ACIT 25(3), MUMBAI V. RAM BUILDERS, MUMBAI

MA 04/MUM/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4754 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-03-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 02-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: USHA KADAM
• Section: 201; 254(2)

Judgement Text

IN THE INC OME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE HONBLE SHRI SHAMIM YAHYA , A M AND HONBLE SHRI SANDEEP GOSAIN, J M M .A. NO . 04/MUM/2019 (IN ITA NO 6345 /MUM/201 7 ) ( / ASSESSMENT YEAR: 2010 - 11 ) ACIT 25(3) 610, 6 TH FLOOR, C - 10, PRATYAKSHKAR BHAVAN, BKC BANDRA (E), MUMBAI - 400 051 / VS. RAM BUILDERS 5, VIRESHWAR, CHHAYA, V. S. KHANDEKAR MARG, MUMBAI - 400 057 ./ ./ PAN/GIR NO. AA AFR8193F ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI MANOJ KUMAR SINGH, DR / RESPONDENT BY : M S. USHA KADAM, AR / DATE OF HEARING : 01/03 /201 9 / DATE OF PRONOUNCEMENT : 20.03.2019 / O R D E R PER SANDEEP GOSAIN, J UDICIAL MEM BER : THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE REVENUE ARISING OUT OF ORDER DATED 31.08.18 PASSED IN ITA NO. 6345/MUM/17 FOR ASSESSMENT YEAR 2010 - 11. . 2 . LD. D R WHILE SUPPORTING THE MA SUBMITTED THAT THE APPEAL OF THE REVENUE WAS DISMIS SED BY HOLDING THAT THE TAX DEMAND EFFECT IS LESS THAN 20 LAKHS IN THE 2 M.A. NO. 04/MUM/2019 (AY - 2010 - 11) RAM BUILDERS PRESENT CASE. HOWEVER, THE REVISED CIRCULAR NO. 279/MISC.142/2007 - I TJ (PT) DATED 20.08.18 OF CBDT IN RESPECT OF CIRCULAR NO 3/2018 DATED 11.07.18 WAS NOT CONSIDERED BY THE BENCH. 3. ON THE OTHER HAND THE LD. A R APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE PRESENT MISC. APPLICA TION FILED BY THE ASSESSEE IS MISCONCEIVED AND SINCE THERE IS NO ERROR APPARENT IN THE RECORD , MORE PARTICULARLY, AT THE TIME OF HEARING OF MAIN APPEAL O N 10.08.18 , NO SUCH CIRCULAR WAS IN EXISTENCE, THEREFORE THE PRESENT MA FILED BY T HE ASSESSEE IS NOT MAINTAINABLE AND PRAYED FOR DISMISSAL OF THE SAME. 4 WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES ON THIS APPLICATION AND ALSO PERUSED THE RECORDS AND AFTER VERIFYING THE RECORDS AS WELL AS AFTER GOING THROUGH THE ORDER DATED 31.08.18 PASSED IN ITA NO. 6345/M/17 , WE NOTICED THAT THE MAIN APPEAL WAS HEARD ON 10.08.18 AND ADMITTEDLY, ON THAT DAY, THERE WAS NO REVISED CIRCULAR REFERRED TO OR ARGUED BEF ORE THE BENCH. THEREFORE, GOING INTO THE MERITS OF THE SAID CIRCULAR, IT IS ADMITTED BY LD. DR HIMSELF THAT NO SUCH CIRCULAR WAS IN EXISTENCE OR WAS REFERRED BEFORE THE BENCH ON 10.08.18 AT THE TIME OF HEARING. IN CASE TITLE CIT VS. RAMESH ELECTRIC AND TRADING CO . (203 ITR 497) WHEREIN THE HONBLE BOMBAY HIGH COURT HELD THAT UNDER SECTION 254(2) OF THE INCOME - TAX ACT, 1961, THE APPELLATE TRIBUNAL MAY, 'WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD', AMEND ANY ORDER PASSED BY IT UNDER SUB - 3 M.A. NO. 04/MUM/2019 (AY - 2010 - 11) RAM BUILDERS SECTION (1) WITHIN THE TIME PRESCRIBED THEREIN. IT IS AN ACCEPTED POSITION THAT THE APPELLATE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER THE PROVISIONS OF THE ACT. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO RECTIFY ANY MISTAKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD. THIS IS MERELY A POWER OF AMENDING ITS ORDER. THE POWER OF RECTIFICATION UNDER SECTION 254(2) CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM THE RECORD, AND NOT A MISTAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLE BE TWO OPINIONS. FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ER ROR OF JUDGEMENT. THE TRIBUNAL CANNOT, IN THE EXERCISE OF ITS POWER OF SRI MOOSA ABU KHALED RECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION.' 6. I N VIEW OF THE ABOVE DISCUSSION AND CONSIDERING THE FACT THAT NO SUCH REVISED CIRCULAR WAS EVER REFERRED OR PLACED ON RECORD AT THE TIME OF HEARING AND HENCE, AT THIS STAGE, WE CANNOT CONSIDER THE MERITS OF REVISED CIRCULAR WHICH WAS NOT IN EXISTENCE AT THE TIME OF HEARING OR PLACED ON RECORD AS IT AMOUNTS TO R EVIEW, WE FIND THAT NO GLARING, OBVIOUS OR PATENT MISTAKE HAS BEEN POINTED OUT 4 M.A. NO. 04/MUM/2019 (AY - 2010 - 11) RAM BUILDERS BY THE ASSESSEE WHICH IS APPARENT FROM THE RECORD, THEREFORE WE ARE INCLINED TO DISMI SS THE MA FILED BY THE REVENUE. 7 . IN THE NET RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE RVENUE STANDS DISMISS ED WITH NO ORDER AS TO COST. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH MARCH , 201 9 SD/ - SD/ - ( SHAMIM YAHYA ) (SANDEEP GOSAIN) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI ; DATED : 20 . 03 .201 9 SR.PS DHANANJAY. / COPY OF THE ORDER FORWARD ED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F I LE / BY O RDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI