VARDHMAN HIRANANDANI DEVELOPERS, V. ITO WD 12(3)4,

MA 220/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7002 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-08-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2007-2008
• Appeal Filed On: 07-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: CHETAN A KARIA
• Keywords: Rectification of order

Judgement Text

1 MA NO. 220/MUM/2011 ARISING OUT OF ITA NO. 6455/MUM/2010 (ASST YEAR 2007-08) IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI F BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI R S SYAL, AM & SHRI VIJAY PAL RAO, J M MA NO. 220/MUM/2011 ARISING OUT OF ITA NO. 6455/MUM/2010 (ASST YEAR 2007-08) M/S VZARDHMAN & HIRANANDANI DEVELOPERS 514 DALMAL TOWERS 211 NARIMAN POINT MUMBAI 400 021 VS THE INCOME TAX OFFICER WARD 12(3)( 4), MUMBAI (APPLICANT) (RESPONDENT) PAN NO. AAAFV2059E ASSESSEE BY SHRI CHETAN A KARIA REVENUE BY SHRI M R KABUL DT.OF HEARING 22 JULY 2011 DT OF PRONOUNCEMENT 5 TH AUG 2011 ORDER PER VIJAY PAL RAO, JM THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE IS D IRECTED AGAINST THE ORDER 28.2.2011 OF THE TRIBUNAL IN ITA NO.6455/MUM/2010 F OR ASSESSMENT YEAR 2007-08. 2 THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE RELIED UPON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F TIRUNELVELI MOTOR BUS SERVICE CO PVT LTD VS CIT REPORTED IN 78 ITR 55(SC) AND THE SAME HAS BEEN NOTED BY THE TRIBUNAL IN THE IMPUGNED ORDER BUT THE SAID DECISIO N OF THE HONBLE SUPREME COURT HAS NOT BEEN DEALT WITH BY THIS TRIBUNAL WHILE PASS ING THE IMPUGNED ORDER. THEREFORE, THERE IS A MISTAKE APPARENT FROM THE REC ORD. THE LD AR FURTHER CONTENDED THAT THIS TRIBUNAL IN PARA 13 OF THE IMPUGNED ORDER REFERRED AND RELIED UPON THE 2 MA NO. 220/MUM/2011 ARISING OUT OF ITA NO. 6455/MUM/2010 (ASST YEAR 2007-08) DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT I N THE CASE OF SOLID CONTAINERS LTD VS DCIT REPORTED IN 308 ITR 417. THE SAID DECISIO N WAS NOT RELIED UPON BY THE DEPARTMENT AND WAS ALSO NOT BROUGHT TO THE NOTICE O F THE LD AR OF THE ASSESSEE DURING THE COURSE OF HEARING; THEREFORE, WITHOUT GI VING OPPORTUNITY TO THE ASSESSEE AND CONFRONT THE DECISION OF THE JURISDICTIONAL HIG H COURT IS AN APPARENT ERROR FROM THE RECORD. 2.1 ON THE OTHER HAND, THE LD DR HAS SUBMITTED THAT THE ISSUE IN THE APPAL OF THE ASSESSEE HAS BEEN DISCUSSED IN DETAIL AND DECIDED O N MERIT. THEREFORE, THE RELIEF SOUGHT IN THE MISCELLANEOUS APPLICATION IS NOTING B UT WOULD BE A REVIEW OF THE ORDER OF THE TRIBUNAL, WHICH IS BEYOND THE SCOPE OF SECTI ON 254(2) OF THE I T ACT. 3 WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND CARE FULLY PERUSED THE CONTENTS OF THE MISCELLANEOUS APPLICATION AS WELL AS THE IMP UGNED ORDER. WE FIND THAT THE ISSUE HAS BEEN DECIDED AFTER CONSIDERING THE PARTIC ULAR FACTS OF THE CASE WHERE THE LIABILITY IN THE TRADING ACCOUNT CEASED TO EXIST. IN THESE FACTS OF THE CASE OF THE ASSESSEE, THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF TIRUNELVELI MOTOR BUS SERVICE CO PVT LTD. VS CIT REPORTED IN 78 ITR 5 5 (SC)IS NOT APPLICABLE. IN THE SAID DECISION, THE ISSUE WAS REGARDING LESS AMOUNT WAS P AID TO THE EMPLOYEES AS BONUS IN FULL SETTLEMENT AS AGAINST THE PROVISIONS MADE F OR BONUS. IT WAS FOUND THAT THE SAID PROVISION WAS NOT ALLOWED AS DEDUCTION IN THE EARLI ER ASSESSMENT YEAR; THEREFORE, THE SAME WAS NOT ASSESSABLE WHEN FEWER AMOUNTS WERE PAI D TO THE EMPLOYEES AS BONUS. 4 IN THE CASE IN HAND, THE TRIBUNAL HAS GIVEN A FI NDING THAT THE ASSESSEE HAD DEBITED THE P&L ACCOUNT WITH THE TRADING LIABILITY, WHICH WAS SUBSEQUENTLY FOUND AS NOT EXIST; THEREFORE, THE DECISION OF THE HONBLE S UPREME COURT COULD NOT HELP THE 3 MA NO. 220/MUM/2011 ARISING OUT OF ITA NO. 6455/MUM/2010 (ASST YEAR 2007-08) CASE OF THE ASSESSEE. AS FAR AS THE DECISION OF TH E JURISDICTIONAL HIGH COURT IN THE CASE OF SOLID CONTAINERS LTD (SUPRA) IS CONCERNED, THE REPORTED DECISION NEED NOT BE BROUGHT TO THE NOTICE OF THE ASSESSEE WHEN THE A PPLICABILITY OF THE RULE LAID DOWN IN THE DECISION IS NOT IN QUESTION. THE TRIBU NAL HAS DULY RECORDED IN THE ORDER THAT THE SAID DECISION WAS RELIED UPON BY THE LD DR AND EVEN OTHERWISE, THE DECISION OF THE JURISDICTIONAL HIGH COURT ON THE ISSUE CANNO T BE IGNORED AS THE SAME IS BINDING ON THIS TRIBUNAL. 5 THE SCOPE OF SEC 254(2) IS VERY LIMITED AND CIRCU MSCRIBED. FOR EXERCISING THE JURISDICTIONAL U/S 254(2), IT IS THE MANDATORY COND ITION THAT SUCH MISTAKE SHOULD BE WIDE APPARENT, MANIFEST AND PATENT AND NOT SOMETHIN G WHICH COULD BE INVOLVED SERIOUS CIRCUMSTANCES OF DISPUTES OF QUESTION OF FA CTS OR LAW AND CAN BE ESTABLISHED BY LONG DRAWN PROCESS AND REASONING ON THE POINT TO BE RECTIFIED. A PATENT MISTAKE AS WELL AS EVIDENT ERROR, WHICH DOES NOT REQUIRE AN ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENTS TO ESTABLISH CAN BE SAID TO BE AN ERRO R APPARENT ON THE FACE OF THE RECORDS AND CAN BE RECTIFIED UNDER THE AMBIT OF SEC TION 254(2). IT IS WELL SETTLED THAT SEC 254(2) DOES NOT CONFER POWER ON THE TRIBUNAL TO REVIEW IS EARLIER ORDER. THUS, THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER PASSED ON MERIT AND IN THE GRAB OF RECTIFICATION OF MISTAKE NO ORDER CAN BE PASSED U/S 254(2) WHICH AMOUNTS TO REVERSAL OF THE ORDER PASSED AFTER DISCUSSING ALL THE FACTS AND STATUTORY PROVISIONS IN DETAIL. WHEN THE ENTIRE ISSUE WAS EXAMINED AND DECIDED ON MERIT AFTER CONSIDERING THE JUDGMENTS RELIED UPON BY BOTH THE PARTIES AND, IN S UPPORT OF ITS FINDINGS AND VIEW IF CERTAIN DECISIONS ARE REFERRED BY THE TRIBUNAL THEN IT WOULD NOT AMOUNT TO TOTAL RELIANCE PLACED ON THE CITED DECISIONS AND IN TURN AN APPARENT AND MANIFEST MISTAKE IN THE ORDER. 4 MA NO. 220/MUM/2011 ARISING OUT OF ITA NO. 6455/MUM/2010 (ASST YEAR 2007-08) 6 IN VIEW OF THE ABOVE DISCUSSION, WE ARE OF THE CO NSIDERED OPINION THAT THE ASSESSEE HAS NOT BROUGHT OUT ANY ERROR OR MISTAKE A PPARENT ON THE FACE OF THE RECORD, WHICH CAN BE RECTIFIED WITH THE PROVISION O F SEC 254(2) BUT ALL THE CONDITIONS RAISED BY THE ASSESSEE IN THE MA AS WELL AS IN THE ARGUMENTS ARE ON MERITS OF THE ISSUE DECIDED BY THE TRIBUNAL VIDE IMPUGNED ORDER. THEREFORE, THE MISCELLANEOUS APPLICATION IS NOTHING BUT SEEKING A REVIEW OF THE IMPUGNED ORDER OF THIS TRIBUNAL WHICH IS BEYOND THE SCOPE OF SEC 254(2). THE ORDER PASSED ON MERITS CANNOT BE AMENDED OR RECALLED BY GIVING A DIFFERENT REASON IN THE GARB OF RECTIFICATION OF MISTAKE. ACCORDINGLY, WE DO NOT FIND ANY MERIT IN THE MISCELLANEOUS APPLICATION TO THE EXTENT THE ISSUE ALREADY DECIDED ON MERITS. 7 IN THE RESULT, THE MISCELLANEOUS APPLICATION FILE D BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THE 5 TH , DAY OF AUG 2011. SD/- SD/- ( R S SYAL ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 5 TH , AUG 2011 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI