BOSKALIS DREDGING INDIA P.LTD, MUMBAI V. ACIT 9(1), MUMBAI

ITA 1960/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79236 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-06-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 11-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PITAMBAR DAS
• Keywords: Depreciation; Transfer pricing; Rectification of order; Additional evidence
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUM BAI , ! BEFORE SHRI SANJAY ARORA, AM AND DR. S. T. M. PAVA LAN, JM ' # I.T.A. NO. 1960/MUM/2013 ( / ASSESSMENT YEAR: 2002-03) BOSKALIS DREDGING INDIA PRIVATE LIMITED 702, TRADE CENTRE, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI-400 051 # VS. ASST. CIT-9(1), 2 ND FLOOR, AAYAKAR BHAVAN, M. K. MARG, MUMBAI-400 020 $ #'%' ./PAN/GIR NO. AAACN 2566 R ( $& /APPELLANT ) : ( '($& / RESPONDENT ) $&)* / APPELLANT BY : SHRI M. P. LOHIA '($&)* / RESPONDENT BY : SHRI PITAMBAR DAS + ,)- / DATE OF HEARING : 10.06.2014 ./0 )- / DATE OF PRONOUNCEMENT : 25.06.2014 '1# O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE ASSESSEE ARISING OUT OF TH E ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-15, MUMBAI (CIT(A) FOR SHORT ) DATED 20.12.2012, DISMISSING THE ASSESSEES APPEAL CONTESTING THE ORDER U/S.154 OF T HE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) DATED 17.03.2008 PASSED IN ITS CASE FO R THE ASSESSMENT YEAR (A.Y.) 2002-03. 2 ITA NO. 1960/MUM/2013 (A.Y. 2002-03) BOSKALIS DREDGING INDIA PRIVATE LTD. VS. ASST. CIT 2. AT THE VERY OUTSET, IT WAS CLARIFIED BY THE LD. AUTHORIZED REPRESENTATIVE (AR), THE ASSESSEES COUNSEL, THAT THOUGH THE ASSESSMENT UNDE R REFERENCE INVOLVED TRANSFER PRICING ADJUSTMENTS, THE SUBJECT MATTER OF THE INSTANT APPE AL IS THE MAINTAINABILITY OF THE ASSESSING OFFICERS (AOS) ACTION U/S.154, SO THAT THIS BENCH COULD HEAR THE MATTER. THE HEARING OF THE APPEAL WAS PROCEEDED WITH ON THIS BA SIS. 3. IT SHALL BE RELEVANT TO RECOUNT THE BACKGROUND F ACTS OF THE CASE IN BRIEF. THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE YEAR ON 31.10.2002 AT A LOSS OF RS.13.12 LACS. REGULAR ASSESSMENT U/S.143(3) OF THE ACT WAS MADE O N 17.02.2005 AT A POSITIVE INCOME OF RS.496.76 LACS BY EFFECTING ADJUSTMENTS, INTER ALIA , ON ACCOUNT OF TRANSFER PRICING FOR RS.507.08 LACS AS RECOMMENDED BY THE TRANSFER PRICI NG OFFICER (TPO) VIDE HIS ORDER DATED 15.02.2005. THE ASSESSEE SECURED PARTIAL RELI EF IN FIRST APPEAL, I.E., TO THE EXTENT OF RS.28.86 LACS ON ACCOUNT OF A TRANSFER PRICING ADJU STMENT, BESIDES DEPRECIATION AT RS.2.80 LACS, SO THAT ITS INCOME CAME TO BE ASSESSED AT RS. 465.10 LACS. THE MATTER WAS CARRIED BY IT BEFORE THE TRIBUNAL, WHICH VIDE ITS ORDER DATED 30.08.2006 (IN ITA NO.61/MUM(A)/2006 DATED 27.06.2006/PB PGS.46-52) RE STORED THE MATTER BACK TO THE FILE OF THE A.O. FOR FRESH ADJUDICATION; THE OPERATING P ART OF ITS ORDER READING AS UNDER: 5. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PE RUSING THE MATERIAL ON RECORD WE FIND THAT THE MATTER NEEDS RE-VERIFICATIO N AT THE END OF THE ASSESSING OFFICER. THE EVIDENCE WHICH IS IN SHAPE O F CONFIRMATORY LETTER FROM LESSEE IS AN EVIDENCE WHICH GOES TO THE ROOT O F THE CASE AND THE SAME HAS NOT BEEN ADMITTED BY CIT(A) BY OBSERVING THAT T HE SAME SHOULD HAVE BEEN FILED BEFORE THE ASSESSING OFFICER. THE COPY O F THE AGREEMENT WHICH IS PLACED ON RECORD IS VERY DETAILED AGREEMENT. IN THE AGREEMENT IT HAS BEEN CLEARLY HELD THAT WHEN THE DREDGER GEMINI WILL BE L YING IN THE IDLE CONDITION THE LOWER RATE WILL BE GIVEN ON ACCOUNT O F LEASE RENT AGAINST THE FULL RATE. THE PAYMENT MODE IS ALSO CLEARLY MENTION ED IN THE AGREEMENT AND ALL THE PAYMENTS ARE TO BE RECEIVED THROUGH PROPER BANKING CHANNELS. THE DEPARTMENT HAS NOT BROUGHT ANY EVIDENCE THAT HOW TH E AMOUNT IS RECEIVED AS FULL RATE AND NOT OF THE RATE OF IDLE CONDITION. NOTHING HAS BEEN BROUGHT ON RECORD THAT THERE WAS SOME INTENTION BETWEEN THE PARTIES TO AVOID THE TAX BURDEN. THEREFORE, IN VIEW OF THESE FACTS AND CIRCU MSTANCES AND TO MEET THE END OF JUSTICE WE ARE OF THE CONSIDERED VIEW THAT M ATTER SHOULD GO BACK TO THE FILE OF THE ASSESSING OFFICER TO DECIDE IT AFRE SH AFTER AFFORDING PROPER OPPORTUNITY TO THE ASSESSEE. WE ORDER ACCORDINGLY. 3 ITA NO. 1960/MUM/2013 (A.Y. 2002-03) BOSKALIS DREDGING INDIA PRIVATE LTD. VS. ASST. CIT 6. THE ISSUE WITH REGARD TO REPAIR EXPENSES IS ALSO RESTORED TO THE FILE OF THE ASSESSING OFFICER TO RECONSIDER AFRESH AFTER AF FORDING PROPER OPPORTUNITY TO THE ASSESSEE. WE ORDER ACCORDINGLY. THE ASSESSEE BEING IN DREDGING BUSINESS, EARNING IN COME THROUGH HIRE OF VESSELS, THE PRINCIPAL ADJUSTMENTS MADE IN ITS CASE WERE ON ACCOUNT OF LEASE RENTALS FOR DREDGERS GEMINI AND MULTICAT COBY (MC), AT RS.307.29 LACS AN D RS.105.02 LACS RESPECTIVELY, THE TWO VESSELS HAVING BEEN HIRED TO ASSOCIATE CONCERNS . THE MATTER WAS ACCORDINGLY REFERRED BY THE A.O. TO THE TPO WHO, HOWEVER, REVISITED THE ADJUSTMENT ONLY WITH REGARD TO DREDGER GEMINI (DG), DECLINING TO INTERFERE WITH TH E ADJUSTMENT QUA MC, AS IN HIS VIEW THE TRIBUNAL HAD NOT ISSUED ANY DIRECTION WITH REGA RD THERETO, AND ITS ORDER WAS CONFINED TO ADJUSTMENT QUA DG ONLY. HOWEVER, THE A.O. VIDE HIS ORDER U/S.143(3 ) R/W S. 254 OF THE ACT DATED 24.12.2007 ALLOWED RELIEF TO THE ASSESSEE ON BOTH COUNTS, I.E., THE ADJUSTMENT QUA LEASE RENTALS FOR DG AS WELL AS FOR MC, FOR THE FUL L AMOUNT OF THE ADJUSTMENT/S MADE IN ASSESSMENT, SO THAT THE ASSESSEE WAS ALLOWED REL IEF AT A TOTAL OF RS.412.31 LACS, AND ITS INCOME ASSESSED AT RS.52,78,906/-. SUBSEQUENTLY, TH E A.O. SOUGHT TO RECTIFY HIS SAID ORDER AND WITHDRAW THE RELIEF IN RESPECT OF LEASE RENTALS FOR MC, WHICH WAS HOWEVER DETERMINED BY HIM AT RS.100.23 LACS, I.E., AS AGAIN ST RS.105.02 LACS, FOR WHICH THE ADDITION BY WAY OF ADJUSTMENT HAD BEEN EARLIER WITH DRAWN BY HIM. THE ASSESSEES INCOME WAS ACCORDINGLY ASSESSED AT RS.1,53,01,982/- VIDE O RDER U/S.154 DATED 17.03.2008. THE ASSESSEES APPEAL AGAINST THE SAME WAS REJECTED BY THE LD. CIT(A) ON THE BASIS THAT THE RECTIFICATION HAD BEEN CARRIED OUT BY THE A.O. WITH THE CONSENT OF THE ASSESSEES COUNSEL. 4.1 BEFORE US, THE MATTER WAS ARGUED AT LENGTH BY T HE PARTIES. THE TRIBUNAL, IT WAS CONTENDED BY THE LD. AR, HAD DISPOSED OF BOTH THE I SSUES, I.E., QUA LEASE RENTALS FOR DG AND MC PER ITS ORDER, TAKING US THROUGH THE RELEVAN T DISCUSSION MADE BY IT VIDE PARA 2 OF ITS ORDER. THE ASSESSEE HAD IN FACT DISPUTED THE EN TIRE ADDITION OF RS.478.22 LACS SURVIVING UPON THE ORDER BY THE FIRST APPELLATE AUTHORITY IN THE FIRST ROUND. FURTHER, THE TRIBUNAL HAD SUBSEQUENTLY, FOLLOWING ITS ORDER FOR A.Y. 2002-03 (IN ITA NO.2578/MUM(B)/2007 DATED 24.03.2008, PLACED AT PB PGS.120-121), MADE A SIMIL AR DIRECTION FOR A.Y. 2003-04. THE 4 ITA NO. 1960/MUM/2013 (A.Y. 2002-03) BOSKALIS DREDGING INDIA PRIVATE LTD. VS. ASST. CIT TPO VIDE HIS ORDER U/S.94CA(3) R/W S. 254 DATED 30. 09.2010 (PB PGS. 122-127) HAS, BESIDES ADJUSTMENT ON ACCOUNT OF LEASE RENTALS FOR DG, ALSO MODIFIED HIS EARLIER ORDER QUA LEASE RENTALS FOR MC. HOW COULD THAT BE? IF THE ORIGINAL ORDER BY THE TRIBUNAL FOR A.Y. 2002-03 (DATED 30.08.2006) DID NOT AUTHORIZE THE TP O TO INTERFERE WITH THE ADJUSTMENT QUA MC, HOW COULD THE LATTER (FOR A.Y. 2003-04 DATE D 24.03.2008), FOLLOWING THE EARLIER ORDER, DO SO ? THE A.O. HAS, THUS, CLEARLY COMMITTED A MISTAKE I N REVISING THE RELIEF GRANTED BY HIM EARLIER, WHICH WAS ONLY IN TERMS OF THE ORDER BY THE TRIBUNAL, AS SUBSEQUENTLY ALSO TRANSPIRES WITH REFERENCE TO THE ORDER FOR A.Y. 2003-04. THE ACTION U/S.154 IS, THUS, UNWARRANTED AND WITHOUT JURISDICT ION. ON BEING QUESTIONED BY THE BENCH IF THE A.O. COULD POSSIBLY TRANSGRESS THE DIRECTION BY THE TPO U/S.92CA(3), THE LD. AR WOULD TAKE US TO THE PROVISION OF