CLEAR PLASTICS LTD, MUMBAI V. ACIT 8(1),

MA 254/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1275 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-12-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 22-11-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 10-07-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B P K
• Keywords: Depreciation; Rectification of order
• Section: 32; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI , ! ! ! ! !'##%&' ( ) ) ) ) BEFORE SRI VIJAY PAL RAO, JM AND SHRI N.K.BILLAIYA, AM M.A. NO.254/MUM/2013 ARISING OUT OF ./ I.T.A. NO. 845/MUM/2012 ( ' * ' * ' * ' * +* +* +* +* / ASSESSMENT YEAR: 2008-09 ) M/S. CLEAR PLASTICS LTD. C/130, SOLARIS, OPP. L & T GATE NO. 6, POWAI, MUMBAI-400072 ' ' ' ' / VS. THE ASST. COMMISSIONER OF INCOME-TAX-8(1), AAYKAR BHAVAN, MUMBAI-400072 , ( ./ PAN : AAACC4489N ( ,- / ASSESSEE ) .. ( ./,- / RESPONDENT ) ,- 0 1 / ASSESSEE BY : SHRI DALPAT SHAH ./,- 0 1 / RESPONDENT BY : SHRI B.P.K.PANDA ' 0 2( / DATE OF HEARING : 22.11.2013 34+ 0 2( / DATE OF PRONOUNCEMENT : 04.12.2013 5 / O R D E R PER VIJAY PAL RAO, JM: BY WAY OF THIS MISCELLANEOUS APPLICATION, THE ASSES SEE IS SEEKING RECTIFICATION OF ORDER DATED 17.05.2013 OF THIS TRI BUNAL WHEREBY THE APPEAL OF THE ASSESSEE WAS DISPOSED OF. 2. THE ASSESSEE HAS STATED IN THE APPLICATION THAT THERE IS A MISTAKE IN THE FINDINGS OF TRIBUNAL IN RESPECT OF GROUND NO.2 WHER EBY THE CLAIM OF THE DEPRECIATION HAS BEEN DISALLOWED ON THE GROUND THAT THE ASSETS WERE NOT PUT TO USE. THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT THE DEPRECIATION U/S 32 2 M.A.NO.254/MUM/2013 M/S. CLEAR PLASTICS LTD. WAS DISALLOWED IN RESPECT OF NEW UNIT-II COMPRISING FACTORY BUILDING, PLANT MACHINERY, OFFICE EQUIPMENT, FURNITURE, ETC. THE L D. AR HAS ARGUED THAT EVEN IF THE DEPRECIATION IS NOT ALLOWABLE IN RESPECT OF PLA NT AND MACHINERY, THE ASSESSEE IS ENTITLE AND ELIGIBLE TO THE CLAIM OF TH E DEPRECIATION IN RESPECT OF FACTORY BUILDING, OFFICE EQUIPMENT AND FURNITURE, B ECAUSE ONLY THE PLANT AND MACHINERY WAS FOUND NOT INSTALLED IN THE FACTORY BU ILDING. THUS, THE LD. AR HAS URGED THAT THE DEPRECIATION IN RESPECT OF FACTO RY BUILDING, OFFICE EQUIPMENT AND FURNITURE SHOULD BE ALLOWED AND THE IMPUGNED OR DER MAY ACCORDINGLY BE MODIFIED. 3. ON THE OTHER HAND, THE LD. DR HAS OPPOSED THE MI SCELLANEOUS APPLICATION AND SUBMITTED THAT THE TRIBUNAL HAS DECIDED THE ISS UE ON MERIT AFTER CONSIDERING THE RELEVANT FACTS AND EVIDENCE, THEREF ORE, THE DECISION GIVEN ON MERITS CANNOT BE REVIEWED U/S 254(2). THE LD. DR H AS CONTENDED THAT MISCELLANEOUS APPLICATION IS BEYOND THE SCOPE OF SE CTION 254(2) AND ACCORDINGLY BE DISMISSED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND CAR EFULLY GONE THROUGH THE CONTENTS OF MISCELLANEOUS APPLICATION AS WELL AS IM PUGNED ORDER. WE NOTE THAT THE TRIBUNAL HAS CONFIRMED THE DISALLOWANCE OF CLAI M OF THE DEPRECIATION IN RESPECT OF NEW UNIT-II ON THE GROUND THAT THE UNIT WAS NOT SET UP DURING THE YEAR UNDER CONSIDERATION AND ACCORDINGLY THE PLANT AND MACHINERY ON WHICH DEPRECIATION HAS BEEN CLAIMED WAS NOT PUT TO USE. SINCE THE PLANT AND MACHINERY WAS NOT PUT TO USE AND THE UNIT WAS NOT S ET UP DURING THE YEAR UNDER CONSIDERATION, THEREFORE, THE DEPRECIATION CA NNOT BE ALLOWED EVEN IF THE FACTORY BUILDING WAS READY BUT IN THE ABSENCE OF PL ANT AND MACHINERY THE UNIT WAS YET TO BE SET UP AND READY TO BE COMMENCED. AC CORDINGLY, WE DO NOT FIND ANY APPARENT AND MANIFEST ERROR IN THE IMPUGNED ORD ER OF THE TRIBUNAL WHICH CAN BE RECTIFIED U/S 254(2) OF THE ACT. THE JURISD ICTION OF THE TRIBUNAL U/S 254(2) IS VERY LIMITED AND CIRCUMSCRIBED. THE TRI BUNAL CANNOT REVIEW ITS ORDER PASSED ON MERIT AFTER CONSIDERING THE RELEVANT EVID ENCE AND FACTS. RE- 3 M.A.NO.254/MUM/2013 M/S. CLEAR PLASTICS LTD. APPRECIATION OF EVIDENCE AND FACTS ARE BEYOND THE S COPE OF SECTION 254(2) AND THEREFORE, THE MISCELLANEOUS APPLICATION OF THE ASS ESSEE IS BEYOND THE SCOPE OF THE 254(2) AS IT SEEKS REVIEW OF THE ORDER PASSED O N MERITS. ACCORDINGLY THE MISCELLANEOUS APPLICATION IS DISMISSED. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 4/12/2013 5 0 34+ ( 6' 04/12/2013 , 4 0 7 SD/- ( N.K.BILLAIYA ) SD/- (VIJAY PAL RAO) ( / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 6' /DATED : 4 TH DECEMBER, 2013. F{X~{T? P.S. 5 0 .28 9+2 / COPY OF THE ORDER FORWARDED TO : (1) ' *:2 / THE ASSESSEE; (2) / THE REVENUE; (3) ; ( ) / THE CIT(A); (4) ; / THE CIT, MUMBAI CITY CONCERNED; (5) <7 .2' , , / THE DR, ITAT, MUMBAI; (6) 7=* > / GUARD FILE. /2 .2 / TRUE COPY 5' / BY ORDER ? / @ / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI