M/s. Nunhens India Pvt.Ltd., Hyderabad V. DCIT, Circle-16(1), Hyderabad

MA 219/HYD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8067 (ITAT-HYDERABAD)
• Duration Of Justice: 7 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-05-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: misc
• Appeal Filed On: 14-10-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K VISWANATHAM
• Assessee Lawyers: R VIJAYARAGHAVAN
• Keywords: Depreciation; Retrospective amendment; Unabsorbed depreciation
• Section: 234B; 115JB; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER M.A. NO. 219/HYD/2011 IN ITA NO. 822/HYD/2010 ASSESSMENT YEAR 2005-06 M/S. NUNHEMS INDIA PVT. LTD., HYDERABAD PAN: AABCN1142L VS. THE DCIT CIRCLE-16(1) HYDERABAD APPELLANT RESPONDENT APPELLANT BY: SHRI R. VIJAYARAGHAVAN RESPONDENT BY: SHRI K. VISWANATHAM DATE OF HEARING: 25 . 05 .201 2 DATE OF PRONOUNCEMENT: 25.05.2012 O R D E R PER CHANDRA POOJARI, AM: BY THIS MISCELLANEOUS APPLICATION (MA), THE ASSESS EE SEEKS RECTIFICATION IN THE ORDER OF THE TRIBUNAL DATED 30 TH JUNE, 2011 IN I.T.A. NO. 822/HYD/2010. 2. THE LEARNED AR SUBMITTED THAT THE TRIBUNAL VIDE PAR A 18 OF ITS ORDER HAS ALSO ADJUDICATED ON THE ISSUE OF APPL ICABILITY OF INTEREST U/S 234B OF THE ACT ON THE ADDITIONS MADE ON ACCOUNT OF RETROSPECTIVE AMENDMENT IN LAW AND HAS HELD AS UNDE R: 'THE INTEREST U/S. 234B BE CHARGED WHICH IS MANDATORY AND CONSEQUENTIAL IN NATURE. THE CASE LA W RELIED BY THE ASSESSEE'S COUNSEL IN THE CASE OF REV ATHI EQUIPMENTS LTD., CITED SUPRA CANNOT BE APPLIED TO T HE FACTS OF THE CASE WHICH IS FULLY DISTINGUISHABLE WH EREIN THE ASSESSEE HAS PROVED ITS BONA FIDE BY DEPOSITING SELF ASSESSMENT TAX OF RS. 90 LAKHS WHICH IS MISSING IN THE PRESENT CASE.' 3. THE AR SUBMITTED THAT THE TRIBUNAL HAS ADJUDICATED ON THIS ISSUE EVEN THOUGH THIS GROUND WAS NOT RAISED IN APP EAL. THIS ISSUE WAS NEITHER RAISED BY THE ASSESSEE IN ITS APPEAL ME MORANDUM NOR MA NO. 219/HYD/2011 M/S. NUNHEMS INDIA PVT. LTD. ===================== 2 WAS IT ARGUED IN THE APPEAL PROCEEDINGS. THE AR FU RTHER SUBMITTED THAT, AS THE ADDITIONS TO INCOME, IF ANY, HAS ARISEN ON ACCOUNT OF THE RETROSPECTIVE AMENDMENT OF THE ACT, BROUGHT ABOUT MUCH AFTER THE END OF THE PREVIOUS YEAR, FILING OF THE RETURN AND THE COMPLETION OF ASSESSMENT. THE AR PLACED RELIAN CE ON THE DECISION OF MADRAS HIGH COURT IN THE CASE OF CIT VS . REVATHI EQUIPMENT LIMITED (298 ITR 67) AND HON'BLE DELHI TR IBUNAL IN THE CASE OF PRIYANKA OVERSEAS LIMITED VS. DCIT (79 ITO 353) AND FURTHER ON THE RECENT DECISION OF HON'BLE CALCUTTA HIGH COURT IN THE CASE OF EMAMI LTD. VS. CIT (12 TAXMANN 64) THAT IF THE ASSESSEE BECAME LIABLE TO PAY TAX BY VIRTUE OF A RE TROSPECTIVE AMENDMENT MADE LONG AFTER CLOSE OF FINANCIAL YEAR, ASSESSEE COULD NOT BE BRANDED AS A DEFAULTER IN PAYMENT OF ADVANCE TAX. THE RELEVANT EXTRACT FROM THE DECISION OF HON'BLE CALCU TTA HIGH COURT IS REPRODUCED AS UNDER: ' ..... AT THIS STAGE, WE MAY PROFITABLY RELY UPON THE OBSERVATIONS OF THE SUPREME COURT IN THE CASE OF ST AR INDIA (P.) LTD. V. CCE [2006} 280 ITR 3211150 TAXMA N 128, STRONGLY RELIED UPON BY MR. BAJORIA, WHERE THE APEX COURT IN THE CONTEXT OF IMPOSITION OF SERVICE TAX BY THE FINANCE ACT, 2002 WITH RETROSPECTIVE EFFECT HELD THAT THE LIABILITY TO PAY INTEREST WOULD ARISE ONLY ON DEFAULT AND IS REALLY IN THE NATURE OF QUASI-PUNISH MENT AND THUS, ALTHOUGH THE LIABILITY TO PAY TAX AROSE D UE TO RETROSPECTIVE EFFECT OF LAW, SAME SHOULD NOT ENTAIL THE PUNISHMENT OF PAYMENT OF INTEREST' 4. FURTHER, THE AR PLACED RELIANCE ON THE INSTRUCTIONS NO. F. 400/234/95-IT (B), DATED 21-5-1996 ISSUED BY THE CE NTRAL BOARD OF DIRECT TAXES (CBDT). THE CBDT VIDE THE SAID INST RUCTION HAS INDICATED THE WAIVER OF INTEREST CHARGED UNDER SECT ION 234B OF THE ACT IN CASES WHERE AS A RESULT OF RETROSPECTIVE AME NDMENT OF LAW, CERTAIN RECEIPTS WHICH WERE HITHERTO TREATED AS EXE MPT, BECOME TAXABLE. THE AR SUBMITTED THAT EVEN ON MERITS INTE REST U/S 234B CANNOT BE LEVIED ON THE ADDITIONS SOUGHT TO BE MADE BY THE CIT IN MA NO. 219/HYD/2011 M/S. NUNHEMS INDIA PVT. LTD. ===================== 3 HIS ORDER OF REVISION U/S 263, ON THE BASIS OF RETR OSPECTIVE AMENDMENTS. 5. THE AR SUBMITTED THAT IN THE GIVEN CASE THE CONTROV ERSY IS PRECISELY LIMITED TO THE VALIDITY OF REVISIONARY PR OCEEDINGS UNDER SECTION 263 OF THE ACT ON ACCOUNT OF DISALLOWANCE O F DEFERRED TAX IN COMPUTATION OF MINIMUM ALTERNATE TAX ('MAT') UND ER SECTION 115JB OF THE ACT AND RECOMPUTATION OF AMOUNT OF LOS S OR UNABSORBED DEPRECIATION, WHICHEVER IS LESS ELIGIBLE FOR SET OFF IN MAT COMPUTATION UNDER SECTION 115JB OF THE ACT. TH E ISSUE OF LEVY OF INTEREST U/S 2348 WAS NOT A SUBJECT MATTER OF ORDER OF REVISION PASSED BY THE CIT U/S 263. ACCORDINGLY, T HE LEARNED AR SUBMITTED THAT THE TRIBUNAL HAS ERRED IN ADJUDICATI NG ON THE ISSUE OF INTEREST AND NECESSARY RECTIFICATION MAY BE MADE IN THE ORDER OF THE TRIBUNAL. 6. THE LEARNED DR RELIED ON THE ORDER OF THE TRIBUNAL. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATE RIAL ON RECORD. THE ARGUMENT OF THE LEARNED AR IN THIS MA IS NOTHING BUT SEEKING REVIEW OF ITS OWN ORDER BY THE TRIBUNAL WHI CH POWER THE TRIBUNAL IS NOT HAVING U/S. 254(2) OF THE INCOME-TA X ACT, 1961. CONSIDERATION OF THE ARGUMENTS OF THE ASSESSEE'S CO UNSEL AMOUNTS TO REVIEWING OF EARLIER ORDER OF THE TRIBUNAL WHICH CANNOT BE DONE UNDER THE LAW. THE SCOPE AND AMBIT OF APPLICATION U/S. 254(2) IS AS FOLLOWS: (A) FIRSTLY, THE SCOPE AND AMBIT OF APPLICATION OF S. 2 54(2) OF IT ACT IS RESTRICTED TO RECTIFICATION OF THE MISTAKES APPARENT FROM THE RECORD. (B) SECONDLY, THAT NO PARTY APPEARING BEFORE THE TRIBUN AL SHOULD SUFFER ON ACCOUNT OF ANY MISTAKE COMMITTED B Y THE TRIBUNAL AND IF THE PREJUDICE HAS RESULTED TO THE P ARTY, WHICH PREJUDICE IS ATTRIBUTABLE TO THE TRIBUNALS MISTAKE/ERROR OR OMISSION, AND WHICH AN ERROR IS A MANIFEST MA NO. 219/HYD/2011 M/S. NUNHEMS INDIA PVT. LTD. ===================== 4 ERROR, THEN THE TRIBUNAL WOULD BE JUSTIFIED IN RECT IFYING ITS MISTAKE. THE RULE OF PRECEDENT IS AN IMPORTANT A SPECT OF LEGAL CERTAINTY IN THE RULE OF LAW AND THAT PRINCIP LE IS NOT OBLITERATED BY S. 254(2) OF THE ACT AND NON-CONSIDE RATION OF PRECEDENT BY THE TRIBUNAL CAUSES A PREJUDICE TO THE ASSESSEE. (C) THIRDLY, POWER TO RECTIFY A MISTAKE IS NOT EQUIVALE NT TO A POWER TO REVIEW OR RECALL THE ORDER SOUGHT TO BE RE CTIFIED. (D) FOURTHLY, UNDER S. 254(2) AN OVERSIGHT OF A FACT CA NNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER TH E SECTION. (E) FIFTHLY, FAILURE ON THE PART OF THE TRIBUNAL TO CON SIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON RECORD, ALTH OUGH IT MAY BE AN ERROR OF JUDGEMENT. (F) SIXTHLY, EVEN IF ON THE BASIS OF A WRONG CONCLUSION THE TRIBUNAL HAS NOT ALLOWED A CLAIM OF THE PARTY IT WI LL NOT BE A GROUND FOR MOVING AN APPLICATION UNDER S. 254(2) OF THE ACT. (G) LASTLY, IN THE GARB OF AN APPLICATION FOR RECTIFICA TION UNDER S. 254(2) THE ASSESSEE CANNOT BE PERMITTED TO REOPEN A ND REARGUE THE WHOLE MATTER AS THE SAME IS BEYOND THE SCOPE OF S. 254(2) OF THE IT ACT. 8. IN THE RESULT, THE MA FILED BY THE ASSESSEE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH MAY, 2012. SD/ - (SAKTIJIT DEY) JUDICIAL MEMBER SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED THE 25 TH MAY, 2012 MA NO. 219/HYD/2011 M/S. NUNHEMS INDIA PVT. LTD. ===================== 5 COPY FORWARDED TO: 1. M/S. NUNHEMS INDIA PVT. LTD., S - 196, KANDLAKOYA, MEDCHAL TO MIYAPUR BY-PASS ROAD, NEAR RAILWAY GATE, MEDCHAL , RANGAREDDY DISTRICT-501 403, A.P. 2. THE DCIT, CIRCLE - 16(1), HYDERABAD. 3. THE CIT - IV, HYDERABAD. 4. THE ADDL. CIT, RANGE 16, HYDERABAD. 5 . THE DR A BENCH, ITAT, HYDERABAD. TPRAO