The ITO, Ward-2(2), Guntur V. The Agricultural Market Committee, Mangalagiri

MA 175/VIZ/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5813 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-11-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 23-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T L PETER
• Assessee Lawyers: CH SRINIVASA RAO
• Keywords: Depreciation

Judgement Text

MA NOS.170 TO 177 AMCS/VIZ/2010 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM B EFORE: SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI B.R.BASKARAN, ACCOUNTANT MEMBER S NO. CASE NO. ASSTT YEAR PAN APPELLANT RESPONDENT 1 M A NO.1 70 /VIZ/2010 (ITA NO. 573 /VIZ/20 0 8 ) 2003 - 04 AAALA0745Q ITO WARD - 2(2), GUNTUR A.M.C. TADIKONDA 2 MA NO.171/VIZ/2010 (ITA NO.574/VIZ/2008) 2004 - 05 AAALA0745Q ITO WARD - 2(2), GUNTUR A.M.C. TADIKONDA 3 MA NO.176/VIZ/2010 (ITA NO.474/VIZ/2009) 2006 - 07 AAALA0745Q ITO WARD - 2(2), GUNTUR A.M.C. TADIKONDA 4 MA NO.172/VIZ/2010 (ITA NO.575/VIZ/2008) 2005 - 06 AAALA0745Q ITO WARD - 2(2), GUNTUR A.M.C. TADIKONDA 5 MA NO. 173 /VIZ/2010 (ITA 576/ VIZ/200 8 ) 2003 - 04 AAALA0744R ITO WARD - 2(2), GUNTUR A.M.C . MANGALAGIRI 6 MA NO.174/VIZ/2010 (ITA NO.577/VIZ/2008) 2004 - 05 AAALA0744R ITO WARD - 2(2), GUNTUR A.M.C. MANGALAGIRI 7 MA NO.175/VIZ/2010 (ITA NO.578/VIZ/2008) 2005 - 06 AAALA0744R ITO WARD - 2(2), GUNTUR A.M.C. MANGALAGIRI 8 MA NO.177/VIZ/2010 (ITA NO.475/VIZ/2009) 2006 - 07 AAALA0744R ITO WARD - 2(2), GUNTUR A.M.C. MANGALAGIRI A PPELLANT BY : SHRI T.L. PETER, DR RESPONDENTS BY : SHRI CH. SRINIVASA RAO , CA ORDER PER BENCH: - ALL THESE MISCELLANEOUS APPLICATIONS HAVE BEEN FILED AT THE INSTANCE OF THE REVENUE WITH THE PRAYER THAT THESE PETITIONS BE ADMITTE D AND THE ORIGINAL ORDERS BE AMENDED BY PASSING NECESSARY ORDERS BY TAKING INTO ACCOUNT THE DECISION RENDERED BY THE HON'BLE SUPREME COURT IN THE CASE OF AGRICULTURAL PRODUCE MARKET COMMITTEE VS. CIT (305 ITR 1) (S.C) AND ALSO THE DECISION RENDERED BY HYD ERABAD BENCH OF ITAT IN THE CASE OF A.C.I.T. CIURCLE - 1, KHAMMAM VS. AGRICULTURAL MARKET COMMITTEE, MADHIRA (ITA NO.542 & 543/H/09). 2. THE MISCELLANEOUS APPLICATIONS MENTIONED IN SL. NO. 1 TO 6 ARE DIRECTED AGAINST THE COMMON ORDER DATED 17 - 02 - 2009 A ND THE REMAINING TWO APPLICATIONS ARE DIRECTED AGAINST THE COMMON ORDER DATED 19 - 01 - 2010 PASSED BY THE TRIBUNAL. 3 . WE HAVE HEARD THE PARTIES AND ALSO PERUSED THE PETITIONS CAREFULLY. ADMITTEDLY THESE MISCELLANEOUS PETITIONS HAVE BEEN FILED U/S 254(2) OF THE ACT . THE SAID SECTION READS AS UNDER: MA NOS.170 TO 177 AMCS/VIZ/2010 PAGE 2 OF 4 254(2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER, WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD , AMEND ANY ORDER PASSED BY IT UNDER SUB - SECTION (1), AND SHALL MAKE SUCH AMENDMENT, IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER. 3 .1 THE POWER VESTED WITH THE TRIBUNAL U/S 254(2) OF THE ACT CAME TO THE CONSIDERATION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. E ARNEST EXPORTS LTD. (323 ITR 577) AND THE OBSERVATIONS MADE BY THE HON'BLE HIGH COURT IN THIS REGARD IS EXTRACTED