CLEAR PLASTICS LTD ( FORMERLY KNOWN AS M/S. CLEAR PLASTIC P. LTD), V. ACIT RG 8(1),

MA 209/MUM/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8190 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-04-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 31-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P NAIK
• Assessee Lawyers: H N SHAH
• Keywords: Rectification of order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI AMIT SHUKLA, JM M.A.NO.209/MUM/2011 (ARISING OUT OF ITA NO.379/MUM/2009 : ASST. YEAR 20 03-2004) M/S.CLEAR PLASTICS LIMITED C-130, SECTOR 1 OPP. L & T GATE NO.6, POWAI MUMBAI 400 072. PAN : AAACC4489N. THE ASSTT.COMMISSIONER OF INCOME-TAX RANGE 8(1) MUMBAI. (APPLICANT) VS. (RESPONDENT) APPLICANT BY : SHRI H.N.SHAH RESPONDENT BY : SHRI P.NAIK DATE OF HEARING : 20.04.2012 DATE OF PRONOUNCEMENT : 25.04.2012 O R D E R PER R.S.SYAL, AM : THIS MISCELLANEOUS APPLICATION U/S.254(2) OF THE IN COME-TAX ACT, 1961 HAS BEEN MOVED BY THE ASSESSEE PRAYING FOR THE RECTIFIC ATION OF THE ORDER OF THE TRIBUNAL DATED 06.10.2010 IN ITA NO.379/MUM/2009. 2. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED T HAT THE TRIBUNAL, WHILE DEALING WITH THE FIRST GROUND FOR ASSESSMENT YEAR 2 003-2004 HAS HELD ON PAGE 3 PARA 4 OF THE IMPUGNED ORDER THAT THE COMMERCIAL PR ODUCTION STARTED IN THE FINANCIAL YEAR 1997-98 AS THE SALES WERE MADE VIDE INVOICE DATED 19.03.1998, 24.03.1998 AND 30.03.1998. HE SUBMITTED THAT THESE INVOICES WERE RAISED ONLY DURING THE TRIAL RUN AND THERE WAS NO COMMERCIAL PR ODUCTION. HE REEMPHASIZED HIS ARGUMENT MADE DURING THE COURSE OF ORIGINAL PROCEED INGS THAT THE COMMERCIAL PRODUCTION BE HELD TO HAVE COMMENCED IN THE FINANCI AL YEAR 1998-99 RELEVANT TO THE ASSESSMENT YEAR 1999-2000 AND RESULTANTLY DEDUCTION BE ALLOWED ACCORDINGLY. IN THE OPPOSITION, THE LEARNED DEPARTMENTAL REPRESENTA TIVE OPPOSED THE STAND TAKEN BY THE LEARNED AR. MA NO.209/MUM/2011 M/S.CLEAR PLASTICS LIMITED. 2 3. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD IT IS NOTED THAT THE TRIBUNAL HAS CONSIDERED THE FACTS IN DETAIL WHILE PASSING THE IMPUGNED ORDER. IT HAS BEEN SPECIFICALLY NOTED THAT THE ASSESSEE RAISED INVOICES IN THE FINANCIAL YEAR 1997-98 AND THEREAFTER A CONC LUSION HAS BEEN ARRIVED AT THAT THE SALES WERE MADE IN THE FINANCIAL YEAR 1997-98 O NLY AFTER THE COMMENCEMENT OF THE COMMERCIAL PRODUCTION. THE ARGUMENTS PUT FORTH THROUGH MISCELLANEOUS PETITION ARE NOTHING BUT REITERATION OF THE SUBMISS IONS MADE EARLIER. WHEN ON CONSIDERATION OF THE ENTIRE MATERIAL AND THE ARGUME NTS PUT FORTH ON BEHALF OF BOTH THE SIDES A PARTICULAR DECISION HAS BEEN TAKEN THAT THE COMMERCIAL PRODUCTION COMMENCED IN THE FINANCIAL YEAR 1997-98, THERE IS N O QUESTION OF RECONSIDERING THE SAME FACT AND COMING TO A DIFFERENT CONCLUSION AS H AS BEEN SUGGESTED BY THE LEARNED AR. IN OUR CONSIDERED OPINION, THERE IS NO MISTAKE MUCH LESS A MISTAKE APPARENT FROM RECORD IN THE IMPUGNED ORDER. 4. THE SECOND SUBMISSION MADE ON BEHALF OF THE ASSE SSEE IS REGARDING FIFTH PARA, BEING THE LAST PART OF THE FIRST GROUND FOR A SSESSMENT YEAR 2003-2004 IN NOT ALLOWING DEDUCTION ON MISCELLANEOUS INCOME. THE LEA RNED AR SUBMITTED THAT THE DETAILS OF MISCELLANEOUS INCOME INCLUDED CERTAIN IT EMS ON WHICH DEDUCTION IS PERMISSIBLE AND HENCE THE SAME BE ALLOWED ACCORDING LY. IN THE OPPOSITION, THE LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORTED THE I MPUGNED ORDER. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS NOTICED THAT THE ASSESSEE IS CLAIMING DEDUCTION U/S 80-IB WHICH PROVIDES FOR DEDUCTION IN RESPECT OF INCOME DERIVE D FROM THE INDUSTRIAL UNDERTAKING. IT HAS BEEN FAIRLY DISCUSSED IN PARA 5 OF THE TRIBUNAL ORDER THAT IN ORDER TO QUALIFY FOR DEDUCTION THE RELATION BETWEEN THE INCOME AND THE INDUSTRIAL UNDERTAKING SHOULD BE OF FIRST DEGREE AND NOT SECON D OR LATER. AS THE ITEMS INCLUDED UNDER THE MISCELLANEOUS INCOME DO NOT BEAR FIRST DEGREE RELATION WITH THE INDUSTRIAL UNDERTAKING, IN OUR CONSIDERED OPINION, THERE IS NO SCOPE FOR REARGUING MA NO.209/MUM/2011 M/S.CLEAR PLASTICS LIMITED. 3 THE SAME CONTENTION TIME AND AGAIN, FIRSTLY DURING THE ORIGINAL PROCEEDINGS U/S 254(1) AND THEREAFTER U/S 254(2). WE WANT TO MAKE I T CLEAR THAT THE SCOPE OF THE PROCEEDINGS U/S 254(2) IS QUITE RESTRICTED IN CARRY ING OUT RECTIFICATION OF MISTAKES WHICH ARE APPARENT FROM THE RECORD. IT IS NOT POSSI BLE TO REARGUE THE MATTER IN THE GARB OF RECTIFICATION OF MISTAKE. EVEN DEBATABLE IS SUES ARE OUTSIDE THE AMBIT OF PROCEEDINGS U/S 254(2). ADVERTING TO THE FACTS OF T HE INSTANT CASE, WE FIND THAT THE TRIBUNAL, AFTER CONSIDERING ALL THE RELEVANT MATERI AL AND FACTS, CAME TO THE CONCLUSION THAT THE MISCELLANEOUS INCOME EARNED BY THE ASSESSEE DID NOT QUALIFY FOR DEDUCTION U/S 80-IB. IN SUCH A SITUATION THERE IS N O SCOPE TO IMPRESS UPON THE TRIBUNAL FOR TAKING A CONTRARY VIEW FROM THE ONE TA KEN EARLIER WHEN THERE IS NO MISTAKE APPARENT FROM RECORD IN THE IMPUGNED ORDER. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED ON THIS 25 TH DAY OF APRIL, 2012. SD/- SD/- (AMIT SHUKLA) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 25 TH APRIL, 2012. DEVDAS* COPY TO : 1. THE APPLICANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) VIII, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.