SHIRPUR GOLD REFINERY LTD, V. DCIT 9(3),

MA 145/MUM/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3780 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-12-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2006-2007
• Appeal Filed On: 01-07-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MOHAMMD RIZWAN
• Assessee Lawyers: B S SHARMA
• Keywords: Reopening of assessment; Charitable institution; Audit objection; Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 148

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNALE BENCH, MUMB AI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAJENDRA, ACCOUNTANT MEMBER M.A. NO.145/MUM/2015 (ARISING OUT OF ITA NO.3312/MUM/2013) ASSESSMENT YEARS-2006-07 M/S. SHIR PUR GOLD REFINERY LTD., 5-A TRISHA PREMISES, 122 SHEIKH MEMON STREET, ZAVERI BAZAR, MUMBAI-400002. / VS. THE DCIT 9(3), 2 ND FLOOR, ROOM NO.229, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 ./ PAN :AAACA4896K ( / APPELLANT) ( ! / RESPONDENT) ' / ASSESSEE BY: SHRI. B.S.SHARMA & SHRI. DALPAT SHAH ! ' / RESPONDENT BY : SHRI. MOHAMMD RIZWAN ' ' ( / DATE OF HEARING 04/12/2015 ' ' ( / DATE OF PRONOUNCEMENT : 04/12/2015 2 M.A. NO.145/MUM/2015 (ARISING OUT OF ITA NO.3312/MUM/2013) ASSESSMENT YEARS-2006-07 / O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THIS MISCELLANEOUS APPLICATION U/S 254 (2) OF THE I NCOME TAX ACT 1961 (HEREINAFTER THE ACT) IS BY THE ASSESS EE SEEKING RECTIFICATION/RECALLING THE ORDER OF THE TRIBUNAL D ATED 04/03/2015. 2. DURING HEARING OF THIS MISCELLANEOUS APPLICATION , THE LD. COUNSEL FOR THE ASSESSEE, SHRI. B.S. SHARMA A/W SHR I. DALPAT SHAH, POINTED OUT THAT DURING HEARING THE ARGUMENT OF THE ASSESSEE IT WAS WITH RESPECT TO RE-ASSESSMENT U/S14 7 R.W.S. 148, ON THE BASIS OF AUDIT OBJECTION WAS ARGUED AND ON T HAT BASIS REOPENING OF ASSESSMENT WAS CHALLENGED. HOWEVER, T HIS FACT WAS NOT CONSIDER BY THE BENCH AND THE APPEAL WAS DECIDE D ON MERIT AGAINST THE ASSESSEE. LD COUNSEL SUBMITTED THAT ON THE BASIS OF AUDIT OBJECTION NO ASSESSMENT U/S147 R.W.S. 148 CAN BE MADE FOR WHICH THE LD. COUNSEL PLACED RELIANCE UPON FOLL OWING JUDICIAL DECISIONS. I) IL & FS INVESTMENT MANAGERS LTD. VS. ITO & ORS. 29 8 ITR 32(BOM) II) INDIAN & EASTERN NEWSPAER SOCEITY VS. CIT 119 ITR 996(SC) III) CADILA HEALTHCARE LTD. VS. ACIT 355 ITR 393 (GUJ) IV) RAJESH JHAVERI STOCK BROKERS P. LTD. VS. ACIT 284 I TR 593 (GUJ) V) RAYMON GLUES & CHEMICALS VS. DCIT 55 TAXMANN.COM. 4 21(GUJ) 3 M.A. NO.145/MUM/2015 (ARISING OUT OF ITA NO.3312/MUM/2013) ASSESSMENT YEARS-2006-07 2.1 ON THE OTHER HAND THE LD DR SHRI. MOHAMMD RIZW AN STRONGLY DEFENDED THE ORDER OF THE TRIBUNAL BY CONT ENDING THAT FIRSTLY THERE IS NO INFIRMITY IN THE ORDER OF THE T RIBUNAL AS THE ARGUMENT OF THE ASSESSEE HAS BEEN DULY DEALT WITH B Y INVITING OUR ATTENTION TO PARA 2.1 OF THE ORDER AND SECONDLY EVE N THE APPEAL HAS BEEN DECIDED ON MERIT, THEREFORE, THROUGH THIS MISC. APPLICATION THE ASSESSEE IS TRYING TO GET THE ORDER OF THE TRIBUNAL REVIEWED WHICH IN NOT PERMISSIBLE U/S 254 (2) OF TH E ACT. 2.2 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE NOTE THAT IN PARA 2.1 OF THE ORDER OF THE TRIBUNAL AN ELABORATE DISCUSSIONS HAS BEEN MADE WITH RESPECT TO THE FACTS, CONCLUSION OF THE LD. AS SESSING OFFICER AS WELL AS OF THE LD. COMMISSIONER OF INCOME TAX (A PPEALS). AFTER ANALYZING THE FACTS AND THE ARGUMENTS ADVANCED BY T HE ASSESSEE, THE TRIBUNAL REACHED TO A PARTICULAR CONCLUSION, IN WHICH, WE FIND NO INFIRMITY. VARIOUS CASE LAWS FROM THE TRIBU NAL, HONBLE HIGH COURT AND ALSO FROM HONBLE APEX COURT WERE CO NSIDERED. THROUGH THIS APPLICATION U/S 254(2) OF THE ACT, THE ASSESSEE IS TRYING TO GET THE ORDER REVIEWED WHICH IS NOT PERMI SSIBLE U/S 254 (2) OF THE ACT AND ONLY ARITHMETICAL ERROR OR OF LIKE NATURE CAN ONLY BE RECTIFIED. IF WE WOULD HAVE BEEN SATIS FIED, WITH THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE, CERTA INLY WITH AN OPEN MIND, WE COULD HAVE RECALLED OUR ORDER, IF THE RE WOULD HAVE BEEN ANY MISTAKE. HOWEVER, NO SUCH MISTAKE IS FOUND IN THE 4 M.A. NO.145/MUM/2015 (ARISING OUT OF ITA NO.3312/MUM/2013) ASSESSMENT YEARS-2006-07 ORDER OF THE TRIBUNAL, THEREFORE, WE FIND NO MERIT IN THE CONTENTION OF THE ASSESSEE. 2.3. WHILE DEALING WITH MISCELLANEOUS APPLICATION U /S 254(2) OF THE ACT, ONLY ARITHMETICAL, GRAMMATICAL OR MISTAKE OF LIKE NATURE, IF ANY, CAN ONLY BE RECTIFIED AND NOT WHICH CAN BE DRAWN BY A LONG PROCESS OF ARGUMENT/REASONING LEADING TO CONTR ARY DECISION. OUR VIEW FIND SUPPORTS FROM VARIOUS DECISIONS FROM HONBLE APEX COURT AND HONBLE HIGH COURTS, THAT THE TRIBUNAL CA NNOT REVIEW ITS EARLIER ORDER BUT ONLY CAN RECTIFY MISTAKE, IF ANY, WHICH IS APPARENT FROM RECORD. THE SCOPE AND AMBIT OF APPLIC ATION U/S 254(2) OF THE ACT IS VERY LIMITED AND MERITS OF THE CASE CANNOT BE GONE INTO, THEREFORE, WE FIND NO MISTAKE IN THE ORD ER OF THE TRIBUNAL. THE RATIO LAID DOWN IN I. CIT VS GOKULCHAND AGRAWAL, 202 ITR 14 (CAL.), II. CIT VS RAMESH ELECTRIC & TRADING COM PANY 203 ITR 497, 502 (BOM.), III. GAYWAYS PUBLICITY PVT. LTD. 211 ITR 506 (DEL.), IV. CIT VS RAMLAL RAJGARIA 104 CTR (CAL. ) 403, V. CIT VS MODEL MANUFACTURING COMPANY P VT. LTD. 111 CTR (CAL.) 2016, VI. JAIN