B4U BROADBANK INDIA PRIVATE LIMITED, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX (TDS)-1 (1), MUMBAI

MA 149/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6612 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 16-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Rectification of order
• Section: 194C; 145; 154

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER M.A. NO.149 & 150/MUM/2017 (ARISING OUT OF ITA NO.5664 & 5665/MUM/2012) ASSESSMENT YEAR: 2010-11 & 2011-12 M/S. B4U BROADBANK INDIA PVT. LTD., 45, MAROL COOPERATIVE INDUSTRIAL ESTATE LTD., ANDHERI KURLA ROAD, ANDHERI (EAST) MUMBAI - 09 / VS. ACIT (TDS) - 1(1), ROOM NO. 804, K.G. MITTAL HOSPITAL BUILDING, CHARNI ROAD, MUMBAI 02 ( '# $ /ASSESSEE) ( % / REVENUE) P.A. NO. AABCB 5210 F '# $ / ASSESSEE BY SHRI VIJAY MEHTA % / REVENUE BY SHRI SAURABH KUMAR RAI - DR & %' ( $ ) / DATE OF HEARING : 04/05/2018 ( $ ) / DATE OF ORDER: 04/05/2018 MA NO.149 & 150/MUM/2017 M/S. B4U BROADBAND INDIA PVT. LTD. (ARISING OUT OF ITA NOS.5664 & 5665/MUM/2012) 2 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THESE TWO MISCELLANEOUS APPLICATIONS ARE BY THE ASS ESSEE SEEKING RECALLING OF THE ORDER OF THE TRIBUNAL DATE D 07/11/2016 (ITA NO.5664 & 5665/MUM./2012) FOR ASSESSMENT YEARS 2010-11 & 2011-12 PASSED BY THIS T RIBUNAL DUE TO THE NON-CONSIDERATION OF ORDER OF THE HON'BL E HIGH COURT/TRIBUNAL. 2. DURING HEARING THE LD. COUNSEL FOR THE ASSESSEE , SHRI VIJAY MEHTA CONTENDED THAT DUE TO INADVERTENT MISTAKE, SOME OF THE ORDERS INCLUDING FROM HON'BLE HIGH COURT/TRIBUNAL, FILED BY THE ASSESSEE, COULD NOT BE CONSIDERED, RESULTING INTO MISCARRIAGE OF JUSTICE. THE LD. COUN SEL CONTENDED THAT IN VIEW OF THE DECISION FROM HON'BLE APEX COUR T IN HONDA SIEL POWER PRODUCT LTD. VS CIT 295 ITR 466(SUPREME COURT), IT IS A MISTAKE APPARENT FROM RECORD, THEREFORE, THE O RDER MAY BE RECALLED. ON THE OTHER HAND, THE LD. DR, SHRI SAURA BH KUMAR RAI, CONTENDED THAT A WELL REASONED ORDER HAS BEEN PASSED BY THE TRIBUNAL, THEREFORE, IT MAY NOT BE RECALLED. MA NO.149 & 150/MUM/2017 M/S. B4U BROADBAND INDIA PVT. LTD. (ARISING OUT OF ITA NOS.5664 & 5665/MUM/2012) 3 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND T HAT THE ASSESSEE PLACED ON RECORD CERTAIN DECISIONS, WHICH COULD NOT BE CONSIDERED LIKE CIT VS PRASAR BHARTI BROADCASTIN G CORPORATION OF INDIA 292 ITR 580 (DEL.), KURUKSHETR A DARPANS P. LTD. VS CIT (169 TAXMAN 344)(P & H), INCOME TAX OFFICER VS M/S TIMES GLOBAL BROADCASTING COMPANY LTD. (ITA NO.669/MUM/2012) AND ANOTHER TWO DECISIONS OF THE TRIBUNAL. THESE DECISIONS COULD NOT BE CONSIDERED INADVERTENTLY. THE HON'BLE APEX COURT IN HONDA SIEL POWER PRODUCT LTD. VS CIT, VIDE ORDER DATED 26/11/2007, W HILE DISCUSSING THE POWERS OF THE TRIBUNAL WITH RESPECT TO RECTIFICATION OF MISTAKE ON RECORD HELD THAT FAILUR E TO CONSIDER DECISION OF THE CO-ORDINATE BENCH, CITED BY THE ASS ESSEE, IS A MISTAKE, WHICH REQUIRES RECTIFICATION. THE RELEVANT PORTION OF THE ORDER IS REPRODUCED HEREUNDER:- A SHORT QUESTION WHICH ARISES FOR DETERMINATION IN THIS CIVIL APPEAL FILED BY THE ASSESSEE CONCERNS THE APPLICATION OF S ECTION 154 OF THE INCOME-TAX ACT, 1961 ('1961 ACT') WHICH PROVIDES FO R RECTIFICATION OF ANY MISTAKE APPARENT FROM THE RECORD BY ANY INCO ME-TAX AUTHORITY. IT MAY BE MENTIONED AT THIS STAGE THAT T HE WORDS 'RECTIFICATION OF ANY MISTAKE APPARENT FROM THE REC ORD' FIND PLACE IN SECTION 254(2) OF THE SAID 1961 ACT. MA NO.149 & 150/MUM/2017 M/S. B4U BROADBAND INDIA PVT. LTD. (ARISING OUT OF ITA NOS.5664 & 5665/MUM/2012) 4 FACTS 3. THE ASSESSEE-COMPANY IS ENGAGED IN THE MANUFACTU RE OF PORTABLE GENERATOR SETS IN TECHNICAL COLLABORATION WITH HOND A MOTOR COMPANY, JAPAN. IN THIS CIVIL APPEAL, WE ARE CONCER NED WITH THE ASSESSMENT YEAR 1991-92. ON DECEMBER 30, 1991, A RE TURN OF INCOME WAS FILED BY THE ASSESSEE DECLARING NIL INCO ME. DURING THE RELEVANT YEAR, THE ASSESSEE HAD TAKEN A TERM LOAN I N FOREIGN EXCHANGE FOR THE IMPORT OF MACHINERY. ON ACCOUNT OF FLUCTUATION IN THE FOREIGN EXCHANGE RATE, THE LIABILITY OF THE ASS ESSEE TO REPAY THE LOAN IN TERMS OF RUPEES WENT UP BY RS. 7,10,910. BY REFERRING TO THE PROVISIONS OF SECTION 43A, THE ASSESSEE ENHANCED TH E FIGURE OF WDV (WRITTEN DOWN VALUE) OF THE BLOCK OF ASSETS AND CLA IMED DEPRECIATION ACCORDINGLY. THE ASSESSING OFFICER CAME TO THE CONC LUSION THAT SUCH REVISION IN THE ACTUAL COST WAS NOT ADMISSIBLE AS S ECTION 43A REFERS TO ADJUSTMENT QUA THE ACTUAL COST OF THE MACHINERY ON ACCOUNT OF INCREASE OR DECREASE IN THE LIABILITY OF UNPAID LOA NS UTILIZED FOR THE PURCHASE OF MACHINERY. 4. AGGRIEVED BY THE SAID DECISION, THE MATTER WAS C ARRIED IN APPEAL BY THE ASSESSEE BEFORE THE COMMISSIONER OF INCOME-T AX (APPEALS) WHO TOOK THE VIEW THAT THE CLAIM OF THE ASSESSEE WA S ADMISSIBLE IN VIEW OF THE FACT THAT IN THE YEAR PRECEDING THE ASS ESSMENT YEAR 1991-92 INCREASED DEPRECIATION WAS GIVEN TO THE ASS ESSEE. 5. ON THIS ASPECT, THEREFORE, THE DEPARTMENT CARRIE D THE MATTER IN APPEAL TO THE INCOME-TAX APPELLATE TRIBUNAL ('THE T RIBUNAL') FOR BOTH THE ASSESSMENT YEARS 1990-91 AND 1991-92. BY T HE JUDGMENT AND ORDER DATED APRIL 2, 2002, THE TRIBUNAL HELD TH AT THE COMMISSIONER OF INCOME-TAX (APPEALS) HAD ERRED IN A LLOWING THE ENHANCED DEPRECIATION AS UNDER SECTION 43A ACTUAL P AYMENT WAS A CONDITION PRECEDENT FOR AVAILING OF THE BENEFIT UND ER THAT SECTION. ACCORDING TO THE TRIBUNAL, IF ACTUAL PAYMENT WAS NO T MADE AFTER FLUCTUATION THEN THE VALUE OF THE ASSET CANNOT BE I NCREASED BY ADDING THE INCREASE ON ACCOUNT OF FLUCTUATION. ON T HE FACTS, THE TRIBUNAL FOUND THAT, IN THE PRESENT CASE, THERE WAS NO ACTUAL PAYMENT AFTER THE FLUCTUATION AND, THEREFORE, THE A SSESSEE WAS NOT ENTITLED TO CLAIM THE BENEFIT UNDER SECTION 43A. 6. ON DECEMBER 9, 2002, THE ASSESSEE MOVED THE TRIB UNAL FOR RECTIFICATION OF MISTAKE APPARENT FROM THE ORDER DA TED APRIL 2, 2002. THAT APPLICATION WAS MADE UNDER SECTION 254(2) WHIC H READS AS UNDER : 'BEFORE THE INCOME-TAX APPELLATE TRIBUNAL : DELHI BENCHES HON'BLE 'A' BENCH (HON'BLE VICE PRESIDENT SH. R. M. MEHTA & HON'BLE S H. Y. K. KAPOR) IN THE MATTER OF : M/S SHRIRAM HONDA POWER EQUIPMEN TS LTD. I. T. A. NOS. : 5413 & 5414/D/96(A) MA NO.149 & 150/MUM/2017 M/S. B4U BROADBAND INDIA PVT. LTD. (ARISING OUT OF ITA NOS.5664 & 5665/MUM/2012) 5 5544 & 5545/D/96(D) ASSESSMENT YEARS : 1990-91 & 1991-92 SUB: APPLICATION UNDER SECTION 254(2) FOR RECTIFICA TION OF MISTAKES IN THE ORDER DATED APRIL 2, 2002 MAY IT PLEASE YOUR HONOUR 1. BY THE CAPTIONED ORDER, CROSS APPEALS FOR THE AS SESSMENT YEARS 1990-91 AND 1991-92 WERE DISPOSED OF. THE AFORESAID APPEALS WERE HEARD ON FEBRUARY 4, 2002. AFTER THE HEARING, THE H ON'BLE BENCH ON THE REQUEST MADE, PERMITTED THE ASSESSEE TO FILE WR ITTEN SUBMISSIONS IN RESPECT OF CROSS APPEALS FOR THE ASS ESSMENT YEAR 1991-92. THE SUB MISSIONS WERE DULY FILED ON FEBRUA RY 7, 2002. THE ORDER WAS PASSED BY THE HON'BLE TRIBUNAL ON APRIL 2 , 2002. 2. THAT GROUND NO. 2 OF THE DEPARTMENTAL APPEAL FOR THE ASSESS MENT YEAR 1990-91 (I. T. A. NO. 5544/D/96) AND GROU ND NO. 3 OF DEPARTMENTAL APPEAL FOR THE ASSESSMENT YEAR 1991-92 (I. T. A. NO. 5545/D/96) WERE AGAINST THE ALLOWANCE OF DEPRECIATI ON ON EXCHANGE RATE FLUCTUATION WHICH HAD NOT BEEN PAID BY THE ASS ESSEE. THIS ISSUE WAS DECIDED BY THE COMMISSIONER OF INCOME-TAX (APPE ALS) IN FAVOUR OF THE ASSESSEE BY RELYING UPON HIS ORDER IN THE CA SE OF SAMTEL COLOR LTD. IT WAS SUBMITTED DURING THE COURSE OF HEARING AS ALSO IN THE WRIT TEN PROPOSITIONS THAT THE DEPARTMENTAL APPEAL IN THE CASE OF SAMTEL COLOR LTD. WAS DECIDED BY THE 'E' BENCH OF T HE TRIBUNAL VIDE ORDER DATED DECEMBER 10, 2001, WHEREIN, THE VIEW OF THE COMMISSIONER OF INCOME-TAX (APPEALS) WAS UPHELD. A COPY OF THE ORDER WAS PLACED AT PAGES 48 TO 52 OF THE PAPER BOO K. 2.1 THAT, IN DECIDING THE AFORESAID GROUND AGAINST THE ASSESSEE, THE HON'BLE BENCH INADVERTENTLY HAS NOT REFERRED TO THE DECISION OF SAMTEL COLOR LTD. SINCE, THE ORDER OF CO-ORDINATE B ENCH OF THE TRIBUNAL WHICH WAS RELIED UPON WAS NOT CONSIDERED, AND THAT IN FORMING ANOTHER VIEW, THE VIEW TAKEN BY DIFFERENT B ENCHES OF THE TRIBUNAL WAS NOT DISTINGUISHED, THEREFORE, A MISTAK E APPARENT FROM RECORD HAS CREPT IN. THE ISSUE COULD NOT BE DECIDED WITHOUT BEING REFERRED TO A SPECIAL BENCH TO RECONCILE THE DIFFER ENCE, IF AT ALL, BETWEEN TWO VIEWS. REFERENCE IN THIS REGARD IS INVI TED TO THE DECISIONS OF THE HON'BLE SUPREME COURT IN THE CASE OF SUNDARJAS KANYALAL BHATIJA V. COLLECTOR, THANE [1990] 183 ITR 130 AND UOI V. PARAS LAMINATES P. LTD. [1990] 186 ITR 722 . IT IS, THEREFORE, SUBMITTED THAT THE ORDER MAY BE RECTIFIED. 3. DISALLOWANCE UNDER RULE 6D COVERED BY GROUND NOS . 3 AND 2 FOR THE ASSESSMENT YEARS 1990-91 AND 1991-92 RESPECTIVE LY WERE DECIDED AGAINST FOR THE REASON THAT REQUISITE DETAI LS WERE NOT FURNISHED BEFORE THE AUTHORITIES BELOW. IN RESPECT OF THE ASSESSMENT YEAR 1991-92 DETAILS OF AMOUNT DISALLOWABLE UNDER R ULE 6D WERE FURNISHED BEFORE THE COM MISSIONER OF INCOME-TAX (A PPEALS) BUT THE SAME WERE NOT ADMITTED. THESE VERY PAPERS WERE FILE D AT PAGES 5 TO 26 OF THE PAPER BOOK FILED BEFORE THIS HON'BLE TRIB UNAL. PAPERS AT PAGES 5 TO 7 WHICH INCLUDED WORKING DETAILS OF DISA LLOWANCE UNDER MA NO.149 & 150/MUM/2017 M/S. B4U BROADBAND INDIA PVT. LTD. (ARISING OUT OF ITA NOS.5664 & 5665/MUM/2012) 6 RULE 6D WERE FILED BEFORE THE ASSESSING OFFICER. SI MILARLY PAPERS AT PAGES 8 TO 12 ARE DETAILS OF PRO FESSIONAL FEE AND THE SAME WERE ALSO FILED BEFORE THE ASSESSING OFFICER. EXPLANATIO N WITH REFERENCE TO EACH OF EXPENDITURE WAS ALSO FURNISHED. THE HON'BLE BENCH IN DECIDING THE ISSUE INADVERTENTLY DID NOT CONSIDER T HE SUBMISSION MADE AND AS SUCH, A MISTAKE HAS CREPT IN. 4. GROUND NO. 4 OF APPEAL FOR THE ASSESSMENT YEAR 1 991-92 WHICH WAS AGAINST DISALLOWANCE OF RS. 16,011 OUT OF SALES CONFERENCE EXPENSES HAS NOT BEEN DISPOSED OF. IN VIEW OF THE FACTUAL POSITION EXPLAINED ABOVE, IT IS SUBMITTED THAT ORDER MAY BE RECTIFIED ACCORDINGLY. YOURS FAITHFULLY, FOR SHRIRAM HONDA POWER EQUIPMENTS LIMITED (SD.) . . . . . . . (AUTHORIZED SIGNATORY) DATED : DECEMBER 9, 2002' 7. IN THE RECTIFICATION APPLICATION, THE ASSESSEE P OINTED OUT THE EARLIER JUDGMENT OF THE CO-ORDINATE BENCH OF THE TR IBUNAL DATED DECEMBER 10, 2001, IN THE CASE OF DEPUTY CIT V. SAM TEL COLOR LIMITED IN WHICH IT WAS HELD THAT ENHANCED DEPRECIA TION WAS ALLOWABLE EVEN ON NOTIONAL INCREASE IN THE COST OF THE ASSET ON ACCOUNT OF EXCHANGE RATE FLUCTUATION AND DESPITE TH E FACT THAT THE ADDITIONAL LIABILITY RESULTING FROM THE SAID FLUCTU ATION HAD NOT BEEN PAID BY THE ASSESSEE. IT WAS HELD THAT THE WORD 'PA ID' IN SECTION 43(2) MEANT AMOUNT ACTUALLY PAID OR INCURRED ACCORD ING TO THE METHOD OF ACCOUNTING. IN THIS CONNECTION, RELIANCE WAS ALSO PLACED BY THE TRIBUNAL ON CIRCULAR NO. 5-P OF THE CENTRAL BOARD OF DIRECT TAXES DATED OCTOBER 9, 1967. 8. VIDE ORDER DATED SEPTEMBER 10, 2003, THE TRIBUNA L, IN THE PRESENT CASE, ALLOWED THE RECTIFICATION APPLICATION FILED BY THE ASSESSEE STATING THAT THE JUDGMENT OF THE CO-ORDINA TE BENCH IN SAMTEL COLOR LIMITED (SUPRA) HAD ESCAPED ITS ATTENT ION. 9. AGAINST THE ORDER DATED SEPTEMBER 10, 2003, THE DEPARTMENT CARRIED THE MATTER IN APPEAL TO THE HIGH COURT VIDE I. T. A. NO. 735/04. BY THE IMPUGNED JUDGMENT DATED OCTOBER 11, 2006*, THE HIGH COURT CAME TO THE CONCLUSION, RELYING ON ITS E ARLIER DECISIONS, THAT THE POWER TO RECTIFY ANY MISTAKE WAS NOT EQUIV ALENT TO A POWER TO REVIEW OR RECALL THE ORDER SOUGHT TO BE RECTIFIE D. BY THE IMPUGNED JUDGMENT, THE HIGH COURT CAME TO THE CONCLUSION THA T VIDE ORDER DATED SEPTEMBER 10, 2003, IN THE GUISE OF RECTIFICA TION, THE TRIBUNAL HAD, IN FACT, REVIEWED ITS EARLIER ORDER WHICH FELL OUTSIDE THE SCOPE OF SECTION 254(2) OF THE 1961 ACT AND, CONSEQUENTLY, T HE HIGH COURT SET ASIDE THE ORDER OF THE TRIBUNAL DATED SEPTEMBER 10, 2003. HENCE, THIS APPEAL. MA NO.149 & 150/MUM/2017 M/S. B4U BROADBAND INDIA PVT. LTD. (ARISING OUT OF ITA NOS.5664 & 5665/MUM/2012) 7 AN ASIDE 10. TO COMPLETE THE CHRONOLOGY OF EVENTS, WE MAY ST ATE THAT VIDE JUDGMENT DATED APRIL 30, 2007, IN THE CASE OF CIT V . WOODWARD GOVERNOR INDIA (P) LTD. REPORTED IN [2007] 162 TAXM ANN 60** DELIVERED BY THE DELHI HIGH COURT UNDER SECTION 43A , AS IT STOOD PRIOR TO APRIL 1, 2003, CAME TO BE DELIVERED. *CIT V.HONDA SIEL POWER PRODUCTS LTD. [2007] 293 IT R 132 (DELHI) **[2007] 294 ITR 451 BY THE SAID JUDGMENT, IT WAS HELD THAT SECTION 43A WAS PROSPECTIVE AND NOT CLARIFICATORY AS CONTENDED BY THE DEPARTMEN T. IT WAS FURTHER HELD THAT IN CASES WHERE THE ASSESSEE FOLLOWED THE MERCANTILE SYSTEM OF ACCOUNTING IN TERMS OF SECTION 145 OF THE 1961 ACT, THE ASSESSEE WAS BOUND TO ABIDE BY THE ACCOUNTING STAND ARDS LAID DOWN BY THE INSTITUTE OF CHARTERED ACCOUNTANTS OF INDIA ('THE ICAI'). IT WAS FURTHER HELD THAT, UNDER THE ACCOUNTING STANDAR DS, THE LIABILITY STOOD REVISED IN THE YEAR IN WHICH THE FLUCTUATION OF FOREIGN EXCHANGE TOOK PLACE IN ORDER TO REFLECT THE TRUE ST ATE OF AFFAIRS REGARDING THE BUSINESS OF THE ASSESSEE AND ACCORDIN GLY, THE WORD 'PAID' IN SECTION 43(2) SHOULD BE READ IN THE LIGHT OF THE ACCOUNTING STANDARDS. IT WAS FURTHER HELD THAT UNDER SECTION 2 09(3) OF THE COMPANIES ACT, IT WAS MANDATORY FOR COMPANIES TO KE EP ACCOUNTS ON ACCRUAL BASIS ONLY. 11. SUFFICE IT TO STATE THAT, IN VIEW OF THE SAID J UDGMENT OF THE DELHI HIGH COURT IN THE CASE OF WOODWARD GOVERNOR INDIA ( P) LTD.*, THE VIEW OF THE CO-ORDINATE BENCH OF THE TRIBUNAL ON SE CTION 43A IN SAMTEL COLOR LTD. (SUPRA) STOOD CONFIRMED. WE DO NO T WISH TO EXPRESS ANY OPINION ON THE JUDGMENT OF THE HIGH COU RT IN WOODWARD GOVERNOR INDIA1 EXCEPT TO SAY THAT JUDGMENT OF THE CO-ORDINATED BENCH OF THE INCOME-TAX APPELLATE TRIBUNAL HAS BEEN CONFIRMED WHICH CIRCUMSTANCE IS RELEVANT IN DECIDING THE RECT IFICATION APPLICATION. SCOPE OF THE POWER OF RECTIFICATION 13. 'RULE OF PRECEDENT' IS AN IMPORTANT ASPECT OF L EGAL CERTAINTY IN RULE OF LAW. THAT PRINCIPLE IS NOT OBLITERATED BY S ECTION 254(2) OF THE INCOME-TAX ACT, 1961. WHEN PREJUDICE RESULTS FROM A N ORDER ATTRIBUTABLE TO THE TRIBUNAL'S MISTAKE, ERROR OR OM ISSION, THEN IT IS THE DUTY OF THE TRIBUNAL TO SET IT RIGHT. ATONEMENT TO THE WRONGED PARTY BY THE COURT OR THE TRIBUNAL FOR THE WRONG CO MMITTED BY IT HAS NOTHING TO DO WITH THE CONCEPT OF INHERENT POWER TO REVIEW. IN THE PRESENT CASE, THE TRIBUNAL WAS JUSTIFIED IN EXERCIS ING ITS POWERS UNDER SECTION 254(2) WHEN IT WAS POINTED OUT TO THE TRIBUNAL THAT THE JUDGMENT OF THE CO-ORDINATE BENCH WAS PLACED BE FORE THE TRIBUNAL WHEN THE ORIGINAL ORDER CAME TO BE PASSED BUT IT HAD COMMITTED A MISTAKE IN NOT CONSIDERING THE MATERIAL WHICH WAS ALREADY ON RECORD. THE TRIBUNAL HAS ACKNOWLEDGED IT S MISTAKE, IT HAS ACCORDINGLY RECTIFIED ITS ORDER. IN OUR VIEW, T HE HIGH COURT WAS MA NO.149 & 150/MUM/2017 M/S. B4U BROADBAND INDIA PVT. LTD. (ARISING OUT OF ITA NOS.5664 & 5665/MUM/2012) 8 NOT JUSTIFIED IN INTERFERING WITH THE SAID ORDER. W E ARE NOT GOING BY THE DOCTRINE OR CONCEPT OF INHERENT POWER. WE ARE S IMPLY PROCEEDING ON THE BASIS THAT IF PREJUDICE HAD RESULTED TO THE PARTY, WHICH PREJUDICE IS ATTRIBUTABLE TO THE TRIBUNAL'S MISTAKE , ERROR OR OMISSION AND WHICH ERROR IS A MANIFEST ERROR THEN THE TRIBUN AL WOULD BE JUSTIFIED IN RECTIFYING ITS MISTAKE, WHICH HAD BEEN DONE IN THE PRESENT CASE. CONCLUSION 14. FOR THE AFORESTATED REASONS, THE IMPUGNED JUDGM ENT OF THE HIGH COURT IS SET ASIDE AND THE ORDER PASSED BY THE TRIB UNAL ALLOWING THE RECTIFICATION APPLICATION FILED BY THE ASSESSEE IS RESTORED. CONSEQUENTLY, THE APPEAL IS ALLOWED WITH NO ORDER A S TO COSTS. 2.2. IN THE LIGHT OF THE ABOVE ORDER, WE FIND THAT THE HON'BLE DELHI HIGH COURT IN CIT VS PRASAR BHARTI 29 2 ITR 580 (DEL.), WHILE ADJUDICATING THE ISSUE ON APPLICABILI TY OF SECTION 194C AND 194J UPHELD THE ORDER OF THE TRIBUNAL BY H OLDING THAT ONCE THERE IS SPECIFIC PROVISION INTRODUCED BY WAY OF AN EXPLANATION TO SECTION 194C OF THE ACT TO BRING WIT HIN ITS AMBIT, THE CONTRACTUAL WORK CONCERNING BROADCASTIN G AND TELECASTING, THE REVENUE CANNOT RESORT TO SECTION 194J WHICH IS IN MORE GENERAL TERMS. THUS, WE FIND THERE IS AN INADVERTENT MISTAKE IN THE ORDER OF THE TRIBUNAL IN NOT CONSIDE RING THE DECISIONS CITED BY THE ASSESSEE. RESPECTFULLY, FOLL OWING THE DECISION CITED BY THE ASSESSEE AND THE RATIO LAID D OWN BY HON'BLE APEX COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD., WE ARE OF THE VIEW THAT THERE IS MERIT IN THE CONTENTION OF MA NO.149 & 150/MUM/2017 M/S. B4U BROADBAND INDIA PVT. LTD. (ARISING OUT OF ITA NOS.5664 & 5665/MUM/2012) 9 THE ASSESSEE, THEREFORE, WE RECALL THE ORDER OF THE TRIBUNAL DATED 07/11/2016. THE REGISTRY IS DIRECTED TO FIX T HE APPEALS OF THE REVENUE FOR FRESH HEARING AT AN EARLY CONVEN IENT DATE. THE MISCELLANEOUS APPLICATIONS OF THE ASSESSEE ARE, THUS, ALLOWED. FINALLY, THE MISCELLANEOUS APPLICATIONS ARE ALLOWED . THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 04/05/2018. SD/- SD/- ( N.K. PRADHAN ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER & ' MUMBAI; * DATED : 04/05/2018 F{X~{T? P.S/. . . , %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. +,-. / THE APPELLANT 2. /-. / THE RESPONDENT. 3. 0 0 & 1$ , ( +, ) / THE CIT, MUMBAI. 4. 0 0 & 1$ / CIT(A)- , MUMBAI 5. 3%4 $ , 0 +,) + 5 , & ' / DR, ITAT, MUMBAI 6. 6' 7' / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) , & ' / ITAT, MUMBAI