The ACIT, Circle-2(1), Guntur V. The Agricultural Market Committee, Chilakaluripet, Guntur

MA 179/VIZ/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5802 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-11-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 28-09-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D S SUNDER SINGH
• Assessee Lawyers: CH SRINIVASA RAO; Y SURYACHANDRA RAO
• Keywords: Depreciation

Judgement Text

MA NOS.168 169 178 TO 182 AMC PAGE 1 OF 5 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 MA NO.168/VIZ/2010 (ITA NO.160/VIZ/2007) 2003-04 AAALA0640 C ITO WARD-1 NARSARAOPETA A.M.C. I PUR 2 MA NO.169/VIZ/2010 (ITA NO.1/VIZ/2009) 2005-06 AAALA0640 C ITO WARD-1 NARSARAOPETA A.M.C. I PUR 3 MA NO.178/VIZ/2010 (ITA NO.92/VIZ/2007) 2003-04 AAALA0455 H A.C.I.T. CIRCLE-2(1) GUNTUR AMC, CHILKALURIPET 4 MA NO.179/VIZ/2010 (ITA NO.546/VIZ/2007) 2004-05 AAALA0344 H A.C.I.T. CIRCLE-2(1) GUNTUR AMC, CHILKALURIPET 5 MA NO.180/VIZ/2010 (ITA 547/VIZ/2007) 2005-06 AAALA0344 H A.C.I.T. CIRCLE-2(1) GUNTUR AMC, CHILKALURIPET 6 MA NO.181/VIZ/2010 (ITA NO.161/VIZ/2007) 2003-04 AAALA0301 L A.C.I.T. CIRCLE-2(1) GUNTUR A.M.C. VINUKONDA 7 MA NO.182/VIZ/2010 (ITA NO.159/VIZ/2007) 2003-04 AAALA 0748 D A.C.I.T. CIRCLE-2(1) GUNTUR A.M.C. MACHERLA APPELLANT BY : SHRI D.S. SUNDER SINGH, DR RESPONDENTS BY: SHRI CH. SRINIVASA RAO, CA, & SHRI Y. SURYACHANDRA RAO ORDER PER BENCH: - ALL THESE MISCELLANEOUS APPLICATIONS HAVE BEEN FILE D AT THE INSTANCE OF THE REVENUE WITH THE PRAYER THAT THESE PETITIONS BE ADM ITTED AND THE ORIGINAL ORDERS BE AMENDED BY PASSING NECESSARY ORDERS BY TAKING IN TO ACCOUNT THE DECISION RENDERED BY THE HON'BLE SUPREME COURT IN THE CASE O F AGRICULTURAL PRODUCE MARKET COMMITTEE VS. CIT (305 ITR 1) (S.C) AND ALSO THE DE CISION RENDERED BY HYDERABAD BENCH OF ITAT IN THE CASE OF A.C.I.T. CIU RCLE-1, KHAMMAM VS. AGRICULTURAL MARKET COMMITTEE, MADHIRA (ITA NO.542 & 543/H/09). 2. THE MISCELLANEOUS APPLICATIONS MENTIONED IN SL. NO. 1, 3 AND 7 ARE DIRECTED AGAINST THE COMMON ORDER DATED 28-11-2008; THE APPL ICATIONS MENTIONED IN SL.NO.2 IS DIRECTED AGAINST THE COMMON ORDER DATED 17.2.2009 AND THE REMAINING MA NOS.168 169 178 TO 182 AMC PAGE 2 OF 5 THREE APPLICATIONS ARE DIRECTED AGAINST THE COMMON ORDER DATED 27-01-2009 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: 254(2) THE APPELLATE TRIBUNAL MAY, AT ANY TIME WIT HIN FOUR YEARS FROM THE DATE OF THE ORDER, WITH A VIEW TO RECTIFYI NG 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 ASSESS ING 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 C ASE OF CIT VS. EARNEST EXPORTS LTD. (323 ITR 577) AND THE OBSERVATIONS MAD E 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 AM END ANY ORDER PASSED BY IT. THE SUPREME COURT HAS HELD IN I TS JUDGMENT IN HONDA SIEL POWER PRODUCTS LTD. V. CIT (2007) 295 ITR 466 THAT THE UNDERLYING PURPOSE OF SECTION 254(2) IS BASED O N THE FUNDAMENTAL PRINCIPLE THAT A PARTY APPEARING BEFORE THE TRIBUNAL SHOULD NOT SUFFER ON ACCOUNT OF A MISTAKE COMMITTED BY THE TRIBUNAL. WHEN PREJUDICE RESULTS FROM AN ORDER ATTR IBUTABLE TO THE TRIBUNALS MISTAKE, ERROR OR OMISSION, IT IS THE DU TY OF THE TRIBUNAL TO SET IT RIGHT AND IT HAS NOTHING TO DO WITH THE C ONCEPT OF THE INHERENT POWER TO REVIEW. THE SUPREME COURT HELD TH AT THE TRIBUNAL WOULD BE REGARDED AS HAVING COMMITTED A MI STAKE IN NOT CONSIDERING THE MATERIAL WHICH IS ALREADY ON RECORD . IN THAT CASE, A DECISION OF THE TRIBUNAL WHICH WAS CITED BEFORE I T, HAD BY OVERSIGHT BEEN OVERLOOKED IN THE JUDGMENT DISMISSIN G THE APPEAL FILED BY THE ASSESSEE ON THE QUESTION OF THE ADMISS IBILITY 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 WAS 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 A PPARENT FROM THE RECORD. AS PER THE DECISION OF HON'BLE SUPREME COURT IN THE CASE O F HONDA SIEL POWER PRODUCTS MA NOS.168 169 178 TO 182 AMC PAGE 3 OF 5 LTD., (SUPRA), OMISSION TO CONSIDER ANY MATERIAL ON RECORD IS ALSO A MISTAKE APPARENT FROM RECORD. 4. ALL THESE APPLICATIONS HAVE BEEN FILED U/S 2 54(2) OF THE ACT WITH A REQUEST TO AMEND THE RESPECTIVE ORIGINAL ORDERS PASSED U/S 254 (1) OF THE ACT, BY CONSIDERING FOLLOWING DECISIONS:- (A) AGRICULTURAL PRODUCE MARKET COMMITTEE VS. CIT (305 ITR 1) (S.C) (B) A.C.I.T. VS. AGRICULTURAL MARKET COMMITTEE, M ADHIRA (ITA NO.542 & 543 (HYD ITAT) DATED 26-3-201 0. APART FROM THE ABOVE, THE REVENUE HAS NOT POINTED O UT ANY OTHER MISTAKE IN THE IMPUGNED ORDERS PASSED BY THIS BENCH OF THE TRIBUNA L. 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 OR DER DATED 28-11-2008 REFERRED TO IN PARA NO.2 (SUPRA) IS THE INITIAL ORD ER 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 NOTI CE THAT THE TRIBUNAL HAS CONSIDERED THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF AGRICULTURAL PRODUCE MARKET COMMITTEE (SUPRA) AND THE SAME IS DI SCERNIBLE FROM PARA NO.10.4, 13 & 15. THUS IT CAN NOT BE SAID THAT TH E TRIBUNAL HAS COMMITTED A MISTAKE BY NOT CONSIDERING THE HON'BLE SUPREME COUR TS 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 A PPLICATIONS HAVE BEEN FILED. HENCE THE SAID DECISION OF THE HYDERABAD BENCH COUL D NOT HAVE BEEN BROUGHT TO THE NOTICE OF THE BENCH AT THE RELEVANT POINT OF TI ME. 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 FIL ED U/S 254(2) OF THE ACT, IN MA NOS.168 169 178 TO 182 AMC PAGE 4 OF 5 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 LEARNED DEPARTMENTAL REPRESENTATIVE SUB MITTED 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 WA S ALSO CONSIDERED BY THE TRIBUNAL WHILE DRAFTING THE ORDER. LEARNED DEPARTM ENTAL 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 D IFFERENT FINANCE MINISTER. WE DO NOT FIND ANY MERIT IN THIS ARGUMENT AND IN AN Y CASE, NO CASE LAW WAS CITED IN SUPPORT OF THIS PROPOSITION. 5. IT IS PERTINENT TO MENTION HERE THAT THE HYDERABA D BENCH OF THE TRIBUNAL HAS MADE A REFERENCE TO THE HON'BLE PRESIDENT TO CO NSTITUTE 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 HON'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 FACT S AND CIRCUMSTANCES OF THE CASE. IN MY VIEW IT IS NOT NE CESSARY TO CONSTITUTE SPECIAL BENCH IN THE LIGHT OF ABOVE FACT S. IN VIEW OF THE ABOVE OBSERVATIONS OF THE HON'BLE PRE SIDENT OF THE TRIBUNAL, THIS BENCH OF THE TRIBUNAL HAD NO OTHER OPTION BUT TO TA KE ITS INDEPENDENT VIEW. THIS BENCH OF THE TRIBUNAL HAS ALREADY TAKEN A VIEW IN T HIS 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 . MA NOS.168 169 178 TO 182 AMC PAGE 5 OF 5 6. THEREFORE, WE DO NOT FIND ANY ERROR APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL. ACCORDINGLY, THE MISCELLANEOUS APPLICATI ONS OF THE REVENUE ARE REJECTED. PRONOUNCED ACCORDINGLY IN THE OPEN COURT ON 1 8 TH NOVEMBER, 2010. SD/- SD/- (SUNIL KUMAR YADAV) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PVV/SPS VISAKHAPATNAM DATE: 18-11-2010. COPY TO 1. THE ITO, WARD-1 NARSARAOPET 2. THE ACIT CIRCLE-2(1) GUNTUR 3. THE AGRICULTURAL MARKET COMMITTEE, IPUR 4. THE AGRICULTURAL MARKET COMMITTEE, CHILAKALURIPET. 5. THE AGRICULTURAL MARKET COMMITTEE, VINUKONDA 6. THE AGRICULTURAL MARKET COMMITTEE, MACHERLA 7. THE COMMISSIONER OF INCOME-TAX (APPEALS), GUNTUR 5. THE COMMISSIONER OF INCOME TAX, GUNTUR 6. THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., V ISAKHAPATNAM 7. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM