SPORT FIELD AMUSEMENTS, V. ITO WD 24(3)(3),

MA 263/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9486 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-10-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 2003-2004
• Appeal Filed On: 30-04-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJESH DIWEDY
• Assessee Lawyers: R C JAIN
• Keywords: Revenue expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J, MUMBAI BEFORE AND SHRI P.M.JAGTAP, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER. M.A. NO.263/MUM/2012. (ARISING OUT OF ITA NO.3980/MUM/2007) ASSESSMENT Y EAR : 2003-04. M/S SPORTSFIELD AMUSEMENTS, THE INCOME-TAX OFFICER, 70-C, NEHRU ROAD, VILEPARLE (E), VS. WARD-24(3)-3, MUMBAI. MUMBAI 400099. PAN AARFS9572J APPLICANT. RESPONDENT. APPLICANT BY : SHRI R.C. JAIN. RESPONDENT BY : SHRI RAJESH DIWEDY. DATE OF HEA RING : 19-10-2012. DATE OF PRONOUNCEM ENT : 23-10-2012. O R D E R PER P.M. JAGTAP, A.M. : BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE IS SEEKING RECTIFICATION OF THE MISTAKE ALLEGED TO HAVE CREPT IN THE ORDER OF T HE TRIBUNAL DATED 16 TH MARCH, 2012 PASSED IN ITA NO.3980/MUM/2007. 2. THE LEARNED COUNSEL FOR THE ASSESSEE WHILE SUPPO RTING THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE SUBMITTED THAT ON E OF THE ISSUES INVOLVED IN THE APPEAL OF THE ASSESSEE AS RAISED IN GROUND NO. 1 WA S RELATING TO THE DISALLOWANCE OF RS.5,44,968/- ON ACCOUNT OF 1/10 TH OF THE DEFERRED REVENUE EXPENDITURE AS MADE BY THE AO AND CONFIRMED BY THE LEARNED CIT(APPEALS). H E SUBMITTED THAT ALTHOUGH THIS ISSUE WAS DECIDED BY THE LEARNED CIT(APPEALS) FOR ASSESSMENT YEAR 2003-04 2 M.A.NO.263/MUM/2012 AGAINST THE ASSESSEE BY HIS APPELLATE ORDER DATED 0 2-09-2005, THE TRIBUNAL SUBSEQUENTLY BY ITS ORDER DATED 15-05-2008 PASSED I N ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2001-02 IN ITA NO. 6683/MUM/2005 DE CIDED THE SIMILAR ISSUE IN FAVOUR OF THE ASSESSEE AND EVEN THE LEARNED CIT(APP EALS) FOLLOWED THE SAID DECISION OF THE TRIBUNAL WHILE DECIDING A SIMILAR I SSUE IN FAVOUR OF THE ASSESSEE FOR ASSESSMENT YEAR 2005-06 VIDE HIS APPELLATE ORDER DA TED 26-12-2008. HE SUBMITTED THAT THE ISSUE THUS WAS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE TRIBUNAL DATED 15-05-2008 (SUPRA) AND ALTHOUGH THE SAME WAS BROUGHT TO THE NOTICE OF THE TRIBUNAL DURING THE COURSE OF HEARING OF THE ASSESSEES APPEAL FOR ASSESSMENT YEAR 2003-04, THE TRIBUNAL REMANDED THE MATTER BACK TO THE LEARNED CIT(APPEALS) WITH A DIRECTION TO DECIDE THE ISSUE A FRESH ON MERIT. HE HAS CONTENDED THAT THERE IS THUS A MISTAKE APPARENT FRO M RECORD IN THE ORDER OF THE TRIBUNAL DATED 16 TH MARCH, 2012 (SUPRA) INASMUCH AS THE DECISION OF TH E COORDINATE BENCH ON A SIMILAR ISSUE HAS NOT BEEN FOLLOWED THER EIN. IN SUPPORT OF THIS CONTENTION, HE RELIED ON THE DECISION OF HONBLE SU PREME COURT IN THE CASE OF SUB INSPECTOR ROOPLAL VS. LT. GOVERNOR 2000(1) SCC 644 WHEREIN IT WAS HELD THAT OVERRULING THE EARLIER JUDGMENT OF ANOTHER COORDINA TE BENCH OF THE SAME TRIBUNAL IS OPPOSED TO ALL PRINCIPLES OF JUDICIAL DISCIPLINE. T HE LEARNED DR, ON THE OTHER HAND, SUBMITTED THAT BY ITS ORDER DATED 16 TH MARCH, 2012, THE ISSUE RELATING TO DISALLOWANCE ON ACCOUNT OF THE DEFERRED REVENUE EXP ENDITURE WAS REMANDED BY THE TRIBUNAL TO THE LEARNED CIT(APPEALS) BY GIVING SPEC IFIC DIRECTION AND THAT TOO AFTER CONSIDERING THE DECISION OF THE COORDINATE BENCH DA TED 15-05-2008 PASSED IN ASSESSEES OWN CASE FOR THE EARLIER YEAR WHICH WAS CITED ON BEHALF OF THE ASSESSEE. HE CONTENDED THAT THERE IS THUS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL REQUIRING RECTIFICATION U/S 254(2). 3 M.A.NO.263/MUM/2012 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PER USED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT THE ISSUE RAISED IN GROUND NO.1 OF THE ASSESSEES APPEAL RELATING TO DISALLOWANCE ON ACCOUNT OF 1/10 TH OF THE DEFERRED REVENUE EXPENDITURE WAS DECIDED BY THE TRIBUNAL VIDE PARAGR APH NO. 4 OF ITS ORDER WHICH READS AS UNDER : AFTER HEARING THE ARGUMENTS OF BOTH THE LD. REPRE SENTATIVES, WE ARE OF THE OPINION THAT THE LD. CIT(A) HAS NOT DECIDED THE ISSUE BY TAKING INTO CONSIDERATION THE FACTS AS WELL AS THE RELEVANT LAW ON THE SUBJECT OF CAPITAL VS. REVENUE EXPENDITURE. AS A PERUSAL OF PARA-3 OF THE LD. CIT(A) ORDER MAKES IT CLEAR, SIMILARITY BETWEEN THE ORDER DATED 2-9-2005 VIS--VIS FACTS OF THE CASE IS NOT FORTHCOMING. MEANING THEREBY THAT D ESPITE THE WELL SETTLED LAW DEFINING THE JURISDICTION OF CIT(A) THAT THE FI RST APPELLATE AUTHORITY IS COMPETENT TO RE-APPRECIATE THE FACTS AS WELL AS LAW , THE FIRST APPELLATE AUTHORITY HEREIN HAS NOT PASSED A DETAILED ORDER GI VING REASONS. IN ADDITION TO THIS, SO FAR AS THE CONTENTION OF TH E LD. AR OF THE ASSESSEE THAT THE CASE IS SQUARELY COVERED BY THE D ECISION OF MUMBAI BENCH OF THE TRIBUNAL (SUPRA) IS CONCERNED, WE HAVE PERUS ED THE SAID DECISION. HOWEVER, IN THE SAID DECISION, THERE IS NO SPECIFIC ADJUDICATION OF THE ISSUE IN HAND. ACCORDINGLY, IN VIEW OF THE TOTALITY OF CI RCUMSTANCES, WE DEEM IT APPROPRIATE TO REMIT THE MATTER BACK TO THE LD. CIT (A) FOR PASSING A FRESH ORDER IN ACCORDANCE WITH LAW AFTER TAKING INTO CONS IDERATION THE WELL SETTLED PARAMETERS OF LAW DEFINING THE CONCEPTS OF CAPITAL AND REVENUE EXPENDITURE. A PERUSAL OF THE ABOVE PORTION OF THE TRIBUNALS OR DER SHOWS THAT THE ORDER OF THE LEARNED CIT(APPEALS) FOR THE YEAR UNDER APPEAL I.E. ASSESSMENT YEAR 2003-04 WAS FOUND TO BE NOT WELL DISCUSSED AND WELL REASONED BY THE TRIBUNAL. IT WAS ALSO FOUND BY THE TRIBUNAL THAT THERE WAS NO SPECIFIC ADJUDICA TION OF THE ISSUE UNDER CONSIDERATION IN THE DECISION OF THE COORDINATE BEN CH RENDERED IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2001-02 VIDE ITS ORDER DAT ED 15-05-2008 RELIED UPON BY THE ASSESSEE. THE TRIBUNAL, THEREFORE, THOUGHT IT FIT TO REMAND THE MATTER TO THE LEARNED CIT(APPEALS) FOR PASSING A FRESH ORDER IN A CCORDANCE WITH LAW AFTER TAKING INTO CONSIDERATION ALL THE RELEVANT ASPECTS. IN OUR OPINION, IT IS THUS NOT A CASE 4 M.A.NO.263/MUM/2012 WHERE THE TRIBUNAL HAS EITHER DIRECTLY OR INDIRECTL Y OVERRULED THE DECISION OF THE COORDINATE BENCH. ON THE CONTRARY, THE DECISION OF THE COORDINATE BENCH HAS BEEN CONSIDERED BY THE TRIBUNAL AND ON SUCH CONSIDERATIO N, THE MATTER WAS REMANDED TO THE LEARNED CIT(APPEALS) FOR PASSING A FRESH ORDER TAKING A PARTICULAR VIEW OF THE MATTER. IT IS WELL SETTLED THAT THE DECISION OF THE TRIBUNAL CANNOT BE REVIEWED IN THE GUISE OF RECTIFICATION U/S 254(2). EVEN OTHERWISE, NOT FOLLOWING THE DECISION OF A COORDINATE BENCH DOES NOT GIVE RISE TO A MISTAKE A PPARENT FROM RECORD WHICH CAN BE RECTIFIED U/S 254(2), ALTHOUGH WE MAY CLARIFY TH AT THERE IS NO SUCH SITUATION IN THE PRESENT CASE. WE, THEREFORE, FIND NO MERIT IN T HIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE AND DISMISS THE SAME, 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 23 RD DAY OF OCT., 2012. SD/- SD/- (AMIT SHUKLA) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED : 23 RD OCT., 2012. WAKODE COPY TO : 1. APPLICANT. 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. D.R., J-BENCH. (TRUE COPY) BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.