M/s. Sesa Sterlite Ltd. (Formerly Known as Sesa Goa Ltd.), Goa V. Joint Commistioner Of Income-Tax, Rg-1, Panaji

MA 21/PAN/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2436 (ITAT-PANAJI)
• Duration Of Justice: 10 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 08-08-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 28-10-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHA DESAI
• Assessee Lawyers: VIJAY GUPTA VP TAXATION
• Keywords: Depreciation; Transfer pricing; Principle of natural justice; Additional depreciation; Fair market value; Speculation loss
• Section: 10AA; 14A; 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI P.K. BANSAL, HONBLE ACCOUNTANT MEMBER AND SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER MA NO. 21/PNJ/2013 (ARISING OUT OF ITA NO S . 72& 85/PNJ/2012 ) : (ASST. YEAR : 2009 - 10) M/S. SESA STERLITE LTD. (FORMERLY KNOWN AS SESA GOA LTD.) SESA GHOR, 20 EDC COMPLEX, PATTO, PANAJI, GOA (APPLICANT) PAN : AACCS7101B VS. JT. COMMISSIONER OF INCOME TAX, RANGE - 1, PANAJI & ASST. COMMISSIONER OF INCOME TAX, CIRCLE - 1(1), PANAJI, GOA (RESPONDENT) APPLICANT BY : VIJAY GUPTA, V.P (TAXATION) RESPONDENT BY : SMT. ASHA DESAI, DR DATE OF HEARING : 22 /0 8 /201 4 DATE OF PRONOUNCEMENT : 26 /09/201 4 O R D E R PER P.K. BANSAL : 1. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE FOR CLARIFYING THE ORDER OF THIS TRIBUNAL PASSED ON 8.3.2013 IN ITA NOS. 72 & 85/PNJ/2012. IT WAS STATED IN THE APPLICATION THAT IN RESPECT OF GROUND NOS. 6 & 7 OF ASSESSEES APPEAL NO. 72/PNJ/2012 THE HON'BLE ITAT ALLOWED THE ASSESSEES CLAIM U/S 10B OF THE INCOME TAX ACT ON THE PROFIT OF ITS 100% EOU AT AMONA, CHITRADURGA AND CODLI. HOWEVER, IT WAS ALLOWED SUBJECT TO THE AOS DETERMINATION OF THE MARKET VALUE OF THE PURCHASES MADE BY THE UNIT AS PER THE DIRECTIONS GIVEN UNDER PARA 45.21 OF THE ORDER WHICH STATES AS UNDER : 45.21 IN VIEW OF THE AFORESAID DISCUSSION, WE ARE OF THE VIEW THAT THE ASSESSEE IS ENTITLED FOR EXEMPTION U/S 10B IN RESPECT OF ALL THE THREE 100% EXPORT ORIENTED 2 MA NO. 2 1/PNJ/2013 (ARISING OUT OF ITA NO S . 72 & 85/PNJ/2012) (ASST. YEAR : 2009 - 10 ) UNITS, BUT DURING THE COURSE OF THE HEARING, WE NOTED THAT THE ASSESSEE WHILE COMPUTING THE EXEMPTION U/S 10B HAS DEBITED ORE EXTRACTED FROM OWN MINES IN AMONA UNIT AS WELL AS CHITRADURGA UNIT AT COST OF RS. 45,25,23,692/ - AND RS. 20,27,01,458/ - RESPECTIVELY, WHILE IN VIEW OF PROVISIONS OF SECTION 10B( 7) READ WITH SECTION 80 - IA(8) THE ASSESSEE IS REQUIRED TO TRANSFER THE CRUDE ORE EXTRACTED FROM ITS OWN MINES AT MARKET VALUE FOR DETERMINING THE TRUE PROFIT DERIVED BY THE 100% EOU FOR THE PURPOSE OF COMPUTING THE INCOME ILLEGIBLE FOR EXEMPTION U/S 10B. WE ALSO NOTED THAT THE ASSESSEE HAS ALSO PURCHASED CRUDE ORE I.E ROM FROM OUTSIDE PARTIES I.E FROM MINING BELONGING TO THE OTHER PARTIES. THE PRICE PAID BY THE ASSESSEE TO THESE OUTSIDE PARTIES, IN OUR OPINION CAN BE REGARDED TO BE THE BEST EVIDENCE FOR DE TERMINING THE MARKET VALUE OF THE CRUDE ORE USED BY THE ASSESSEE EXTRACTING IT FROM ITS OWN MINES. SINCE DETERMINATION OF MARKET VALUE REQUIRES VERIFICATION ON THE PART OF THE REVENUE, WE, THEREFORE, RESTORE THIS ISSUE ONLY FOR DETERMINING THE MARKET VALUE OF THE CRUDE ORE CONSUMED BY THE ASSESSEE ON THE BASIS OF THE VALUE PAID BY THE ASSESSEE FOR THE CRUDE ORE TO THE OUTSIDE PARTIES DURING THE YEAR AND THEREBY RECOMPUTING THE PROFIT DERIVED BY THE ASSESSEE FROM THE 100% EOU UNITS ELIGIBLE FOR EXEMPTION U/S 10B. ACCORDINGLY, WE DIRECT THE ASSESSING OFFICER TO RECOMPUTE THE EXEMPTION AVAILABLE U/S 10B TO THE ASSESSEE IN RESPECT OF AMONA AS WELL AS CHITRADURGA UNITS AFTER ASCERTAINING THE MARKET VALUE OF THE CRUDE ORES TRANSFERRED BY THE ASSESSEE TO THESE UNIT S FROM ITS EXTRACTION DIVISIONS ON THE BASIS OF THE AVERAGE MARKET VALUE AS THE ASSESSEE HAS PAID TO THE OUTSIDE PARTIES FOR THE CRUDE ORES PURCHASED BY THE ASSESSEE FROM THESE PARTIES DURING THE IMPUGNED ASSESSMENT YEAR AND SUBSTITUTING AS COST OF THE RAW MATERIAL IN PLACE OF COST OF THE CRUDE ORE DERIVED BY THE ASSESSEE FROM ITS OWN MINES AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO ADDUCE THE MATERIAL AND EVIDENCE IN THIS REGARD. IT WAS STATED THAT THERE ARE PRACTICAL DIFFICULTIES IN GIVING EFFECT TO THESE DIRECTIONS IN RESPECT OF CHITRADURGA EOU SINCE THIS UNIT DOES NOT HAVE THIRD PARTY PURCHASES. THEREFORE, IT WAS PRAYED THAT THE AFORESAID DIRECTIONS MAY KINDLY BE MODIFIED TO FURTHER CLARIFY THAT IN ABSENCE OF ANY THIRD PARTY PUR CHASES BEING MADE FOR CHITRADURGA UNIT, THE FAIR MARKET VALUE OF CRUDE ORE SHOULD BE DETERMINED ON THE BASIS OF THE THIRD PARTY PURCHASES MADE FOR AMONA EOU. 2. IT WAS ALSO STATED THAT ANOTHER DIFFICULTY IN GIVING PRACTICAL EFFECT TO THE DIRECTIONS GIVE N UNDER PARA 45.21 IS IN RESPECT OF SOME STRAY TRANSACTIONS OF PURCHASES WHICH CANNOT BE CONSIDERED AS COMPARABLE DATA FOR COMPUTING AVERAGE MARKET VALUE OF PURCHASES SINCE THOSE ARE MADE UNDER EXIGENT SITUATION 3 MA NO. 2 1/PNJ/2013 (ARISING OUT OF ITA NO S . 72 & 85/PNJ/2012) (ASST. YEAR : 2009 - 10 ) E.G. CRUDE ORE/FINISHED ORE MAY BE PROCURED SPONTANEOUSLY IN SMALL QUANTITIES TO MAKE GOOD ANY SHORTAGE WHILE LOADING THE VESSEL AND IT WOULD HAVE COST MUCH HIGHER. A SINGLE ISOLATED TRANSACTION OF PURCHASE FROM AN UNRELATED PARTY CANNOT FORM THE BASIS OF ARRIVING AT REASONABILITY OF THE PRICE PAID BY THE ASSESSEE. 3. I T WAS ALSO SUBMITTED THAT SINCE REGULAR SUPPL IES HA VE BEEN MADE OVER A LONG PERIOD IN DIFFERENT QUANTITIES AT AMONA EOU, THEREFORE, THEIR WEIGHTED AVERAGE SHOULD BE CONSIDERED FOR THE PURPOSE AND ACCORDINGLY, THE AFORESAID DIRECTIO NS GIVEN IN PARA 45.21 NEEDS TO BE MODIFIED TO CLARIFY THAT FOR THE PURPOSE OF DETERMINATION OF THE FAIR MARKET VALUE OF THE CRUDE ORE TRANSFERRED TO THE EOU, WEIGHTED AVERAGE METHOD MUST BE APPLIED ON ALL THE REGULAR SUPPLIES MADE BY THE THIRD PARTIES. 4 . WE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME. WE NOTED THAT IN THIS CASE THE REVENUE HAS GONE IN APPEAL BEFORE THE HON'BLE HIGH COURT AGAINST THE ORDER OF THIS TRIBUNAL IN ITA NOS. 72 & 85/PNJ/2012 DT. 8.3.2013 BY WAY OF TA NO. 13 OF 2013. BEFORE THE HON'BLE HIGH COURT THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL : A. WHETHER ITAT IS CORRECT IN HOLDING THAT THE PROCESSING PLANT (EOU) IN ITSELF WAS MANUFACTURING IRON ORE ERRONEOUSLY PRESUMING THAT THE PROCESSING PLANT WAS BLENDING IRON ORE THAT THE PROCESSED ORE WAS A DISTINCT COMMODITY THAN THE INPUT OF ROM IGNORING THE DECISION OF THE APEX COURT IN THE CASE OF CHOWGULE & CO. PVT. VS. UNION OF INDIA 1981 AIR 1014 AND BOMBAY HIGH COUR T IN THE ASSESSEES OWN CASE (2004) (ITR 266 ITR 126) WHERE IT HAS BEEN HELD THAT MINING IS AN INTEGRAL PROCESS OF VARIOUS ACTIVITIES STARTING FROM EXTRACTION OF IRON ORE TO BLENDING AND LOADING TO THE SHIP AND THAT THE PROCESS OF PRODUCING ORE OF CONTRACT UAL SPECIFICATIONS CANNOT BE SAID TO INVOLVE THE PROCESS OF MANUFACTURING SINCE THE ORE PRODUCED CANNOT BE REGARDED AS A COMMERCIALLY NEW AND DISTINCT COMMODITY? B. WITHOUT BRINGING INTO EXISTENCE A NEW AND DISTINCT OBJECT OR ARTICLE OR THING BY THE PRO CESSING PLANTS (THE E O US) WHETHER ITAT WAS CORRECT IN INTERPRETING THE 4 MA NO. 2 1/PNJ/2013 (ARISING OUT OF ITA NO S . 72 & 85/PNJ/2012) (ASST. YEAR : 2009 - 10 ) NEW SECTION 2(29BA) THAT THE PROCESSING OF ROM AMOUNTS TO MANUFACTURE OF IRON ORE? C. WHETHER ITAT IS CORRECT IN APPLYING THE DEFINITION OF MANUFACTURE GIVEN IN SEZ ACT 2005 WHICH IS APPLICABLE FOR THE PURPOSE OF ONLY SECTION 10AA OF THE IT ACT WHICH IMPOSES VARIOUS CONDITIONS FOR THE UTILIZATION OF PROFITS? D. WHETHER I TAT IS RIGHT IN NOT FOLLOWING THE DECISION OF THE COORDINATE BENCH IN THE CASE OF CHOWGULE & CO LTD VS. ACIT (ITA NO.162/PNJ/2006) WHERE IT HAS BEEN HELD THAT THE PROCESSING OF IRON ORE WITHOUT EXTRACTION IN THE PROCESSING PLANT DOES NOT GIVE RISE TO ANY NEW PRODUCT AND THEREFORE, THE PROCESS IS NOT EVEN PRODUCTION PARTICULARLY WHERE THE PROCESSING HAS BEEN SPECI FICALLY OMITTED FROM THE DEFINITION OF MANUFACTURING W.E. F. 01.04 . 2001 FOR THE PURPOSE OF SECTION 10 B? E. WHETHER THE ITAT IS CORRECT IN ACCEPTING RENOVATED UNITS AS NEW EOUS WHEN THERE WAS ONLY ADDITIONS/REPLACEMENTS AND DEPRECIATION HAS ALSO BEEN CLAI MED ON THE PLANT & MACHINERY OF THE EXISTING UNIT ? WHETHER 1TAT IS ALSO CORRECT IN ACCEPTING NEW EVIDENCE, ABOUT THE SALE OF SCRAP AND ERRONEOUSLY PRESUMING THE DISMANTLING OF THE OLD PLANT ? THE 1TAT FAILED TO APPRECIATE THAT IT IS NOT A CASE THAT CERTAI N ITEMS OF PLANT & MACHINERY OF OLD PLANT HAVE BEEN USED IN THE NEW PLANT BUT IT IS A CASE OF ADDITION OF SOME NEW ITEMS OF PLANT & MACHINERY IN THE EXISTING OLD PLANT? F. WHETHER THE FINDING OF ITAT IS PERVERSE OF ACCOUNT OF THE FACT THAT THE FINDINGS AR E NOT BASED ON THE DOCUMENTS AVAILABLE ON RECORD DURING THE ASSESSMENT AND BEFORE THE C I T(A) AND AS SUCH THE AO OUGHT TO HAVE BEEN GRANTED AN OPPORTUNITY TO VERIFY THE NEW DOCUMENTS FILED BY THE ASSESSEE BEFORE THE I TAT ? G. WHETHER THE ITAT WAS RIGHT IN ADMITTING FRESH EVIDENCE WITHOUT GIVING AN OPPORTUNITY TO THE AO TO VERIFY THE DOCUMENT PLACED ON RECORD BY THE ASSESSE BEFORE THE 1TAT THEREBY VIOLATING PRINCIPLES OF NATURAL JUSTICE AND CAUSING GRAVE PREJUDICE TO THE REVENUE ON ACCOUNT OF SUCH LACK OF O PPORTUNITY? H. WHETHER ITAT IS CORRECT IN DIRECTING THE A O TO RESTRICT THE OPEN MARKET RATE OF THE IRON ORE TO AVERAGE PURCHASE VA L UE TO THE ASSESSEE WHEN THERE ARE DIFFERENCES IN GRADE/QUALITY BY APPLYING THE PROVISIONS OF SE CTION 10 B(7) R.W.S. 80 I A(8) OF THE I.T. ACT BEING THE AVERAGE PURCHASE VALUE NOT AT THE ARMS LENGTH PRICE ? WHETHER ITAT IS ALSO CORRECT IN NOT CONSIDERING PRO R A TA OVERHEAD COSTS IN DETERMINING PROFITS FROM EOUS? I. WHETHER THE ITAT IS CORRECT IN DELETIN G THE DISALLOWANCE OF RS.12.29 CRORES MADE U/S.14A OF THE I T ACT IN ACCORDANCE WITH RULE 8D OF IT RULES AS 5 MA NO. 2 1/PNJ/2013 (ARISING OUT OF ITA NO S . 72 & 85/PNJ/2012) (ASST. YEAR : 2009 - 10 ) PROVIDED BY THE DECISION GIVEN BY THE MUMBAI SPECIAL BENCH OF ITAT IN THE CASE OF ITO VS. DAGA CAPITAL MANAGEMENT PVT. LTD. (2009) 117 I TD 169? J. W HETHER ITAT IS CORRECT IN DELETING THE ADDITION OF RS.9.88 CRORES TOWARDS PAYMENT OF COMMISSION TO FOREIGN AGENTS WHERE TDS WAS NOT DEDUCTED IGNORING THE DECISION OF AAR IN THE CASE OF RAJIV MALHOTRA INRE (AAR) 284 ITR 564 AND SK F BOILERS AND DRIERS PVT. L TD. ? K. WHETHER ITAT IS CORRECT IN DELETING THE ADDITION MADE BY THE AO ON ACCOUNT OF NON DEDUCTION OF TDS ON DEMURRAGE AS HELD BY THE BOMBAY HIGH COURT IN THE CASE OF CIT VS. ORIENT GOA CO. PVT. LTD. (325 ITR 554) ? L. WHETHER THE ITAT IS CORRECT IN H OLDING LOSS ON FOREIGN EXCHANGE FORWARD CONTRACTS IS NOT SPECULATIVE LOSS ? M. WHETHER THE ITAT IS RIGHT IN DELETING THE DISALLOWANCE OF ADDITIONAL DEPRECIATION IN RESPECT OF IRON ORE DIVISION INCLUDING EOUS AND METALLURGICAL COKE DIVISION WHEN THE ACTI VITIES CARRIED OUT DO NOT AMOUNT TO MANUFACTURE OR PRODUCTION? N. WHETHER THE FINDING OF INCOME TAX APPELLATE TRIBUNAL IS PERVERSE OF ACCOUNT OF THE FACT THAT THE FINDINGS ARE NOT B ASED ON THE DOCUMENTS AVAILABLE ON RECORD DURING THE ASSESSMENT AND BEFORE THE COMMISSIONER OF INCOME TAX(A) AND AS SUCH THE A O OUGHT TO HAVE BEEN GRANTED AN OPPORTUNITY TO VERIFY THE NEW DOCUMENTS FILED BY THE ASSESSEE BEFORE THE ITAT? O. WHETHER THE INCOME TAX APPELLATE TRIBUNAL WAS RIGHT IN ADMITTING FRESH EVIDENCE WITHOUT G IVING AN OPPORTUNITY TO THE A O TO VERIFY THE DOCUMENT PLACED ON RECORD BY THE ASSESSE BEFORE THE INCOME TAX APPELLATE TRIBUNAL THEREBY VIOLATING PRINCIPLE OF NATURAL JUSTICE AND CAUSING GRAVE PREJUDICE TO THE REVENUE ON ACCOUNT OF SUCH LACK OF OPPORTUNITY? P. SUCH AND OTHER GROUNDS TO B E TAKEN AT THE TIME OF HEARING. THE HON'BLE BOMBAY HIGH COURT IN TA NO. 13 OF 2013 HAS ADMITTED THE FOLLOWING QUESTIONS OF LAW VIDE ORDER DT. 23.9.2013 : I. WHETHER ITAT IS CORRECT IN APPLYING THE DEFINITION OF MANUFACTURE GIVEN IN SEZ ACT 2005 WHICH IS APPLICABLE FOR THE PURPOSE OF ONLY SECTION 10AA OF THE IT ACT WHICH IMPOSES VARIOUS CONDITIONS FOR THE UTILIZATION OF PROFITS ? 6 MA NO. 2 1/PNJ/2013 (ARISING OUT OF ITA NO S . 72 & 85/PNJ/2012) (ASST. YEAR : 2009 - 10 ) II. WHETHER ITAT IS CORRECT IN DIRECTING THE AO TO RESTRICT THE OPEN MARKET RATE OF THE IRON ORE TO AVERAGE PURCHASE VALUE TO THE ASSESSEE WHEN THERE ARE DIFFERENCES IN GRADE/QUALITY BY APPLYING THE PROVISIONS OF SECTION 10B(7) R.W.S. 80IA(8) OF THE I.T. ACT BEING THE AVERAGE PURCHAS E VALUE NOT AT THE ARMS LENGTH PRICE ? WHETHER ITAT IS ALSO CORRECT IN NOT CONSIDERING PRO RATA OVERHEAD COSTS IN DETERMINING PROFITS FROM EOUS ? III. WHETHER ITAT IS CORRECT IN DELETING THE DISALLOWANCE OF RS.12.29 CRORES MADE U/S. 14A OF THE IT ACT IN ACCORDANCE WITH RULE 8D OF IT RULES AS PROVIDED BY THE DECISION GIVEN BY THE MUMBAI SPECIAL BENCH AT ITAT IN THE CASE OF ITO VS. DAGA CAPITAL MANAGEMENT PVT. LTD. (2009) 117 ITD 169 ? THE SUBSTANTIAL QUESTION NO. 2 , AS HAS BEEN ADMITTED BY THE HON'BLE HIGH COURT, IN OUR OPINION, ARISES OUT OF THE FINDING OF THE TRIBUNAL GIVEN UNDER PARA 45.21 IN RESPECT OF MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. THIS TRIBUNAL UNDER THE SAID PARAGRAPH HAS CLEARLY DIRECTED THE AO TO RE - COMPUTE THE EXEMPTION AVAILABLE U/S 10B TO THE ASSESSEE IN RESPECT OF AMONA AS WELL AS CHITRADURGA UNITS AFTER ASCERTAINING THE MARKET VALUE OF THE CRUDE ORE TRANSFERRED BY THE ASSESSEE TO THESE UNITS FROM ITS EXTRACTION DIVISION ON THE BASIS OF THE MAR KET VALUE THE ASSESSEE HAS PAID TO OUTSIDE PARTIES FOR THE CRUDE ORE PURCHASED BY THE ASSESSEE FROM THESE PARTIES DURING THE IMPUGNED ASSESSMENT YEAR AND SUBSTITUTE IT AS COST OF THE RAW MATERIAL IN PLACE OF THE COST OF THE CRUDE ORE DERIVED BY THE ASSESSE E FROM ITS OWN MINE. THE NATURAL CONSEQUENCE OF THESE DIRECTIONS ARE APPARENTLY CLEAR THAT THE AVERAGE MARKET VALUE AT WHICH THE ASSESSEE HAS PURCHASED THE CRUDE ORE FROM OUTSIDE PARTIES HAS TO BE SUBSTITUTED AS COST OF THE RAW MATERIAL IN PLACE OF COST O F CRUDE ORE DERIVED BY THE ASSESSEE FROM ITS OWN MINE IN RESPECT OF BOTH THE UNITS E VEN IF THE PURCHASES HA VE BEEN MADE FROM THE OUTSIDE PARTIES IN ONE UNIT. THE ORDER PASSED BY THIS TRIBUNAL IS APPARENTLY CLEAR AND DOES NOT REQUIRE ANY CLARIFICATION. THE FACT THAT THE APPEAL AGAINST THE ORDER OF THIS TRIBUNAL DT. 8.3.2013 HAS ALREADY BEEN ADMITTED BY THE HON'BLE HIGH COURT HAS NOT BEEN DENIED BY EITHER OF THE SIDES. THE HON'BLE SPECIAL BENCH OF ITAT, MUMBAI IN THE CASE OF TATA COMMUNICATIONS VS. JCIT , 7 MA NO. 2 1/PNJ/2013 (ARISING OUT OF ITA NO S . 72 & 85/PNJ/2012) (ASST. YEAR : 2009 - 10 ) 31 7 ITR 1 HAS LAID DOWN THAT WHEN A QUESTION IS PENDING BEFORE THE HON'BLE HIGH COURT IT IS NOT RIGHT FOR THE ASSESSEE TO AGITATE THE SAME OR PART OF THE QUESTION BEFORE THE TRIBUNAL. THE RELEVANT OBSERVATIONS OF THE SPECIAL BENCH ARE REPRODUCED AS UNDER : 20. WE ARE OF THE OPINION THAT WHEN QUESTION IS PENDING BEFORE THE HON'BLE BOMBAY HIGH COURT, IT IS NOT RIGHT FOR THE ASSESSEE TO AGITATE SOME OR PART OF THE QUESTION BEFORE THE TRIBUNAL. THE ASSESSEE HAS NOW TO SHOW THE HON'BLE HIGH COURT THAT THE CONDITIONS OF SECTION 80IA ARE SATISFIED ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND THAT HE IS ENTITLED TO RELIEF UNDER THE ABOVE SECTION. AS FAR AS TRIBUNAL IS CONCERNED, QUESTION HAS ALREADY BEEN DECIDED AND THE TRIBUNAL IS NOW FUNCTUS OFFICIO, SO FAR AS DEDUCTION OF ELIGIBILITY OF SECTION 80IA IS CONCERNED. IT IS FOR THEIR LORDSHIPS OF HON'BLE BOMBAY HIGH COURT TO ADJUDICATE ON THE CORRECTNESS OR OTHERWISE OF THE DECISION OF THE TRIBUNAL. IN THE VIEW OF THE MATTER, AS A LSO BEARING IN MIND THE ENTIRETY OF THE CASE AND THE PRECEDING DISCUSSIONS, WE ARE OF THE CONSIDERED VIEW THAT THE RECTIFICATION PETITION FILED BY THE ASSESSEE UNDER SECTION 254(2) OF THE ACT MUST FAIL. NO INTEREFERENCE IS THUS CALLED FOR. 21. IN THE RES ULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. PRONOUNCED IN THE OPEN COURT TODAY ON 10 TH DAY OF JULY 2009. 4.1 WE HAVE ALSO GONE THROUGH THE VARIOUS OTHER DECISIONS WHICH HAVE BEEN CITED BEFORE US. WE FIND THAT THE SAME CONSISTENT VIEW HAS BEEN TAKEN BY THIS TRIBUNAL. THE LD. AR BEFORE US EVEN STRONGLY CONTENDED THAT DUE TO THIS CLARIFICATION SOUGHT FOR, THE REVENUE IS NOT GIVING APPEAL EFFECT TO THE TRIBUNALS ORDER DT. 8.3. 2013. IN OUR OPINION, THIS CANNOT BE A GROUND FOR WITHHOLDING THE APPEAL EFFECT. REVENUE IS BOUND TO GIVE THE APPEAL EFFECT TO THE ORDER OF THIS TRIBUNAL BY GIVING INTERPRETATION TO OUR ORDER WHATEVER THEY FEEL. IF ASSESSEE HAS ANY GRIEVANCE AGAINST THE ORDER PASSED IN CONSEQUENCE OF OUR ORDER PASSED U/S 254, THE ASSESSEE CAN ALWAYS COME IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. HOWEVER, WE MAY OBSERVE THAT WE DO NOT FIND ANY MISTAKE APPARENT ON RECORD IN OUR FINDING GIVEN UNDER PARA 45.21. WE HA VE GIVEN THIS FINDING IN RESPECT OF AMONA AS WELL AS CHITRADURGA UNITS AND THE NATURAL INFERENCE OF IT IS 8 MA NO. 2 1/PNJ/2013 (ARISING OUT OF ITA NO S . 72 & 85/PNJ/2012) (ASST. YEAR : 2009 - 10 ) THAT EVEN IF PURCHASES ARE MADE IN ONE OF THE UNITS, THE AVERAGE MARKET VALUE THE ASSESSEE HAS PAID IN THAT UNIT FOR THE CRUDE ORE PURCHASED BY THE AS SESSEE FROM THE OUTSIDE PARTIES, THE SAME AVERAGE MARKET VALUE HAS TO BE SUBSTITUTED AS COST OF THE RAW MATERIAL IN PLACE OF COST OF CRUDE ORE DERIVED BY THE ASSESSEE FROM ITS OWN MINE IN RESPECT OF THE OTHER UNIT IF THERE IS NO PURCHASE IN THAT OTHER UNIT FROM OUTSIDE PARTIES. THE TRIBUNAL HAS GIVEN A FINDING AFTER APPRECIATING ALL THE FACTS IN THE CASE OF THE ASSESSEE. THE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS ORDER. POWER U/S 254(2) IS LIMITED TO RECTIFYING MISTAKE WHICH IS APPARENT ON RECORD . SEC. 254(2) OF THE INCOME TAX ACT SPECIFICALLY EMPOWERS THE TRIBUNAL TO AMEND AT ANY TIME WITHIN 4 YEARS FROM THE DATE OF THE ORDER, ANY ORDER PASSED BY IT U/S 254(1) WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD EITHER SUO MOTO OR ON AN A PPLICATION BY THE ASSESSEE OR REVENUE. THE TRIBUNAL CANNOT REVIEW ITS ORDER IN THE GARB OF MISTAKE APPARENT ON RECORD. SINCE THE REVENUE HAS GONE IN APPEAL BEFORE THE HON'BLE HIGH COURT ON THE SAME ISSUE, THIS TRIBUNAL IN VIEW OF THE DECISION OF THE SPECI AL BENCH, ITAT, MUMBAI IN THE CASE OF TATA COMMUNICATIONS VS. JCIT, 317 ITR 1 ( SUPRA) CANNOT INTERFERE IN ITS ORDER PASSED ON 8.3.2013. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE STANDS DISMISSED. 6. ORDER PRONOUNCED IN THE O PEN COURT ON 26 .09.2014. SD/ - (D.T.GARASIA) JUDICIAL MEMBER SD/ - (P.K. BANSAL) ACCOUNTANT MEMBER PLACE : PANAJI / GOA DATED : 26 /09/ 201 4 *SSL* 9 MA NO. 2 1/PNJ/2013 (ARISING OUT OF ITA NO S . 72 & 85/PNJ/2012) (ASST. YEAR : 2009 - 10 ) COPY TO : (1) APPLICANT (2) RESPONDENT (3) CIT, PANAJI (4) CIT(A), PANAJI (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER