DCIT CIR 14(2)(2), V. MEHTA SULFITES INDIA LTD,

MA 274/MUM/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0060 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 9 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-09-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 1999-2000
• Appeal Filed On: 26-11-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Assessee Lawyers: M SUBRAMANIAN
• Section: 143(3); 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B , MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH , JUDICIAL MEMBER MA NO. 274 /MUM/201 5 (OUT OF ITA NO. 2028 /MUM/20 08 ) : A.Y : 1999 - 2000 DCIT, CIRCLE - 14(2)(2), MUMBAI (APPELLANT) VS. M/S. MEHTA SULFITESH INDIA LTD., A/302, GOLDEN OAK, HIRANANDANI GARDENS, POWAI, MUMBAI 400 076 . PAN : AAACM3109R (RESPONDENT) APPELLANT BY : SHRI CHAITANYA ANJARIA RESPONDENT BY : SHRI M. SUBRAMANIAN DATE OF HEARING : 0 7/0 9 /2018 DATE OF PRONOUNCEMENT : 19 /09/2018 O R D E R PER G.S. PANNU , AM : THIS MISCELLANEOUS APPLICATION U/S 254(2) OF THE ACT HAS BEEN PREFERRED BY THE REVENUE FROM THE ORDER OF THE TRIBUNAL IN ITA NO. 2028/MUM/2008 DATED 29.05.2015 PERTAINING TO ASSESSMENT YEAR 1999 - 2000. 2. THE TRIBUNAL IN ITS ORDER DATED 29.05.2015 HELD T HAT THE PROCEEDINGS INITIATED BY THE ASSESSING OFFICER BY ISSUANCE OF NOTICE DATED 13.03.2006 U/S 148 OF THE ACT WAS CONTRARY TO THE LAW INASMUCH AS THE REQUISITE SATISFACTION REQUIRED IN TERMS OF SEC. 151(2) OF THE ACT WAS NOT APPROPRIATELY COMPLIED WITH. IN COMING TO SUCH CONCLUSION, THE TRIBUNAL NOTED THAT THE ORIGINAL ASSESSMENT WAS NOT MADE UNDER SECTION 143(3) OR 147 OF THE ACT AND, THEREFORE, HAVING REGARD TO SEC. 151(2) OF THE ACT, THE REQUISITE SANCTION, WHICH WAS REQUIRED TO BE OBTAINED FROM THE JOINT COMMISSIONER, WAS NOT SO OBTAINED. FOLLOWING THE RATIO OF THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF GHANSHYAM K. KHARBANI VS ACIT, 346 ITR 443 (BOM.) , NOTICE U/S 148 OF THE ACT WAS FOUND TO BE UNTENABLE. 3. PRESENTLY, BY WAY OF A N APPLICATION U/S 254(2) OF THE ACT, REVENUE HAS SOUGHT TO POINT OUT A MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF THE TRIBUNAL DATED 29.05.2015 (SUPRA). THE POINT SOUGHT TO BE RAISED BY THE REVENUE IS THAT THE ORIGINAL ASSESSMENT WAS COMPLETED U/S 1 44 OF THE ACT, WHICH IS TO BE UNDERSTOOD AS AN ASSESSMENT U/S 143(3) OF THE ACT AND, THEREFORE, THE SANCTION FOR ISSUANCE OF NOTICE U/S 148 OF THE ACT WAS GOVERNED BY THE PROVISIONS OF SEC. 151(1) OF THE ACT AND NOT AS PER SEC. 151(2) OF THE ACT AS NOTED B Y THE TRIBUNAL. 4. IN THE ABOVE BACKGROUND, BOTH THE COUNSELS HAVE BEEN HEARD AND THE RELEVANT MATERIAL PERUSED. OSTENSIBLY, SEC. 254(2) OF THE ACT BESTOWS A VERY LIMITED POWER WITH THE TRIBUNAL, WHICH PERMITS RECTIFICATION OF ANY MISTAKE APPARENT FROM T HE RECORD. IN OTHER WORDS, THE POWER TO AMEND ITS ORDER VESTED WITH THE TRIBUNAL IN TERMS OF SEC. 254(2) OF THE ACT IS ONLY TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD. CONSIDERED IN THIS LIGHT, THE EXERCISE SOUGHT TO BE CANVASSED BY THE REVENUE BEFO RE US STANDS ON A COMPLETELY DIFFERENT FOOTING. THE QUESTION AS TO WHETHER THE APPLICABLE PROVISION GOVERNING OBTAINING OF SANCTION TO PROCEED U/S 147 OF THE ACT IS IN TERMS OF SUB - SECTION (1) OR SUB - SECTION (2) OF SEC. 151 OF THE ACT IS A MATTER OF JUDGM ENT. IN THE PRESENT CASE, WHILE DISPOSING OFF THE APPEAL, THE TRIBUNAL HAS PROCEEDED CONSIDERING THAT THE SITUATION IS GOVERNED BY SEC. 151(2) OF THE ACT, WHICH ACCORDING TO THE REVENUE IS WRONG. BE THAT AS IT MAY, IT CLEARLY STANDS OUT THAT THE ERROR SO UGHT TO BE MADE OUT BY THE REVENUE IS NOT AN ERROR APPARENT ON THE RECORD SO AS TO JUSTIFY EXERCISE OF POWER U/S 254(2) OF THE ACT. IT IS QUITE WELL - SETTLED THAT IN PROCEEDINGS U/S 254(2) OF THE ACT , THE TRIBUNAL CANNOT RE - DECIDE OR REVIEW ITS EARLIER ORD ER AS HAS BEEN HELD BY THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS RAMESH ELECTRIC AND TRADING CO. , 203 ITR 497 (BOM.) . 5. IN VIEW OF THE AFORESAID DISCUSSION, WE FIND NO MERIT IN THE PRESENT APPLICATION MOVED BY THE REVENUE U/S 254(2) OF THE ACT AND THE SAME IS HEREBY DISMISSED. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH SEPTEMBER, 2018. SD/ - SD/ - ( AMARJIT SINGH ) JUDICIAL MEMBER (G.S. PANNU) ACCOUNTANT MEMBER MUMBAI, DATE : 19 TH SEPTEMBER, 201 8 *SSL* COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, B BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI