Jose Kuruvinakunnel vs The Income Tax Officer

K. Vinod Chandran, J.—The petitioner is aggrieved by Exhibit P17 order passed by the Income Tax Appellate Tribunal in a rectification application filed by the petitioner. The appeals filed by the petitioner against the re-opened assessments for the years 1996-97 to 2000-01, were concluded by Exhibit P11. The petitioner filed a rectification application, mainly on three grounds; (i) that the account of one Sri. Francis Joseph, brother-in-law of the petitioner, was found to be actually owned and operated by the petitioner, without looking into the decision of the Hon''ble Supreme Court in Commissioner of Income Tax, Salem Vs. K. Chinnathamban, (ii) that cash credit additions were made without looking into the High Court decisions placed on record by the assessee; and (iii) that one other brother-in-law, being Sri. George Joseph, had specifically accepted a loan granted to the petitioner, which was not considered on the basis of the dictum of the decisions placed by the petitioner before the Tribunal.

Essentially the contention is that, the dictum of the decisions placed by the petitioner were not looked into by the Tribunal before disposing of the appeals and, hence, the same would be a ground for rectification. The petitioner also places before this Court a decision of the Hon''ble Supreme Court in Assistant Commissioner, Income Tax, Rajkot Vs. Saurashtra Kutch Stock Exchange Ltd., .

In Saurashtra Kutch Stock Exchange Ltd. (supra), the Tribunal decided an appeal of the assessee on October 27, 2000. Just prior to the decision having been rendered by the Tribunal, the jurisdictional High Court had passed a judgment in a similar matter, on the question regarding exemption, which arose in the appeal. The appellant/assessee filed a rectification application, which was allowed by the Tribunal. The Department was in appeal before the Supreme Court. The Hon''ble Supreme Court found that when the decision of the jurisdictional High Court was not looked into by the Tribunal and there is non-consideration of such decision, definitely a rectification application could be filed, to call upon the Tribunal to consider the same.

The facts in Saurashtra Kutch Stock Exchange Ltd. (supra) are clearly distinguishable. Herein, the contention of the petitioner is that there is no reasoning in so far as the decisions placed before the Tribunal being repelled as not applicable. Exhibit P11 order of the Tribunal, in appeal, discloses that the decisions placed by the petitioner were specifically referred to. The facts relating to each of the grounds, raised subsequently in the rectification application, were also gone into. On an appraisal of the facts, it was found that the decisions placed by the assessee were not applicable to the facts. The petitioner''s grievance seems to be in so far as the Tribunal having not elaborately considered the dictum of the various decisions and negatived the applicability; on sufficient reasoning.

That, however, is a matter to be agitated in appeal and not in a rectification application. This Court cannot assume that merely for the reason that the Tribunal found that the decisions are not applicable, the Tribunal would not have gone into the dictum laid down therein. The grievance of the petitioner stems more from the quality of the discussion made by the Tribunal. The Hon''ble Supreme Court in the aforecited decision was concerned with the decision of the jurisdictional High court, having not even been placed before the Tribunal; which led to a rectification on noticing the same.

In the above circumstances, this Court is of the opinion that the rectification application filed was, rightly dismissed by the Tribunal. However, this Court would hasten to add that this Court has not looked into the various grounds raised by the petitioner; nor would it be within the scope of the present writ petition, which assails the rejection of the rectification application alone. Leaving open the liberty of the petitioner, to agitate his contentions on merits, before the appropriate forum, the writ petition stands dismissed. Parties are left to suffer their respective costs.