Philips India Limited, Kolkata V. ACIT, Circle-11, Kolkata, Kolkata

MA 139/KOL/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5429 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-02-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 27-09-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SALLONG YAD
• Assessee Lawyers: ALOKE KATHOTIA; MRS POOJA JAIN
• Keywords: Depreciation; Rectification of order; Rule of consistency
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH C KOLKATA BEFORE SHRI N.V.VASUDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER (MISC. APPLICATION) M.ANO.139/KOL/2016 (ARISING OUT ITA NO.1545/KOL/2009) / ASSESSMENT YEAR:2004-05 PHILIP ELECTRONICS LTD., 7, JUSTICE CHANDRA MADHAB ROAD, KOLKATA-20 [ PAN NO.AABCP 9487 A ] / V/S . ACIT, CIRCLE-11, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (ORIGINAL APPELLANT) (ORIGINAL R ESPONDENT) (APPELLANT) .. (RESPONDENT) / BY APPELLANT SHRI ALOKE KATHOTIA, CA & MRS. POOJA JAIN, CA / BY RESPONDENT SHRI SALLONG YAD, DR ! / DATE OF HEARING 20-01-2017 '# ! / DATE OF PRONOUNCEMENT 22-02-2017 / ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER:- BY WAY OF THIS MISCELLANEOUS APPLICATION (MA) U/S 2 54(2) OF THE ACT THE ASSESSEE HAS PRAYED TO RECTIFY THE ORDER PASSED BY THE HONBLE TRIBUNAL DATED 16-05-2016 IN ITA NO. 1545/KOL/2009 PERTAINING TO ASSESSMENT YEAR 2004-05 BY POINTING OUT THAT THERE ARE CERTAIN MISTAKES APP ARENT FROM THE RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE ACT. 2. THE ISSUE IN THE INSTANT CASE RELATES TO THE DIS ALLOWANCE OF THE DEDUCTION CLAIMED BY THE ASSESSEE FOR RS. 50 LAKH F OR THE LEASE RENTALS PAID FOR THE VEHICLE TAKEN ON FINANCE LEASE. THE SAME DI SALLOWANCE WAS CONFIRMED BY THE LD. CIT(A) AND HONBLE ITAT AFTER HAVING REL IANCE IN THE OWN CASE OF THE MA NO.139/KOL/2016 PHILIPS INDIA LTD. V. ACIT, CIR-11, KOL PAGE 2 ASSESSEE FOR THE AY 2003-04 IN ITA NO. 1075/KOL/200 9 WHEREIN THE HONBLE ITAT DECIDED THE ISSUE IN FAVOUR OF REVENUE. 3. THE LD. AR BEFORE US SUBMITTED THAT THE PRINCIPL ES LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF I.C.D.S. VS CIT REPORTED IN 350 ITR 527 (SC) WERE BROUGHT TO THE NOTICE OF HONBLE ITAT AT THE TIME OF HEARING FOR CONSIDERATION. SIMILARLY VARIOUS CLAUSES OF LEASE A GREEMENTS WERE ALSO HIGHLIGHTED TO THE HONBLE BENCH TO SHOW THE SIMILA RITY BETWEEN THE FACTS OF THE CASE OF ASSESSEE VIS-A-VIS I.C.D.S. (SUPRA). HOWEVER, THE HONBLE ITAT HAS NOT CONSIDERED THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF I.C.D.S. AS RELIED BY THE ASSESSEE WHILE PASSING TH E ORDER. THE HONBLE ITAT HAS PASSED THE ORDER AFTER HAVING RELIANCE IN THE O WN CASE OF THE ASSESSEE FOR THE AY 2003-04 IN ITA NO. 1075/KOL/2009 WHEREIN THE ISSUE WAS DECIDED IN FAVOUR OF REVENUE. ACCORDINGLY THE LD. AR OF THE AS SESSEE SUBMITTED THAT THE MISTAKE APPARENT FROM RECORD HAS CREPT IN THE ORDER OF HONBLE TRIBUNAL DUE TO NON-CONSIDERATION OF THE I.C.D.S. (SUPRA) . THE LD. AR IN SUPPORT OF HIS CLAIM DREW OUR ATTENTION IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. REPORTED IN 305 ITR 227 WHERE THE HONBLE SUPREME COURT HELD THAT NON- CONSIDERATION OF A DECISION OF THE JURISDICTIONAL H IGH COURT OR OF THE SUPREME COURT CAN BE SAID TO BE A MISTAKE APPARENT FROM RECORD . SIMILARLY THE LD COUNSEL FOR THE ASSESSEE ALSO RELIED IN THE CASE OF J.J. LEASING AND FINANCING LTD V. CIT WHERE THE HON'BLE JURISDICTIONAL HIGH COURT OF CAL CUTTA HAS HELD THAT AN ORDER WHICH IS CONTRARY TO THE JUDGMENT OF THE S UPREME COURT IS PATENTLY ERRONEOUS. WHEN THE HON'BLE SUPREME COURT RENDERS A DECISION ENUNCIATING A PRINCIPLE OF LAW, IT IS ASSUMED THAT WHAT WAS ENUNC IATED BY THE SUPREME COURT WAS IN FACT THE LAW FROM THE INCEPTION. 4. IN VIEW OF ABOVE, THE ASSESSEE PRAYED TO THE BEN CH TO RECTIFY THE MISTAKE APPARENT FROM RECORD AS DISCUSSED ABOVE BY ALLOWING THE DEDUCTION OF THE RENTALS PAID ON THE VEHICLES TAKEN ON FINANC E LEASE. MA NO.139/KOL/2016 PHILIPS INDIA LTD. V. ACIT, CIR-11, KOL PAGE 3 ON THE OTHER HAND, LEARNED COUNSEL FOR THE REVENUE, BESIDES SUPPORTING THE ORDER PASSED BY THE TRIBUNAL, SUBMITTED THAT THE AP PLICATION FILED BY THE ASSESSEE U/S. 254(2) OF THE ACT, IF ALLOWED, WOULD AMOUNT TO REVIEW OF THE ORDER WHICH IS NOT PERMISSIBLE. THE LD. DR FURTHER SUBMITTED THAT THE HONBLE SUPREME COURT IN THE CASE MYSORE MINERAL LIMITED VS. CIT REPORTED IN 239 ITR 775 (SC) HAS DIRECTED TO ALLOW THE DEPRECIATION TO THE ASSESSEE ON THE BUILDING THOUGH THE BUILDING WAS NOT REGISTERED IN THE NAME OF THE ASSESSEE. IN THE CASE OF MYSORE MINERALS LIMITED (SUPRA) THE HONBLE SUPREME COURT HAS OBSERVED AS UNDER : THE TERM OWNED AS OCCURRING IN S. 32(1) MUST BE A SSIGNED A WIDER MEANING. ANYONE IN POSSESSION OF PROPERTY IN HIS OW N TITLE EXERCISING SUCH DOMINION OVER THE PROPERTY AS WOULD ENABLE OTH ERS BEING EXCLUDED THEREFROM AND HAVING RIGHT TO USE AND OCCUPY THE PR OPERTY AND/OR TO ENJOY ITS USUFRUCT IN HIS OWN RIGHT WOULD BE THE OW NER OF THE BUILDINGS THOUGH A FORMAL DEED OF TITLE MAY NOT HAVE BEEN EXE CUTED AND REGISTERED AS CONTEMPLATED BY TRANSFER OF PROPERTY ACT, REGISTRATION ACT, ETC. THE LEARNED DR HAS ALSO RELIED IN THE CASE OF CIT V S. PODAR CEMENT PRIVATE LTD ETC. REPORTED IN 226 ITR 625 (SC) WHEREIN THE H ONBLE SUPREME COURT HAS OBSERVED AS UNDER : THE LIABILITY UNDER S. 22 IS ON A PERSON WHO RECEI VES OR IS ENTITLED TO RECEIVE THE INCOME FROM THE PROPERTY IN HIS OWN RIG HT. THE REQUIREMENT OF REGISTRATION OF THE SALE-DEED IN THE CONTEXT OF THE S. 22 IS NOT WARRANTED. ACCORDING TO THE LD DR FOR REVENUE, THE TRIBUNAL WA S, THUS, RIGHT IN REJECTING THE APPLICATION FILED BY THE ASSESSEE. 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED AND CAREFULLY CONSIDERED THE MATERIALS ON RECORD; I NCLUDING THE JUDICIAL PRONOUNCEMENTS CITED AND PLACED RELIANCE UPON. INDE ED, THE ARTICLE 141 OF THE CONSTITUTION OF INDIA CREATES OBLIGATION ON ALL THE COURTS AND TRIBUNALS TO ABIDE BY THE LAW DECLARED BY THE HON'BLE APEX COURT IN TH E INDIAN TERRITORY. THE DECLARATION OF LAW IS COMPLETE ONCE THE JUDGMENT IS PRONOUNCED. HOWEVER, THE ISSUES WHICH ARE NOT COVERED BY THE JUDGMENT OF HON 'BLE SUPREME COURT, CAN MA NO.139/KOL/2016 PHILIPS INDIA LTD. V. ACIT, CIR-11, KOL PAGE 4 BE DECIDED KEEPING IN VIEW THE LAW LAID DOWN BY THE HON'BLE HIGH COURTS IN THE COUNTRY WHICH HOLD THE FIELD. 5.1 APPLYING THE ABOVE PRINCIPLES IN THE FACTS ON H AND, WE FIND THAT THERE ARE OTHER JUDGMENTS OF HON'BLE SUPREME COURT WHICH ARE IN FAVOUR OF THE REVENUE IN THE GIVEN FACTS AND CIRCUMSTANCES. THESE CASES HAVE BEEN DISCUSSED IN THE PRECEDING PARAGRAPH AND THE SAME A RE NOT REPEATED HERE FOR THE SAKE OF BREVITY. IN VIEW OF ABOVE, WE FIND THAT THE INSTANT ISSUE IS DEBATABLE. 