BELOW: 8. SECTION 254(2) EMPOWERS THE TRIBUNAL TO RECTIFY A MISTAKE APPARENT FROM THE RECORD AND FOR THAT PURPOSE TO AMEND ANY ORDER PASSED BY IT. THE SUPREME COURT HAS HELD IN ITS JUDGMENT IN HONDA SIEL POW E R PRODUCTS LTD. V. CIT (2007) 295 ITR 466 THAT THE UNDERLYING PURPOSE OF SECTION 254(2) IS BASED ON THE FUNDAMENTAL PRINCIPLE THAT A PARTY APPEARING BEFORE THE TRIBUNAL SHOULD NOT SUFFER O N ACCOUNT OF A MISTAKE COMMITTED BY THE TRIBUNAL. WHEN PREJUDICE RESULTS FROM AN ORDER ATTRIBUTABLE TO THE TRIBUNALS MISTAKE, ERROR OR OMISSION, IT IS THE DUTY OF THE TRIBUNAL TO SET IT RIGHT AND IT HAS NOTHING TO DO WITH THE CONCEPT OF THE INHERENT POWER TO REVIEW. THE SUPREME COURT HELD THAT THE TRIBUNAL WOULD BE REGARDED AS HAVING COMMITTED A MISTAKE IN NOT CONSIDERING THE MATERIAL WHICH IS ALREADY ON RECORD. IN THAT CASE, A DECISION OF THE TRIBUNAL WHICH WAS CITED BEFORE IT, HAD BY OVERSIGHT BEEN OVERL OOKED IN THE JUDGMENT DISMISSING THE APPEAL FILED BY THE ASSESSEE ON THE QUESTION OF THE ADMISSIBILITY OF A CLAIM FOR ENHANCED DEPRECIATION UNDER SECTION 43A. THE TRIBUNAL HAS HELD TO BE ENTITLED TO CORRECT ITS ERROR SO AS TO DEAL WITH THE DECISION WHICH W AS CITED. THUS IT CAN BE SEEN THAT THE TRIBUNAL MAY AMEND THE ORDER PASSED BY IT U/S 254(1) OF THE ACT IN ORDER TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD. AS PER THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD., (SUPRA), OMISSION TO CONSIDER ANY MATERIAL ON RECORD IS ALSO A MISTAKE APPARENT FROM RECORD. 4 . A LL THESE APPLICATIONS HAVE BEEN FILED U/S 254(2) OF THE ACT WITH A REQUEST TO AMEND THE RESPECTIVE ORIGINAL ORDER S PASSED U/S 254(1) OF THE ACT, BY CONS IDERING FOLLOWING DECISIONS: - (A) AGRICULTURAL PRODUCE MARKET COMMITTEE VS. CIT (305 ITR 1) (S.C) (B) A.C.I.T. VS. AGRICULTURAL MARKET COMMITTEE, MADHIRA (ITA NO.542 & 543 (HYD ITAT) DATED 26 - 3 - 2010. MA NOS.170 TO 177 AMCS/VIZ/2010 PAGE 3 OF 4 APART FROM THE ABOVE, THE REVENUE HAS NOT POINTED OUT ANY OTHER MISTAKE IN THE IMPUGNED ORDERS PASSED BY THIS BENCH OF THE TRIBUNAL. NOW LET US CONSIDER THE PLEA OF THE REVENUE IN THE LIGHT OF THE PRINCIPLES LAID DOWN BY HON'BLE SUPREME COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD. , (SUPRA), I.E. WHETHER THE TRIBUNAL HAS OMITTED TO CONSIDER THE CASE LAW THAT WERE BROUGHT TO THE NOTICE OF THE TRIBUNAL AT THE TIME OF HEARING. THE COMMON ORDER DATED 28 - 11 - 2008 REFERRED TO IN PARA NO.2 (SUPRA) IS THE INITIAL ORDER PASSED WITH DETAILED REASONING AND THE OTHER TWO ORDERS ARE ONLY FOLLOW UP OF THE INITIAL ORDER. A CAREFUL PERUSAL OF THE SAID INITIAL ORDER DATED 28.11.2008 , WE NOTICE THAT THE TRIBUNAL HAS CONSIDERED THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF AGRICULTURAL PR ODUCE MARKET COMMITTEE (SUPRA) AND THE SAME IS DISCERNIBLE FROM PARA NO.10.4, 13 & 15. THUS IT CAN NOT BE SAID THAT THE TRIBUNAL HAS COMMITTED A MISTAKE BY NOT CONSIDERING THE HON'BLE SUPREME COURTS ORDER REFERRED ABOVE. 4.1 IT CAN ALSO BE NOTICED THAT THE DECISION OF HYDERABAD BENCH OF ITAT HAS BEEN RENDERED ON 26 - 3 - 2010, I.E. SUBSEQUENT TO THE DATE OF THE ORDERS OF THE TRIBUNAL , AGAINST WHICH THE INSTANT MISCELLANEOUS APPLICATIONS HAVE BEEN FILED. HENCE THE SAID DECISION OF THE HYDERABAD BENCH COULD NOT HAVE BEEN BROUGHT TO THE NOTICE OF THE BENCH AT THE RELEVANT POINT OF TIME. IN VIEW OF THE ABOVE, IT CAN NOT BE SAID THAT THERE IS ANY MISTAKE APPARENT FROM THE RECORD IN THE IMPUGNED ORDERS. SINCE WE ARE DEALING WITH THE PETITIONS FILED U/S 254(2) OF THE ACT, IN WHICH THE POWERS OF THE TRIBUNAL IS RESTRICTED, WE CANNOT CONSIDER ANY FRESH MATERIAL AT THIS STAGE. HENCE THE PLEA MADE BY THE DEPARTMENT IN ALL THE MISCELLANEOUS APPLICATIONS COULD NOT BE CONSIDERED U/S 254(2) OF THE ACT. 4.2 THE LEAR NED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE DECISION OF HON'BLE SUPREME COURT REFERRED ABOVE IS BINDING ON THE TRIBUNAL. AS STATED EARLIER, THE SAID DECISION OF HON'BLE APEX COURT WAS ALSO CONSIDERED BY THE TRIBUNAL WHILE DRAFTING THE ORDER. LEARN ED DEPARTMENTAL REPRESENTATIVE FURTHER SUBMITTED THAT THE TRIBUNAL HAS PLACED RELIANCE ON THE SPEECH OF THE FINANCE MINISTER GIVEN AT THE TIME OF INSERTION OF SEC. 10(26AAB) WHICH IS NOT CORRECT SINCE THE AMENDMENT TO SECTION 10(20) WAS CARRIED OUT A DIFFE RENT FINANCE MINISTER. WE DO NOT FIND ANY MERIT IN T HIS ARGUMENT AND IN ANY CASE, NO CASE LAW WAS CITED IN SUPPORT OF THIS PROPOSITION. MA NOS.170 TO 177 AMCS/VIZ/2010 PAGE 4 OF 4 5. IT IS PERTINENT TO MENTION HERE THAT THE HYDERABAD BENCH OF THE TRIBUNAL HAS MADE A REFERENCE TO THE HON'BLE PRE SIDENT TO CONSTITUTE A SPECIAL BENCH ON THE IMPUGNED ISSUE INVOLVED IN THESE APPEALS IN AS MUCH AS THE CONTRARY VIEWS WERE EXPRESSED BY DIFFERENT BENCHES OF THE TRIBUNAL. BUT THE REQUEST OF THE HYDERABAD BENCH OF THE TRIBUNAL WAS TURNED DOWN BY THE THEN H ON'BLE PRESIDENT WITH THE FOLLOWING REMARKS DATED 28.10.2009 : A REGULAR BENCH CAN DECIDE MATTER IN THE LIGHT OF SECTION 10(26AAB) AND SUPREME COURT DECISION AND OTHER FACTS AND CIRCUMSTANCES OF THE CASE. IN MY VIEW IT IS NOT NECESSARY TO CONSTITUTE SPEC IAL BENCH IN THE LIGHT OF ABOVE FACTS. IN VIEW OF THE ABOVE OBSERVATIONS OF THE HON'BLE PRESIDENT OF THE TRIBUNAL, THIS BENCH OF THE TRIBUNAL HA D NO OTHER OPTION BUT TO TAKE ITS INDEPENDENT VIEW. THIS BENCH OF THE TRIBUNAL HAS ALREADY TAKEN A VIEW IN TH IS REGARD AND WE DO NOT FIND ANY VALID REASON TO DEPART FROM OUR OWN VIEWS. WE THEREFORE FOLLOWING OUR VIEW, TAKEN IN EARLIER APPEALS HAVE DECIDED THESE APPEALS. 6. THEREFORE, WE DO NOT FIND ANY ERROR APPARENT FROM RECORD IN THE ORDER OF THE TRIBUN AL. ACCORDINGLY, THE MISCELLANEOUS APPLICATION S OF THE REVENUE ARE REJECTED. PRONOUNCED ACCORDINGLY IN THE OPEN COURT ON 12.11.2010. SD/ - SD/ - (SUNIL KUMAR YADAV) (B.R.B ASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER VISAKHAPATNAM DATE: 12 TH NOVEMBER, 2010 COPY TO 1. THE ITO, WARD - 2(2), GUNTUR 2. THE AGRICULTURAL MARKET COMMITTEE, TADIKONDA, GUNTUR DIST. 3. THE AGRICULTURAL MARKET COMMITTEE, MANGALAGIRI, GUNTUR DIST. 4. TH E COMMISSIONER OF INCOME - T AX (APPEALS), GUNTUR 5. THE COMMISSIONER OF INCOME TAX , GUNTUR 6. THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., VISAKHAPATNAM 7. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM