DCIT CEN CIR 6(4), V. GANRAYA LANE P.LTD,

MA 104/MUM/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5622 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-04-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 2009-2010
• Appeal Filed On: 06-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M V RAJGURU LD
• Assessee Lawyers: VIJAY MEHTALD
• Keywords: Rectification of order; Opportunity of being heard; Condonation of delay
• Section: 143(3)

Judgement Text

M.A.NO.103 TO 108/MUM/2017 ARISING OUT OF ITA NOS. 8247,8249,8177,8229,8242 &8 228/MUM/2011 ASSESSMENT YEAR 2009-10 IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI , , BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM MISCELLANEOUS APPLICATION NO. 103/MUM/2017 (ARISING OUT OF ITA NO. 8247/MUM/2011) ( / ASSESSMENT YEAR: 2009-10) DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 6(4) ROOM NO.1925,19 TH FLOOR, AIR INDIA BUILDING NARIMAN POINT, MUMBAI 400 021 / VS. HITA LAND PRIVATE LIMITED 101, SAGAR DARSHAN CTS NO.1023/4 RAMNATH ROAD ALIBAUGH- 402201 ./ ./PAN/GIR NO. AABCH 9067J ( ' # /APPELLANT ) : ( $%# / RESPONDENT ) MISCELLANEOUS APPLICATION NO. 104/MUM/2017 (ARISING OUT OF ITA NO. 8249/MUM/2011) ( / ASSESSMENT YEAR: 2009-10) DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 6(4) ROOM NO.1925,19 TH FLOOR, AIR INDIA BUILDING NARIMAN POINT, MUMBAI 400 021 / VS. GANRAYA LAND PRIVATE LTD RAJ SPARSH PLOT NO. 21 &22 SECTOR-20 CBD BELAPUR, NAVI MUMBAI 400 614 ./ ./PAN/GIR NO. AACCG9821C ( ' # /APPELLANT ) : ( $%# / RESPONDENT ) M.A.NO.103 TO 108/MUM/2017 ARISING OUT OF ITA NOS. 8247,8249,8177,8229,8242 &8 228/MUM/2011 ASSESSMENT YEAR 2009-10 2 MISCELLANEOUS APPLICATION NO. 105/MUM/2017 (ARISING OUT OF ITA NO. 8177/MUM/2011) ( / ASSESSMENT YEAR: 2009-10) DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 6(4) ROOM NO.1925,19 TH FLOOR, AIR INDIA BUILDING NARIMAN POINT, MUMBAI 400 021 / VS. ARPIT LAND PRIVATE LIMITED 101,SAGAR DARSHAN CTS NO. 1023/4 RAMNATH ROAD ALIBAUGH MUMBAI 402 201 ./ ./PAN/GIR NO. AAGCA 5154 J ( ' # /APPELLANT ) : ( $%# / RESPONDENT ) MISCELLANEOUS APPLICATION NO. 106/MUM/2017 (ARISING OUT OF ITA NO. 8229/MUM/2011) ( / ASSESSMENT YEAR: 2009-10) DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 6(4) ROOM NO.1925,19 TH FLOOR, AIR INDIA BUILDING NARIMAN POINT, MUMBAI 400 021 / VS. KRUTIKA LAND PRIVATE LIMITED 102,SAGAR DARSHAN CTS NO. 1023/4 RAMNATH ROAD ALIBAUGH MUMBAI 402 201 ./ ./PAN/GIR NO. AADCK1508K ( ' # /APPELLANT ) : ( $%# / RESPONDENT ) MISCELLANEOUS APPLICATION NO. 107/MUM/2017 (ARISING OUT OF ITA NO. 8242/MUM/2011) ( / ASSESSMENT YEAR: 2009-10) DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 6(4) ROOM NO.1925,19 TH FLOOR, AIR INDIA BUILDING NARIMAN POINT, MUMBAI 400 021 / VS. KRISHNA LAND REALTY PVT. LTD. RAJ SPARSH PLOT NO.21 &22 SECTOR-20 CBD BELAPUR, NAVI MUMBAI 400 614 ./ ./PAN/GIR NO. AADCK0178R ( ' # /APPELLANT ) : ( $%# / RESPONDENT ) M.A.NO.103 TO 108/MUM/2017 ARISING OUT OF ITA NOS. 8247,8249,8177,8229,8242 &8 228/MUM/2011 ASSESSMENT YEAR 2009-10 3 & MISCELLANEOUS APPLICATION NO. 108/MUM/2017 (ARISING OUT OF ITA NO. 8228/MUM/2011) ( / ASSESSMENT YEAR: 2009-10) DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 6(4) ROOM NO.1925,19 TH FLOOR, AIR INDIA BUILDING NARIMAN POINT, MUMBAI 400 021 / VS. LAVANYA LAND PRIVATE LIMITED DRONAGIRI HOUSING COMPLEX BUILDING NO. GH-10 FLAT NO.2, GF, SECTOR-30 POST BOKADVIRA VILLAGE URAN TALUKA RAIGAD DISTRICT, NAVI MUMBAI- 400 702 ./ ./PAN/GIR NO. AABCL3525H ( ' # /APPELLANT ) : ( $%# / RESPONDENT ) ASSESSEE BY : SHRI VIJAY MEHTA, LD. AR REVENUE BY : SHRI M.V. RAJ GURU, LD. DR / DATE OF HEARING : 21/04/2017 / DATE OF PRONOUNCEMENT : 25 /04/2017 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED MISCELLANEOUS APPLICATIONS FILED BY REVENUE FOR ASSESSMENT YEAR [AY] 2009-10 U/S 254(2) OF THE INCOME TAX ACT, 1961 IN RESPECT OF SEPARATE ASSESSEE SEEKS RECTIFICATION OF MISTAKE APPARENT FROM RECORD IN COMMON TRIBUNAL ORDER DATED 22/03/2013. SINCE THESE APPLICATIONS ARISE OUT OF C OMMON ORDER, WE PROCEED TO DISPOSE- OFF THE SAME TOGETHER BY WAY OF THIS COMMON ORDER F OR THE SAKE OF CONVENIENCE AND BREVITY. 2. THE REVENUE HAS CONTENDED THAT THE TRIBUNAL ALLOW ED THE GROUND NUMBERS 1 & 2 OF ASSESSEES APPEAL FOR AY 2007-08, 2008-09 & 2009 -10 PRESUMING THAT THE ASSESSMENT ORDERS IN ALL THE YEARS WERE PASSED U/S 143(3) READ WITH SECTION 153C. HOWEVER, THE M.A.NO.103 TO 108/MUM/2017 ARISING OUT OF ITA NOS. 8247,8249,8177,8229,8242 &8 228/MUM/2011 ASSESSMENT YEAR 2009-10 4 ASSESSMENT ORDER FOR 2009-10 WAS PASSED U/S 143(3) AND NOT UNDER SECTION 143(3) READ WITH SECTION 153C AND THEREFORE, A MISTAKE APPARENT FROM RECORD HAS CREPT INTO THE ORDER AND THE MATTER FOR 2009-10 REQUIRES FRESH ADJUDICAT ION WHICH HAS LED TO FILING OF THESE RECTIFICATION PETITIONS U/S 254(2). 3. AT THE OUTSET, THE LD. COUNSEL FOR ASSESSEE [AR], WHILE DRAWING OUR ATTENTION TO THE STATUTORY PROVISIONS AS CONTAINED IN SECTION 25 4(2) VIS--VIS DATE OF RECTIFICATION APPLICATION FILED BY THE REVENUE, RAISED A PRELIMIN ARY LEGAL OBJECTION THAT THESE APPLICATIONS, BEING TIME BARRING, COULD NOT BE ENTE RTAINED PARTICULARLY WHEN THE POWER OF CONDONATION WAS NOT PROVIDED UNDER THE STATUTE. REL IANCE HAS BEEN PLACED ON THE JUDGMENT OF BHARAT PETROLEUM CORPORATION LTD. VS ACIT [158 TTJ (MU MBAI) 165 ORDER DATED 10/04/2013]. THE REVENUE HAS CONTENDED THAT THE APPLICATION HAS BEEN FILED WITHIN A PERIOD OF FOUR YEARS FROM THE DATE OF THE ORDER A ND HENCE, THE APPLICATIONS WERE WITHIN TIME AS PER THE EARLIER PROVISIONS. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED RELEVANT MATERIAL ON RECORD. SINCE, PRELIMINARY LEGAL OBJECTIONS QUESTIONS THE V ERY ADMISSIBILITY OF THESE RECTIFICATION APPLICATIONS, WE TAKE UP THE SAME FIRST. FOR RECORD , WE NOTE THAT THE DATE OF ORDER PASSED BY THE TRIBUNAL IS 22/03/2013 AND THE REVENUE HAS F ILED THESE APPLICATIONS ON 28/02/2017 WHICH ARE CLEARLY BEYOND A PERIOD OF SIX MONTHS AS PROVIDED IN SECTION 254(2). AT THIS JUNCTURE, IT WOULD BE PRUDENT TO REPRODUCE THE RELE VANT PROVISIONS AS CONTAINED IN SECTION 254(2) OF THE INCOME TAX ACT, 1961:- ORDERS OF APPELLATE TRIBUNAL. 254. (1) THE APPELLATE TRIBUNAL MAY, AFTER GIVING BOTH T HE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD, PASS SUCH ORDERS THEREO N AS IT THINKS FIT. (1A) [***] (2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS PASSED, WITH A VIEW TO RECTIFYI NG ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1), AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER: IT IS TO BE NOTED THAT THE EARLIER PERIOD OF FOUR YEARS HAS BEEN SUBSTITUTED WITH SIX MONTHS BY THE FINANCE ACT, 2016 WITH EFFECT FROM 0 1/06/2016. HOWEVER, WE FIND THAT M.A.NO.103 TO 108/MUM/2017 ARISING OUT OF ITA NOS. 8247,8249,8177,8229,8242 &8 228/MUM/2011 ASSESSMENT YEAR 2009-10 5 NO DISTINCTION HAS BEEN MADE IN THIS SECTION BETWEE N ORDERS PASSED BEFORE 01/06/2016 AND ORDERS PASSED AFTER 01/06/2016. MOREOVER, THE TR IBUNAL ORDER WAS DATED 22/03/2013 AND THEREFORE, THE REVENUE HAD AMPLE TIME TO GO THR OUGH THE SAME AND PIN POINT THE MISTAKES IN THE ORDER BUT IT HAS FAILED TO DO SO. T HEREFORE, WE FIND NO FORCE IN THESE MISCELLANEOUS PETITIONS PRIMARILY BECAUSE OF THE RE ASON THAT THE STATUTE DOES NOT AUTHORIZE US TO ENTERTAIN ANY PETITION WHICH HAS BE EN FILED U/S 254(2) AT ANY TIME BEYOND A PERIOD OF SIX MONTHS FROM THE DATE OF THE ORDER. THE TRIBUNAL HAS BEEN GIVEN POWER TO ADMIT AN APPEAL AFTER THE EXPIRY OF THE RELEVANT PE RIOD, IF IT IS SATISFIED THAT THERE WAS SUFFICIENT CAUSE FOR NOT PRESENTING IT WITHIN THAT PERIOD AS PER SECTION 253(5). HOWEVER, THIS TRIBUNAL IS NOT ENSHRINED WITH SUCH POWERS IN R ESPECT OF A MISCELLANEOUS PETITION FILED U/S 254(2) OF THE INCOME TAX ACT. IF WE ARE NO T GIVEN THAT POWER, THEN IT IS NOT EXPECTED FROM US TO EXERCISE SUCH POWER WHICH IS NO T PROVIDED IN THE ACT. THE TRIBUNAL, BEING CREATION OF LAW, IS BOUND BY THE STATUTORY PR OVISIONS AND OUR JURISDICTION IS SIMPLY TO INTERPRET AND FOLLOW THE STATUTE. THERE IS NO SC OPE FOR US TO IMPORT ANY WORD INTO THE STATUTE WHICH IS NOT THERE. SUCH IMPORTATION WOULD BE NOTHING BUT TO AMEND THE STATUTE. WE THEREFORE HOLD THAT THE CONDONATION OF DELAY OF THESE PETITIONS IS BEYOND OUR JURISDICTION, HENCE REJECTED. SIMILAR VIEW HAS BEEN TAKEN BY THE MUMBAI TRIBUNAL IN THE CITED ORDER. HENCE, FINDING THE PETITIONS TIME BARR ING, WE DISMISS THE SAME. 5. IN NUTSHELL, ALL THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH APRIL, 2017. SD/- SD/- (SHAKTIJIT DEY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 25 .04.2017 SR.PS:- THIRUMALESH M.A.NO.103 TO 108/MUM/2017 ARISING OUT OF ITA NOS. 8247,8249,8177,8229,8242 &8 228/MUM/2011 ASSESSMENT YEAR 2009-10 6 / COPY OF THE ORDER FORWARDED TO : 1. ' # / THE APPELLANT 2. $%# / THE RESPONDENT 3. ( ' ) / THE CIT(A) 4. / CIT CONCERNED 5. $- , ' - , / DR, ITAT, MUMBAI 6. ./ / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI