M Rajini, Hyderabad V. ACIT, Circle-6(1), Hyderabad

MA 190/HYD/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0830 (ITAT-HYDERABAD)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-09-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 11-07-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T DIWAKAR PRASAD
• Assessee Lawyers: V RAGHAVENDRA RAO
• Section: 263; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER MA.NO.190/HYD/2013 ARISING OUT OF ITA.NO.958/HYD/2009 - ASSESSMENT YEAR 2006-2007 M. RAJINI HYDERABAD 500 018 PAN AENPM-1415N V S . ACIT, CIRCLE 6 (1) HYDERABAD APPL IC ANT RESPONDENT APPLICANT BY : SHRI V.RAGHAVENDRA RAO (AR) RESPONDENT BY : SHRI T.DIWAKARPRASAD (DR) DATE OF HEARING : 13.09.2013 DATE OF PRONOUNCEMENT : 13.09.2013 ORDER PER SMT. ASHA VIJAYARAGHAVAN, J.M. : THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E ASSESSEE SEEKING FOR RECTIFICATION OF THE ORDER OF THE TRIBUNAL DATE D 15.03.2013 IN ITA.NO.958/HYD/2009 UNDER SECTION 254 OF THE INCOME TAX ACT. 2. THE LEARNED A.R. SHRI V. RAGHAVENDRA RAO HAS BRO UGHT TO THE NOTICE OF THE HONBLE BENCH THAT THE HONBLE A.P. HIGH COURT IN ITA.NO.512/2011 BY ORDER DATED 21.02.2013 HAS REVERSED THE DECISION OF THE HYDERABAD A BENCH IN THE CASE OF SPECTRA SHARES & SCRIPS (P) LI MITED VS. DCIT IN ITA.NO.748/HYD/2011 FOR THE ASSESSMENT YEAR 2006-07 D ATED 5.8.2011. IT WAS SUBMITTED THAT THE HONBLE HIGH COURT HAS ALSO C ONSIDERED THEIR OWN DECISION IN THE CASE OF SRI PVS RAJU (2012) 340 ITR 75 WHILE DISMISSING THE APPEAL FILED BY SPECTRA SHARES & SCRIPS (P) LIMITED. IT WAS FURTHER SUBMITTED THAT AS THE DECISION OF JURISDICTIONAL HIG H COURT IN THE CASE OF SPECTRA SHARES & SCRIPS (P) LTD. IN THE ABOVE APPEL LATE ORDER WAS RENDERED ON 21.2.2013 I.E., BEFORE THE PRESENT ORDER IN THE DEPARTMENTAL APPEAL HAS 2 BEEN PASSED I.E., ON 15.03.2013, THERE HAS CREPT IN AN INADVERTENT MISTAKE WHICH IS APPARENT FROM RECORD. IT WAS, THEREFORE, P RAYED BY THE LEARNED A.R. THAT THE ABOVE APPELLATE ORDER OF THE HONBLE HYDERAB AD BENCH B IN ITA.NO.958/HYD/2009 FOR THE ASSESSMENT YEAR 2006-07 D ATED 15.03.2013 BE KINDLY RECALLED FOR APPLYING THE DECISION OF THE JU RISDICTIONAL HIGH COURT IN THE CASE OF SPECTRA SHARES & SCRIPS (P) LTD. VS. CIT-III (2013) 354 ITR 35 (A.P). 3. IN THE LIGHT OF THE ERRORS POINTED OUT HEREINABO VE THE LEARNED AR OF THE ASSESSEE SUBMITTED THAT HON'BLE T RIBUNAL MAY BE PLEASED TO SUITABLY AMEND THIS ORDER DATED 1 5.03.2013 IN THE CASE OF THE APPELLANT IN ORDER TO RECTIFY AFORESAID MISTAKES, WHICH ARE APPARENT FROM RECORD. 4. THE DR SUBMITTED THAT THERE IS NO MISTAKE APPARE NT ON RECORD WHICH WARRANTS RECALL OF TRIBUNAL ORDER AND RELIED ON THE IMPUGNED ORDER OF THE TRIBUNAL. THE LEARNED D.R. RELIED ON T HE DECISION OF ITO VS. VOLKART BROTHERS & ORS., REPORTED IN (1971) 82 ITR 50 (SC) WHEREIN THE HONBLE SUPREME COURT HELD AS UNDER : THE QUESTION WHETHER S. 17(1) OF THE INDIAN IT ACT , 1922, WAS APPLICABLE TO THE CASE OF THE ASSESSEE-FIRM IS NOT FREE FROM DOUBT. THEREFORE, THE ITO WAS NOT JUSTIFIED IN THINKING THAT ON THAT QUESTION THERE CAN BE NO TWO OPINIONS. IT WAS NOT OPEN TO THE ITO TO GO INTO THE TRUE SCOPE OF TH E RELEVANT PROVISIONS OF THE ACT IN A PROCEEDING UNDER S. 154 OF THE IT ACT, 1961. A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG-DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. A D ECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARE NT FROM THE RECORD. THE POWER OF THE OFFICERS MENTIONED IN S. 154 OF THE IT ACT, 1961 TO CORRECT 'ANY MISTAKE APPARENT F ROM THE RECORD' IS UNDOUBTEDLY NOT MORE THAN THAT OF THE HI GH COURT TO ENTERTAIN A WRIT PETITION ON THE BASIS OF AN 'ER ROR APPARENT ON THE FACE OF THE RECORD.' IN THIS CASE IT IS NOT NECESSARY TO SPELL OUT THE DISTINCTION BETWEEN THE EXPRESSIONS ' ERROR APPARENT ON THE FACE OF THE RECORD' AND 'MISTAKE AP PARENT FROM THE RECORD'. BUT SUFFICE IT TO SAY THAT THE IT O WAS 3 WHOLLY WRONG IN HOLDING THAT THERE WAS A MISTAKE AP PARENT FROM THE RECORD OF THE ASSESSMENTS OF THE FIRST RES PONDENT- SATYANARAYAN LAXMINARAYAN HEGDE VS. MALLIKARJUN BHAVANAPPA TIRUMALE (1960) 1 SCR 890 APPLIED ; SIDHRAMAPPA ANDANNAPPA MANVI VS. CIT (1952) 21 ITR 333 (BOM) : TC8R.1234 IMPLIEDLY APPROVED; VOLKART BROTHERS VS. ITO (1967) 65 ITR 179 (BOM) : TC53R.168 AFFIRMED. 5. THE LEARNED D.R. FURTHER RELIED UPON THE DECISIO N OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. RAMESH ELECTRIC & TRADING CO. REPORTED IN 203 ITR 497 WHEREIN IT HAS BEEN HELD AS UNDER : UNDER S. 254(2) OF THE IT ACT, 1961, THE TRIBUNAL M AY, 'WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD', AMEND ANY ORDER PASSED BY IT UNDER SUB-S. (1) WITHI N THE TIME PRESCRIBED THEREIN. IT IS AN ACCEPTED POSITION THAT THE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER THE PROVISIONS OF THE IT ACT, 1961. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO RECTIFY ANY MIST AKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD. THIS I S MERELY A POWER OF AMENDING ITS ORDER. IN THE PRESENT CASE, IN THE FIRST ORDER, THERE IS NO MISTAKE WHICH IS APPARENT FROM THE RECORD AT ALL. THE TRIBUNAL WAS REQUIRED TO DECIDE WHETHER THE COMMISSION PAYMENT OF RS. 54,000 WAS DEDUCTIBLE UNDER S. 37. AFTER EXAMINING THE CIRCUMSTANCES, THE TRIBUNAL CAME TO THE CONCLUSION THAT IT WAS' NOT SO DEDUCTIBLE. T HE TRIBUNAL CANNOT, IN EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPP ORT ITS CONCLUSION SO ARRIVED AT. THE MISTAKE WHICH THE TRI BUNAL IS ENTITLED TO CORRECT IS NOT AN ERROR OF JUDGMENT BUT A MISTAKE WHICH' IS APPARENT FROM THE RECORD ITSELF. THE TRIB UNAL HAS, PATENTLY, FAR EXCEEDED ITS JURISDICTION UNDER S. 254(2) IN RE- DECIDING THE ENTIRE DISPUTE WHICH WAS BEFORE IT, IN THIS FASHION, AND THE TRIBUNAL HAS COMMITTED A GROSS AND INEXPLICABLE ERROR. FAILURE BY THE TRIBUNAL TO CONS IDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT-CIT VS. MITHALAL ASHOK K UMAR (1985) 49 CTR (MP) 372 : (1986) 158 ITR 755 (MP) : TC8R.1338 AND LAXMI ELECTRONIC CORPN. LTD. VS. CIT (1992) 102 CTR (ALL) 293 : (1991) 188 ITR 398 (ALL) : TC8R .1342 DOUBTED. 4 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. THE ARGUMENT OF THE AR IS TOTALLY MISCONCE IVED. THE TRIBUNAL CONSIDERED THE ISSUE IN DISPUTE IN ITS ORD ER AND GIVEN CATEGORICAL FINDINGS. NOW, THE ASSESSEE'S COUNSEL WANTS TO RE-ARGUE THE CASE FOR WHICH THE TRIBUNAL HAS NO POWER TO REV IEW ITS OWN ORDER. THE SCOPE AND AMBIT OF APPLICATION OF SECTI ON 254(2) IS VERY LIMITED. THE SAME IS RESTRICTED TO RECTIFICATION O F MISTAKES APPARENT FROM THE RECORD. 