M/s Vedanta Limited (Formally Known as Sesa Goa Limited/Sesa Setrlite Limited), Panaji V. Deputy Commissioner of Income Tax, Circle- 1 (1), Panaji., Panaji

MA 05/PAN/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 0564 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 8 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-12-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 24-04-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: F R MEENA
• Keywords: Depreciation; Rectification of order; Opportunity of being heard; Period of limitation; Retrospective amendment; Additional evidence; Time period of passing order; Set aside
• Section: 10B; 80IA; 80HH; 254(2); 13

Judgement Text

1 M.A NOS. 05/PNJ/2019 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: FRIDAY NEW DELHI BEFORE SH. R. K. PANDA, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER MA NO. 05/PNJ/2019 IN ( I.T.A. NO. 92//PNJ/2015 (A.Y 2010-11) M/S VEDANTA LTD. (FORMERLY KNOWN AS SESA GOA LTD./SESA STERLITE LTD.) PANAJI (APPLICANT) VS DCIT CIRCLE 1(1) PANAJI (RESPONDENT) APPLICANT BY SH. AJAY VOHRA, SR. ADV & SH. SACHIT JOLLY, ADV RESPONDENT BY SH. F. R. MEENA, SR. DR ORDER PER SUCHITRA KAMBLE, JM THIS MISC. APPLICATION UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 IS FILED ON 24.04.2019 BY THE ASSESSEE IN RESPECT OF RECTIFICATION OF ORDER DATED 10.09.2015 PASSED BY THE TRIBUNAL. 2. THE LD. AR REFERRING TO THE CONTENTIONS OF THE MISC. APPLICATION DREW THE ATTENTION OF THE BENCH TO THE SAME WHICH READS AS UNDER: BACKGROUND FACTS: A. PROCEEDINGS FOR AY 2009-10 DATE OF HEARING 16.10.2020 DATE OF PRONOUNCEMENT 24.12.2020 2 M.A NOS. 05/PNJ/2019 A.1 AT THE OUTSET, IT WOULD BE PERTINENT TO TAKE NOTE OF THE FOLLOWING PERTINENT FACTS ABOUT THE FATE OF ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 10B OF THE ACT FOR THE AY 2009-10, WHICH HAVE A DIRECT BEARING ON THE PRESENT MATTER. A.1.1 THE AO VIDE ORDER DATED 30.12.2011 DENIED ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 10B OF THE ACT ON VARIOUS GROUNDS. THE SAID ORDER OF THE AO WAS ALSO UPHELD BY THE CIT(A) VIDE ORDER DATED 31.08.2012. A.1.2 SUBSEQUENTLY, CROSS APPEALS WERE FILED BEFORE THE ITAT BY THE ASSESSEE AS WELL AS REVENUE, WHICH WERE DISPOSED BY THE HONBLE ITAT VIDE CONSOLIDATED ORDER DATED 08.03.2013 [REFER ANNEXURE-2] A.1.2 IN THE ABOVE ORDER, THE HONBLE ITAT THREADBARE DISCUSSED THE OBJECTIONS OF THE LOWER AUTHORITIES, INTER-ALIA , QUA THE ASSESSEES ELIGIBILITY TO CLAIM DEDUCTION UNDER SECTION 10B AND HAS HELD THAT THE VARIOUS GROUNDS LEADING TO DENIAL OF SUCH DEDUCTION WAS ERRONEOUS BOTH ON FACTS AND IN LAW; AND THEREFORE, THE ASSESSEES CLAIM FOR DEDUCTION UNDER SECTION 10B OF THE ACT WAS UPHELD. A.1.3 THE HONBLE ITAT, HOWEVER, IN PARA-45.21 OF THE ABOVE ORDER, SUO-MOTO NOTED THAT THE ASSESSEE HAD WHILE COMPUTING THE DEDUCTION UNDER SECTION 10B OF THE ACT HAD DEBITED CRUDE ORE EXTRACTED FROM ITS OWN MINES AT COST WHICH WAS NOT IN ACCORDANCE WITH SECTION 10B(7) R.W.S. 80IA(8) OF THE ACT WHICH REQUIRES TO APPLY MARKET VALUE AND THEREFORE, THE HONBLE ITAT REMANDED THE MATTER BACK TO THE AO, ONLY TO THIS LIMITED EXTENT, WITH THE DIRECTION FOR DETERMINING THE MARKET VALUE OF CRUDE ORE AND ACCORDINGLY, RE-COMPUTE THE DEDUCTION UNDER