TMI Blog2014 (4) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... nullity and the AO becomes functus- officio to decide the said application on merits - the AO cannot sit in appeal relating to the matter which has already been adjudicated by the Tribunal - Once the assessee moved the application u/s 254 of the Act before the Tribunal and the same has been considered and decided by the Tribunal, the order of the Tribunal would be binding upon the AO and the AO has no jurisdiction to decide the application moved u/s 154 on the matter which has already been decided by the Tribunal - the assessee has independent remedy to move to the higher authorities raising the issue relating to adjudication or non-adjudication of its application, but on that ground it cannot be said that the order giving effect to the order of the Tribunal was bad in law – Decided against Assessee. Validity of reopening of case – Held that:- The AO while giving effect to the order of the Tribunal was not supposed to give any finding on the merits of the case but only course before him was to give effect to the order of the Tribunal as such – Decided against Assessee. Validity of reopening of assessment – Held that:- The issue has already been raised by the assessee in his r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the order of the ld. CIT(A) in the case of assessee vide ITA No.4373 4374/M/03 in assessment year 1989-90 90-91. The Tribunal decided all those appeals by a common order dated 10.03.06, whereby it allowed the appeal of Shri Shivcharan Agarwal, deleted the addition from his hand and confirmed the addition in the hands of the assessee. 3. Dissatisfied with the order of the Tribunal the assessee filed the miscellaneous applications bearing No.351 352/M/06 before the Tribunal, contending that the submissions were made during the course of hearing of the appeal before the Tribunal that the notice under section 143(2) of the Act was not issued within the limitation provided in the proviso of the section and further that the reopening of the assessment by the Assessing Officer (hereinafter referred to as AO) was bad in law. But the Tribunal had failed to consider the submissions relating to above issues while deciding the appeals on merits vide order dated 10.03.06. The Tribunal vide order dated 29.10.07 dismissed the said applications observing as under: The present two miscellaneous applications are directed at the instance of assessee M/s. Riddhi Sidhi Commercial Ltd. p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing the powers under section 254(2) of the Act. The Tribunal cannot, in exercise of its power of rectification look into some other circumstances which would support or not support its conclusion so arrived at. The mistake which the Tribunal is entitled to correct is not an error of judgment but a mistake which is apparent from the record itself. No such mistake was apparent from the record. In fact we doubt if this sort of an exercise could have been done by the Tribunal even if it had the power of review. The Tribunal has, patently, far exceeded its jurisdiction under section 254(2) of the Income-tax Act in redeciding the entire dispute which was before it in this fashion, and the Tribunal has committed gross and inexplicable error for reasons which we fail to understand. Mr. Inamdar, learned advocate for the assessee, drew our attention to a judgment of the Madhya Pradesh High Court in the case of CIT v. Mithalal Ashok Kumar [1986] 158 ITR 755. The Madhya Pradesh High Court said that the Tribunal can correct its mistake by rectifying the same in case it is brought to its notice that the material which was already on record before deciding the appeal on merits was not conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hese appeals were decided on 3/2/03. The assessee has never taken up these pleas before the ld. Revenue Authorities below. We have specifically perused the grounds of appeal filed before the ld. CIT(A). We have specifically taken congnizance of the ground raised before the Tribunal in para No.1 of the Tribunal order. The submissions in the miscellaneous application, is only a desperate attempt on the part of assessee to somehow dislodge the decision came against the assessee. Even at the time of hearing, we have confronted the ld. counsel for the assessee to a number of materials. He has not raised any such arguments. He just tried to take adjournment after hearing was over. Therefore, we do not find any apparent mistake in this order. The miscellaneous applications of the assessee are dismissed. 4. Thereafter the assessee again filed another miscellaneous application No.680/M/07 raising almost the identical issues. The Tribunal again dismissed the said application of the assessee vide order dated 6.5.08 observing as under: 4. Now the assessee has filed the present miscellaneous application. We heard the ld. Representatives and gone through the application carefully. On per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lication moreover assessee has filed one miscellaneous application whereas the Tribunal has decided two appeals of the Revenue and disposed of two miscellaneous applications. Any way even if we ignore this technicality, there is no merit in the contentions of the assessee, therefore, it is dismissed. 5. In the meantime when the matter was pending before the AO for giving effect to the order of the Tribunal dated 10.03.06, the assessee moved another rectification application dated 28.02.06 under section 154 of the Act with the Assessing Officer on 01.03.06 raising the same issues again which were raised by the assessee vide miscellaneous applications filed before the Tribunal and ultimately dismissed by the Tribunal. The AO thereafter passed the order giving effect to the Tribunal's order vide order dated 20.03.07. The assessee filed an appeal before the CIT(A) against the order of the AO giving effect to the Tribunal's order, raising various grounds. However, the ld. CIT(A) vide impugned order held that the AO was justifying in giving effect to the order of the Tribunal. Hence, the assessee is in appeal before us. The grounds of appeal of the assessee are as under: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal while dismissing its applications moved under section 254(2) of the Act and further that the application moved by the assessee under section 154 of the Act was beyond the period of limitation of four years. He has further contended that the scope of section 154 which pertains to the rectification of orders apparent on the record is very limited and the debatable issues involving examination of evidence etc. cannot be decided in the application under section 154 of the Act. He has further contended that even proper approval before reopening was taken by the AO from the higher authorities. Even the assessee participated in the proceedings without objecting to the service of notice under section 143(2) and after the conclusion of proceeding, the plea cannot be raised by the assessee as to the issuance of notice under section 143(2) of the Act. He has relied upon the decision of the Hon'ble Delhi High Court in the case of Vision INC [2012] 21 taxmann.com 515. 9. On the other hand, ld. A.R. has relied upon on the decision of the Hon'ble Bombay High Court in the case of Balmukund Acharya vs. DCIT (1987) 136 ITR 355 (Bom) to stress the point that the appeal can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... than the matter which has been so considered and decided by the appellate authority. So far the question of limitation for moving an application under section 154is concerned, admittedly, the application was moved by the assessee under section 154 to the AO on 01.03.06 whereas, the assessment order was passed by the AO on 28.03.01. The said application was beyond the limitation period of four years as is provided under section 154(7) of the Act. Now the argument of the ld. A.R has been that the order of the AO has merged with that of the order of the CIT(A), hence, the application was moved within the limitation of four years from the date of order of the CIT(A). As observed above, as per the provisions of section 154(1A), if a matter has been considered and decided by the appellate authority, the application cannot be made in relation to that matter before the AO who originally passed the order. The AO could have dealt the application in relation to the matter which has not been the subject matter before the appellate authority. In that event the limitation period of four years will come into operation. The assessee could have moved a rectification mistake under section 154 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Tribunal vide order dated 29.10.07 and 06.05.08 respectively. Since the matter has already been adjudicated by the Tribunal and the assessee has not filed any appeal before the Hon'ble High Court, the findings of the Tribunal have become final and there was no jurisdiction either to the AO or to the CIT(A) to re-adjudicate these issues on merits either on any application moved under section 154 or otherwise. Moreover, the above issues have no relation with the order giving effect to the order of the Tribunal and as such this issue is also accordingly dismissed. 14. So far so the authorities relied upon by the assessee are concerned, it may be observed that the decision of Balmukund Acharya vs. DCIT (supra) is quite distinguishable on its own facts and circumstances. However, it may be further observed that the ld. CIT(A) vide impugned order has considered and decided each of the issue raised before it, hence the said decision of the Hon'ble Bombay High Court in the case of Balmukund Acharya vs. DCIT (supra) is of no help to the assessee. So far the another decision of the Hon'ble Punjab Haryana High Court in the case of CIT vs. Smt. Aruna Luthra (su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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