ITO 2(2)(3), V. NANAVATI SONS PVT. LTD,

MA 11/MUM/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7840 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-02-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 04-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P C MAURYA
• Assessee Lawyers: ARVIND SONDE
• Section: 115JB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE SHRI B.R.MITTAL, JM AND SHRI R.S.SYAL, AM M.A.NO.11/MUM/2011 (ARISING OUT OF ITA NO.5557/MUM/2006 : ASST. YEAR 2 003-2004) THE INCOME TAX OFFICER WARD 2(2)(3) MUMBAI. M/S.NANAVATI SONS PRIVATE LIMITED 18 HOMI MODI STREET NANAVATI MAHALAYA, FORT MUMBAI 400 023. PAN : AABCN0966E. (APPLICANT) VS. (RESPONDENT) APPLICANT BY : SHRI P.C.MAURYA RESPONDENT BY : SHRI ARVIND SONDE DATE OF HEARING : 10.02.2012 DATE OF PRONOUNCEMENT : 10.02.2012 O R D E R PER R.S.SYAL, AM : THIS MISCELLANEOUS APPLICATION U/S.254(2) OF THE IN COME-TAX ACT, 1961 HAS BEEN MOVED BY THE REVENUE PRAYING FOR THE RECTIFICA TION OF THE ORDER OF THE TRIBUNAL DATED 12 TH NOVEMBER, 2008 IN ITA NO.5557/MUM/2006. 2. THE LEARNED DEPARTMENTAL REPRESENTATIVE CONTENDE D THAT THE IMPUGNED ORDER REQUIRES RECTIFICATION INASMUCH AS IT HAS SIMPLY FO LLOWED THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF APOLLO TYRES LIMITED VS. CIT [(255 ITR 273 (SC)] WHEREAS THERE WAS ANOTHER DIRECT JUDGMENT IN THE C ASE OF M/S.SAIN PROCESSING & WVG. MILLS LTD. [176 TAXMAN 448 (DEL)] WHICH DECIDED THE ISSUE UNDER CONSIDERATION IN FAVOUR OF THE REVENUE. IN TH E OPPOSITION, THE LEARNED A.R. SUPPORTED THE IMPUGNED ORDER. 3. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD IT IS OBSERVED THAT THE TRIBUNAL, AFTER REPR ODUCING THE RELEVANT PARTS OF THE JUDGMENT IN THE CASE OF APOLLO TYRES LIMITED (SUPRA), HAS HELD THAT THE ASSESSING MA NO.11/MUM/2011 M/S.NANAVATI SONS PRIVATE LIMITED. 2 OFFICERS POWERS ARE LIMITED TO THE EXTENT OF MAKIN G ADJUSTMENT AS PROVIDED IN EXPLANATION TO SECTION 115JB TO THE NET PROFIT SHOWN IN THE DU LY AUDITED PROFIT AND LOSS ACCOUNT. IT HAS FURTHER RECORDED THAT THE LEAR NED CIT(A) HAS UNDONE THE ADJUSTMENTS CARRIED OUT BY THE ASSESSING OFFICER BY RELYING ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF APOLLO TYRES LIMITED (SUPRA) . THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS PLACED RELIANCE ON THE JUDGMENT OF THE HONBLE DELHI HIGH COURT IN SUPPORT OF HIS CASE, WHICH HAS IN FACT BEEN RENDERED IN THE CONTEXT OF SECTION 115J, WHEREAS WE ARE CONCERNED W ITH SECTION 115JB. 4. IT IS SIMPLE AND PLAIN THAT THE SCOPE OF PROCEEDINGS U/S 254(2) IS RESTRICTED ONLY IN RECTIFYING ANY MISTAKE WHICH IS APPARENT FR OM RECORD. IF AN ISSUE IS DEBATABLE, THAT GOES OUTSIDE THE CAN OF SECTION 254 (2). THERE SHOULD BE MISTAKE ON THE VERY FACE OF THE ORDER SO AS TO QUALIFY FOR REC TIFICATION U/S 254(2). IN OUR CONSIDERED OPINION, THE TRIBUNAL HAS RIGHTLY DISMIS SED THE REVENUES APPEAL BY RELYING ON THE JUDGMENT OF THE HONBLE SUPREME COUR T IN THE CASE OF APOLLO TYRES LTD. (SUPRA) . THERE IS NO MISTAKE, MUCH LESS ANY MISTAKE APPARE NT FROM RECORD WARRANTING ANY RECTIFICATION. AS SUCH THE MISCELLAN EOUS APPLICATION FILED BY THE REVENUE DESERVES TO BE AND IS HEREBY DISMISSED. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 10 TH DAY OF FEBRUARY, 2012. SD/- SD/- (B.R.MITTAL) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 10 TH FEBRUARY, 2012. DEVDAS* MA NO.11/MUM/2011 M/S.NANAVATI SONS PRIVATE LIMITED. 3 COPY TO : 1. THE APPLICANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) II, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.