R.E.I Agro Ltd., Kolkata V. A.C.I.T CC - XXVII,kolkata., Kolkata

ITA 1919/KOL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92048 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-07-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 28-12-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PIJUSH MUKHERJEE
• Assessee Lawyers: RAVI TULSIYAN
• Section: 154; 143(3); 14A

Judgement Text

I.T.A. NO . 1919 / KOL ./20 1 2 ASSESSMENT YEAR : 200 7 - 200 8 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA A BENCH, KOLKATA BEFORE SHRI P.K. BANSAL , ACCOUNTANT MEMBER AND SHRI MAHAVIR SINGH , JUDICIAL MEMBER I.T.A. NO. 1919 / KOL / 20 1 2 ASSESSMENT YEAR : 200 7 - 20 0 8 REI AGRO LIMITED,................................ .......... ..... ........ . APPELLANT 46C, CHOWRINGHEE ROAD, KOLKATA - 700 071 [PAN : AA BCR 4929 H ] - VS. - ASSISTANT COMMISSIONER OF INCOME TAX, ..... ... ....... ..... . RESPONDE NT CENTRAL CIRCLE - XXVII, KOLKATA APPEARANCES BY: SHRI RAVI TULSIYAN , FCA , FOR THE ASSESSEE SHRI PIJUSH MUKHERJEE , ADVOCATE , FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : JULY 0 8 , 2 01 5 DATE OF PRONOUNCING THE ORDER : JU LY 13 , 201 5 O R D E R PER P.K. BANSAL : T H IS APPEAL HA S BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) , CENTRAL - II, KOLKATA D ATED 2 5 . 0 9 .20 12 FOR THE ASSESSMENT YEAR S 200 7 - 0 8 . 2. THE ONLY ISSUE INVOLVED IN THIS APPEAL RELATES TO WHETHER THERE WAS A MISTAKE APPARENT ON RECORD IN THE ORDER PASSED BY THE ASSES SING OFFICER UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 OR NOT. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE - COMPANY FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2007 - 08 DECLARING AN INCOME OF RS.45,83,42,525/ - . THE ASSESSMENT WAS COMPLT4 ED AT AN INCOME OF RS.45,98,42,070/ - . THE ASSESSING OFFICER DISALLOWED A SUM OF RS.3,23,185/ - UNDER SECTION 14A READ WITH RULE 8D OF THE INCOME TAX ACT. THE ASSESSED DID NOT CONTEST THE DISALLOWANCE. SUBSEQUENTLY THE ASSESSEE MOVED A RECTIFICATION APPLICAT ION DATED 10.05.2011 MENTIONING THEREIN I.T.A. NO . 1919 / KOL ./20 1 2 ASSESSMENT YEAR : 200 7 - 200 8 PAGE 2 OF 4 THAT A MISTAKE HAS CREPT INTO THE ORDER OF THE ASSESSING OFFICER. THE DISALLOWANCE MADE UNDER SECTION 14A READ WITH RULE 8D HAS INCORRECTLY MADE AS RULE 8D WAS APPLICABLE FROM ASSESSMENT YEAR 2008 - 09 ONWARDS IN VIEW OF THE DECISION OF THE HON BLE BOMBAY HIGH COURT IN THE CASE OF GODREJ & BOYCE MFG. CO. LIMITED REPORTED IN 328 ITR 81. THE ASSESSING OFFICER DISMISSED THE APPLICATION FILED BY THE ASSESSEE. SUBSEQUENTLY THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(APPEALS) AND CIT(APPEALS) ALSO DISMISSED THE APPEAL FILED BY THE ASSESSEE BY OBSERVING AS UNDER: - 5. I HAVE CONSIDERED THE SUBMISSION OF THE APPELLANT AND PERUSED THE A SSESSMENT ORDER U/S 143(3) AS WELL AS THE ORDER UNDER APPEAL. THE FACTS OF THE CASE HAVE ALREAD Y BEEN DISCUSSED AS ABOVE. ON CAREFUL CONSIDERATION OF THE FACTS AND IN LAW, I AM OF THE OPINION THAT THE AO HAS RIGHTLY REJECTED THE RECTIFICATION PETITION U/S 154 FILED BY THE APPELLANT TO WITHDRAW THE DISALLOWANCE MADE U/S 14A OF THE ACT IN THE ASSESSME NT ORDER. IF, THE APPELLANT WAS HAVING ANY GRIEVANCE AGAINST THE DISALLOWANCE MADE BY THE AO, THE RIGHT COURSE WITH THE APPELLANT COMPANY WAS TO FILE AN APPEAL AGAINST THAT DISALLOWANCE. HOWEVER, NO APPEAL WAS FILED BY THE APPELLANT AND LATER ON, TRYING TO GET THE RELIEF BY FILING PETITION U/S 154 OF THE ACT. I AGREE WITH THE VIEW TAKEN BY THE AO THAT IN THE ORDER U/S 143(3) DATED 11.05.2009, THERE WAS NO MISTAKE APPARENT FROM RECORD RECTIFIABLE WITHIN THE MEANING AND SCOPE OF PROVISION OF SECTION 154 OF TH E ACT. A DECISION OF NON - JURISDICTIONAL HIGH COURT RENDERED AT A LATER DATE, CONTRARY TO THE VIEW TAKEN BY THE AO, WILL NOT CONSTITUTE A MISTAKE APPARENT FROM RECORD RECTIFIABLE U/S 154 OF THE ACT. THE RELIANCE IS PLACED ON THE DECISION OF HON'BLE ITAT, KO LKATA IN THE CASE OF GLOBAL VENTURE CORPORATION V. DCIT M.A. NO.55/KOI/2012 DATED 01.06.2012. IN THIS CASE, BY FILING A MISCELLANEOUS APPLICATION, THE ASSESSEE REQUESTED TO AMEND ITAT'S ORDER BASED ON THE DECISION OF ITAT SPECIAL BENCH VISAKHAPATNAM AND SU BMITTED THAT THE TRIBUNAL MAY BE PLEASE D TO SUITABLY AMEND ITS EARLIER ORDER TO DELETE THE DISALLOWANCE U/S 40(A)(I A) OF THE ACT IN RESPECT OF COURIER CHARGES PAID IN DISREGARD OF THE JUDICIAL PRONOUNCEMENTS OF HON BLE ITAT KOLKATA. THE HON'BLE ITAT HELD A S UNDER: - 'AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREFUL PERUSAL OF THE TRIBUNAL'S ORDER WE ARE OF THE VIEW THAT THE SUBSEQUENT ITAT, SPECIAL BENCH'S DECISION WHICH IS CONTRARY TO THE DECISION TAKEN BY THIS TRIBUNAL DOES NOT CONSTITUTE A MISTAKE APPA RENT FROM RECORD. ONLY THE SUBSEQUENT DECISION OF EITHER JURISDICTIONAL HIGH COURT OR APEX COURT CONSTITUTE A MISTAKE APPARENT FROM RECORD. IF THE CONTENTION OF THE ASSESSEE IS ACCEPTED THEN IT WILL TANTAMOUNT TO REVIEWING OF THE TRIBUNAL'S ORDER. SINCE, T HE TRIBUNAL IS NOT HAVING I.T.A. NO . 1919 / KOL ./20 1 2 ASSESSMENT YEAR : 200 7 - 200 8 PAGE 3 OF 4 REVIEWING POWER U/S 254(2) OF THE ACT WE ARE UNABLE TO ACCEPT THE CONTENTION OF THE ASSESSEE ON THIS ISSUE'. 5.1 IN THE CASE OF APPELLANT COMPANY, IT HAS SOUGHT THE RECTIFICATION OF THE ASSESSMENT ORDER ON THE BASIS OF SUBSEQUEN T DECISION OF NON - JURISDICTIONAL HIGH COURT WHICH IS NOT PERMISSIBLE UNDER THE LAW. THE DECISIONS RELIED UPON BY THE APPELLANT ARE DISTINGUISHABLE ON FACTS AND HENCE NOT APPLICABLE. IN VIEW OF ABOVE, IT IS HELD THAT THE AO HAS RIGHTLY REJECTED THE RECTIFIC ATION PETITION OF THE APPELLANT COMPANY. THE ACTION OF THE AO IS UPHELD. THE GROUND NOS. 1, 2 AND 3 ARE DISMISSED . 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME ALONG WITH THE ORDER OF TAX AUTHORITIES BELOW. WE NOTED THAT AT T HE TIME WHEN THE ASSESSMENT ORDER WAS PASSED BY THE ASSESSING OFFICER, NO MISTAKE HAS CREPT INTO THE ORDER OF THE ASSESSING OFFICER. THE ISSUE WHETHER THE APPLICABILITY OF RULE 8D IS RETROSPECTIVE OR PROSPECTIVE WAS A CONTENTIOUS ISSUE. THE HON BLE BOMBAY HIGH COURT HAS SUBSEQUENTLY MUCH AFTER THE ORDER WAS PASSED BY THE ASSESSING OFFICER TOOK THE VIEW THAT RULE 8D IS PROSPECTIVE AND NOT RETROSPECTIVE IN THE CASE OF GODREJ & BOYCE MFG. CO. LIMITED REPORTED IN 328 ITR 81 REVERSING THE DECISION OF THE ITAT, S PECIAL BENCH, MUMBAI. WE NOTED THAT THE HON BLE SUPREME COURT IN THE CASE OF ACIT VS. - SAURASHTRA KUTCH STOCK EXCHANGE LIMITED REPORTED IN 305 ITR 227 (SC) TOOK THE VIEW THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER AND ERR OR MUST BE APPARENT ON RECORD AND DOES NOT NEED A LONG DRAWN OUT PROCESS OF REASONING ON POINTS WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. THE DECISION OF THE HON BLE JURISDICTIONAL HIGH COURT OR THE HON BLE SUPREME COURT IS BINDING ON ALL THE LOWER AUTHORITIES , EVEN IF THE DE CISION HAS BEEN RENDERED SUBSEQUENTLY IT WILL HAVE A BINDING FORCE. THE DECISION ONLY SETTLED THE VIEW. NONE OF THE AUTHORITIES CAN TAKE A VIEW CONTRARY TO THE DECISION OF THE HON BLE JURISDICTIONAL HIGH COURT OR THE HON BLE SUPREME COURT AND, THEREFORE, I T WOULD BE A MISTAKE. NON - CONSIDERATION OF A DECISION WOULD BE A MISTAKE APPARENT FROM RECORD. LD. A.R. WAS FAIR ENOUGH THAT THE ISSUE IS NOT COVERED BY THE DECISION OF THE HON BLE JURISDICTIONAL HIGH COURT OR THE DECISION OF THE HON BLE SUPREME COURT. WE, THEREFORE, DO NOT FIND ANY I.T.A. NO . 1919 / KOL ./20 1 2 ASSESSMENT YEAR : 200 7 - 200 8 PAGE 4 OF 4 ILLEGALITY OR INFIRMITY IN THE ORDER OF CIT(APPEALS) AND WE CONFIRM THE ORDER OF THE CIT(APPEALS). 5 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE STAND S DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON JU LY 13 , 201 5 . SD/ - SD/ - MAHAVIR SINGH P.K. BANSAL ( JUDICIAL MEMBER) ( ACCOUNTANT MEMBER) KOLKATA, THE 13 TH D AY OF JU LY , 201 5 COPIES TO : (1) REI AGRO LIMITED, 46C, CHOWRINGHEE ROAD, KOLKATA - 700 071 (2) ASSISTANT CO MMISSIONER OF INCOME TAX, CENTRAL CIRCLE - XXVII, KOLKATA (3) COMMISSIONER OF INCOME - TAX (APPEALS) (4) COMMISSIONER OF INCOME TAX ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA B ENCHES, KOLKATA LAHA/SR. P.S .