DHARMSHALA CHARITABLE TRUST VS C IT 121 CTR (DEL.) 86, VII. CIT VS ITAT 206 ITR 126 (AP), VIII. CIT VS KABIRDAS INVESTMENT LTD. 210 ITR 898 (DEL.) FOLLOWED IN IX. DIRECTOR OF INCOME TAX (EXEMPTION) VS ITAT 232 ITR 688 (DEL.), X. MENTHA & ALLIED PRODUCTS COMPANY PVT. LTD. VS ITAT 244 ITR 470 (DEL.), XI. CIT VS VARDHMAN SPINNING 226 ITR 296 (P & H), XII. DEEKSHA SURI ETC. VS ITAT 232 ITR 3 95 (DEL.), 5 M.A. NO.145/MUM/2015 (ARISING OUT OF ITA NO.3312/MUM/2013) ASSESSMENT YEARS-2006-07 XIII. CIT VS ITAT 196 ITR 564 (ORISSA) 196 ITR 590, AND XIV. LAXMI ELECTRONIC CORPORATION LTD. VS C IT 188 ITR 398 (ALL.), SUPPORTS OUR VIEW, THUS, WE FIND NO ERROR IN THE OR DER OF THE TRIBUNAL AS HAS BEEN CANVASSED BY THE LD. COUNSEL F OR THE ASSESSEE. THOUGH THIS APPLICATION THE ASSESSEE IS E ITHER TRYING TO GET THE ORDER RECALLED OR REVIEWED WHICH IS NOT PER MISSIBLE. 2.4. THE NEXT PLEA RAISED BY THE ASSESSEE IS THAT T HE ORDER OF THE TRIBUNAL MAY BE RECALLED AND MAY BE SENT TO FILE OF THE COMMISSIONER OF INCOME TAX (APPEALS)/ASSESSING OFFI CER FOR DECIDING THE APPEAL ON MERIT. HOWEVER, WE NOTE THAT AFTER CONSIDERING THE FACTUAL MATRIX THE APPEAL HAS BEEN DECIDED ON MERITS BY THE TRIBUNAL, THEREFORE, FROM THIS ANGLE ALSO WE FIND, NOT INFIRMITY IN THE ORDER OF THE TRIBUNAL. WE FURT HER, NOTE THAT WHILE COMING TO THE PARTICULAR CONCLUSION THE TRIBU NAL HAS DISCUSSED VARIOUS DECISIONS INCLUDING FROM HONBLE HIGH COURTS AND ALSO FROM HONBLE APEX COURT. AT PAGE 7 OF THE ORDER OF THE TRIBUNAL THE OBJECTIONS OF THE ASSESSEE HAS BEEN DE ALT WITH BY OBSERVING AS UNDER. WE NOTE THAT THE LD.AO IN PARA-6 OF T HE ASSESSMENT ORDER HAS CLEARLY PEN DOWN THAT THE ASSESSEE HAS NOT PLACED A NY MATERIAL TO SUBSTANTIATE THE CONTENTION THAT REOPENING WAS DONE MERELY DUE TO AUDIT OBJECTION. EVEN FROM THE ANNUAL REPORT OF THE ASSESSEE COMPANY, IT WAS STATED BY THE AUDITOR THAT THE ASSE SSEE IS YET TO COMMENCED SALES ON COMMERCIAL BASIS AND THE ASSESS ING OFFICER FOUND THAT ASSESSEE HAS NOT YET COMMENCED BUSINESS AND ASSET WAS NOT PUT TO USE NOR ANY EXPENSES WERE DEBITED TO THE PROFIT AND 6 M.A. NO.145/MUM/2015 (ARISING OUT OF ITA NO.3312/MUM/2013) ASSESSMENT YEARS-2006-07 LOSS ACCOUNT SHOWING ANY INCLINATION TOWARDS ANY AC TIVITY UNDERTAKEN FOR REFINING OF GOLD/SILVER AND FURTHER THE PURCHASE OF RAW MATERIAL BEING WORK IN PROGRESS REMAINED THE SA ME THROUGHOUT THE YEAR. THE MATERIAL AVAILABLE ON RECORD AND THE FACTUAL FINDING RECORDED IN THE ASSESSMENT ORDER CLEARLY INDICATES THAT THE LD. ASSESSING OFFICER WAS WITHIN JUSTIFIABLE LIMIT TO R EOPEN THE ASSESSMENT. ON THE OTHER HAND, THE LD COMMISSIONER OF INCOME TAX (APPEALS) HAS NOT DEALT WITH THE OBJECTIONS MA DE IN THE ASSESSMENT ORDER AND MERELY OPINED THAT THE REOPENI NG WAS ON THE BASIS ON CHANGE OF OPINION. IF THE ASSESSEE IS VER Y MUCH CLEAR IN ITS APPROACH AND IN A POSITION TO SUBSTANTIATE ITS CLAI M THEN THERE IS NO REASON TO FIGHT ON TECHNICALITIES AND WAS EXPECTED TO EXPLAIN THE CLEAR POSITION DURING REASSESSMENT PROCEEDINGS. 2.5 SO FAR AS THE CASES RELIED UPON BY THE ASSESS EE IS CONCERNED WITH UTMOST RESPECT, WE AGREE WITH THEM BUT THEY AR E NOT APPLICABLE BEING ON DIFFERENT FACTS MERELY ON LEGAL ISSUE, HOWEVER, WE HAVE DECIDED THE APPEAL ON MERIT AFTER CONSIDERI NG THE ASSESSMENT ORDER, ARGUMENT OF THE ASSESSEE AS WELL AS THE MATERIAL AVAILABLE ON RECORD. IT IS NOTED THAT THER E IS UNCONTROVERTED FINDING IN PARA 6 OF THE ASSESSMENT ORDER THAT THE ASSESSEE DID NOT PLACE ANY MATERIAL TO SUBSTANT IATE THE CONTENTION THAT THE REOPENING WAS MADE DUE TO AUDIT OBJECTION ONLY. THIS FACT WAS NOT CONTROVERTED BY THE ASSESSE E THAT ASSESSEE HAD NOT YET COMMENCED HIS BUSINESS OF REFI NING OF GOLD AND SILVER. THE ASSET WAS NEITHER PUT TO USE NOR AN Y EXPENSES WERE DEBITED TO PROFIT AND LOSS ACCOUNT TO SHOW ANY INCLINATION TO ANY ACTIVITY WHICH HAS BEEN UNDERTAKEN FOR REFINING GOLD AND 7 M.A. NO.145/MUM/2015 (ARISING OUT OF ITA NO.3312/MUM/2013) ASSESSMENT YEARS-2006-07 SILVER. THE PURCHASES OF THE RAW MATERIAL, BEING WO RK IN PROGRESS (SILVER AND GOLD) REMAINED THE SAME THROUGH THE YEA R AND NO MATERIAL WAS CONSUMED AS IT EVIDENT FROM FINDING IN PARA 8 OF THE ASSESSMENT ORDER. THE ASSESSEE MERELY TRYING TO GET THE BENEFIT ON TECHNICALITIES WHICH IS OTHERWISE NOT AVAILABLE TO THE ASSESSEE. THE MANDATE OF THE CONSTITUTION IS TO LEVY AND COLL ECT DUE TAXES. NO CASE HAS BEEN MADE OUT BY THE ASSESSEE THEREFORE , WE FIND NO INFIRMITY IN THE ORDER OF THE TRIBUNAL. 2.6 IN VIEW OF THE ABOVE FACTUAL POSITION WE FIND N O INFIRMITY IN THE ORDER OF TRIBUNAL WHICH CAN BE RECTIFIED U/S 25 4 (2), OF THE ACT THEREFORE, THE MISC. APPLICATION OF THE ASSESSE E IS DISMISSED. THIS ORDER WAS PRONOUNCED ON 04/12/2015 SD/- SD/- RAJENDRA JOGINDER SI NGH ( / ACCOUNTANT MEMBER) ( ! / JUDICIAL MEMBER) MUMBAI; / DATED.- 04/12/2015 CT|T . # $!%&' (')% / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. ! / THE RESPONDENT. 3. 0' ( ) / THE CIT(A)- CONCERNED, MUMBAI 4. 0' / CIT CONCERNED, MUMBAI 5. 12 '3 , ( 3 , / DR, ITAT, MUMBAI E BENCH 6. 45 / GUARD FILE. / BY ORDER, !1' ' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI 8 M.A. NO.145/MUM/2015 (ARISING OUT OF ITA NO.3312/MUM/2013) ASSESSMENT YEARS-2006-07