M/s. Su-Sampada, Indore V. The ITO 3(2), Indore

MA 18/IND/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3002 (ITAT-INDORE)
• Duration Of Justice: 10 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-05-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 08-07-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R A VERMA

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER AND SHRI B.C. MEENA, HONBLE ACCOUNTANT MEMBER M.A. NO. 18/IND/2014 ARISING OUT OF CO NO. 80/IND/2013 A.Y. 2008-09 M/S SU SAMPADA INDORE PAN AAUPS 2598B ::: APPLICANT VS. INCOME TAX OFFICER 3(2) INDORE ::: RESPONDENT APPELLANT BY SHRI RITESH JAIN RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 8.5. 2015 DATE OF PRONOUNCEMENT 1 5 . 5 .2015 O R D E R PER SHRI B.C. MEENA, AM THIS IS AN APPLICATION UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 FILED BY THE ASSESSEE FOR RECALL ING THE ORDER DATED 30 TH APRIL, 2014 OF THE TRIBUNAL. 2 2. IN ITS APPLICATION THE ASSESSEE HAS RAISED THE ISSUE THAT THE TRIBUNAL IN ITS ORDER HAS DECIDED THE ISSUE W ITH REGARD TO ADDITION OF RS. 3,60,000/- MADE BY THE ASS ESSING OFFICER BY INVOKING PROVISIONS OF SECTION 40(B) OF THE ACT IN RESPECT OF WORKING ALLOWANCE PAID TO PARTNERS, WHICH WAS RESTRICTED BY THE CIT(A) TO RS. 3,10,000/- BY GIVIN G RELIEF OF RS. 50,000/- KEEPING IN VIEW THE AMENDMENT BROUGHT IN THE FINANCE (NO. 2) ACT, 2009. 2. WE HAVE HEARD BOTH THE SIDES. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE IS AN APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL WHICH NEEDS TO B E RECTIFIED. ON THE OTHER HAND, THE LD. DR SUBMITTED T HAT SINCE THE TRIBUNAL HAS CONFIRMED THE REMUNERATION PAID TO PARTNERS IN VIEW OF AMENDMENT BROUGHT IN THE FINANCE (NO. 2) ACT, 2009, THEREFORE, THERE IS NO MISTAKE APP ARENT 3 IN THE ORDER OF THE TRIBUNAL. HOWEVER, THE LEARNED DR RELIED UPON THE FOLLOWING CASE LAWS :- (1) ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. 305 ITR 227 (SC) (2) CIT VS. CHHABRA GINNING UDHYOG; 303 ITR 182 (MP) (3) AGARWAL WAREHOUSING & LEASING LTD. VS. CIT; 257 ITR 235 (MP) 3. WE HAVE ALSO GONE THROUGH RECORD AVAILABLE AND CONSIDERED CASE LAWS RELIED UPON. AFTER GOING THROUG H THE RECORD AND CASE LAWS, WE HOLD THAT THE ITAT HAS POWER T O RECTIFY MISTAKE WHICH IS PATENT, MANIFEST AND SELF-EVI DENT AND WHICH DOES NOT REQUIRE AN ELABORATE DISCUSSION, EVIDENCE OR ARGUMENTS TO ESTABLISH THE SAME. AN ERROR CANNOT BE SAID TO BE APPARENT ON THE FACE OF RECORD IF O NE HAS TO TRAVEL BEYOND THE RECORD TO SEE WHETHER THE JUDGMENT IS CORRECT OR NOT. AN ERROR APPARENT MEANS AN 4 ERROR WHICH STRIKES ON MERE LOOKING AND DOES NOT NEE D A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH T HERE MAY BE CONCEIVABLY TWO OPINIONS. THUS, ITAT HAS POWE R TO RECTIFY ONLY THE MISTAKES WHICH ARE PARENT, MANIFEST AND SELF EVIDENT. AFTER GOING THROUGH THE MISCELLANEOUS APPLICATION, WE FIND THAT THE ASSESSEE HAS TRIED TO ESTAB LISH THE MISTAKE WHICH IS NOT PATENT, MANIFEST AND SELF-EVID ENT. A PERUSAL OF THE MISCELLANEOUS APPLICATION SHOWS THAT ACCEPTING THE ASSESSEES APPLICATION SHALL DEFINITELY L EAD TO REVIEW OF THE ORDER OF THE TRIBUNAL. ITAT HAS NO POW ER TO REVIEW ITS ORDER U/S 254(2) OF THE ACT. HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. CHHA BRA GINNING UDHYOG; 303 ITR 182 HAS HELD AS UNDER :- HELD, ALLOWING THE APPEAL, THAT A POWER TO RECTIFY THE MISTAKE IN THE ORDER IS CONFINED TO ONLY THOSE ERRORS WHICH ARE APPARENT FROM THE RECORD OF THE CASE. THE POWERS UNDER SECTION 254(2) CANNOT BE EXERCISED AS A REVIEW COURT OR AS AN APPELLATE COURT 5 SO AS TO VIRTUALLY CHANGE THE EARLIER DECISION UNLESS A GRAVE ERROR ON THE FACTS OR AT LAW FROM THE RECORDS IS APPARENT. A WELL REASONED DECISION WHICH HAD GONE IN FAVOUR OF THE REVENUE IN A REGULARLY CONSTITUTED APPEAL COULD NOT BE UPTURNED BY RECOURSE TO THE PROVISIONS OF SECTION 254(2) OF THE INCOME TAX ACT, 1961. THE TRIBUNAL WHILE HEARING AN APPLICATION UNDER SECTION 254(2) COULD NOT ACT AS AN APPELLATE COURT. THE APPLICATION MADE BY THE ASSESSEE UNDER SECTION 254(2) DID NOT CONFORM TO THE REQUIREMENT OF SECTION 254(2) READ WITH RULE 34A OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963, AND IT SHOULD HAVE BEEN DISMISSED. HON'BLE SUPREME COURT IN THE CASE OF ACIT VS. SAURASHT RA KUTCH STOCK EXCHANGE LIMITED (SUPRA) HELD AS UNDER :- RECTIFICATION OF AN ORDER STEMS FROM THE FUNDAMENTAL PRINCIPLE THAT JUSTICE IS ABOVE ALL. IT IS EXERCISED TO REMOVE THE ERROR AND TO DISTURB THE FINALITY. A PATENT, MANIFEST AND SELF-EVIDENT ERROR WHICH DOES NOT REQUIRE ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENTS TO ESTABLISH IT, CAN BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORD AND CAN BE CORRECTED WHILE EXERCISING CERTIORARI JURISDICTION. AN ERROR CANNOT BE SAID TO BE APPARENT ON THE FACE OF THE RECORD IF ONE HAS TO TRAVEL BEYOND 6 THE RECORD TO SEE WHETHER THE JUDGMENT IS CORRECT OR NOT. AN ERROR APPARENT ON THE RECORD MEANS AN ERROR WHICH STRIKES ONE ON MERE LOOKING AND DOES NOT NEED A LONG DRAWN OUT PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. SUCH ERROR SHOULD NOT REQUIRE ANY EXTRANEOUS MATTER TO SHOW ITS INCORRECTNESS. TO PUT IT DIFFERENTLY, IT SHOULD BE SO MANIFEST AND CLEAR THAT NO COURT WOULD PERMIT IT TO REMAIN ON RECORD. IF THE VIEW ACCEPTED BY THE COURT IN THE ORIGINAL JUDGMENT IS ONE OF POSSIBLE VIEWS, THE CASE CANNOT BE SAID TO BE COVERED BY AN ERROR APPARENT ON THE FACE OF THE RECORD. WHERE AFTER THE APPELLATE TRIBUNAL RENDERED ITS DECISION ON APPEAL, A MISCELLANEOUS APPLICATION WAS FILED BY THE ASSESSEE UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961, STATING THAT A DECISION OF THE JURISDICTIONAL HIGH COURT WAS NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL : HELD THAT THERE WAS A MISTAKE APPARENT FROM THE RECORD WHICH REQUIRED RECTIFICATION. KEEPING IN VIEW THE DECISIONS OF THE HONBLE SUPREM E COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE 7 LTD. (SUPRA) AND THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CHHABRA GINNING UDHYOG (SUPRA), THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. 3. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. PRONOUNCED IN OPEN COURT ON 15 TH MAY, 2015 SD/- SD/- (D.T. GARASIA) (B.C. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER MAY 15 , 2015 DN/