Case Law Details
Case Name : M/s Triad Resorts & Hotels P.Ltd. and Others (ITAT Bangalore)
Appeal Number : M.p No-25-28/2016
Date of Judgement/Order : 11/08/2016
Related Assessment Year : 2004-05 to 2007-08
CA Saurabh Chokhra
Brief of the case:
- The ITAT Bangalore in the above cited case held that application under the provisions of sec.254(2) seeking rectification of order passed by tribunal is maintainable only in cases where it was established that specific attention of the bench was drawn to a particular decision and the decision was specifically relied upon but not considered by the Tribunal.
- When the case was not even brought to tribunal’s attention during the course of hearing then later on filling application for rectification arguing tribunal’s ignorance of that case is clear abuse of process of law and such application is liable to be set aside solely on such fact.
Facts of the case:
- The assessee filed miscellaneous appeals u/s 35(3) of the Wealth-tax Act, 1957 stating that certain mistakes apparent from record had crept into the Tribunal order dated 12/02/2016. As per the petitioner a mistake apparent from record had crept into the said order of the Tribunal as this Tribunal had omitted to adjudicate the additional ground relating transfer of land to developer by way of joint development agreement.
- Further, it was urged that the decision of the Hon’ble jurisdictional High Court in the case of CIT vs. Dr.T.K.Dayalu (202 Taxman 531), though quoted during the course of arguments and relied upon by the learned counsel for the petitioners-companies, hadnot been referred to and thus according to the petitioner-, this constitutes a mistake apparent from record as the binding decision of the Hon’ble jurisdictional High Court had not been followed by this Tribunal while passing the impugned order.
- Therefore, petitioner prayed tribunal to recall its order and reconsider the case.
Held by ITAT Bangalore:
- Tribunal observed that the additional ground raised by the petitioner was well considered by the tribunal and learned counsel for the assessee acting in a deceitful manner though referred only to para.7.1 of the order where in the additional ground had been discussed, chose not to refer to para.9 of the order where the Tribunal had adjudicated this additional ground raised and rendered a finding. This conduct of the counsel is highly deplorable.
- Further, learned counsel for the petitioner could not file any evidence in support of his argument that the decision of Hon’ble jurisdictional High Court in the case of Dr.T.K. Dayalu (supra) was quoted before this Tribunal during the course of argument.It is only during the course of hearing of the present Miscellaneous Petitions, the learned counsel for the petitioner had chosen to file a copy of the decision in the case of Dr. T. K. Dayalu .
- Tribunal relied on the decision of Hon’ble Bombay HC in the case of Earnest Exports Ltd.(323 ITR 577) wherein the court held that application under the provisions of sec.254(2) is maintainable only in cases where it was established that specific attention of the bench was drawn to a particular decision and the decision was specifically relied upon but not considered by the Tribunal.
- As such it appear that it is clear that the attempt by the petitioners to re-agitate the same issues which were considered by this Tribunal and were rejected expressly in the impugned order is a clear instance of an abuse of process of this Court .
- Therefore , this court highly deplore the attempts of the petitioner to knock the doors of the Tribunal again in the guise of seeking rectification of order alleging that additional ground of appeal was not decided.
- In result the petition was dismissed.