5.2 FURTHER, WE FIND IT IS WELL SETTLED THAT STATUT ORY AUTHORITY EXERCISE POWER OF REVIEW UNLESS SUCH POWER IS EXPRESSLY CONFERRED. THERE IS NO EXPRESS POWER OF REVIEW CONFERRED ON THIS TRIBUNAL. EVEN OT HERWISE, THE SCOPE OF REVIEW DOES NOT EXTEND TO RE-HEARING OF THE CASE ON MERIT. 5.3 THE SCOPE AND AMBIT OF APPLICATION OF SECTION 2 54( 2) IS VERY LIMITED. THE SAME IS RESTRICTED TO RECTIFICATION OF MISTAKE APPARENT FROM THE RECORD. AS THE INSTANT ISSUE IS DEBATABLE THEREFORE WE CANNOT INFER THAT THERE IS A MISTAKE APPARENT FROM THE RECORD. THUS THE DISPUTE NO LONGE R REMAINS RESTRICTED TO ANY MISTAKE SOUGHT TO BE RECTIFIED. THUS, THE CASE IS H AND, THE RECTIFICATION OF MISTAKE WOULD AMOUNT TO A REVIEW OF THE ENTIRE ORDE R AND THAT IS NOT PERMISSIBLE UNDER THE IT ACT. THE POWER TO RECTIFY A MISTAKE U/S 254( 2) CANNOT BE USED FOR RECALLING THE ENTIRE ORDER. NO POWER OF REVIEW HAS BEEN GIVEN TO THE TRIBUNAL UNDER THE IT ACT. THUS, WHAT IT COULD NOT DO DIRECTLY COULD NOT BE ALLOWED TO BE DONE INDIRECTLY. 5.4 IN THE INSTANT CASE, THE TRIBUNAL WHILE DECIDIN G THE APPEAL OF THE ASSESSEE HAS RELIED IN THE ORDER OF ITS OWN CASE AS DISCUSSED ABOVE WHERE THE ISSUE WAS DECIDED BY THIS TRIBUNAL IN FAVOUR OF REVENUE. THUS, THE RULE OF CONSISTENCY IS ALSO TO BE APPLIED IN THE GIVEN FACT S OF THE CASE AS HELD BY THE HONBLE SUPREME COURT IN THE CASE OF RADHASOAMI SATSANG V. CIT REPORTED IN [1992] 193 ITR 321 WHEREIN IT WAS HELD AS UNDER : ONE THESE REASONINGS, IN THE ABSENCE OF ANY MATERIA L CHANGE JUSTIFYING THE REVENUE TO TAKE A DIFFERENT VIEW OF THE MATTER AND, IF THERE WAS NO MA NO.139/KOL/2016 PHILIPS INDIA LTD. V. ACIT, CIR-11, KOL PAGE 5 CHANGE, IT WAS IN SUPPORT OF THE ASSESSEE - WE DO N OT THINK THE QUESTION SHOULD HAVE BEEN REOPENED AND CONTRARY TO WHAT HAD BEEN DECIDED BY THE CIT IN THE EARLIER PROCEEDINGS, A DIFFERENT AND CONTRADICTORY STAND SHOULD HAVE BEEN TAKEN. WE ARE, THEREFORE, OF THE V IEW THAT THESE APPEALS SHOULD BE ALLOWED AND THE QUESTION SHOULD B E ANSWERED IN THE AFFIRMATIVE, NAMELY, THAT THE TRIBUNAL WAS JUSTIFIE D IN HOLDING THAT THE INCOME DERIVED BY THE RADHASOAMI SATSANG WAS ENTITL ED TO EXEMPTION UNDER SS. 11 AND 12 OF THE IT ACT OF 1961. ALL THE FACTS IN THE INSTANT CASE WERE SAME AS OF E ARLIER YEARS AND THE VIEW WITH REGARD TO THE ISSUE IN THOSE FACTS HAS ALREADY BEEN TAKEN UP BY THIS TRIBUNAL WHICH IS IN FAVOUR OF REVENUE. THEREFORE, WE ARE OF THE VIEW THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD WHICH HAS CREPT IN THE ORDER OF HONBLE ITAT WHICH NEEDS RECTIFICATION U/S 254(2) O F THE ACT. HOWEVER, THE ASSESSEE IS FREE TO EXPLORE THE REMEDY AVAILABLE UN DER THE LAW. HENCE THE MA FILED BY THE ASSESSEE IS DISMISSED. 6. IN THE RESULT, MA OF ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22/02/ 2017 . SD/- SD/- (%&) (!&) (N.V.VASUDEVAN) (WASEE M AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP ()*- 22 / 02 /201 7 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-PHILIPS ELECTRONICS LTC., 7, JUSSTICE CH ANDRA MADHAB RD.,KOL-20 2. /RESPONDENT-ACIT, CIRCLE-11, P-7, CHOWRINGHEE SQUAR E, KOLKATA-69 3.)2)3 4 / CONCERNED CIT 4. 4- / CIT (A) 5.783, 3 , KOLKATA / DR, ITAT, KOLKATA 6.8; <= / GUARD FILE. BY ORDER/ , /TRUE COPY/ /) 3 , #