ITO, Tuticorin V. Sterlite Industries (India) Limited, Tuticorin

ITA 1043/CHNY/2012

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7699 (ITAT-CHENNAI)
• Duration Of Justice: 4 year(s) 9 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 15-02-2017
• Assessment Year: 2003-2004
• Appeal Filed On: 11-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S RENGA RAJAN JCIT SHRI G BAS
• Keywords: Capital asset; Double taxation relief; Period of limitation
• Section: 144; 90; 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI ( CAMP AT MADURAI) . . . , !' . #$#% , & '' ( [BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER ] ./I.T.A. NO. 1043/MDS/2012 / ASSESSMENT YEAR : 2003-2004. INCOME TAX OFFICER, TDS WARD, TUTICORIN VS. M/S. STERLITE INDUSTRIES LIMITED, SIPCOT INDUSTRIAL COMPLEX, MADURAI BYE PASS ROAD, T.V. PURAM POST, TUITCORIN 628 002. [PAN AABCS 4955Q] ( )* / APPELLANT) ( +,)* /RESPONDENT) / APPELLANT BY : SHRI. S. RENGA RAJAN, JCIT. /RESPONDENT BY : SHRI. G. BASKAR, ADVOCATE /DATE OF HEARING : 15-02-2017 ! /DATE OF PRONOUNCEMENT : 28-02-2017 / O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER IN THIS APPEAL FILED BY THE REVENUE, IT HAS RAISE D THE FOLLOWING GROUNDS. 1. THE LEARNED CIT (A) ERRED IN FACTS AND CIRCUMS TANCES OF THE CASE. 2. THE LEARNED CIT (A) OUGHT TO HAVE NOTICED THA T THE DECISION OF THE HON. APEX COURT IN THE CASE OF M/SVIJAY SHIP BREAKING CORPORA TION IS APPLICABLE ONLY TO SHIP BUILDERS INDUSTRIES AND NOT TO THE PRESENT CASE. IN THE CASE OF VIJAY SHIP BREAKING CORPORATION, THE INTEREST PAYMENT AGAINST LC IS ON ACCOUNT OF ACQUISITION OF THE SHIP TO BE BROKEN, WHICH IS A CAPITAL ASSET AND THE CORR ESPONDING INTEREST PAYMENT IS OF ITA NO. 1043/MDS/2012 :- 2 -: CAPITAL NATURE, WHEREAS, IN THE PRESENT CASE ASSESS EE COMPANY HAS PAID INTEREST FOR PROCUREMENT OF COPPER ORE FROM AUSTRAL IA AND CHILE, WHICH IS OF REVENUE IN NATURE. HENCE THE CASE OF VIJAY SHIP BREAKING CO RPORATION IS NOT APPLICABLE TO THIS CASE. 2.1 THE LEARNED CIT(A) FAILED TO NOTE THE EXPLANATI ON 2 TO SEC.10(15)(IV)(C) WHICH RUNS AS UNDER: 'FOR THE REMOVAL OF DOUBTS IT IS HEREBY DECLARED TH AT THE USANCE INTEREST PAYABLE OUTSIDE INDIA BY AN UNDERTAKING EN GAGED IN THE BUSINESS OF SHIP BREAKING IN RESPECT OF PURCHASE OF A SHIP FROM OUTSIDE INDIA SHALL BE DEEMED TO BE THE INTEREST PAYABLE ON A DEBT INCURRED IN A FOREIGN COUNTRY IN RESPECT OF PURCHAS E OUTSIDE INDIA.' THE EXPLANATION CONVEYS THAT USANCE INTEREST IS EXE MPT FROM PAYMENT OF INCOME TAX IF PAID IN RESPECT OF THE SHIP BREAKING ACTIVIT Y. THIS AMENDMENT CAME INTO FORCE ONLY AFTER THE JUDGMENT RELIED ON. 3.THE LEARNED CIT(A) OUGHT TO HAVE NOTICED THAT THE INTEREST ON LETTER OF CREDITS IS WITHIN THE MEANING OF SEC.2(28A) WHICH R EADS: 'AS PER SEC.2(28A) INTEREST MEANS INTEREST PAYABLE IN ANY MANNER IN RESPECT OF ANY MONEY BORROWED OR DEBT INCURRED (INC LUDING A DEPOSIT CLAIM OR OTHER SIMILAR RIGHT OR OBLIGATION) AND INCLUDES ANY SERVICE TAX OR OTHER CHARGE IN RESPECT OF THE MONIES BORROWED OR DEBT IN CURRED OR IN RESPECT OF ANY CREDIT FACILITY WHICH HAS NOT BEEN UTILIZED.' 3.1 THE LEARNED CIT(A) FAILED TO NOTE THAT THE ASSE SSEE COMPANY HAD ITSELF ADMITTED THE INTEREST ON LETTERS OF CREDIT OF RS.14 ,91,09,252/- AS A DISTINCT ITEM UNDER INTEREST AND FINANCE CHARGES AN D NOT AS PURCHASE PRICE OR DISCOUNTING CHARGES. 3.2 THE LEARNED CIT (A) OUGHT TO HAVE NOTICED THA T THE ASSESSEE DEDUCTOR ITSELF VIDE LETTER DATED 19-07-2005 WORKED OUT THE TAX LIA BILITY AS PER SECTION 195 OF THE INCOME-TAX ACT, 1961 4. THE LEARNED CIT (A) OUGHT TO HAVE NOTICED TH E CIRCULAR NO. 740 DATED 17 - 04-1996 IS SQUARELY APPLICABLE TO THE FACTS OF THE PRESENT CASE. 5. THE LEARNED CIT (A) OUGHT TO HAVE NOTICED THAT THE CIRCULAR NO.68 DATED 17-11-1971 REPRODUCED HERE UNDER, IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. 'CIRCULAR NO.68 DATED 17-11-1971 WHICH STATES MISTA KES APPARENT FROM RECORDS WHERE AN ASSESSEE MAKES AN APPLICATION U/S. 154 POINTING OUT THAT IN THE LIGHT OF A LATER DECISION OF THE SUPREME COURT PRONOUNCING THE CORRECT LEGAL POSITION OF A MISTAKE HAS OCCURRED IN ANY OF THE CO MPLETED ASSESSMENTS IN THIS CASE THE APPLICATION SHALL BE ACTUAL UPON PROV IDED THE SAME HAS BEEN FILED WITHIN TIME AND OTHERWISE IN ORDER'. ITA NO. 1043/MDS/2012 :- 3 -: 5.1 THE, LEARNED CIT (A) OUGHT TO HAVE NOTICED TH AT IN ORDER TO BRING AN APPLICATION U/S.154 OF THE INCOME-TAX ACT, 1961 THE MISTAKE MUST BE APPARENT FROM RECORD. 5.2 THE LEARNED CIT(A) OUGHT TO HAVE NOTICED THA T SECTION 154 DOES NOT ENABLE AN ORDER TO BE REVERSED BY THE REVISION OR B Y REVIEW BUT PERMITS ONLY SOME ERROR WHICH IS APPARENT ON THE FACT OF TH E RECORD TO BE CORRECTED. 5.3 THE LEARNED CIT (A) OUGHT TO HAVE NOTICED TH E DEFINITION 'A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM RECORD'. 5.4 THE LEARNED CIT (A) OUGHT TO HAVE NOTICED THE DEFINITION OF ASSESSMENT WHICH MEANS 'ASSESSMENT ORDERS PASSED U/S.143 (3); 144 AND REASSESSMENT U/S.143 (3) R/W SECTION 147. 6. THE LEARNED CIT(A) OUGHT TO HAVE APPRECIATED THE FINDINGS IN THE CASE OF (CIT VS. BLACK WOOD HODGE (INDIA) (P) LTD. 1971 - 81 ITR 807 CAL) WHICH IS SIMILARLY APPLICABLE TO THE FACTS OF THIS CASE. IT HAS BEEN HELD IN THAT CASE THAT 'UNDER SECTION 201 A PERSON IS DEEMED TO BE AN ASSE SSEE IN DEFAULT IF SUCH PERSON FAILS TO DEDUCT THE TAX. BUT AN ORDER U /S.201 IS NOT AN ORDER OF ASSESSMENT WITHIN THE MEANING OF SECTION 153 BECAUS E OF AN ASSESSMENT UNDER THE ACT AND A LIABILITY TO DEDUCT TAX BOTH AR E DIFFERENT THINGS. THUS ACTUAL ASSESSMENT MAY TAKE PLACE AFTER THE LIABILIT Y TO DEDUCT HAS ARISEN AND THE PERIOD OF LIMITATION PRESCRIBED IN SECTION 153 FOR COMPLETION OF ASSESSMENT DOES NOT APPLY TO THE LIABILITY U/S.195 OR SECTION 201 OF THE INCOME-TAX ACT, 1961.' 7. THE LEARNED CIT(A) OUGHT TO HAVE NOTICED THE CASE O F B.V.K. SESHAVATARAM VS CIT (1994) 210 ITR 633 (A), HAS HELD THAT SUBSEQ UENT DECISION OF THE SUPREME COURT CAN FORM BASIS OF ORDER OF RECTIFICAT ION. IN THE CASE OF CED VS. V.G.BADMIA (1990) 186 ITR 170 (BOMBAY) THE TRIBUNAL WAS HELD TO BE JUSTIFIED IN RECTIFYING THE ORDER SO AS TO BRING IT IN CONFOR MITY WITH THE SUPREME COURT DECISION'. BOTH THE DECISIONS ARE SQUARELY NOT APPL ICABLE TO THE FACTS OF THIS CASE SINCE THE ABOVE CASE LAW RELATES TO ASSESSMENT AND NOT RELATING TO TDS U/S.201. 2. FACTS APROPOS ARE THAT ASSESSEE A COPPER MANUFACTUR ER AND IMPORTER OF COPPER ORE FROM AUSTRALIA AND CHINA WAS SUBJECT TO AN INSPECTION ON 13.11.2003 FOR VERIFYING ITS COMPLIAN CE WITH THE PROVISIONS OF THE INCOME-TAX ACT 1961 (IN SHORT T HE ACT) ON ITA NO. 1043/MDS/2012 :- 4 -: DEDUCTION OF TAX AT SOURCE. ASSESSEE WAS THEREAFT ER ISSUED LETTER DATED 17.12.2003 CALLING FOR A BREAK-UP OF VARIOUS EXPENDITURE WHICH AS PER LD. ASSESSING OFFICER REQUIRED DEDUCTION OF TAX AT SOURCE. FROM THE REPLY FILED BY THE ASSESSEE, IT WAS NOTED BY TH E LD. ASSESSING OFFICER THAT ASSESSEE HAD FAILED TO DEDUCT TAX ON I NTEREST PAID ON LETTER OF CREDITS (LCS). AS PER THE ASSESSEE EVEN I F INTEREST ON LCS WERE HELD LIABLE FOR DEDUCTION OF TAX AT SOURCE, IT WAS THE DUTY OF THE BANKER WHO PROVIDED THE LC FACILITY TO DEDUCT SUCH TAX. RELIANCE WAS PLACED BY THE ASSESSEE ON THE DECISION OF RAJKOT B ENCH OF THE TRIBUNAL IN THE CASE OF VIJAY SHIP BREAKING CORPORATION VS. DCIT (2003) 86 ITD 497 . LD. ASSESSING OFFICER THEREAFTER PASSED AN ORDER ON 23.03.2005 HOLDING THAT INTEREST PAID ON LETTER OF CREDIT COULD NOT BE CONSIDERED AS PART OF THE PURCHASE PRICE AND D ECISION OF THE TRIBUNAL IN THE CASE OF VIJAY SHIP BREAKING CORPORA TION (SUPRA) STOOD REVERSED BY HONBLE GUJARAT HIGH COURT IN 261 ITR 113. ACCORDINGLY, HE HELD THAT ASSESSEE HAD FAILED TO DEDUCT TAX IN R ESPECT OF INTEREST OF LCS PAID TO PERSONS IN FRANKFURT AND SINGAPORE AND A DEMAND WAS RAISED ON THE ASSESSEE. 3. THEREAFTER, ON 30.03.2005 ASSESSEE REQUESTED FOR RECTIFICATION OF THE DEMAND OF E1,49,10,925/- RAI SED ON IT, BASED ON THE FOLLOWING REASONS: ITA NO. 1043/MDS/2012 :- 5 -: 1)THE PAYMENT OF INTEREST ON LETTERS OF CREDIT INC LUDES PAYMENT TO OVERSEAS BRANCHES OF INDIAN BANKS VIZ ST ATE BANK OF INDIA /UNION BANK OF INDIA ETC .AS THESE BA NKS ARE ASSESSED IN INDIA AS RESIDENT THE PROVISIONS OF SEC 194A DOES NOT APPLY SUCH PAYMENTS 2) THE PAYMENT OF INTEREST TO CERTAIN FOREIGN BANKS HA S BEEN MADE NET OF TAX U/S 195A OF THE INCOME TAX ACT,1961 AND THEREFORE SUCH PAYMENTS CANNOT BE SUBJ ECT TO TDS ONCE AGAIN. 3) . THE APPLICABILITY OF THE PROVISION OF DTAA AND SE C 90 OF THE IT ACT 1961 IS TO BE CONSIDERED BY TAKING OU T COUNTRY WISE BREAKUP OF THE FIGURES OF SUCH PAYMENT TO ARRIVE AT THE EXACT QUANTUM OF INTEREST LIABLE FOR TDS AND THE RATES AS MAY BE APPLICABLE' 4) UNDER LC ARRANGEMENT WHERE THERE IS A CREDIT PERIOD OFFERED BY THE SUPPLIER, THE RATE TO BE CHANGED W OULD BE HIGHER THAN THE CONTRACTED PRICE OWING TO THE RISK OF DELAYED PAYMENT. THE PARAMETERS BASED ON WHICH THE INCREASED PRICE IS TO BE CHARGED ARE ALSO CLEARLY D EFINED IN THE CONTRACT. WHEN SUCH AN ARRANGEMENT IS MADE T HE DIFFERENCE BETWEEN THE INVOICE PRICE AND THE INITIA L CONTRACT PRICE IS TAKEN AS INTEREST ON L.C. HENCE H ERE AGAIN THE ENTIRE PAYMENT MADE TO THE SUPPLIER IS ON ACCOUNT OF RAW MATERIAL COST AND THERE IS NO ELEMEN T OF INTEREST INVOLVED. THEREAFTER VIDE ITS LETTER DATED 19.07.2005, ASSESS EE GAVE A BREAKUP OF THE INTEREST PAID ON LCS. BASED ON THIS, ON 20. 07.2005 TAX DEDUCTION OFFICER REVISED THE DEMAND BY APPLYING TD S RATE OF 20% FOR BANKS AT CHILE, 15% FOR BANKS AT SWITZERLAND AND 10 % FOR OTHER BANKS. DEMAND WAS BROUGHT DOWN TO E1,01,69,740/-. INTEREST OF E29,99,190/- U/S.201(1A) OF THE ACT WAS ALSO CHARGE D. 4. ON 31.08.2009 ASSESSEE FILED ANOTHER APPLICATION FO R RECTIFICATION OF THE ORDER DATED 20.07.2005 CITING JUDGMENT OF HONBLE ITA NO. 1043/MDS/2012 :- 6 -: APEX COURT IN THE CASE OF VIJAY SHIP BREAKING CORPORATION VS. CIT 314 ITR 309 . AS PER THE ASSESSEE, HONBLE APEX COURT HAD H ELD THAT USUANCE INTEREST PARTOOK THE CHARACTER OF PURCHA SE PRICE AND THEREFORE THERE WAS NO LIABILITY TO DEDUCT TDS WHE N SUCH INTEREST WAS PAID. HOWEVER, LD. ASSESSING OFFICER DID NOT ACCEP T THE RECTIFICATION APPLICATION FILED BY THE ASSESSEE. ACCORDING TO HIM , ASSESSEE WAS TRYING TO SKIRT ITS RESPONSIBILITY BY INTERPRETING INTEREST ON LCS AS A NON TAXABLE ITEM. FURTHER AS PER LD. ASSESSING OFFICER ASSESSEE ITSELF HAD WORKED OUT ITS LIABILITY TO DEDUCT TAX U/S.195 OF T HE ACT, IN ITS LETTER DATED 19.07.2005. LD. ASSESSING OFFICER ALSO NOTED THAT TIME LIMIT PROVIDED U/S.154(7) OF THE ACT HAD EXPIRED AND RECT IFICATION APPLICATION U/S.154 OF THE ACT COULD NOT BE ENTERTAINED. HE TH US REJECTED THE APPLICATION FILED BY THE ASSESSEE. 5. AGGRIEVED, ASSESSEE MOVED IN APPEAL BEFORE LD. COMMISSIONER OF INCOME TAX (APPEALS). LD. COMMISSIO NER OF INCOME TAX (APPEALS) HELD THAT IN SO FAR AS TIME LIMIT WAS CONCERNED THE ORIGINAL ORDER PASSED ON 23.03.2005 BEING SUBJECT T O A REVISION ON 20.07.2005 WHICH WAS SERVED ON THE ASSESSEE ON 17.0 8.2005, PETITION DATED 31.08.2009 FOR RECTIFICATION, FILED ON 03.0 9.2009 WAS WELL WITHIN THE TIME LIMIT. IN SO FAR AS LIABILITY OF T HE ASSESSEE TO DEDUCT TDS WAS CONCERNED, LD. COMMISSIONER OF INCOME TAX ( APPEALS) ITA NO. 1043/MDS/2012 :- 7 -: OBSERVED THAT LD. ASSESSING OFFICER HAD HIMSELF REL IED ON THE JUDGMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF VIJAY SHIP BREAKING CORPORATION (SUPRA) WHILE FASTENING THE LIABILITY ON THE ASSESSEE, AND ONCE OF THE SAID DECISION WAS OVERTURNED BY APEX CO URT, THERE WAS EVERY JUSTIFICATION FOR THE ASSESSEE TO SEEK A REC TIFICATION. AS PER LD. COMMISSIONER OF INCOME TAX (APPEALS) DEFINITION OF INTEREST U/S.2(28A) OF THE ACT WAS ONLY ON MONEY BORROWED OR ON DEBT INCURRED. HE THUS HELD THAT LD. ASSESSING OFFICER WAS NOT JUSTIFIED IN NOT ALLOWING THE RECTIFICATION APPLICATION FILED BY THE ASSESSEE. HE ALLOWED THE APPEAL OF THE ASSESSEE. 6. NOW BEFORE US, LD. DEPARTMENTAL REPRESENTATIVE STR ONGLY ASSAILING THE ORDER OF THE LD. COMMISSIONER OF INCO ME TAX (APPEALS) SUBMITTED THAT JUDGMENT OF APEX COURT IN THE CASE O F VIJAY SHIP BREAKING CORPORATION (SUPRA) WAS APPLICABLE ONLY TO SHIP BUILDING INDUSTRY AND ASSESSEE WAS NOT IN SUCH INDUSTRY. FU RTHER AS PER LD. DEPARTMENTAL REPRESENTATIVE EXPLANATION 2 TO SEC.1 0(15)(IV)(C) CLEARLY INDICATED THAT EXEMPTION FROM PAYMENT OF IN COME TAX FOR USANCE INTEREST WAS ONLY AVAILABLE FOR BUSINESS OF SHIP BREAKING. AS PER LD. DEPARTMENTAL REPRESENTATIVE THERE WAS NO M ISTAKE APPARENT ON RECORD WHICH COULD JUSTIFY A RECTIFICATION. ITA NO. 1043/MDS/2012 :- 8 -: 7. PER CONTRA, LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT LD. ASSESSING OFFICER HAVING RELIED ON THE JUDGMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF VIJAY SHIP BREAKING CORPO RATION (SUPRA) WAS BOUND TO RECTIFY THE ORDER WHEN THE SAID JUDGMENT W AS REVERSED BY THE HONBLE APEX COURT. 8. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSE D THE ORDERS OF THE AUTHORITIES BELOW. IT IS TRUE THAT JU DGMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF VIJAY SHIP BREAKING CORPORATION (SUPRA) STOOD REVERSED BY HONBLE APEX COURT IN 314 ITR 30 9. INTERPRETATION OF LAW BY HONBLE APEX COURT RELATES BACK TO THE DATE OF ENACTMENT OF THE RELATED PROVISION ITSELF AND THERE CAN BE NO QUARREL ON THE POINT THAT A RECTIFICATION CAN BE DONE FOR G IVING EFFECT TO A JUDGMENT OF HONBLE APEX COURT. THE BASIS ON WHICH ASSESSEE SOUGHT RECTIFICATION IS A LETTER DATED 31.08.2009 WHICH RE ADS AS UNDER:- DATE. 31 ST AUGUST, 2009 TO THE INCOME TAX OFFICER TDS WARD OFFICE OF THE INCOME TAX OFFICE - TDS 6-T, NORTH COTTON ROAD TUTICORIN - 628 001 SIR, REF: TAN: MRIS 01730 B ASSESSMENT YEAR 2003-04 YOUR ORDER DATE 20.07.2005 SERVED ON 17.08.2005. ITA NO. 1043/MDS/2012 :- 9 -: KINDLY REFER TO THE ABOVE. AS PER YOUR ORDER CITED UNDER REFERENCE YOU HAVE DEMANDED AND COLLECTED A SUM OF RS.1,22,75 ,711/ - BY WAY OF TDS DUES AND A FURTHER SUM OF RS.29,99,190/ - AS INTEREST FOR BELATED PAYMENT OF TDS DUES RESPECTIVELY. WE DID N OT DEDUCT AND REMIT TAX ON THE PAYMENT OF USANCE INTEREST ON THE STRENGTH OF THE DECISION OF IT AT RAJKOT BENCH IN VIJAY SHIP BREAKI NG CORPN V DCIT (776 TTJ 169) RELIED UPON BY US WHILE YOU FA STENED THE LIABILITY ON US BY CONTENDING THAT THE SAID DECISIO N RELIED ON BY US WAS REVERSED BY THE HONOURABLE GUJARAT HIGH COURT REPOR TED IN 261 ITR 113. THEREFORE WE EFFECTED THE PAYMENTS ON ACCOUNT OF THE SAME AS DETAILED BELOW:- TDS DATE AMOUNT 07.10.2002 13,547 04.12.2002 14,69,496 30.03.2005 5,00,000 22.07.2005 1,01,69,740 TOTAL DEMAND AS PER ORDER DATED 20.07.05 1,21,52,883 INTEREST U/.S201(1A) DATE AMOUNT 10.09.2005 29,99,190 TOTAL DEMAND AS PER ORDER DATED 11.08.05 29,99,190 NOW WE FIND THAT THE SAID DECISION OF THE HONOURABL E GUJARAT HIGH COURT RELIED BY YOU AND ON THE STRENGTH OF WHICH YO U PASSED THE ORDER GOING RISE TO DURAND OF WHT & INTEREST, HAS BEEN REVERSED BY THE HONOURABLE SUPREME COURT IN VIJAY SHIP BREAKING CORPORATION &O THERS VS. CIT ( AND OTHER APPEALS) AS REPORTED IN (2009) 314 ITR 309 (SC). IN THIS CON NECTION, WE SEND ENCLOSED A XEROX COPY EACH OF THE FOLLOWING AND REQ UEST YOU TO RECTIFY THE ORDERS AND REFUND THE TAX AND INTEREST DEMANDED AND COLLECTED FROM US. I) ORDER DT 23.03.05 BY TDS ITO, TUTICORIN II) ORDER DT 20.07.05 BY TDS ITO, TUTICORIN III) ORDER DT 11.08.05 BY TDS ITO, TUTICORIN IV) COPY OF DECISION IN (2009) 314 ITR 309 (SC) ITA NO. 1043/MDS/2012 :- 10 -: V). COPY OF LETTER OF AUTHORITY IN FAVOUR OF OUR T AX REPRESENTATIVE KINDLY RECTIFY THE ORDER AND GRANT REFUND OF TAX AN D INTEREST PAID BY US ALONG WITH INTEREST AT YOUR EARLIEST CONVENIENCE . THANK YOU. YOURS FAITHFULLY, FOR STERLITE INDUSTRIES (INDIA) LTD SD/- A.SATISH G.M (FINANCE & ACCOUNTS). THE QUESTION BEFORE US, IS WHETHER THE ASSESSEE HAD GIVEN SUFFICIENT DETAILS IN THE ABOVE RECTIFICATION PETITION, WHIC H COULD FACILITATE A RECTIFICATION. THOUGH ASSESSEE STATES THAT IT HAD R EMITTED THE DEDUCTED TAX ON THE DATES MENTIONED THEREIN, THERE IS NOTHIN G WHATSOEVER TO SHOW TO THE NATURE AND QUANTUM OF THE AMOUNTS ON W HICH SUCH DEDUCTION WERE EFFECTED. ESSENTIAL DETAILS OF THE LCS OPENED, PAYMENTS INTEREST THEREON WERE NOT AVAILABLE. WHEN A RECTIFICATION PETITION ITSELF IS VAGUE, ASSESSEE CANNOT SAY THAT THERE WAS A MISTAKE APPARENT ON THE FACE OF THE RECORD WHICH CALLED FOR RECTIFICATION. BY VIRTUE OF JUDGMENT OF APEX COURT IN THE CASE OF T.S . BALARAM, ITO VS. VOLKART BROTHERS AND OTHERS (1971) 82 ITR 50, WHA T CAN BE RECTIFIED U/S.154 OF THE ACT IS ONLY A GLARING MISTAKE APPARE NT ON THE RECORD. APART FROM THIS, WE ALSO FIND THAT APPLICABILITY OF THE JUDGMENT OF HONBLE APEX COURT IN THE CASE OF VIJAY SHIP BREAKING CORPORATION ITA NO. 1043/MDS/2012 :- 11 -: (SUPRA ) TO ASSESSEES OTHER THAN THOSE ENGAGED IN SHIP BRE AKING BUSINESS, IS A DEBATABLE ONE. ESPECIALLY SO, WHEN W E CONSIDER EXPLANATION (2) TO SEC. 10(15)(IV)(C) OF THE ACT. WE ARE THEREFORE OF THE OPINION THAT RECTIFICATION SOUGHT BY THE ASSESS EE, WHICH WAS ALLOWED BY THE LD. CIT(A) RESULTED, IN A REVIEW AND SECTION 154 OF THE ACT DOES NOT GIVE ANY ROOM FOR SUCH REVIEW. WE HAVE NO HESITATION TO SET ASIDE THE ORDER OF THE LD. COMMISSIONER OF INCO ME TAX (APPEALS) AND RE-INSTATE THE ORDER OF THE LD. ASSESSING OFFIC ER. 9. IN THE RESULT, APPEAL OF THE REVENUE STANDS ALLOWED . ORDER PRONOUNCED ON TUESDAY, THE 28TH DAY OF FEBRU ARY, 2017, AT CHENNAI. SD/- SD/- ( . . . ' ) (N.R.S. GANESAN) / JUDICIAL MEMBER ( !' . #$#% ) (ABRAHAM P. GEORGE) & / ACCOUNTANT MEMBER #$ / CHENNAI %& / DATED: 28 TH FEBRUARY, 2017 KV &' ()*) / COPY TO: 1 . / APPELLANT 3. +,' / CIT(A) 5. )-. / / DR 2. / RESPONDENT 4. + / CIT 6. .01 / GF