SECTION 92CA(4) A S IT STOOD PRIOR TO ITS SUBSTITUTION BY FINANCE ACT, 2007 W.E.F. 01.06.2007, CONTRASTING TH E CHANGE EFFECTED. THE MATTER HAD BEEN CONSIDERED BY THE SPECIAL BENCH OF THE TRIBUNA L IN AZTEC SOFTWARE & TECHNOLOGY SERVICE LTD. VS. ACIT [2007] 107 ITD 141 (BANG)(SB) (A COPY OF THE SAID ORDER, IT WAS SUBMITTED, WOULD BE PLACED ON RECORD IN DUE COURSE, AND WHICH WAS DONE BY THE ASSESSEE VIDE ITS LETTER DATED 11.06.2014), SO THAT THE BIND ING NATURE (ON THE A.O.) OF THE DIRECTION BY THE TPO U/S.92CA(3) IS ONLY W.E.F. 01.06.2007, W HILE EARLIER THE A.O. HAD TO FRAME THE ASSESSMENT ONLY BY HAVING REGARD TO THE ARMS LENGT H PRICE AS DETERMINED BY THE TPO. ON BEING QUESTIONED THAT WHILE PARA 5 OF THE TRIBUNAL S ORDER FOR THE CURRENT YEAR IS IN RESPECT OF THE ADJUSTMENT QUA LEASE RENTALS FOR DG; THE ASSESSEE ADMITTING TO HAV ING FURNISHED ADDITIONAL EVIDENCE/S ONLY WITH REGARD THERETO, PAR A 6 THEREOF IS IN RESPECT OF REPAIRS ONLY, FOR WHICH A SEPARATE ADJUSTMENT (AT RS.65.91 LACS) STANDS MADE BY THE TPO, SO THAT, EVEN AS OBSERVED BY THE TPO, NO SEPARATE DIRECTION HAD B EEN MADE BY THE TRIBUNAL QUA THE ADJUSTMENT FOR LEASE RENTALS FOR MC, HE WOULD REPLY THAT THE SAID ADJUSTMENT WAS ITSELF BASED ON WHETHER THE MAINTENANCE AND REPAIRS COSTS (M+R) ARE TO BE BORNE BY THE LESSOR OR THE LESSEE. AS SUCH, REFERENCE TO REPAIRS BY THE TRIBUNAL AT PARA 6 OF ITS ORDER COVERS BOTH THE ADJUSTMENTS AND IS NOT LIMITED TO EITHER QUA REPAIRS OR FOR DG ALONE. 5 ITA NO. 1960/MUM/2013 (A.Y. 2002-03) BOSKALIS DREDGING INDIA PRIVATE LTD. VS. ASST. CIT 4.2 THE LD. DEPARTMENTAL REPRESENTATIVE (DR) WOULD, ON THE OTHER HAND, SUBMIT THAT THE EARLIER ORDER U/S.143(3) R/W S. 254 DATED 24.12 .2007 BY THE A.O. WAS WITHOUT JURISDICTION IN-AS-MUCH AS THE TRIBUNALS ORDER CON TAINED NO SPECIFIC DIRECTION IN RESPECT OF THE ADJUSTMENT QUA MC. HE WAS QUERIED BY THE BENCH THAT IN THAT CASE T HE TRIBUNALS ORDER MUST BE NECESSARILY CONSTRUED AS HAVING NOT D ISPOSED OF THE ASSESSEES ENTIRE GROUNDS RAISED BEFORE IT, WHICH IN FACT IS NOT THE CASE OF EITHER PARTY (I.E., UP TO THE STAGE OF THE TRIBUNAL) AND, FURTHER, THAT THE VERY SAME O RDER HAS IN FACT BEEN CONSTRUED BY THE REVENUE AS BEARING A DIRECTION QUA ADJUSTMENT FOR MC AS WELL (FOR A.Y. 2003-04), WHICH, AGAIN, CANNOT BE IN-AS-MUCH AS THE REVENUE C ANNOT BE POSSIBLY BE ALLOWED TO TAKE A CONTRARY VIEW IN RELATION TO THE SAME ORDER, I.E. , FOR DIFFERENT YEARS. IT WAS SUBMITTED BY HIM THAT THE ORDER BY THE TPO AND, CONSEQUENTLY, BY THE A.O. FOR A.Y. 2003-04, WOULD HAVE NO BEARING IN THE MATTER. THE ONLY COURSE OPEN FOR THE ASSESSEE, IN THE WAKE OF THE UNDERSTANDING BY THE TPO OF THE TRIBUNALS ORDER AS NOT BEARING ANY DIRECTION QUA MC FOR THE CURRENT YEAR WAS TO MOVE A RECTIFICATION APPLIC ATION BEFORE THE TRIBUNAL TO DISPOSE OF ITS GROUND QUA THE SAME. 5. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD, GIVING OUR CAREFUL CONSIDERATION TO THE MATTER. 5.1 IN OUR VIEW, THE ASSESSEE DESERVES TO SUCCEED. THIS IS, HOWEVER, NOT FOR ANY OF THE REASONS THAT THOUGH DID NOT FIND FAVOUR WITH THE RE VENUE, OR EVEN THOSE ARGUED BEFORE US BY THE PARTIES, AND TOWARD WHICH WE MAY REFER TO TH E QUERIES ADDRESSED TO THE LD. AR AND LD. DR, AS THE CASE MAY BE, DURING HEARING (REFER P ARA 4 ABOVE). ON THE CONTRARY, WE CONSIDER THE A.O. TO BE PERFECTLY JUSTIFIED IN RECT IFYING HIS ORDER U/S.143(3) R/W S. 254 DATED 24.12.2007. THIS IS AS NO REVISION TO HIS EAR LIER ADJUSTMENT QUA LEASE RENTALS FOR MC HAS BEEN ADMITTEDLY DIRECTED BY THE TPO VIDE HIS OR DER U/S.94CA(3) R/WS. 254 (COPY NOT PLACED ON RECORD BY THE ASSESSEE). THE ONLY POSSIBL E INFERENCE THAT FOLLOWS THEREFROM IS OF THE TPO CONFIRMING HIS EARLIER ORDER QUA THE SAID ADJUSTMENT. THE A.O., THUS, IN ALLOWING RELIEF TO THE ASSESSEE IN RESPECT OF THE S AID ADJUSTMENT, HAD ACTED WITHOUT ANY BASIS, LEGAL OR FACTUAL. THIS ALSO EXPLAINS THE ASS ESSEES INITIAL ACCEPTANCE OF THE 6 ITA NO. 1960/MUM/2013 (A.Y. 2002-03) BOSKALIS DREDGING INDIA PRIVATE LTD. VS. ASST. CIT WITHDRAWAL OF RELIEF IN ITS RESPECT U/S.154 PROCEED INGS, AND WHICH FORMS THE BASIS OF THE DISMISSAL OF ITS OBJECTION THERETO RAISED SUBSEQUEN TLY IN APPEAL, BY THE LD. CIT(A). THE QUESTION IS NOT OF THE BINDING OR OTHERWISE NATURE OF THE TPOS DIRECTION/S U/S.92CA(3), BUT OF THE A.O. HAVING ACTED DE HORS AND IN THE ABSENCE OF ANY SUCH DIRECTION. THE TPO HAVING RIGHTLY OR WRONGLY NOT REVISED HIS EARLI ER DIRECTION U/S.92CA(3) DATED 15.02.2005 PURSUANT TO THAT BY THE TRIBUNAL DATED 3 0.08.2006, THE A.O. COULD NOT HAVE ACTED SUO MOTU IN FIRSTLY DISREGARDING THE UNDERSTANDING OF THE T RIBUNALS ORDER BY THE TPO AND, THEN, DECIDING THE ISSUE ON MERITS IN-AS-M UCH AS THE TRIBUNAL HAD ABSTAINED FROM DOING SO, AND HAD ONLY, IF AT ALL, RESTORED TH E MATTER QUA THE SAID ADJUSTMENT (ADJUSTMENT B HEREINAFTER) BACK TO HIS FILE FOR F RESH DECISION, AS IT DID IN THE CASE OF ADJUSTMENT QUA LEASE RENTALS FOR DG (ADJUSTMENT A HEREINAFTER). 5.2 CONTINUING FURTHER, HOWEVER, IT NEEDS TO BE APP RECIATED THAT THE TPOS ORDER U/S.92CA(3) R/W S. 254 IS NOT AN APPEALABLE ORDER. THE SAME HAVING BEEN GIVEN EFFECT TO BY THE A.O. VIDE ORDER U/S. 143(3) R/W S. 254 DATED 24.12.2007 IN FAVOUR OF THE ASSESSEE, THERE WAS NO OCCASION FOR IT OR CAUSE TO CONTEST TH E SAME EITHER U/S.246A OR U/S.264. THE CAUSE OF ACTION TO THE ASSESSEE AROSE FOR THE FIRST TIME ONLY CONSEQUENT TO THE ORDER U/S.154 DATED 17.03.2008. AS SUCH, EVEN AS THE A.O. , BY BRINGING THE ASSESSMENT IN CONSISTENCE AND AGREEMENT WITH THE DIRECTION BY THE TPO U/S. 92CA(3), WAS ONLY ACTING IN ACCORDANCE WITH THE LAW, RECTIFYING HIS EARLIER ORDER, HE HAS, IN DOING SO, AND PERHAPS UNWITTINGLY, PREVENTED THE ASSESSEE FROM APPEALING AGAINST ITS ASSESSMENT OR HIS (A.O.S) ORDER, WERE THE SAME TO HAVE BEEN MADE OR PASSED SO IN THE FIRST INSTANCE. THE RECTIFICATION ORDER (WHEREBY THE A.O. ALIGNS HIMSEL F WITH THE DIRECTIONS BY THE TPO, I.E., TO THE EXTENT THE ASSESSMENT WAS IN DISAGREEMENT TH EREWITH) MERGING WITH THE ORIGINAL ORDER (ASSESSMENT), THE ASSESSEES APPEAL AGAINST T HE RECTIFICATION ORDER WOULD, THEREFORE, STAND TO BE CONSIDERED ONLY AS AN APPEAL AGAINST AN ASSESSMENT ORDER. NOT DOING SO WOULD LEAVE THE ASSESSEE REMEDY LESS AND FOR NO FAULT OF ITS. WE SAY SO AS THE PURVIEW OF THE RECTIFICATION PROCEEDING IS SEVERELY LIMITED, AND W HETHER THE TRIBUNAL HAD IN FACT PASSED ANY SPECIFIC DIRECTION QUA ADJUSTMENT B OR HAD OMITTED TO DO SO, IS CERTAINL Y A MATTER 7 ITA NO. 1960/MUM/2013 (A.Y. 2002-03) BOSKALIS DREDGING INDIA PRIVATE LTD. VS. ASST. CIT REQUIRING AN INTERPRETATION OF ITS ORDER, READ IN T OTALITY, ALONG WITH THE ASSESSEES GROUNDS AND CONTENTIONS RAISED BEFORE THE TRIBUNAL, DRAWING INFERENCE/S THERE-FROM, AND WHICH WOULD ONLY MAKE IT A DEBATABLE OR CONTENTIOUS ISSUE , OUTSIDE THE SCOPE OF SECTION 154. THIS IN FACT WAS PRECISELY THE PREMISE OF THE LD. D RS ARGUMENTS BEFORE US, AND WHICH WE ACCEPT. THE ASSESSEES RIGHT TO OBJECT ITS ASSESSME NT CANNOT BE DENIED OR TAKEN AWAY INDIRECTLY, TAKING ADVANTAGE OF A MISTAKE OR DEFAUL T BY THE A.O. 5.3 WE MAY NEXT CONSIDER THE ISSUE AS TO WHETHER TH E TRIBUNAL HAD IN FACT ALSO ISSUED ANY DIRECTION QUA ADJUSTMENT B, WHICH STOOD DEFINITELY RAISED AND A RGUED BEFORE IT BY THE ASSESSEE. WE ARE INCLINED TO CONSIDER IT AS SO, FOR THREE SEPARATE, THOUGH MUTUALLY REINFORCING REASONS. FIRSTLY, THE REVENUE HAS, FOR THE IMMEDIATELY SUCCEEDING YEAR, FOLLOWING THE SAME ORDER, ITSELF CONSIDERED IT AS S O (VIDE ORDER U/S. 92CA(3) R/W S. 254 DATED 30.10.2009/PB PGS. 122-129). IT IS, THUS, NOT OPEN FOR THE A.O. TO TAKE A CONTRARY VIEW QUA THE SAME ORDER. TWO, IT IS NOT THE CASE OF EITHER P ARTY THAT THE TRIBUNAL HAD NOT DISPOSED OF THE ASSESSEES APPEAL COMPLETELY, SO TH AT THE DIRECTION QUA REPAIRS ALSO INCLUDES THAT QUA ADJUSTMENT B IN-AS-MUCH AS THE INCLUSION OR EXCLU SION OF R + M (REPAIRS AND MAINTENANCE) COMPONENT WAS A RELEVANT ASPECT IN DECIDING THE SAME. THIRDLY, THE ONLY IMPLICATION OF NON-DISPOSAL BY TH E TRIBUNAL OF THE ASSESSEES APPEAL QUA ADJUSTMENT B IS THAT A MISTAKE HAD OCCURRED AT TH E END OF THE TRIBUNAL. IT IS TRITE LAW THAT A COURT OR TRIBUNAL CANNOT, BY ITS ACTION OR NON-AC TION, CAUSE PREJUDICE TO ANY PARTY BEFORE IT. THIS WOULD BE PARTICULARLY SO IN THE PRESENT CA SE AS THE PERIOD OF FOUR YEARS (FROM THE END OF THE RELEVANT FINANCIAL YEAR) HAS SINCE LAPSE D. IN FACT, IN-AS-MUCH AS RECTIFYING SUCH A MISTAKE WOULD FALL WITHIN THE INHERENT POWERS OF THE COURT OR TRIBUNAL, IT COULD ALSO BE CONTENDED THAT THE RECTIFICATION IS NOT CONSTRAINED ON ACCOUNT OF THE TIME LIMITATION THAT ATTENDS A RECTIFICATION U/S.254(2). AS SUCH, IF ONL Y TO CAUSE THE REMOVAL OF THE PREJUDICE, APART FROM OTHER PERSUASIVE REASONS, IN OUR VIEW IT IS ONLY PROPER TO CONCLUDE THAT THE TRIBUNAL HAD RESTORED THE MATTER QUA ADJUSTMENT B ALSO BACK TO THE A.O., I.E., ALONG W ITH THAT QUA ADJUSTMENT A. THE SAID ISSUE, IN THIS VIEW OF THE MATTER, SHALL TRAVEL BACK TO THE FILE OF THE A.O., WHO SHALL DECIDE THE SAME BY FOLLOWING THE DUE PROCESS OF LAW, I.E., 8 ITA NO. 1960/MUM/2013 (A.Y. 2002-03) BOSKALIS DREDGING INDIA PRIVATE LTD. VS. ASST. CIT INCLUDING REFERENCE OF THE MATTER TO THE TPO AND AL LOWANCE OF PROPER OPPORTUNITY TO THE ASSESSEE TO PRESENT ITS CASE, IN ACCORDANCE WITH LA W, PER A SPEAKING ORDER, HAVING REGARD TO THE OBSERVATIONS BY THE TRIBUNAL WHILE RESTORING THE MATTER. BEFORE PARTING WITH THE MATTER, WE MAY ALSO CLARIFY, AS WOULD BE EVEN OTHER WISE APPARENT, THAT WE HAVE DECIDED THE INSTANT APPEAL NOT ON THE BASIS OF THE MERITS O F THE ASSESSMENT AS FRAMED, BUT ON THE MAINTAINABILITY OF THE ASSESSEES OBJECTION TO THE WITHDRAWAL OF RELIEF, SINCE ALLOWED THERETO, FOLLOWING THE GENERAL LEGAL PRINCIPLES. WE DECIDE ACCORDINGLY. 6. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED IN THE AFORESAID TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON JUNE 25, 2014 SD/- SD/- (DR. S. T. M. PAVALAN) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER + 2, MUMBAI; 3 DATED : 25.06.2014 # ROSHANI , SR. PS ! ' #$%& ' &$ # COPY OF THE ORDER FORWARDED TO : 1. $& / THE APPELLANT 2. '($& / THE RESPONDENT 3. '' + 4- 5 6 / THE CIT(A) 4. '' + 4- / CIT CONCERNED 5. 78 9'-:; ' :;0 + 2, / DR, ITAT, MUMBAI 6. 9 <= , # GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , + 2, / ITAT, MUMBAI