SHREE MAHESHWAR HYDEL POWER CORPORATION, V. DCIT 7(2),

MA 175/MUM/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4123 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-03-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 29-07-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G N MAKWANADR
• Assessee Lawyers: VENUGOPAL C NAIR
• Keywords: Rectification of order; Capital receipt

Judgement Text

, ' INCOME TAX APPELLATE TRIBUNAL,MUMBAI K BENCH , , BEFORE S/SH. JOGINDER SINGH,JUDICIA L MEMBER & RAJENDRA,ACCOUNTANT MEMBER / MA NO.175/MUM/2015 (ARISING OUT OF / ITA NO.7768/MUM/2014) /ASSESSMENT YEAR-2010-11 M/S SHREE MAHESHWAR HYDEL POWER CORPORATION LTD., 99, NIRANJAN GROUND FLOOR, MARINE DRIVE, MUMBAI-400002 PAN: AABCS4176P VS. DCIT 7(2), R.NO.666, 6TH FLOOR, AAYAKAR BHAVAN, M.K.ROAD, CHURCHGATE, MUMBAI-400020 ( / APPLICANT) ( ! / RESPONDENT) /ASSESSEE BY :SHRI VENUGOPAL C. NAIR ' / REVENUE BY :SHRI G.N. MAKWANA-DR / DATE OF HEARING : 29.01.2016 / DATE OF PRONOUNCEMENT : 09.03.2016 / ORDER ! '# PER RAJENDRA, AM - VIDE ITS APPLICATION,DATED 29.7.2015,THE ASSESSEE-C OMPANY HAS STATED THAT THERE WERE MISTAKES APPARENT IN THE ORDER PASSED BY THE TRIBUNAL,THAT S AME HAVE TO BE RECTIFIED AS PER THE PROVISIONS OF SECTION 254(2) OF THE ACT.IN ITS APPLICATION,THE ASSESSEE HAS STATED THAT WHILE ADJUDICATING THE APPEAL FILED BY THE ASSESSEE ON 18.3.15 THE TRIBUNA L HAD CONFIRMED THE ADDITION, , MADE BY THE AO,BY TREATING INTEREST EARNED ON FIXED DEPOSIT AS INCOME FROM OTHER SOURCES, THAT THE ASSESSEE HAD CLAIMED IT UNDER THE HEAD CAPITAL RECEIPT, THA T THE AMOUNT WAS RAISED FOR A SPECIFIC PURPOSE, THAT RAISING OFCD DID NOT REDUCE TARIFF, THAT IT WA S LINKED WITH REDUCTION OF COST,THAT THE TRIBUNAL HAD RECORDED ALL THE PRIMARY FACTS CORRECTLY THAT I T DID NOT DECIDE THE ISSUES RAISED BY THE ASSESSEE. 2. BEFORE US,THE AUTHORISED REPRESENTATIVE(AR)REITERAT ED THE ARGUMENTS RAISED IN THE APPLICATION FILED BY THE ASSESSEE.DEPARTMENTAL REPRESENTATIVE(D R)CONTENDED THAT THE TRIBUNAL HAD DECIDED THE ISSUE AFTER CONSIDERING ALL THE ARGUMENTS, THAT THE ASSESSEE IN THE NAME OF RECTIFICATION OF MISTAKE WANTED TO REVIEW THE ORDER OF THE TRIBUNAL. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT WHILE DECIDING THE APPEAL THE TRIBUNAL HAD DELIBERATED UP ON ALL THE ARGUMENTS TAKEN BY THE ASSESSEE,THAT THE ASSESSEE ITSELF HAD ADMITTED THAT BASIC FACTS WERE CORRECTLY RECORDED BY THE TRIBUNAL,THAT AFTER CONSIDERING THE AVAILABLE MATER IAL IT HAD DECIDED THE ISSUE AGAINST THE ASSESSEE, THAT ALL THE RELEVANT CASES WERE CONSIDER ED BY THE TRIBUNAL.IF THE ASSESSEE HAS GRIEVANCE AGAINST THE ORDER,HE SHOULD APPROACH THE HONBLE HI GH COURT BY FILING AN APPEAL. HERE,WE WOULD LIKE TO MENTION THAT THE SCOPE OF SEC TION 254(2) OF THE ACT IS VERY LIMITED AND SPECIFIC.IF A MISTAKE IS SO GLARING THAT ON THE FAC E OF IT SAME HAS TO BE AMENDED,THEN ONLY THE PROVISIONS OF SECTION 254(2)CAN BE INVOKED.IT IS SA ID THAT THE SECTION IS LIMITED TO MISTAKE APPARENT FROM RECORD LIKE ARITHMETICAL ERRORS,TYPOG RAPHICAL MISTAKES,NON-ADJUDICATION OF GROUND OF APPEAL OR NON-CONSIDERATION OF A JUDGMENT OF HON BLE SUPREME COURT OR JURISDICTIONAL HIGH MA NO.175/MUM/2015,AY.10-11 2 COURT HAVING DIRECT BEARING ON THE CASE.HONBLE DEL HI HIGH COURT HAS,IN THE MATTER OF GEOFIN INVESTMENT (P.) LTD.,DESCRIBED THE CONCEPT OF MISTA KE APPARENT FROM RECORD AS UNDER: THE POWER IS CIRCUMSCRIBED AND LIMITED. THERE SHOUL D BE A MISTAKE WHICH IS APPARENT BEFORE THE POWER CAN BE EXERCISED. THIS IS A MANDATORY PRE-CON DITION. THE TRIBUNAL IN ITS ORDER REFERRED TO THE CONTROVERSY IN QUESTION RELATING TO THE DISALLO WANCE MADE ON ACCOUNT OF SHORT-TERM CAPITAL LOSS AND LONG-TERM CAPITAL LOSS. THE ENTIRE ISSUE W AS EXAMINED ON THE MERITS INCLUDING THE JUDGMENTS RELIED UPON BY THE ASSESSEE. AFTER EXAMIN ING THE MATTER IN DETAIL, IT ALLOWED THE APPEAL FILED BY THE REVENUE. (348ITR118). IN THE CASE OF RAMESH ELECTRICALS (203ITR497THE HON BLE JURISDICTIONAL HIGH COURT HAS DISCUSSED THE SCOPE AND LIMITATION OF THE PROVISION S OF SECTION 254(2)OF THE ACT AS UNDER : UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961, THE APPELLATE TRIBUNAL MAY, 'WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD', A MEND ANY ORDER PASSED BY IT UNDER SUB- SECTION (1) WITHIN THE TIME PRESCRIBED THEREIN. IT IS AN ACCEPTED POSITION THAT THE APPELLATE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER THE PROVISIONS OF THE ACT. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO RECTI FY ANY MISTAKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD. THIS IS MERELY A POWER OF AMENDING ITS ORDER. THE POWER OF RECTIFICATION UNDER SECTION 254(2) CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM THE RECORD, AND NOT A MISTAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. FAI LURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSI ON IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE TRIBUN AL CANNOT, IN THE EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES W HICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION. FROM THE ABOVE,IT IS CLEAR THAT TRIBUNAL HAS GOT LI MITED POWER TO RECTIFY MISTAKE U/S.254(2) OF THE ACT.IN THE CASE BEFORE US,THE ASSESSEE HAS NOT POIN TED OUT ANY ARITHMETICAL MISTAKE IN THE ORDER OF THE TRIBUNAL NOR HAS HE PROVED THAT LEGAL POSITION TAKEN BY THE TRIBUNAL HAS ALTERED BECAUSE OF SUBSEQUENT JUDGMENT OF THE HONBLE JURISDICTIONAL H IGH COURT OR THE HONBLE APEX COURT.THE TRIBUNAL HAS DECIDED THE ISSUE AFTER CONSIDERING AL L THE FACTS AND PROVISIONS OF LAW.IN OUR OPINION,NO MISTAKE IS APPARENT,IN THE IMPUGNED ORD ER OF THE TRIBUNAL. THEREFORE, WE ARE OF THE OPINION THAT APPLICATION FILED BY THE ASSESSEE DESE RVES TO BE REJECTED. AS A RESULT ,MA FILED BY THE ASSESSEE STANDS DISMISSED. (&)'* (' + , - '. ' ' . ORDER PRONOUNCED IN THE O PEN COURT ON 9 TH MARCH,2016. 09 , 2016 SD/- SD/- ( /JOGINDER SINGH) ( / RAJENDRA) / JUDICIAL MEMBER ! / ACCOUNTANT MEMBER /MUMBAI, /DATE: 09.03.2016 . . . JV.SR.PS. 1. APPELLANT / 2. RESPONDENT / MA NO.175/MUM/2015,AY.10-11 3 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR I BENCH, ITAT, MUMBAI / , E , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.