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Dy. Cit Vs. Araf Trading Corporation - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Cochin
Decided On
Reported in(2001)73TTJ(Coch.)741
AppellantDy. Cit
RespondentAraf Trading Corporation
Excerpt:
.....relating to the assessment years 1982-83 to 1984-85, the commissioner (appeals) directed the assessing officer for the assessment years under consideration to treat the status of the firm as unregistered subject to the directions given by the tribunal on this matter for the earlier years. therefore, the tribunal in the appeals relating to the assessment years 1990-91 and 1991-92, under consideration, held that the issue being squarely covered, there is no scope to interfere with the order of the commissioner (appeals).as against the above order of the tribunal dated 14-7-1996, in ita nos.694 & 695/coch/94, the department has filed r.a. nos. 250 and 251 coch/1998 for referring certain questions, said to be questions of law, to the hon'ble high court of kerala for opinion under.....
Judgment:
By this miscellaneous petition under section 254(2) of the Income Tax Act, 1961, the department requests the Tribunal to modify its common order, dated 14-7-1998, in ITA Nos. 694 and 695/Coch/1994 relating to the assessment years 1990-91 and 1991-92. It is alleged in the miscellaneous petition that the above order of the Tribunal is contrary to the judgment of the Hon'ble High Court of Kerala in the case of the same assessee in IT Ref. No. 6 of 1996, dated 4-8-1998 [since reported as CIT v. Saraf Trading Corpn. (1998) 150 CTR (Ker) 282 -Ed.] The Tribunal by its common order dated 14-7-1998, in ITA Nos. 694 and 695/Coch/94 relating to the assessment years 1990-91 and 1991-92 has stated in para 4 of the order that "the issue involved herein is squarely covered by the decision of the Tribunal in the assessee's own case for the assessment years 1982-83 to 1984-85". Following the earlier order of the Tribunal relating to the assessment years 1982-83 to 1984-85, the Commissioner (Appeals) directed the assessing officer for the assessment years under consideration to treat the status of the firm as unregistered subject to the directions given by the Tribunal on this matter for the earlier years. Therefore, the Tribunal in the appeals relating to the assessment years 1990-91 and 1991-92, under consideration, held that the issue being squarely covered, there is no scope to interfere with the order of the Commissioner (Appeals).

As against the above order of the Tribunal dated 14-7-1996, in ITA Nos.

694 & 695/Coch/94, the department has filed R.A. Nos. 250 and 251 Coch/1998 for referring certain questions, said to be questions of law, to the Hon'ble High Court of Kerala for opinion under section 256(1) of the Income Tax Act. The Tribunal by its common order dated 16-11-1998, declined to refer the questions on the ground that it was on an appreciation of the facts that it had directed the assessing officer to treat the firm as unregistered subject to the directions given by it in its order for the assessment years 1982-83 to 1984-85. Accordingly, the Tribunal held that the questions proposed by the department are questions of law arising out of the facts and circumstances of the case considered by it for the assessment years under consideration.

It is now stated in the miscellaneous petition filed by the department that while dealing with the reference applications for the assessment years 1982-83 and 1986-87, filed at the instance of the revenue, for the assessment years mentioned above, the Hon'ble High Court of Kerala has observed in para 17 of its judgment dated 4-8-1998, in IT Ref. No.6 of 1996 that "in view of the above observations, it is not possible to record categorical findings on both the questions. So far as section 183(b) of the Act is concerned, the Tribunal has already remanded the matter to the assessing officer with necessary directions and rightly so. In view of the above discussions, we direct the Tribunal to remand the question pertaining to the application of section 13(b) of the Partnership Act as well as to the assessing officer to record a clear finding, in the light of the observations made by us in the body of the judgment". The case of the department is that the Tribunal by its order dated 14-7-1998, simply remanded the matter to the assessing officer to treat the firm as unregistered subject to its directions given in the order for the earlier assessment years on this matter. Therefore, the submission of the department in this miscellaneous petition is that the direction of the Tribunal in its order dated 14-7-1998, in ITA Nos. 694 and 695/Coch/1994 relating to the assessment years 1990-91 and 1991-92, under consideration, is not in consonance with the observations of the Honble High Court of Kerala in its judgment dated 4-8-1998, in IT Ref.

No. 6 of 1994. Hence, it is prayed that the impugned order directing the assessing officer to treat the firm as unregistered is not in agreement with the judgment of the High Court referred to above and that the Tribunal may modify its impugned order remanding the question to the assessing officer to record a clear finding in conformity with the observations of the Hon'ble High Court of Kerala in IT Ref. No. 6 of 1996, dated 4-8-1998.

This miscellaneous petition is vehemently opposed by the assessee. It is argued on behalf of the assessee that there is no mistake apparent from the order of the Tribunal dated 14-7-1999, warranting any modification because at the time of passing the above order by the Tribunal, the judgment of the Hon'ble High Court of Kerala was not before the Tribunal. Hence, it is argued that the order of the Tribunal dated 14-7-1998, does not require any modification on the basis of the subsequent observations made by the High Court in the case of the assessee itself for the earlier assessment years. The learned representative of the assessee submitted that the only point at issue is whether there is any mistake apparent from the order of the Tribunal dated 14-7-1998, requiring modification. In support of his contention that the mistake in this case was not an obvious and patent mistake, the learned representative of the assessee relied on the following decisions : (1) Sagar Co-operative Central Bank Ltd. v. CIT (1990) 186 ITR 292 (MP); (4) Bharat Commerce & Industries Ltd. v. ITO (1988) 31 TTJ (Del) 357; and Apart from contending that the view subsequently taken by the Hon'ble High Court of Kerala in this case in respect of the earlier assessment years is of no consequence to the order passed by the Tribunal dated 14-7-1998, in ITA Nos. 694 & 695/Coch/94 relating to the assessment years 1990-91 and 1991-92, under consideration, as the High Court has agreed with the Tribunal in remanding the matter to the assessing officer with necessary direction, the learned representative of the assessee submitted that the miscellaneous petition is not maintainable on the ground that it has been filed by the Departmental Representative under section 254(2) which he is not empowered to do under the above provision of the Act. According to the learned representative of the assessee, the sub-section (2) of section 254 is to the effect that the Tribunal shall at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1) and shall make such amendment if the mistake is brought to its notice by the assessee or the assessing officer. Therefore, the learned representative of the assessee contended that the miscellaneous petition is to be filed either by the assessee or by the assessing officer, as the case may be, and since in this case the miscellaneous petition is filed by the Departmental Representative, the same is not maintainable.

After considering the submissions of the learned representative of the assessee and perusing section 254(2) of the Act, we are satisfied that since the miscellaneous petition has been filed by the Departmental Representative and not by the assessing officer, the same is not maintainable. Hence, we hold that the department is at liberty to file the miscellaneous petition by the competent authority within the time-limit prescribed under the Act. if so advised. In this view of the matter, we are not inclined to consider the merit of the application.

In the result, the miscellaneous petition is dismissed as not maintainable.


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