7. IN THE CASE OF CIT VS. HINDUSTAN COCA COLA BEVER AGES (P) LTD. (2007) 207 CTR (DEL) 119; (2007) 293 ITR 163 (DEL), THEIR LORDSHIPS WHILE CONSIDERING THE POWERS OF THE TRIBUNAL UNDER S. 254(2) OF THE IT ACT, 1961 OBSERVED AS UNDER: UNDER S. 254(2) OF THE IT ACT, 1961, THE TRIBUNAL HAS THE POWER TO RECTIFY MISTAKES IN ITS ORDER. HOWEVER, I T IS PLAIN THAT THE POWER TO RECTIFY A MISTAKE IS NOT EQUIVALE NT TO A POWER TO REVIEW OR RECALL THE ORDER SOUGHT TO BE RE CTIFIED. RECTIFICATION IS A SPECIES OF THE LARGER CONCEPT OF REVIEW. ALTHOUGH IT IS POSSIBLE THAT THE PRE-REQUISITE FOR EXERCISE OF EITHER POWER MAY BE SIMILAR (A MISTAKE APPARENT FROM THE RECORD), BY ITS VERY NATURE THE POWER TO RECTIF Y A MISTAKE CANNOT RESULT IN THE RECALL AND REVIEW OF T HE ORDER SOUGHT TO BE RECTIFIED. 8. THE HONBLE JURISDICTIONAL HIGH COURT HAS CONSIDER ED IN THEIR DECISION IN THE CASE OF PVS RAJU & OTHERS VS. ADDL. CIT (2012 ) 340 ITR 75 (A.P.) THE ISSUE IN THE IMPUGNED ORDER BEFORE US. WE HAVE FOLL OWED THE DECISION IN THE CASE OF JURISDICTIONAL HIGH COURT IN THE CASE OF PVS RAJU (SUPRA). THE DECISION OF SPECTRA SHARES & SCRIPS (P) LTD. VS. CI T-III (SUPRA) THOUGH PASSED BY THE SAME JURISDICTIONAL HIGH COURT CANNOT BE FOLLO WED IN THE CASE BEFORE US SINCE THE APPEAL IN THE CASE OF SPECTRA SHARES & SCRIPS (P) LTD. EMANATED FROM THE ORDER OF THE COMMISSIONER OF INCOME TAX PAS SED UNDER SECTION 263 OF THE ACT WHICH IS NOT THE FACT IN THE PRESENT CASE AND HENCE, NOT RELEVANT TO THE PRESENT CASE BEFORE US. ALSO THE FA CTS OF EACH CASE DIFFERENT AND HAVE TO BE CONSIDERED INDEPENDENTLY AND HENCE, T HE ORDER PASSED BY 5 THE TRIBUNAL AFTER APPRECIATION OF THE FACTS OF THE CASE DOES NOT WARRANT RECALL AS THE SAME IS BEYOND THE SCOPE OF SECTION 25 4(2) OF THE I.T. ACT, 1961. 9. IN OUR OPINION, SINCE THERE ARE TWO DECISIONS OF JURISDICTIONAL HIGH COURT NAMELY IN THE CASE OF PVS RAJU AND SPECTRA SHAR ES & SCRIPS (P) LTD. VS. CIT-III (2013) 354 ITR 35 (A.P), THE TRIBUNAL H AS DELIBERATELY AND CONSCIOUSLY TAKEN INTO ACCOUNT THE FACTS OF THE CASE AND FOLLOWED THE DECISION OF PVS RAJU & OTHERS VS. ADDL. CIT (2012) 3 40 ITR 75 (A.P.) AND THEREFORE, THE ASSESSEES CASE CANNOT BY THIS MISCELL ANEOUS APPLICATION BE PERMITTED TO REOPEN AND RE-ARGUE THE WHOLE MATTER A S THE SAME IS BEYOND THE SCOPE AND AMBIT OF SECTION 254(2) OF THE INCOME TAX ACT, 1961. FURTHERMORE, THE ISSUE BECOMES DEBATABLE AND HENCE, MISCELLANEOUS APPLICATION WOULD NOT LIE CONSTITUTING AN APPARENT MISTAKE RECTIFIABLE UNDER THE SECTION 254(2) OF THE ACT. HENCE, WE DISMISS TH E MISCELLANEOUS APPLICATION OF THE ASSESSEE. 10. IN THE RESULT, M.A. OF THE ASSESSEE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON : 13 .09.2013 SD/- SD/- (CHANDRA POOJARI) (SMT. ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATE 13 TH SEPTEMBER, 2013. VBP/- COPY TO 1. SMT. M. RAJINI, FLAT NO. 2B, III BLOCK, FALCON CRE ST APARTMENTS, STREET NO.1, BANJARA HILLS, HYDERABAD. 2. A CIT, C IRCLE 6 ( 1 ) , 7 TH FLOOR, D BLOCK, IT TOWERS, MASAB TANK, HYDERABAD 3. CIT(A) - IV, HYDERABAD. 4. CIT - III , HYDERABAD 5. DR , ITAT, HYDERABAD B BENCH , HYDERABAD.