Maruthi Tubes (P) Ltd., Secunderabad V. DCIT, Hyderabad

MA 102/HYD/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4933 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-08-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 26-05-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K V N CHARYA
• Assessee Lawyers: C SUBRAMANIYAM
• Keywords: Reasonable cause
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SHRI G.C. GUPTA, VICE PRESIDENT AND SHRI CHANDRA POOJARI ACCOUNTANT MEMBER MA NO.102/HYD/2010 ARISING OUT IN ITA NO.500/HYD/2010 ASSESSMENT YEAR 2005-06 M/S MARUTHI TUBES (P) LTD., SECUNDERABAD (AABCM 5529 J) VS DCIT, CIRCLE 16 (2), HYDERABAD (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI C. SUBRAMANIYAM RESPONDENT BY: SHRI K.V.N. CHARYA, DR O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THROUGH THIS MISCELLANEOUS APPLICATION THE ASSESSEE REQUESTS THE TRIBUNAL TO RECALL ITS ORDER IN ITA NO.500 /HYD/2010 DATED 11 TH FEBRUARY, 2010. 2. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT AT THE TIME OF HEARING, HE HAS RELIED ON THE ORDER OF THE C O-ORDINATE BENCH B IN THE CASE OF ACIT VS. BIOTECH MEDICALS (P) LTD. REPORTE D IN (2009) 119 ITD 143 WHICH WERE NOT CONSIDERED BY THIS TRIBUNAL. FU RTHER, HE SUBMITTED THAT THE ASSESSEE RAISED AN ALTERNATIVE GROUND BRINGING TO THE NOTICE OF THE HONBLE BENCH THAT THE INDIRECT EXPENSES HA VE NOT BEEN CORRECTLY APPORTIONED, SOUGHT THE INDULGENCE OF THE HON BLE BENCH IN THIS REGARD. HOWEVER, THE HONBLE BENCH WHILE DISMISSING THE P LEA OF THE ASSESSEE IN THIS REGARD, AT PAGE 6 PARA 7.1. (16 TH LINE) MADE AN OBSERVATION AS UNDER : MA NO.102 OF 2010 (IN ITA NO.500 OF 2010) M/S MARUTHI TUBES (P) LTD., SECUNDERABAD 2 BEFORE US, THE ASSESSEE IS NOT ABLE TO POINT OUT T HE SPECIFIC MISTAKE CREPT IN THE STATEMENT FILED BEFORE THE ASSESSING O FFICER AND WITHOUT POINTING OUT THE SPECIFIC ERROR, THE ASSESSEE WANTS TO REVISE THE STATEMENT REALLOCATING THE EXPENSES. 3. THIS IS CONTRARY TO THE SUBMISSIONS MADE BY THE AUTHO RISED REPRESENTATIVE FOR THE ASSESSEE AND AS SUCH, HE SEEKS THE ORDER OF THE TRIBUNAL BE RECALLED ON THE ABOVE TWO GROUNDS. 4. ON THE OTHER HAND THE LEARNED DEPARTMENTAL REP RESENTATIVE SUBMITTED THAT THE TRIBUNAL ACTUALLY TAKEN A COGNIZAN CE OF THE TRIBUNAL ORDERS SITED BY THE ASSESSEES COUNSEL. MORE SO, THE FACTS OF THE CASE RELIED BY THE ASSESSEES COUNSEL IS NOT AT ALL SIMILAR TO T HE FACTS OF THE ASSESSEES CASE. FURTHER, HE SUBMITTED THAT THE ASSESSEES COU NSEL IS SELECTIVELY READING THE ORDER OF THE TRIBUNAL. HE SUBM ITTED THAT THE ASSESSEE HAS FILED DIVISION WISE PROFITABLE STATEMENT ON I TS OWN BASED ON THE BOOKS OF ACCOUNT OF THE RELEVANT ASSESSMENT YEARS WHICH HAVE BEEN AUDITED BY THE CHARTERED ACCOUNTANT AND IT WAS NOTICED BY THE LOWER AUTHORITIES THAT THE EXPENSES ARE PROPERLY ALLOCATED BE TWEEN DIVISION WISE AND THE TRIBUNAL HAS GIVEN FINDINGS THAT FILING O F REVISED DIVISION WISE PROFITABLE STATEMENT IS A AFTER THOUGHT. HE SUBMIT TED THAT THIS IS A SPECIFIC FINDINGS OF THE TRIBUNAL AND CONSCIOUS DECISION ON W HICH RECONSIDERATION IS NOT POSSIBLE AND THE ARGUMENT OF THE ASSESSEES COUNSEL AT THIS POINT AMOUNTS TO RE ARGUE OF THE ASSESSEE S CASE. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. WHILE DISMISSING THE APPEAL OF TH E ASSESSEE, THE TRIBUNAL HAS TAKEN INTO ACCOUNT ALL RELEVANT MATERIALS . THE FINDINGS OF THE TRIBUNAL ARE NOT LIABLE TO BE INTERFERED WITH U NLESS THE TRIBUNAL HAS TAKEN INTO CONSIDERATION ANY IRRELEVANT MATERIAL OR CO NCLUSION ARRIVED BY MA NO.102 OF 2010 (IN ITA NO.500 OF 2010) M/S MARUTHI TUBES (P) LTD., SECUNDERABAD 3 THE TRIBUNAL IS NOT BASED ON THE FACTS ON RECORD. IT IS TO BE NOTED THAT THE DECISION OF THE TRIBUNAL HAS NOT TO BE SCRUTINIZED SE NTENCE BY SENTENCE MERELY WHETHER ALL THE FACTS SET OUT IN DETAI L BY THE TRIBUNAL OR SOME INCIDENTAL FACTS WHICH HAS NOT BEEN NOTICED BY THE TRIBUNAL IN ITS ORDER. ON FAIR READING OF THE IMPUGNED ORDER OF TH E TRIBUNAL, IT FINDS THAT IT HAS TAKEN INTO ACCOUNT ALL RELEVANT MATERIAL A ND HAS NOT TAKEN ANY IRRELEVANT MATERIAL IN BASING THE CONCLUSION. TH E DECISION OF THE TRIBUNAL IS NOT INTERFERED WITH U/S 254(2) OF THE ACT. IT IS TO BE NOTED THAT THE TRIBUNAL DULY CONSIDERED THE ORDER OF THE TR IBUNAL CITED BY THE ASSESSEES COUNSEL INCLUDING ALL ARGUMENTS WHILE DECIDING THE APPEAL OF THE ASSESSEE WHICH IS NOTED IN THE IMPUGNED ORDER. 6. THE POWER OF RECTIFICATION U/S 254(2) CAN BE EXER CISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED AS AN OB VIOUS 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 CONCEIVA BLY BE TWO OPINIONS. FAILURE OF THE TRIBUNAL TO CONSIDER AN ARG UMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERR OR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGEMENT. T HE TRIBUNAL CANNOT, IN EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES, WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSI ON. IT IS NOT ALWAYS NECESSARY THAT EVEN IN A SPEAKING ORDER THE TRIBUNAL SHOULD PUT DOWN EVERY ARGUMENT OF THE ASSESSEE IN A DETAILED M ANNER AS HE HAS MADE IT AND THAT TOO IN AN EQUALLY DETAILED MANN ER AS THE ASSESSEE WOULD LIKE TO HAVE IT. WHAT IS IMPORTANT IS WHETHER THE ARGUMENT HAS BEEN HEARD AND GRASPED BY TRIBUNAL AND THE DECISION BE ARS THE STAMP OF SUCH GRASP. MA NO.102 OF 2010 (IN ITA NO.500 OF 2010) M/S MARUTHI TUBES (P) LTD., SECUNDERABAD 4 7. FURTHER IT IS TO BE NOTED THAT MERELY BECAUSE THE TRIBUNAL DIFFERS FROM THAT OF THE ASSESSEE, THE TRIBUNALS VIEW CANNOT BE SAID TO BE A MISTAKE IN THE EYES OF LAW OR FACT. IN EFFECT, WHAT THE ASSESSEE WANTS IS A REVIEW OF THE TRIBUNAL ORDER WHICH CANNOT BE BY WAY OF RECTIFICATION OF ITS ORDER. THE SCOPE AND AMBIT OF APPLICATION OF S.254( 2) OF THE IT ACT, 1961, IS VERY LIMITED. THE SAME IS RESTRICTED TO RECTIF ICATION OF MISTAKES APPARENT FROM THE RECORD. RECALLING THE ENTIRE ORDER , WOULD MEAN PASSING A FRESH ORDER. THAT DOES NOT APPEAR TO BE THE LEGISLATIVE INTENT. RECALLING THE ORDER AUTOMATICALLY NECESSITATES REHEARING AND RE- ADJUDICATION OF THE ENTIRE SUBJECT MATTER OF APPEAL. THE DISPUTE NO LONG REMAINS RESTRICTED TO ANY MISTAKE SOUGHT TO BE RECTIFIED. POWER TO RECALL AN ORDER IS PRESCRIBED IN TERMS OF REFERENCE 24 OF THE I TAT RULES, 1963, AND THAT TOO ONLY IN CASES WHERE THE ASSESSEE SHOWS THAT IT HAD A REASONABLE CAUSE FOR BEING ABSENT AT A TIME WHEN THE AP PEAL WAS TAKEN UP AND WAS DECIDED EX PARTE. IN SUBSTANCE, THE DECISION OF THE TRIBUNAL REMAINS UNCHANGED AND THE SAME IS CONFIRMED. 8. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 13 .8.2010 SD/- SD/- G.C. GUPTA CHANDRA POOJARI VICE PRESIDENT ACCOUNTANT MEMBER DATED THE 13 TH AUGUST, 2010 MA NO.102 OF 2010 (IN ITA NO.500 OF 2010) M/S MARUTHI TUBES (P) LTD., SECUNDERABAD 5 COPY FORWARDED TO: 1. M/S MARUTI TUBES (P) LTD., 133-A, ALKARIM TRADE CE NTRE, RANIGUNJ, SECONDERABAD-500003. 2. THE DCIT, CIRCLE 16(2), HYDERABAD 3. CIT(A)-V HYDERABAD. 4. CIT, HYDERABAD 5. THE D.R., ITAT, HYDERABAD. NP