Ita/788/2007 Of Mrs Sabita Sharma v. The Income Tax Officer

IN THB HIGH COURT OF KARNATAKA AT BANGALORE DATEKED THIS THE 18[‘T]DAY OF MARCH 2014 PRESENT THE HON'BLE MR.JUSTICE DILIP B.BHOSALE AN D THE HON'BLE MR.JUSTICE B.MANOHAR ITA No.788/2007 BBRITWRE Mrs.Sabita Sharma,|W/o.Sri.L.V.Sharma,Aged about 62 years,No.662, 1[st]Main Road,Defence Colony,Indiranagar, Bangalore — 560 038.... Appellan (By Sri.K.Mallaharao, Adv for Sri.S.Parthasarathi, Adv) AN): The Income-Tax Officer, Ward-7(2),4[#$]Floor, ‘B’ Wing, |Kendriya Sadan,Koramangala,Bangalore...Respondent| (By Sri.Kamaladar, Adv for Sri.K.V.Aravind, Adv) This ITA is filed under Sec.260-A ot Income TaxAct 1961, arising out of Order dated 19-06-2007 passedin MP.No.44/Bang/2007(in ITA No.380/Bang/04), forthe Assessment Year 1989-90, praying that this Hon’bleCourt may be pleased to: 1.formulate the substantial questions of lawstated therein.stated therein. 11.allow the appeal and_= set asidetheOrderoT|theITAT,bearing|No.MP.No.44/ Bang/ 200(in.ITA.No.380/Bang/04), dated 19-06-2007|in the interest of justice and equity.theOrderoT|theITAT,bearing|No.MP.No.44/ Bang/ 200(in.ITA.No.380/Bang/04), dated 19-06-2007|in the interest of justice and equity. This appeal is coming on for Hearing this day,DILIP B. BHOSALE J.,delivered the following: P.C., This income tax appeal under Section 260A of theIncome Tax Act, 1961 (for short_the Act‘) is directedagainst the order dated 19[#$]June 2007 rendered by the|Income Tax Appellate Tribunal, Bangalore Bench ‘B’ (for Short ‘the Tribunal’) whereby the MiscellaneousPetition No.44/2007 filed by the appellant-assesseeunder Section 254 of the Act, seeking rectification of the common order of the Tribunal in ITA No.380/2004 andITA No.1199/2002, has been dismissed. 2 |The Tribunal while dismissing the Miscellaneouspetition observed that it is in the nature of seekingreview of the order of the Tribunal, which is beyond the ©scope of rectification of any order under Section 254 ofthe Act. 3.|Mr.K.Mallaharao, learned counsel appearing forthe assessee, at the outset, invited our attention to theorder of the CIT (Appeals) dated 27-02-1998 andsubmitted that as observed by the CIT (Appeals), noopportunity was given to the assessee to cross-examinethe witness. The relevant observations made by theCIT(A) in the order dated 27-2-1998 read thus: In view of the facts mentioned above, I|am strongly of the view that the case|deserves re-examination. As mentioned|above, the very first thing to be examined|is whether printout on which the A.O|relied for framing the assessment is a| genuine one. For this action guidelineshave been given above. However, they|are only illustrative and not exhaustive.|TheA.O.ShouldtrytO verify thegenuineness in whatever way he finds itpossible. Further, unless some real effortis made to prove the genuineness of the|statement on which the A.O. has relted,|the entire addition becomes addition|basedOnunrealStatement|of|transactions. When the appellant has|submitted another statement from theSaIMebrokerrelatingtotheSaIMeassessment year, such a verification 1s|even more necessary. Moreover, the A.O.Should try to allow cross examination asdesired by the appellantI find that nosuchefforthasbeen|made.|Theassessmentmadeby|the|A.O.|1S, therefore, set aside to beframed denovo. | (emphasis supplied) Learned counsel for the assessee vehemently submittedthat the application for rectification ought to have beenallowed by the Tribunal and remanded the matter forcross examination of the witnesses by the assessee. Inour opinion, the submission made by the learnedcounsel for the appellant-assessee deserves to berejected for more than one reason. The assessee did not (emphasis supplied) Learned counsel for the assessee vehemently submittedthat the application for rectification ought to have beenallowed by the Tribunal and remanded the matter forcross examination of the witnesses by the assessee. Inour opinion, the submission made by the learnedcounsel for the appellant-assessee deserves to berejected for more than one reason. The assessee did not raise such contention before the Tribunal when the'TribunaldecidedITANo.380 / 200andITANo.1199/2002 vide order dated 30[#$]March 2007. That§apart, the order of the Tribunal was not carried inappeal by the assessee. In other words, this order >(dated 30.3.2007) was not challenged on merits by theassessee and he sought rectification by filing anapplication under Section 204 of the Act. The onlycontention urged before us was that an opportunity tothe assessee was not accorded to cross-examine the|witness despite the observations made by the CIT(A) inits order dated 2/-0O2-1998. We have perused theorder of the Tribunal dated 30[#$]March 2007 and we do|§not find that such a grievance was made by theassessee before the Tribunal when the appeals weredisposed of. 4In this view of the matter, in our opinion, theTribunal in the impugned order, has rightly observed that by filing an application under Section 294 of theAct the assessee virtually sought review of the order ofthe Tribunal dated 30[#$]March 2OO7 which is not!permissible, and that under this provision one can seekrectification of any mistake apparent from the record.Learned counsel tor the assessee could not and did not|point out any mistake apparent from the record. TheTribunal has rightly dismissed the application. In ourOpinion, no substantial question of law is either involvedor arise for our consideration in the present appeal.The appeal is accordingly dismissed. No costs. Sd/-. JUDGE -* mpk/ Sd/-| JUDGE