SECTION 10B OF THE ACT. THE PERTINENT OBSERVATIONS OF THE HONBLE ITAT READ AS UNDER: 45.21 IN VIEW OF THE AFORESAID DISCUSSION, WE ARE OF THE VIEW THAT THE ASSESSEE IS ENTITLED FOR EXEMPTION U/S 10B IN RESPECT OF ALL THE THREE 100% EXPORT ORIENTED UNITS, BUT DURING THE COURSE OF THE HEARING, WE NOTED THAT THE ASSESSEE WHILE COMPUTING THE EXEMPTION U/S 10B HAS DEBITED RE EXTRACTED 3 M.A NOS. 05/PNJ/2019 FROM OWN MINES IN AMONA UNIT AS WELL AS CHITRADURGA UNIT AT COST OF RS. 45,25,23,692/- AND RS. 20,27,01,458/- RESPECTIVELY, WHILE IN VIEW OF PROVISIONS OF SECTION 10B(7) READ WITH SECTION 80-IA(8) THE ASSESSEE IS REQUIRED TO TRANSFER THE RUDE ORE EXTRACTED FROM ITS OWN MINES AT MARKET VALUE FOR DETERMINING THE TRUE PROFIT DERIVED BY THE 100% EOU FOR THE PURPOSE OF COMPUTING THE INCOME ILLEGIBLE FOR EXEMPTION U/S 10B. WE ALSO NOTED THAT THE ASSESSEE HAS ALSO PURCHASED CRUDE ORE I.E. ROM FROM OUTSIDE PARTIES I.E. FROM MINING BELONGING TO THE OTHER PARTIES. THE PRICE PAID BY THE ASSESSEE TO THESE OUTSIDE PARTIES, IN OUR OPINION CAN BE REGARDED TO BE THE BEST EVIDENCE FOR DETERMINING THE MARKET VALUE OF THE CRUDE ORE USED BY THE ASSESSEE EXTRACTING IT FROM ITS OWN MINES. SINCE DETERMINATION OF MARKET VALUE REQUIRES VERIFICATION ON THE PART OF THE REVENUE, WE, THEREFORE, RESTORE THIS ISSUE ONLY FOR DETERMINING THE MARKET VALUE OF THE CRUDE ORE CONSUMED BY THE ASSESSEE ON THE BASIS OF THE VALUE PAID BY THE ASSESSEE FOR THE CRUDE ORE TO THE OUTSIDE PARTIES DURING THE YEAR AND THEREBY RECOMPUTING THE PROFIT DERIVED BY THE ASSESSEE FROM THE 100% EOU UNITS ELIGIBLE FOR EXEMPTION U/S 10B. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO RECOMPUTED THE EXEMPTION AVAILABLE U/S 10B TO THE ASSESSEE IN RESPECT OF AMONA AS WELL AS CHITRADURGA UNITS AFTER ASCERTAINING THE MARKET VALUE OF THE CRUDE ORES TRANSFERRED BY THE ASSESSEE TO THESE UNITS FROM ITS EXTRACTION DIVISIONS ON THE BASIS OF THE AVERAGE MARKET VALUE AS THE ASSESSEE HAS PAID TO THE OUTSIDE PARTIES FOR THE CRUDE ORES PURCHASED BY THE ASSESSEE FROM THESE PARTIES DURING THE IMPUGNED ASSESSMENT YEAR AND SUBSTITUTING AS COST OF THE RAW MATERIAL IN PLACE OF COST OF THE CRUDE ORE DERIVED BY THE ASSESSEE FROM ITS OWN MINES AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO ADDUCE THE MATERIAL AND EVIDENCE IN THIS REGARD. [EMPHASIS SUPPLIED] A.1.4 SUBSEQUENTLY, THE REVENUE FILED MISCELLANEOUS APPLICATION (BEARING M.A. NO. 10/PNJ/2013) [FIRST MA] BEFORE THE HONBLE ITAT SEEKING RECTIFICATION OF CERTAIN MISTAKE PURPORTEDLY APPARENT FROM RECORDS CREPT IN THE ABOVE ORDER DATED 08.03.2013. THE HONBLE ITAT, HOWEVER, DISMISSED THE SAID MA VIDE 4 M.A NOS. 05/PNJ/2019 ORDER DATED 06.09.2013 [REFER ANNEXURE-3], INTER-ALIA, ON THE GROUND THAT REVENUE IN THE GARB OF APPLICATION FOR RECTIFICATION RESORT TO RE-OPEN AND ARGUE THE MATTER WHICH IS BEYOND THE SCOPE OF SECTION 254(2). A.1.5 THEREAFTER, THE REVENUE AGAIN FILED FRESH MISCELLANEOUS APPLICATION (BEARING M. A. NO. 30/PNJ/2014) [SECOND MA] BEFORE THE HONBLE ITAT SEEKING RECTIFICATION OF THE ABOVE ORDER DATED 08.03.2013 ON THE BASIS OF THE FRESH EVIDENCES COLLECTED BY THE REVENUE DURING THE COURSE OF SURVEY CONDUCTED AT VARIOUS PREMISES OF ASSESSEE ON 20.03.2014. THE HONBLE ITAT, HOWEVER, DISMISSED THE SAID MA VIDE ORDER DATED 07.01.2015 [REFER ANNEXURE- 4]. A.1.6 IN THE MEANWHILE, THE REVENUE WENT UP IN APPEAL BEFORE THE HONBLE HIGH COURT CHALLENGING THE ORDER OF THE HONBLE ITAT DATED 08.03.2013 ON VARIOUS (TOTAL 15) QUESTIONS OF LAW. THE HONBLE HIGH COURT, HOWEVER, VIDE ORDER DATED 23.09.2013 ADMITTED APPEAL OF THE REVENUE ONLY ON 3 QUESTIONS OF LAW 2014 [REFER ANNEXURE-5]. SUBSEQUENTLY, THE REVENUE FILED APPLICATION BEFORE THE HONBLE HIGH COURT TO CONSIDER THE UNADMITTED QUESTIONS ALSO. THE HONBLE HIGH COURT, HOWEVER, VIDE ORDER DATED 01.04.2014 DIRECTED TO TAG THE APPLICATION WITH MAIN APPEAL AND DIRECTED THAT THE APPLICATION SHALL BE EXAMINED AT THE TIME OF FINAL HEARING OF THE APPEAL ON MERITS [REFER ANNEXURE- 6]. A.1.7 THE AO VIDE ORDER DATED 17.10.2014 PASSED UNDER SECTION 254/143(3) OF THE ACT, GAVE APPEAL EFFECT TO THE DIRECTIONS OF THE HONBLE ITAT CONTAINED IN ORDER DATED 08.03.2013 RELATING TO PROVISIONS OF SECTION 10B(7) R.W.S. 80IA(8) OF THE ACT AND CONSEQUENT, RE-COMPUTATION OF THE DEDUCTION ADMISSIBLE UNDER SECTION 10B OF THE ACT [REFER ANNEXURE-7]. A.1.8 THE ASSESSEE, THEREAFTER, FILED APPEAL BEFORE THE CIT(A) AGAINST THE ABOVE APPEAL EFFECT ORDER DATED 17.10.2014 PASSED BY THE AO. THE SAID APPEAL IS STILL PENDING ADJUDICATION. 5 M.A NOS. 05/PNJ/2019 B. PROCEEDINGS FOR AY 2010-11 B.1 IN ITA NO. 92/PNJ/2015, THE REVENUE HAS CHALLENGED THE ORDER OF THE CIT(APPEALS) FOR AY 2010-11 ON VARIOUS GROUNDS (TOTAL 19 GROUNDS OF APPEAL), WHICH, INTER-ALIA, INCLUDED GROUNDS OF APPEAL NOS. 6 TO 16 DEALING WITH ISSUE RELATING TO CLAIM OF DEDUCTION UNDER SECTION 10B OF THE ACT, WHICH HAVE BEEN REMANDED BACK BY THE HONBLE TRIBUNAL BACK TO THE FILE OF THE CIT(A) FOR RE- ADJUDICATION. THE DISCUSSION, IN THIS REGARD, IS RECORDED IN PARAS 14 TO 16 OF THE IMPUGNED ORDER WHICH READS AS UNDER: 14. IN RESPECT OF GROUND NOS. 6 TO 12 OF THE REVENUES APPEAL WHICH IS AGAINST THE ACTION OF THE LD. CIT(A) IN GRANTING DEDUCTION U/S 10B OF THE ACT AND GROUND NOS. 13 TO 16 WHICH IS AGAINST THE COMPUTATION U/S 10B, IT WAS SUBMITTED BY THE LD. DR THAT THE LD. CIT(A) HAD NOT CONSIDERED THE NEW EVIDENCES PROVIDED BY THE AO WHEN DECIDING THE ISSUE. THE LD. DR DREW OUR ATTENTION TO PARA 8.3 AT PAGE 55 OF THE ORDER OF THE LD. CIT(A) WHEREIN THE LD. CIT(A) HAS CATEGORICALLY HELD THAT HE WAS NOT CONSIDERING THE NEW EVIDENCES INSOFAR AS THE A.Y 2009-10 WAS THE FIRST YEAR OF THE CLAIM OF DEDUCTION U/S 10B AND THE FRESH EVIDENCES, IF ANY, COULD BE CONSIDERED ONLY IN THAT ASSESSMENT. IT WAS THE SUBMISSION THAT THE ORDER OF THE LD. CIT(A) WAS LIABLE TO BE REVERSED. 15. IN REPLY, THE LD. AR SUBMITTED THAT THE APPEAL FOR THE A.Y 2009-10 WAS PENDING BEFORE THE LD. CIT(A) AND THE HEARING FOR THE SAME WAS ALSO CONCLUDED THROUGH THE ORDER HAS NOT BEEN RECEIVED. IT WAS THE SUBMISSION THAT THE SAID FRESH EVIDENCES AS PRODUCED BY THE AO, WHICH WAS FOUND IN THE COURSE OF THE SURVEY ON THE ASSESSEE, WERE ALSO PRODUCED BEFORE THE LD. CIT(A). IT WAS THE SUBMISSION THAT THIS ISSUE COULD BE RESTORED TO THE FILE OF THE LD. CIT(A) FOR READJUDICATION IN LINE WITH HIS DECISION FOR THE A.Y 2009-10. 16. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS IT HAS BEEN ADMITTED THAT THE APPEAL FOR THE A.Y 2009-10 IS UNDER ADJUDICATION BEFORE THE LD. CIT(A) 6 M.A NOS. 05/PNJ/2019 AND THAT FRESH EVIDENCES HAVE BEEN FOUND IN THE COURSE OF THE SURVEY CONDUCTED AFTER THE ORDER OF THE TRIBUNAL WHICH HAS BEEN FOLLOWED BY THE LD. CIT(A), WE ARE OF THE VIEW THAT THIS ISSUE IN RESPECT OF GROUND NOS. 6 TO 16 OF THIS APPEAL IN RELATION TO THE CLAIM OF DEDUCTION U/S 10B IS LIABLE TO BE RESTORED TO THE FILE OF THE LD. CIT(A) FOR RE-ADJUDICATION AFTER GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD, AND WE DO SO. IN THE RESULT, GROUND NOS. 6 TO 16 OF THE REVENUES APPEAL STAND PARTLY ALLOWED FOR STATISTICAL PURPOSES. B.2 ON PERUSAL OF THE ABOVE, IT WOULD BE NOTICED THAT: B.2.1 IN PARA-14, THE HONBLE BENCH HAS RECORDED THAT GROUNDS OF APPEAL NOS. 6 TO 12 CHALLENGED THE ACTION OF THE CIT(A) IN GRANTING DEDUCTION UNDER SECTION 10B OF THE ACT AND GROUNDS OF APPEAL NOS. 13 TO 16 RELATES TO COMPUTATION OF DEDUCTION UNDER SECTION 10B OF THE ACT. THAT APART, THE HONBLE BENCH ALSO NOTED THE CONTENTIONS OF THE DR TO THE EFFECT THAT CIT(A) HAS REJECTED ADMISSION OF CERTAIN NEW/FRESH EVIDENCES PRODUCED BY THE AO ON THE GROUND THAT THESE ADDITIONAL EVIDENCES COULD BE CONSIDERED ONLY IN AY 2009-10, WHICH WAS THE FIRST YEAR OF CLAIM OF DEDUCTION UNDER SECTION 10B OF THE ACT. B.2.2 IN PARA-15, THE HONBLE BENCH HAS NOTED THE ARGUMENTS OF THE AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE THAT: B.2.2.1 THE APPEAL FOR AY 2009-10 WAS PENDING BEFORE THE CIT(A); B.2.2.2 THE FRESH EVIDENCES FOUND DURING THE COURSE OF SURVEY WAS PRODUCED BY AO BEFORE THE CIT(A); AND B.2.2.3 THE ISSUE COULD BE RESTORED TO THE FILE OF THE CIT(A) FOR RE- ADJUDICATION IN LINE WITH HIS DECISION FOR THE AY 2009-10. B.2.3 IN PARA-16, THE HONBLE BENCH HAD RESTORED THE ENTIRE ISSUE IN GROUNDS OF APPEAL NOS. 6 TO 16 RELATING TO CLAIM OF DEDUCTION UNDER SECTION 10B OF THE ACT BACK TO THE FILE OF THE CIT(APPEALS) ON THE ABOVE PURPORTED ADMISSION OF THE 7 M.A NOS. 05/PNJ/2019 AR THAT THE APPEAL FOR AY 2009-10 IS UNDER ADJUDICATION BEFORE THE CIT(A) AND THAT FRESH EVIDENCES HAVE BEEN FOUND IN THE COURSE OF SURVEY CONDUCTED AFTER THE ORDER OF THE TRIBUNAL WHICH HAS BEEN FOLLOWED BY THE LD. CIT(A). MISTAKES APPARENT FROM RECORD RECTIFICATION OF WHICH IS SOUGHT C.1 IN THE LIGHT OF THE AFORESAID FACTUAL BACKGROUND, IT IS RESPECTFULLY SUBMITTED THAT FOLLOWING MISTAKES APPARENT FROM RECORD HAVE BEEN CREPT IN THE IMPUGNED ORDER DATED 10.09.2015 PASSED BY THE HONBLE ITAT FOR AY 2010-11: C.1.1 IN PARA-16, THE HONBLE BENCH HAS NOTED THAT IT WAS ADMITTED THAT THE APPEAL FOR AY 2009-10 IS UNDER ADJUDICATION BEFORE THE CIT(A) AND THE FRESH EVIDENCES FILED BY REVENUE IS BASED ON THE SURVEY CONDUCTED AFTER THE ORDER OF THE TRIBUNAL. C.1.2 IN THIS REGARD, IT WOULD BE NOTED THAT IN PARA-15, THE REFERENCE MADE BY THE AR OF THE ASSESSEE TO THE PENDING APPEAL BEFORE THE CIT(A) FOR AY 2009-10 WAS QUA THE APPEAL FILED BY THE ASSESSEE BEFORE THE CIT(A) AGAINST THE APPEAL EFFECT ORDER DATED 17.10.2014 PASSED UNDER SECTION 254/143(3) OF THE ACT, SUBJECT MATTER OF WHICH WAS LIMITED TO APPLICATION OF PROVISIONS OF SECTION 10B(7) R.W.S. 80IA(8) OF THE ACT. C.1.3 THUS, THE ADMISSION OF THE AR WAS RESTRICTED TO GROUNDS OF APPEAL NOS. 13 TO 16 WHICH RELATED TO COMPUTATION OF DEDUCTION UNDER SECTION 10B OF THE ACT. BY MAKING SAID ADMISSION, THE AR OF THE ASSESSEE AGREED THAT THE ISSUES RAISED IN GROUNDS OF APPEAL NOS. 13 TO 16 RELATING TO DETERMINATION OF MARKET VALUE FOR INTER UNIT TRANSFER OF CRUDE ORE, RELEVANT FOR PROVISIONS OF SECTION 10B(7) R.W.S. 80IA (8) OF THE ACT, MAY BE REMANDED TO THE CIT(A) SINCE THE APPEAL FOR AY 2009-10 INVOLVING THE SIMILAR ISSUES ARISING OUT OF THE APPEAL EFFECT ORDER DATED 17.10.2014 WAS ALREADY PENDING BEFORE THE CIT(A). C.1.4 IT WOULD BE NOTED THAT ISSUES RAISED IN GROUNDS OF APPEAL NOS. 6 TO 12, WHICH RELATED TO ELIGIBILITY OF ASSESSEE TO CLAIM DEDUCTION UNDER SECTION 10B OF THE ACT WAS SQUARELY COVERED BY THE ORDER OF THE HONBLE ITAT FOR AY 2009-10 AND WHICH WAS ALSO FOLLOWED BY THE CIT(A). THUS, THE ORDER OF THE HONBLE BENCH IN REMANDING EVEN THESE GROUNDS OF APPEAL NOS. 6 TO 12 IS CLEARLY AN 8 M.A NOS. 05/PNJ/2019 INADVERTENT MISTAKE. C.1.5 AS REGARDS THE ADDITIONAL EVIDENCES FILED BY THE AO, PURSUANT TO SURVEY CONDUCTED BY THE REVENUE, BEFORE THE CIT(A) FOR AY 2010-11, IT WOULD BE PERTINENT TO NOTE THAT THERE WAS NO OCCASION FOR REMANDING THE MATTER BACK TO THE CIT(A) FOR CONSIDERING SUCH ADDITIONAL EVIDENCES FOR THE REASON THAT THESE ADDITIONAL EVIDENCES RELATES TO AY 2009-10, BEING FIRST YEAR OF CLAIM OF DEDUCTION UNDER SECTION 10B OF THE ACT; THE SAME SHOULD, THEREFORE, HAVE BEEN CONSIDERED, IF AT ALL REQUIRED, IN AY 2009-10 ONLY. HOWEVER, IT IS A MATTER OF RECORD, THAT AS ON THE DATE OF PASSING OF THE IMPUGNED ORDER BY THE HONBLE ITAT FOR AY 2010-11, THE REVENUES SECOND M.A. BEFORE ITAT FOR AY 2009-10 SEEKING CONSIDERATION OF THESE ADDITIONAL EVIDENCES, STOOD DISMISSED. PRAYER IN VIEW OF THE AFORESAID FACTS, IT IS RESPECTFULLY PRAYED THAT THE IMPUGNED ORDER DATED 10.09.2015 MAY BE RECALLED IN PART TO DISPOSE OF GROUNDS OF APPEAL 6 TO 12 IN ACCORDANCE WITH THE EARLIER DECISION OF THIS HONBLE TRIBUNAL IN AY 2009- 10. 2.1. THE LD. AR REFERRING TO THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN CASE OF CIT VS. WESTERN OUTDOOR INTERACTIVE (P.) LTD. (2012) 349 ITR 309 WHEREIN IT IS HELD THAT BENEFIT OF DEDUCTION UNDER SECTION 10A IS AVAILABLE FOR A PARTICULAR NUMBER OF YEARS ON SATISFACTION OF CERTAIN CONDITIONS UNDER PROVISIONS OF ACT, AND UNLESS RELIEF GRANTED FOR FIRST ASSESSMENT YEAR IN WHICH CLAIM IS MADE AND ACCEPTED, IS WITHDRAWN OR SET ASIDE, THE AO CANNOT WITHDRAW RELIEF FOR SUBSEQUENT YEARS. THE LD. AR FURTHER REFERRED TO THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN CASE OF CIT VS. PAUL BROTHERS (1995) 216 ITR 548 WHEREIN THE HONBLE HIGH COURT HELD THAT WHERE RELIEF GRANTED UNDER SECTION 80HH OR 80J FOR AN EARLIER ASSESSMENT YEAR ON THE SAME GROUND HAS BECOME FINAL, SAME RELIEF CANNOT BE WITHHELD FOR SUBSEQUENT ASSESSMENT YEARS WITHOUT WITHDRAWING RELIEF FOR EARLIER ASSESSMENT YEAR. THE LD. AR ALSO WHILE REFERRING TO THE DECISION OF THE HONBLE SUPREME COURT IN CASE OF HONDA SIEL 9 M.A NOS. 05/PNJ/2019 POWER PRODUCTS LTD. VS. CIT (2007) 295 ITR 466 (SC), DREW THE ATTENTION OF THE BENCH TO PARA 12 AND 13 OF THE ORDER WHICH READS AS UNDER: 12. AS STATED ABOVE, IN THIS CASE WE ARE CONCERNED WITH THE APPLICATION UNDER SECTION 254(2) OF THE 1961 ACT. AS STATED ABOVE THE EXPRESSION RECTIFICATION OF MISTAKE FROM THE RECORD OCCURS IN SECTION 154. IT ALSO FINDS PLACE IN SECTION 254(2). THE PURPOSE BEHIND ENACTMENT OF SECTION 254(2) IS BASED ON THE FUNDAMENTAL PRINCIPLE THAT NO PARTY APPEARING BEFORE THE TRIBUNAL, BE IT AN ASSESSEE OR THE DEPARTMENT, SHOULD SUFFER ON ACCOUNT OF ANY MISTAKE COMMITTED BY THE TRIBUNAL. THIS FUNDAMENTAL PRINCIPLE HAS NOTHING TO DO WITH THE INHERENT POWERS OF THE TRIBUNAL. IN THE PRESENT CASE, THE TRIBUNAL IN ITS ORDER DATED 10-9-2003 ALLOWING THE RECTIFICATION APPLICATION HAS GIVEN A FINDING THAT SAMTEL COLOR LTD.S CASE (SUPRA) WAS CITED BEFORE IT BY THE ASSESSEE BUT THROUGH OVERSIGHT IT HAD MISSED OUT THE SAID JUDGMENT WHILE DISMISSING THE APPEAL FILED BY THE ASSESSEE ON THE QUESTION OF ADMISSIBILITY /ALLOWABILITY OF THE CLAIM OF THE ASSESSEE FOR ENHANCED DEPRECIATION UNDER SECTION 43A. ONE OF THE IMPORTANT REASONS FOR GIVING THE POWER OF RECTIFICATION TO THE TRIBUNAL IS TO SEE THAT NO PREJUDICE IS CAUSED TO EITHER OF THE PARTIES APPEARING BEFORE IT BY ITS DECISION BASED ON A MISTAKE APPARENT FROM THE RECORD. 13. RULE OF PRECEDENT IS AN IMPORTANT ASPECT OF LEGAL CERTAINTY IN RULE OF LAW. THAT PRINCIPLE IS NOT OBLITERATED BY SECTION 254(2) OF THE INCOME-TAX ACT, 1961. WHEN PREJUDICE RESULTS FROM AN ORDER ATTRIBUTABLE TO THE TRIBUNALS MISTAKE, ERROR OR OMISSION, THEN IT IS THE DUTY OF THE TRIBUNAL TO SET IT RIGHT. ATONEMENT TO THE WRONGED PARTY BY THE COURT OR TRIBUNAL FOR THE WRONG COMMITTED BY IT HAS NOTHING TO DO WITH THE CONCEPT OF INHERENT POWER TO REVIEW. IN THE PRESENT CASE, THE TRIBUNAL WAS JUSTIFIED IN EXERCISING ITS POWERS UNDER SECTION 254(2) WHEN IT WAS POINTED OUT TO THE TRIBUNAL THAT THE JUDGMENT OF THE CO-ORDINATE BENCH WAS PLACED BEFORE THE TRIBUNAL WHEN THE ORIGINAL ORDER CAME TO BE PASSED BUT IT HAD COMMITTED A MISTAKE IN NOT CONSIDERING THE MATERIAL, WHICH WAS ALREADY ON RECORD. THE TRIBUNAL HAS 10 M.A NOS. 05/PNJ/2019 ACKNOWLEDGED ITS MISTAKE; IT HAS ACCORDINGLY RECTIFIED ITS ORDER. IN OUR VIEW, THE HIGH COURT WAS NOT JUSTIFIED IN INTERFERING WITH THE SAID ORDER. WE ARE NOT GOING BY THE DOCTRINE OR CONCEPT OF INHERENT POWER. WE ARE SIMPLY PROCEEDING ON THE BASIS THAT IF PREJUDICE HAD RESULTED TO THE PARTY, WHICH PREJUDICE IS ATTRIBUTABLE TO THE TRIBUNALS MISTAKE, ERROR OR OMISSION AND WHICH ERROR IS A MANIFEST ERROR THEN THE TRIBUNAL WOULD BE JUSTIFIED IN RECTIFYING ITS MISTAKE, WHICH HAD BEEN DONE IN THE PRESENT CASE. THE LD. AR ACCORDINGLY, SUBMITTED THAT SINCE THE CONTENTS OF THE MISC. APPLICATION IS SELF EXPLANATORY, THEREFORE, IN VIEW OF THE DECISIONS CITED ABOVE, THE MISC. APPLICATION FILED BY THE ASSESSEE SHOULD BE ALLOWED BY MODIFYING THE ORDER DATED 10.09.2015 OF THE TRIBUNAL. 3. THE LD. DR, ON THE OTHER HAND, STRONGLY OPPOSED THE MISC. APPLICATION. THE LD. DR SUBMITTED THAT FIRST OF ALL THERE IS A DELAY OF 1130 DAYS IN FILING OF THE MISC. APPLICATION AND THEREFORE, ON THIS COUNT ITSELF THE MISC. APPLICATION SHOULD BE DISMISSED AS BARRED BY LIMITATION. THE LD. DR FURTHER SUBMITTED THAT THE TRIBUNAL AFTER CONSIDERING THE RIVAL ARGUMENTS FROM BOTH THE SIDES AND CONSIDERING THE FACT THAT APPEAL FOR A.Y. 2009-10 WAS PENDING BEFORE CIT(A) FOR ADJUDICATION ON THE BASIS OF NEW EVIDENCES FOUND DURING THE COURSE OF SURVEY, HAD RESTORED THE MATTER TO THE FILE OF THE CIT(A). THEREFORE, THERE IS ABSOLUTELY NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL. THE ASSESSEE THROUGH THIS MISC. APPLICATION IS REQUESTING THE TRIBUNAL TO REVIEW ITS OWN ORDER WHICH IS NOT PERMISSIBLE IN LAW. SO FOR THE VARIOUS DECISIONS RELIED BY THE LD. AR ARE CONCERNED, THE LD. DR SUBMITTED THAT THOSE ARE NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE AND ARE DISTINGUISHABLE. THE LD. DR ACCORDINGLY SUBMITTED THAT THE M.A. FILED BY THE ASSESSEE BE DISMISSED. 4. THE LD. AR IN HIS REJOINDER SUBMITTED THAT THERE IS NO DELAY IN FILING THE PRESENT M.A. AS THE SAME WAS FILE WITHIN THE PERIOD OF FOUR YEARS FROM THE DATE OF THE ORDER IN THE APPEAL BEING ITA NO. 92/PNJ/2015 DATED 10.09.2015. THE LD. AR SUBMITTED THAT THE AMENDMENT IN SECTION 254 (2) IS NOT RETROSPECTIVE 11 M.A NOS. 05/PNJ/2019 BUT PROSPECTIVE AND IS APPLICABLE ONLY TO THE ORDERS PASSED ON OR AFTER 01.06.2016. FOR THE ABOVE PROPOSITIONS HE RELIED ON THE FOLLOWING DECISIONS: I) PR. CIT VS. INCOME TAX APPELLATE TRIBUNAL (2020) 425 ITR 581 (BOM. HC) II) DISTRICT CENTRAL CO-OP. BANK LTD. VS. UOI (2017) 398 ITR 161 (M.P. HC) III) GIFFORD & PARTNERS LTD. VS. A.D.I. 1(1), KOLKATA (2018) 169 ITD 224 (KOL. TRI.) 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED ALL THE RELEVANT MATERIAL AVAILABLE ON RECORD. BEFORE DECIDING THE MISC. APPLICATION ON MERIT, WE HAVE TO FIRST DECIDE THE MAINTAINABILITY OF THE SAME. IN THE INSTANT CASE, THE PRESENT MISC. APPLICATION IS FILED IN RESPECT OF ORDER DATED 10.09.2015 PASSED BY THE TRIBUNAL IN ITA NO. 92/PNJ/2015 FOR A.Y. 2010-11. THE PRESENT MISC. APPLICATION IS FILED ON 24.04.2019 THAT IS WITHIN FOUR YEARS FROM THE DATE OF ORDER AS PER THE PRE-AMENDED SUB-SECTION (2) OF SECTION 254 OF THE INCOME TAX ACT, 1961. THE AMENDMENT CAME INTO EFFECT FROM 01.06.2016. THEREFORE ORDERS PASSED PRIOR TO 01.06.2016 BY THE TRIBUNAL WILL HAVE TO BE GOVERNED BY THE PRE- AMENDED SUB-SECTION (2) OF SECTION 254 OF THE ACT I.E. FOUR YEARS PERIOD FOR MAKING AN APPLICATION FOR RECTIFICATION OF MISTAKE WHICH IS APPARENT FROM THE RECORD. THUS, THERE IS NO DELAY IN FILING THE PRESENT MISC. APPLICATION. THE DECISION OF THE HONBLE MADHYA PRADESH HIGH COURT IN CASE OF DIST. CENTRAL CO- OP BANK LTD. (SUPRA) RELIED BY THE LD.AR SUPPORTS TO THE ABOVE PROPOSITION WHEREIN IT IS HELD THAT WHERE ASSESSEE HAD FILED AN APPLICATION UNDER SECTION 254(2) BUT PERIOD OF LIMITATION FOR WHICH ASSESSEE WAS ENTITLED I.E. FOUR YEARS, WAS CURTAILED TO SIX MONTHS BY VIRTUE OF AMENDMENT IN SECTION 254(2), SINCE EXISTING RIGHT TO FILE APPLICATION HAD BEEN EXTINGUISHED WITH RETROSPECTIVE EFFECT IN CASE OF ASSESSEE BY SHORTENING LIMITATION PERIOD, APPLICATION PREFERRED BY ASSESSEE SHOULD NOT HAVE BEEN DISMISSED BY TRIBUNAL. IN VIEW OF OUR ABOVE 12 M.A NOS. 05/PNJ/2019 DISCUSSION, WE HOLD THAT THERE IS NO DELAY IN FILING THE PRESENT M.A. THEREFORE, WE ARE PROCEEDINGS WITH THE MERIT. 5. SO FOR AS THE MERIT OF THE CASE IS CONCERNED, IT IS AN ADMITTED FACT THAT THE THEN AR WHILE ARGUING THE MATTER BEFORE THE TRIBUNAL HAD SUBMITTED THAT THE APPEAL FOR THE A.Y. 2009-10 WAS PENDING BEFORE THE CIT(A) AND THE HEARING FOR THE SAME IS ALSO CONCLUDED THOUGH THE ORDER WAS NOT RECEIVED. IT WAS ALSO SUBMITTED BY HIM THAT FRESH EVIDENCES PRODUCED BY THE AO WHICH IS FOUND DURING THE COURSE OF THE SURVEY ON THE ASSESSEE, WERE ALSO PRODUCED BEFORE THE CIT (A). IT WAS ALSO HIS ARGUMENT THAT THE ISSUE BE RESTORED TO THE FILE OF THE CIT(A) FOR RE-ADJUDICATION IN LINE WITH HIS DECISION FOR A.Y. 2009-10. AFTER CONSIDERING THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, THE TRIBUNAL RESTORED THE ISSUE TO THE FILE OF THE CIT(A) FOR RE-ADJUDICATION OF THE ISSUE RELATING TO CLAIM OF DEDUCTION UNDER SECTION 10B. FOR SAKE OF CLARIFICATION WE ARE REPRODUCING PARA 15 & 16 OF THE ORDER OF THE TRIBUNAL WHICH READ AS UNDER: 15. IN REPLY, THE LD. AR SUBMITTED THAT THE APPEAL FOR THE A.Y. 2009-10 WAS PENDING BEFORE THE LD. CIT(A) AND THE HEARING FOR THE SAME WAS ALSO CONCLUDED THOUGH THE ORDER HAS NOT BEEN RECEIVED. IT WAS THE SUBMISSION THAT THE SAID FRESH EVIDENCES AS PRODUCED BY THE AO, WHICH WAS FOUND IN THE COURSE OF THE SURVEY ON THE ASSESSEE, WERE ALSO PRODUCED BEFORE THE LD. CIT(A). IT WAS THE SUBMISSION THAT THIS ISSUE COULD BE RESTORED TO THE FILE OF THE LD. CIT(A) FOR RE-ADJUDICATION IN LINE WITH HIS DECISION FOR THE A.Y. 2009-10. 16. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. AS IT HAS BEEN ADMITTED THAT THE APPEAL FOR THE A.Y. 2009-10 IS UNDER ADJUDICATION BEFORE THE LD. CIT(A) AND THAT FRESH EVIDENCES HAVE BEEN FOUND IN THE COURSE OF THE SURVEY CONDUCTED AFTER THE ORDER OF THE TRIBUNAL WHICH HAS BEEN FOLLOWED BY THE LD. CIT(A), WE ARE OF THE VIEW THAT THIS ISSUE IN RESPECT OF GROUND NOS. 6 TO 16 OF THIS APPEAL IN RELATION TO THE CLAIM OF DEDUCTION U/S 10B IS LIABLE TO BE RESTORED TO THE FILE OF THE LD. CIT(A) FOR RE-ADJUDICATION AFTER GRANTING THE 13 M.A NOS. 05/PNJ/2019 ASSESSEE ADEQUATE OPPORTUNITY OF BEING HEARD, AND WE DO SO. IN THE RESULT, GROUND NOS. 6 TO 16 OF THE REVENUES APPEAL STAND PARTLY ALLOWED FOR STATISTICAL PURPOSES. A PERUSAL OF THE ORDER SHOWS THAT THERE IS ABSOLUTELY NO ERROR APPARENT ON RECORD. VARIOUS DECISIONS RELIED BY THE LD. AR ARE DISTINGUISHABLE AND NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. THE ASSESSEE THROUGH THIS M.A. IS REQUESTING THE TRIBUNAL TO MODIFY / RECTIFY THE ORDER OF THE TRIBUNAL WHICH AMOUNTS TO REVIEW OF ITS OWN ORDER BY THE TRIBUNAL WHICH IS NOT PERMISSIBLE IN LAW. AS WE HAVE HELD IN ABOVE PARAS, THAT THERE IS NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL SO FAR AS THE GROUND RELATING TO 6 TO 12 BY THE REVENUE, THE M.A. FILED BY THE ASSESSEE BEING DEVOID OF MERIT IS DISMISSED. 6. IN RESULT, THIS MISC. APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 24 TH DAY OF DECEMBER, 2020 SD/- SD/- (R. K. PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 24/12/2020 R. NAHEED COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI 14 M.A NOS. 05/PNJ/2019 DATE OF DICTATION 09.11.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 09.11.2020 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER 24.12.2020 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. PS/PS 24.12.2020 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 2 4 .1 2 .2020 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/PS 2 4 .1 2 .2020 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 24.12.2020 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 24.12.2020 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER