HINDUJA VENTURES LTD, V. ASST CIT RG 8(2),

MA 277/MUM/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2698 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-01-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2008-2009
• Appeal Filed On: 08-05-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIVEK A PERAMPURNA
• Assessee Lawyers: PRADIP KEDIA

Judgement Text

INCOME TAX APPELLATE TRIBUNAL ,MUMBAI - H BENCH , , BEFORE S/SH. RAJENDRA,ACCOUNTANT MEMB ER & SHRI AMIT SHUKLA, JUDICIAL MEMBER MA NO.277/MUM/2014 (ARISING OUT OF ITA NO.1534/ MUM/2012)-ASSESSMENT YEAR 2008-09 HINDUJA VENTURES LTD., 49/50, IN CENTRE, MIDC, 12TH ROAD, MAROL, ANDHERI (EAST), MUMBAI-400093 PAN:AAACH2058N VS. ADD.C IT RANGE 8(2) , AAYAKAR BHAVAN, M.M.ROAD, MUMBAI-400020 ( / APPELLANT) ( / RESPONDENT) APPELLANT BY : SHRI PRADIP KEDIA (AR) RESPONDENT BY : SHRI VIVEK A. PERAMPURNA !' # $ / DATE OF HEARING : 12-12-2014 %&'( # $ / DATE OF PRONOUNCEMENT : 16-01-2015 ) / O R D E R PER RAJENDRA, A.M. ! : VIDE ITS APPLICATION, DATED 08.05.2014, THE ASSESSE E HAS STATED THAT MISTAKES WERE APPARENT FROM THE ORDER OF THE TRIBUNAL DATED 26.03.2014 (ITA NO. 1534/M/12 -AY 2008-09), THAT MISTAKES HAD CREPT IN APPELLATE ORDER AND SAME WERE TO BE RECTI FIED,THAT THE TRIBUNAL HAD NOT DISPOSED GROUND NO. 1.5 AND GROUND NO. 1.6,THAT IN THE ASSESSMENT O RDER SATISFACTION ABOUT INVOKING THE PROVISIONS FOUND TO BE PRE-REQUISITE OF SECTION 14A(2) WAS SWE EPING, THAT THE SATISFACTION WAS NOT RECORDED BY THE ASSESSING OFFICER (AO), THAT PRIMARY REQUISI TION OF RULE 8D WAS NOT FULFILLED,THAT,THE TRIBUNAL HAD COMMITTED MANIFEST ERROR IN CONVERTING THE GENERAL AND CONJECTURAL OBSERVATIONS OF THE AO AS 'SPECIFIC' AND GERMANE TO THE COMPANY,THA T THE TRIBUNAL HAD BASED ITS FINDING ON A WRONG ASSUMPTION OF FACTS.IN ITS APPLICATION THE AS SESSEE HAS ALSO REFERRED TO THE DECISION OF REI AGRO LTD.(ITA NO.1811/KOL./2012)OF KOLKATA BENCH.IT WAS ALSO MENTIONED IN THE APPLICATION THAT THE ACCOUNTS/BOOKS OF THE ASSESSEE WERE NEVER CALLE D AND VERIFIED TO SUPPORT THE OBSERVATIONS MADE IN THE ASSESSMENT ORDER.,THAT THE ITAT IN PARA 6.1 OF ITS ORDER OBSERVED THAT THAT CASE RELIED UPON BY THE ASSESSEE ARE DISTINGUISHABLE ON FACTS A ND HENCE NOT APPLICABLE TO THE FACTS OF THE CASE UNDER APPEAL. DURING THE COURSE OF HEARING THE AUTHORISED REPRES ENTATIVE(AR)OF THE ASSESSEE REITERATED THE SAME ARGUMENTS THAT ARE PART OF THE APPLICATION FIL ED U/S.254(2) OF THE ACT.HE FURTHER CONTENDED THAT WITHOUT RECORDING THE SATISFACTION RULE 8D OF THE INCOME-TAX RULES,1962(RULE) COULD NOT BE APPLIED. DEPARTMENTAL REPRESENTATIVE(DR)STATED THAT THE ASSESSEE WANTED REVIEW OF THE ORDER IN THE NAME OF RECTIFICATION OF THE IMPUGNED ORDER,THA T SAME WAS NOT PERMISSIBLE UNDER THE PROVISIONS OF SECTION 254(2)OF THE ACT. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT THE ASSESSEE HAD RAISED 1.1. TO 1.9 GROUNDS OF APPEAL,WHILE FILI NG THE APPEAL.IN FACT SAME WERE THE DIFFERENT ARGUMENTS OF THE SAME ISSUE I.E.NON RECORDING OF SA TISFACTION BY THE AO BEFORE INVOKING THE PROVISIONS OF RULE 8D OF THE RULES.WHILE DECIDING T HE APPEAL,THE TRIBUNAL HAS HELD THAT FOR RECORDING SATISFACTION IT WAS NOT NECESSARY FOR THE AO TO USE THE WORDS THAT HE WAS NOT SATISFIED, THAT IT SHOULD BE APPARENT THAT HE HAD APPLIED HIS MIND BEFORE REJECTING THE SUBMISSION MADE BY THE ASSESSEE,THAT IN THE CASE UNDER CONSIDERATION T HE AO HAD GIVEN REASONS AS TO WHY THE 2 M.A.NO.277/MUM/2014 HINDUJA VENTURES LTD EXPLANATION FILED BY THE ASSESSEE WAS NOT ACCEPTABL E.CONSIDERING THESE FACTS THE TRIBUNAL HAS REMITTED BACK THE MATTER TO THE FILE OF THE AO FOR FRESH ADJUDICATION. THE PROVISIONS OF SECTION 254(2)HAVE BEEN INCORPORA TED IN THE STATUTE FOR RECTIFYING THE MISTAKES THAT ARE APPARENT FROM THE RECORD.WE ARE OF THE OPI NION UNDER THE PROVISIONS OF THE SAID SECTION IT IS NOT PERMISSIBLE FOR AN ASSESSEE TO CONTEND THAT THE APPELLATE ORDER WAS VITIATED ON THE GROUND THAT THE TRIBUNAL FAILED TO DISCUSS ALL THE CONTENT IONS RAISED BY COUNSEL BEFORE IT AND TO GIVE REASONS FOR COMING TO THE CONCLUSION WHICH IT DID. IF ASSESSEE FINDS AN ORDER DEFECTIVE ON THIS GROUND, THE REMEDY LAY ELSEWHERE, AND NOT BY WAY OF A MISCELLANEOUS APPLICATION. IT IS SAID THAT THE INCOME-TAX APPELLATE TRIBUNAL IS A CREATURE OF THE STATUTE AND IT IS NOT BEEN VESTED WITH THE REVIEW JURISDICTION BY THE STATUTE CREATING IT. THE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN JUDGMENTS OR ORDERS.WHAT ASSESSEE DESIRES, IN T HE CASE UNDER CONSIDERATION, IS REVIEW OF THE ORDER PASSED ON IN THE GRAB OF RECTIFICATION APPLIC ATION FILED BY IT. THE LANGUAGE OF SECTION 254(2) OF THE ACT IS VERY CLEAR. THE FOUNDATION FOR EXERCI SING THE JURISDICTION IS WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT ON THE RECORD AND THE OBJECT IS ACHIEVED BY AMENDING ANY ORDER PASSED BY IT. IN THE CASE UNDER CONSIDERATION ASSESSEE WANT S REAPPRAISAL OF THE ENTIRE CASE. IT IS NOT POSSIB LE UNDER THE PROVISIONS OF SEC. 254(2) OF THE ACT. AS PER THE HONBLE JURISDICTIONAL HIGH COURT, THE POWER OF RECTIFICATION AVAILABLE TO THE TRIBUNAL U/ S. 254(2) OF THE ACT, CANNOT BE EXERCISED ON FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADV ANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION BECAUSE IT IS AN ERROR OF JUDGMENT AND N OT AN ERROR APPARENT ON THE RECORD.(203 ITR 497 AND 323 ITR 577).HERE.WE WOULD LIKE TO REPRODUC E THE RELEVANT PART OF THE JUDGMENT OF RAMESH ELECTRICALS(203ITR497)AND SAME READS AS UNDE R: UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961, THE APPELLATE TRIBUNAL MAY, 'WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD', A MEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1) WITHIN THE TIME PRESCRIBED THEREIN. IT IS AN AC CEPTED POSITION THAT THE APPELLATE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER T HE PROVISIONS OF THE ACT. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO RECTIFY ANY MISTAKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD. THIS IS MERELY A POWER OF AMENDING ITS ORDER. THE P OWER OF RECTIFICATION UNDER SECTION 254(2) CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM THE RECORD, AND NOT A MISTAK E WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. FAILURE OF THE TRIBUNAL TO CONSIDER A N ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT O N THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE TRIBUNAL CANNOT, IN THE EXERCISE OF I TS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT IT S CONCLUSION. THE REMEDY AVAILABLE TO THE ASSESSEE WAS TO APPROAC H THE HONBLE JURISDICTIONAL HIGH COURT. BUT,IT PREFERRED TO FILE AN APPLICATION 254(2)OF TH E ACT.AS THERE IS NO MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL AND IT CANNOT REVIEW ITS OWN ORDER, SO,WE ARE REJECTING THE APPLICATION FILED BY THE ASSESSEE. AS A RESULT,MA FIL ED BY THE ASSESSEE STANDS DISMISSED. *(+ *(+ *(+ *(+ !,* !,* !,* !,* - - - - . . . . / / / / 0 0 0 0 11, 11, 11, 11, )! )! )! )! 2 22 2 3 3 3 3 / / / / 45 4545 45 . ORDER PRONOUNCED IN THE OPEN COURT ON 16TH, JANUARY,2015. ) # %&'( 6 /! 16 TUOJH TUOJH TUOJH TUOJH 201 5 & # 0' 7 SD/- SD/- ( / AMIT SHUKLA) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER 8' / MUMBAI, /! /DATE: 16.01.2015 SK ) ) ) ) # ## # 1 1 1 1 91' 91' 91' 91' / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / 2. RESPONDENT / 3 M.A.NO.277/MUM/2014 HINDUJA VENTURES LTD 3. THE CONCERNED CIT(A)/ 8: ) ); , 4. THE CONCERNED CIT / 8: ) ); 5. DR H BENCH, ITAT, MUMBAI / 1<0 !, ,P ,P,P ,P => , ) . . . 8' 6. GUARD FILE/ 0= ?' 1 //TRUE COPY// )! / BY ORDER, @ / 4 DY./ASST. REGISTRAR ) ,( , 8' /ITAT, MUMBAI