissions as above, the finding in paragraphs 16 and 17 of the order of the Tribunal constitute a mistake apparent from record. 8. The AR also submitted that though the finding of the Tribunal has ultimately gone against the assessee in ITA No. 1516/Hyd/2008, the decision is based on the ....
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....considered the order of the Special Bench in proper perspective and decided the issue. Being so, we do not find any merit in this argument of the assessee's counsel. 10.1 Regarding the other argument of the assessee's counsel, admittedly in this case, the Revenue came in appeal before us against the order of the CIT(A) wherein the CIT(A) cancelled the order of the AO passed u/s. 201(1) and 201(1A) of the Act holding that the order is passed beyond the reasonable period of 4 years and he has not gone into the merit of the issues as to whether the assessee was liable to deduct tax on payments made by it, though the assessee raised the grounds. The Tribunal considering the entire facts and circumstances of the case held that the order passed by the AO for A.Y. 2001-02 is barred by limitation. Further, giving a finding that the order passed for A.Ys. 2002-03 and 2003-04 is not barred by limitation and the appeals filed by the Revenue for these two assessment years were allowed. Now the contention of the AR is that after upholding the order of the AO that the order passed by the AO is within the time limit and thereafter the Tribunal ought to have remitted the issues to the fil....
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....hich has been ignored or any other omission on the part of ITAT while deciding the issue relating to the validity of the assessment order. Thus, by making averments in paras 1 to 6 of the miscellaneous application, the assessee, in fact, is seeking a review of the findings recorded by the Tribunal in relation to validity of the assessment order. If the prayer of the assessee is considered and allowed then it will amount to recalling of the order of the Tribunal and reviewing the same. The assessee, therefore is requiring the Tribunal to recall its order, which course is not open to us while exercising jurisdiction under section 254(2). It is now well-settled legal position that the Tribunal does not have the power to recall its order. The position in this regard has been clarified by the Hon'ble Delhi High Court-in the cases of Ms. Deeksha Suri v. ITAT (1998) 232 ITR 3951; Karan & Co. v. ITAT (2002) 253 ITR 131 (Delhi); and CIT v. Vichtra Construction (P) Ltd. (2004) 269 ITR 371 (Del). 12. In view of the ratio of the above decisions, the prayer made by the applicant on the basis of averments made in paras 1 to 6 of miscellaneous application cannot be allowed. 20. On the basis....
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....e taken so as to refer to the subject-matter of the appeal and as held in the case of Ahmedabad Electricity Co. Ltd. v. CIT (1993) 199 ITR 351 (Bom) (FB), the subject-matter of appeal is the entire tax proceedings of the assessee which is before the Tribunal for consideration and this will cover the proceedings before the assessing officer, before the first appellate authority as well as before the Tribunal, including the grounds raised before the Tribunal, any additional grounds which may be allowed to be raised before the Tribunal as also cross-objections, if any, before the Tribunal. In view of the said decision it is clear that the view that Tribunal is confined only to issues arising out of the appeal before the first appellate authority is a narrow view. 23.3 The decision of the Full Bench of the Hon'ble Bombay High Court in the case of Ahmedabad Electricity Co. Ltd. (supra), has been followed and applied in the case of National Thermal Power Co. Ltd. v. CIT (1998) 229 ITR 383 (SC). 23.4 The Hon'ble Supreme Court in the case of National Thermal Power Co. Ltd. v. CIT (1998) 229 ITR 383 (SC), held that the Appellate Tribunal may, after giving both the parties to the a....
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.... to be exercised by the Tribunal. Rule 28 of the Appellate Tribunal Rules also justifies directions for remanding the matter, if the same is called for. Thus, where particular issue has been omitted to be considered or has not been adjudicated properly or where perverse findings have been recorded in total disregard of the material on record, the Tribunal is competent enough to set aside the order of the lower appellate authority to that extent, although no specific ground is taken for that purpose by the concerned party. Thus, in a given situation, firstly, there is an obligation on the part of the Tribunal to consider the subject-matter of appeal and secondly to issue effective directions for adjudicating the subject-matter of appeal, which, as observed earlier, includes the entire process of assessment and which has been held to be an integrated process. 25. Now the next issue is as to whether a mistake can be pointed out on the part of ITAT even when the assessee did not seek any relief from the Tribunal. As observed earlier, in order to effectively adjudicating the issue and the subject-matter, such duty is cast upon the Tribunal. To conclude, direction should be issued to th....
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....ommissioner (Appeals), is accepted, then great prejudice shall be caused to the assessee and there shall be miscarriage of justice. While deciding the appeal, the Tribunal has to undertake a meaningful and effective exercise of its jurisdiction to ensure and provide substantial justice in relation to the subjectmatter under its consideration and for doing so, it has the power to "pass such orders thereon as it thinks fit", in view of the provisions contained under section 254 of the Income Tax Act. On the facts and the peculiar circumstances relating to this case, therefore, the Tribunal while reversing the order of learned Commissioner (Appeals) on the point of validity of notice under section 148, should have also directed the learned Commissioner (Appeals) to decide the other grounds on merits. The omission to do so i.e., not restoring the matter to the file of Commissioner (Appeals) and not issuing direction for adjudicating the grounds on merit, therefore, amounted to be a mistake on the part of the Tribunal. 30. In view of the aforesaid obligation and duty of the Tribunal, we have to consider the remedies sought in two parts of this miscellaneous application. On part A, in v....