The ACIT, Circle-2(1), Guntur V. M/s Agricultural Market Committee, Narasaraopet, Guntur

MA 196/VIZ/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5830 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-11-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 26-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T L PETER
• Keywords: Depreciation

Judgement Text

MA NO 196 OF 10 AMC NARSARAOPET 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 MA NO.196/VIZG/2010 (ARISING OUT OF ITA NO.335/VIZAG/2007 ) ASSESSMENT YEAR: 2003-04 ASSISTANT COMMISSIONER OF INCOME TAX, VS . AGRICULTURAL MARKET COMMITTEE CIRCLE-2(1) GUNTUR NARSARAOPET (APPELLANT) (RESPONDENT) PAN NO. AAALA 0409 K APPELLANT BY : SHRI T.L. PETER, DR RESPONDENTS BY: NONE ORDER PER SHRI B.R.BASKARAN, ACCOUNTANT MEMBER: - THIS MISCELLANEOUS APPLICATION HAS BEEN FILED AT TH E INSTANCE OF THE REVENUE WITH THE PRAYER THAT THIS PETITION BE ADMITTED AND THE ORIGINAL ORDER BE AMENDED BY PASSING NECESSARY ORDER BY TAKING INTO ACCOUNT T HE DECISION RENDERED BY THE HON'BLE SUPREME COURT IN THE CASE OF AGRICULTURAL P RODUCE MARKET COMMITTEE VS. CIT (305 ITR 1) (S.C) AND ALSO THE DECISION RENDERE D BY HYDERABAD 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). THE MI SCELLANEOUS APPLICATION IS DIRECTED AGAINST THE COMMON ORDER DATED 28-11-2008 PASSED BY THE TRIBUNAL. 2. 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 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 MA NOS.170 TO 177 AMCS/VIZ/2010 PAGE 2 OF 4 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 LTD., (SUPRA), OMISSION TO CONSIDER ANY MATERIAL ON RECORD IS ALSO A MISTAKE APPARENT FROM RECORD. 4. THIS APPLICATION HAS BEEN FILED U/S 254(2) O F THE ACT WITH A REQUEST TO AMEND THE ORIGINAL ORDER PASSED U/S 254(1) OF THE A CT, 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 ORDER 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. ON A CAREFUL PERUSAL OF THE SAID TRIBUNALS ORDER DATED 28.11.2008, WE NOTICE THAT THE TRIBUNAL HAS CONSIDERED THE DECISION MA NOS.170 TO 177 AMCS/VIZ/2010 PAGE 3 OF 4 OF HON'BLE SUPREME COURT IN THE CASE OF AGRICULTURA L PRODUCE 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 B Y 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 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 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. WE AGREE WITH THE SUBMISSION OF THE LEARNED D.R. HOWEVER, IT CAN BE NOTICED THAT THE SAID DECISION OF HON'BLE APEX COURT WAS ALSO CONSIDERED BY THE TRIBUNAL WHILE DRAFTING THE ORDER. LEARNED DEPARTMENTAL REPRESENTATIVE SUB MITTED THAT THE TRIBUNAL SHOULD NOT HAVE PLACED RELIANCE ON THE SPEECH OF TH E FINANCE MINISTER. IN THIS REGARD, HE BROUGHT TO OUR NOTICE THAT SEC. 10(26AAB ) WAS INSERTED IN 2008 IN THE INCOME TAX ACT; WHERE AS THE AMENDMENT TO SEC. 10(20 ) WAS MADE IN 2002. ACCORDINGLY THE LEARNED D.R CONTENDED THAT THE SPEE CH OF THE FINANCE MINISTER MADE IN 2008 CANNOT BE INTERPRETED TO BE THE INTENT ION OF THE LEGISLATURE AT THE TIME WHEN THE AMENDMENT WAS MADE IN SEC. 10(20) IN THE YEAR 2002 AND THE SAME HAS RESULTED IN AN ERROR IN THE ORDER OF THE T RIBUNAL. THE ARGUMENT OF THE LEARNED DEPARTMENTAL REPRESENTATIVE CITED ABOVE IS A NEW ARGUMENT PLACED BEFORE US AT THIS STAGE WHICH WOULD LEAD TO RE-EXAM INATION OF THE ISSUE AND THE SAME IS NOT PERMITTED UNDER SECTION 254(2) OF THE A CT. IN ANY CASE, THE SAID ARGUMENT IS A DEBATABLE ONE AND FURTHER LEARNED D.R DID NOT CITE ANY CASE LAW IN SUPPORT OF HIS PROPOSITION AND HENCE WE ARE UNABLE TO CONSIDER THE SAME AT THIS STAGE. MA NOS.170 TO 177 AMCS/VIZ/2010 PAGE 4 OF 4 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 . 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 O N 29 TH NOVEMBER, 2010. SD/- SD/- (SUNIL KUMAR YADAV) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PVV/SPS VISAKHAPATNAM DATE: COPY TO 1. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-2(1 ) GUNTUR 2. THE AGRICULTURAL MARKET COMMITTEE, NARASARAOPET 3. THE COMMISSIONER OF INCOME TAX, GUNTUR 4. THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., V ISAKHAPATNAM 5. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM