Gujarat High Court Case Information System
Print
OJMCA/54/2010 1/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.
CIVIL APPLICATION No. 54 of 2010
In
TAX
APPEAL No. 1205 of 2008
With
MISC.
CIVIL APPLICATION No. 55 of 2010
In
TAX
APPEAL No. 1211 of 2008
To
MISC.
CIVIL APPLICATION No. 57 of 2010
In
TAX
APPEAL No. 1183 of 2008
=============================================
THE
INCOME TAX OFFICER - Applicant(s)
Versus
M/S
SEJAL GEMS - Respondent(s)
=============================================
Appearance
:
MRS MAUNA M BHATT
for Applicant No : 1
NOTICE SERVED BY DS for Respondent No : 1
MR.
SAURABH SOPARKAR LEARNED SENIOR COUNSEL WITH MS. BHOOMI M. THAKORE
for Opponent No.1
=============================================
CORAM
:
HONOURABLE
MR.JUSTICE K.A.PUJ
and
HONOURABLE
MR.JUSTICE RAJESH H.SHUKLA
Date
: 18/08/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE K.A.PUJ)
The
applicant i.e. Income Tax Officer, Surat has filed these four
applications, seeking review of the order passed by this Court on
7th December, 2009 in Tax Appeal Nos.1183 of 2008 with
1184/2008 with 1203/2008 with 1205/2008 with 1207/2008 with 121/2008
with 1216/2008.
This
Court has issued notice on 13.05.2010 and thereafter, on 29.06.2010
and pursuant to the notice Mr. S.N. Soparkar, learned senior counsel
appeared on behalf of the opponents/original respondents.
Heard
Mr. B.B. Naik, learned senior counsel appearing with learned
advocate Mrs. Mauna M. Bhatt for applicant and Mr. S.N. Soparkar,
learned senior counsel for the opponents/original respondents.
Mr.
Naik, learned senior counsel appearing for the applicant has
submitted that the Revenue has filed all above referred Tax Appeals
before this Court, challenging the order dated 30.11.2007 passed by
the Income Tax Appellate Tribunal, Ahmedabad, for different
Assessment Years. The Tribunal has dismissed all the said appeals
of the Revenue and allowed the Cross Objections filed by the
assessee. He has further submitted that while allowing the Cross
Objections filed by the assessee, the tribunal has come to the
conclusion that the assessment was reopened beyond four years and,
as there was no ground as contained in proviso to Section 147 of the
Income Tax Act, the said reopening of the assessment of four years
by recording reasons under Section 147 of the Act. The Tribunal has
quashed and set aside the assessment order passed by the Assessing
Officer. Mr. Naik further submitted that proviso to Section 147 of
the Act is applicable only if the assessment order is passed under
Section 143(3) of the Act and not otherwise. In the present case,
there was no scrutiny assessment and no assessment order was passed
under Section 143 (3) of the Act at the first stage when the return
was filed by the assessee and the return was only processed under
Section 143(1)(a) of the Act. He has, therefore, submitted that the
order of the Tribunal was completely unjustified and not tenable at
law. He has, therefore, submitted that there was an inadvertent
mistake committed by the Tribunal as well as by this Court and the
present position has not been brought to the notice of this Court.
The order passed by this Court is required to be reviewed and
recalled and all the Appeals are required to be admitted.
Mr.
S.N. Soparkar, learned senior counsel appearing for the opponents,
on the other hand has submitted that the present applications are
being filed for review of the order dated 7.12.2009 passed by this
Court. The Review applications are neither proper nor proper facts
are brought to the notice of this Court at the time of hearing of
the Appeals. He has, therefore, submitted that in these review
applications, the Court cannot permit the applicant to reagitate
this issue. He has also invited the attention of the Court to the
provisions contained in Section 260 A(7) of the Income Tax Act,
states that the provisions of Civil Procedure Code shall apply to
the appeals filed under Section 260 (A) of the Act. Order 47,
Rule-1 deals with Review. There is no discovery of any new or
important matter of evidence. There is no mistake or error apparent
on the record of this First Appeal. He has, therefore, submitted
that if the applicant is aggrieved by the order of the this Court he
should have challenged the present order before the higher
authority.
Having
heard the learned counsels appearing for the parties and having
considered their rival submissions, the Court is of the view that
there is no dispute about the fact that the ground regarding
applicability of the proviso to Section 147, was not raised by the
applicant in the Tax Appeal nor there was any pleading to that
effect. Even the submissions are not made by the applicant at the
time of hearing of the Tax Appeal. There was no occasion for the
Court to consider the said issue. This Court has simply proceeded
on the basis of the finding recorded by the Tribunal and hence at
this stage it is not open for the applicant to raise this issue.
There is no mistake apparent on the face of record of this Court.
If the applicant has any grievance against the order of the Court,
proper remedy for him is to challenge the order either before the
Supreme Court or at the most to raise this issue before the Tribunal
where, as per the applicant’s own submission, the mistake was
committed in the order.
Be
that as it may, it is left to the applicant as to before whom he
should ventilate his grievance. There is no error in the order
passed by this Court and hence the same cannot be reviewed or
recalled.
In
the result, all the four applications are accordingly rejected.
(K.
A. PUJ, J.)
(RAJESH
H. SHUKLA, J.)
Pankaj
Top