DCIT, CHENNAI V. M/s. Vijay Shanthi Builders Ltd., CHENNAI

MA 297/CHNY/2009

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3735 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-07-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 30-07-2010
• Assessment Year: 1995-1996
• Appeal Filed On: 08-10-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B SRINIVAS
• Assessee Lawyers: V D GOPAL
• Keywords: Principle of natural justice; Question of law; Difference of opinion; Change of opinion

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH C CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER M.A. NO. 297/MDS/2009 (IN ITA NO. 1570/MDS/2003) ASSESSMENT YEAR : 1995-96 THE DEPUTY COMMISSIONER OF INCOME-TAX, COMPANY CIRCLE-III(4), CHENNAI. VS. M/S. VIJAY SHANTHI BUILDERS LTD., VIJAY COMPLEX, NO.3, BLACKERS ROAD, MOUNT ROAD, CHENNAI-600 002. PAN : AAACV2001R (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI B. SRINIVAS RESPONDENT BY : SHRI V.D. GOPAL O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER : THIS IS A MISCELLANEOUS APPLICATION FILED BY THE R EVENUE AGAINST THE ORDER OF THE TRIBUNAL IN ITA NO. 1570/MDS/2003 DATED 28-1 1-2008 FOR THE ASSESSMENT YEAR 1995-96. 2. SHRI B. SRINIVAS, LEARNED DR REPRESENTED ON BEHA LF OF THE REVENUE AND SHRI V.D.GOPAL, ADVOCATE REPRESENTED ON BEHALF OF T HE ASSESSEE. 3. IT WAS SUBMITTED BY THE LEARNED DR THAT THE TRIB UNAL HAD NOT APPRECIATED THE FACTS OF THE CASE IN ITS CORRECT PERSPECTIVE AN D THAT THE ASSESSEE HAD M.A. NO. 297/MDS/2009 2 ORIGINALLY CLAIMED BEFORE THE ASSESSING OFFICER THA T THE ASSESSEE HAD NOT WRITTEN OFF THE AMOUNTS IN ITS BOOKS OF ACCOUNTS WHEREAS BE FORE THE CIT(A) THE ASSESSEE HAD RAISED THE ISSUE THAT THE AMOUNT WAS L IABLE TO BE ALLOWED AS A TRADING LOSS. IT WAS THE SUBMISSION THAT IN PARA 7 OF THE TRIBUNAL ORDER IT WAS STATED THAT THE ASSESSEE HAD FILED CIVIL SUITS AND HAD LOST THE SAME. IT WAS THE SUBMISSION THAT THIS WAS NOT FACTUALLY CORRECT AND THAT IT WAS THE THIRD PARTIES WHO HAD FILED THE SUITS AGAINST THE LAND OWNERS. I T WAS THE SUBMISSION THAT THE TRIBUNAL HAVING NOT APPRECIATED THE FACTS PROPERLY THE ORDER OF THE TRIBUNAL WAS LIABLE TO BE RECALLED AND SET ASIDE TO RE-DECIDE TH E ISSUE AFTER GETTING AFFIDAVIT FROM THE ASSESSEE ABOUT THE WRITING OFF OF THE AMOU NT IN THE BOOKS OF ACCOUNT AND ALSO EXAMINING WHETHER THE AMOUNTS COULD BE ALL OWED AS A TRADING LOSS IN THE YEAR UNDER CONSIDERATION. THE LEARNED DR ALSO RELIED UPON THE ENCLOSURES FILED ALONG WITH THE MISCELLANEOUS APPLICATION. IT WAS FAIRLY AGREED THAT THE ENCLOSURES AS FILED IN THE MISCELLANEOUS APPLICATIO N WERE NOT BEFORE THE TRIBUNAL WHEN THE ORIGINAL APPEAL WAS BEING HEARD. 4. IN REPLY, THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED THAT THE ORDER OF THE TRIBUNAL AGAINST WHICH THE MISCELLANEOUS APPLIC ATION HAS BEEN FILED WAS THE SUBJECT MATTER OF AN APPEAL BY THE REVENUE BEFORE T HE HON'BLE MADRAS HIGH COURT IN TAX CASE APPEAL NO. 640 OF 2009 WHICH CAME TO BE DECIDED BY THE HON'BLE JURISDICTIONAL HIGH COURT OF MADRAS VIDE IT S ORDER DATED 3-8-2009 WHEREIN THE ORDER OF THE TRIBUNAL HAD BEEN UPHELD. IT WAS THE SUBMISSION THAT THE ORDER M.A. NO. 297/MDS/2009 3 HAVING BEEN ALREADY SUBJECTED TO AN APPEAL BEFORE T HE HON'BLE MADRAS HIGH COURT AND NO ERROR HAVING BEEN FOUND IN THE ORDER O F THE TRIBUNAL AND FURTHER AS NO ERROR HAD BEEN SPECIFICALLY POINTED OUT WHICH CO ULD BE TREATED AS A MISTAKE APPARENT FROM THE RECORD, THE MISCELLANEOUS APPLICA TION FILED BY THE REVENUE IS LIABLE TO BE DISMISSED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. IT IS NOTICED THAT THE MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE REV ENUE BY HAND ON 8-10-2009 I.E. MUCH AFTER THE ORDER OF THE HON'BLE JURISDICTI ONAL HIGH COURT IN RESPECT OF THE ISSUE IN THE APPEAL. THE ORDER OF THE HON'BLE HIGH COURT IS DATED 3-8-2009. IT IS ALSO NOTICED THAT EVEN BEFORE THE HON'BLE MADRAS HI GH COURT THE REVENUE HAS NOT CLAIMED ANY PERVERSITY IN RESPECT OF THE FINDIN GS OF FACT BY THE TRIBUNAL, NOR HAS IT BEEN CLAIMED THERE THAT THERE IS NON-APPRECI ATION OF THE FACTS IN ITS CORRECT PERSPECTIVE. 6. NOW COMING TO THE ISSUE AS TO WHETHER WHAT IS ME NTIONED IN THE MISCELLANEOUS APPLICATION BY THE REVENUE IS RECTIFI ABLE U/S. 254(2) OF THE INCOME-TAX ACT, 1961, AT THE OUT SET WHAT SHOULD BE UNDERSTOOD IS THAT AS PER THE PROVISIONS OF SECTION 254(2) OF THE INCOME-TAX ACT, 1961 THE APPELLATE TRIBUNAL MAY AT ANY TIME WITHIN 4 YEARS FROM THE DA TE OF THE ORDER WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD AMEN D ANY ORDER PASSED BY IT UNDER SUB-SECTION (1) AND SHALL MAKE SUCH AMENDMENT S IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESS ING OFFICER. THUS WHAT IS TO BE M.A. NO. 297/MDS/2009 4 UNDERSTOOD THAT IS THE CRUX OF THE ISSUE IS THE RE CTIFYING ANY MISTAKE APPARENT FROM RECORD. A MISTAKE APPARENT FROM THE RECORD AS THE TERM ITSELF INDICATES SHOULD BE CLEAR AND ONE WHICH DOES NOT NEED DETAILE D INVESTIGATION. PERVERSITY IN THE FINDING OF THE TRIBUNAL WOULD BE A QUESTION OF LAW BUT IT WOULD NOT BE A MISTAKE APPARENT FROM THE RECORD WHICH CAN BE RECTI FIED. WRONG APPRECIATION OF THE FACTS COULD BE CONSIDERED AS LEADING TO A WRONG JUDGMENT, BUT IT WOULD NOT BE A MISTAKE APPARENT FROM THE RECORD WHICH COULD BE RECTIFIED UNDER THE PROVISIONS OF SECTION 254(2). THE POWERS OF THE TRI BUNAL U/S 254(2) ARE LIMITED AND IN A VERY NARROW COMPASS. THE TRIBUNAL CANNOT UNDER ANY CIRCUMSTANCES REVIEW ITS ORDER UNDER THE GARB OF MISTAKE APPAREN T FROM THE RECORD. RECONSIDERING SUBMISSIONS MADE IN COURSE OF ARGUMEN TS, RECONSIDERING OR RE- APPRECIATING EVIDENCE ALL CONSTITUTE REVIEW. THE T ERM RECORD MUST ALSO BE UNDERSTOOD TO BE THE RECORDS OF THE APPEAL AS AVAIL ABLE BEFORE THE TRIBUNAL. THE MISTAKE THUS MUST BE APPARENT FROM THE FACE OF THE RECORDS OF THE TRIBUNAL IN RESPECT OF THE APPEAL. DEDUCTION FROM THE FACTS AL READY CONSIDERED CAN BE SAID TO BE ONLY A CHANGE OF OPINION LEADING TO REVIEW. REAPPRAISAL OF THE FACTS ONCE CONSIDERED ALSO WOULD ONLY BE REVIEW AND NOT RECTIF ICATION OF A MISTAKE APPARENT FROM THE RECORD. JUST BECAUSE THE ASSESSEE OR THE REVENUE DOES NOT LIKE THE FINDING OF THE TRIBUNAL OR THAT THERE IS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE IT WOULD NOT LEAD TO A MISTAKE APPARENT FROM THE RECOR D. NORMALLY, WHAT IS UNDERSTOOD BY MISTAKE APPARENT FROM THE RECORD IS T HE WRONG APPLICATION OF A M.A. NO. 297/MDS/2009 5 PARTICULAR PROVISION OR THE NON-APPLICATION OF A PR ECEDENT OR AN OBITER DICTA OR A DECISION OF A HIGHER FORUM. THERE SHOULD BE A MIS TAKE. A DECISION TAKEN BY THE TRIBUNAL IS NORMALLY A CONSCIOUS DECISION. THE DECISION COULD BE WRONG OR IT COULD BE RIGHT. FOR TESTING THAT THERE ARE HIGHER J UDICIAL FORUMS WHERE DECISIONS OF THE TRIBUNAL CAN BE TESTED BY EITHER THE REVENUE OR THE ASSESSEE. THE NON- ACCEPTABILITY OF A DECISION OF THE TRIBUNAL BY EITH ER THE REVENUE OR THE ASSESSEE WILL NOT MAKE THE ORDER OF THE TRIBUNAL TO BE CONTA INING A MISTAKE APPARENT FROM THE RECORD. ONCE THIS IS KEPT IN MIND A PERUSAL OF THE SUBMISSIONS MADE BY BOTH THE SIDES AS ALSO THE MISCELLANEOUS APPLICATION FIL ED CLEARLY SHOW THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD IN THE DECISION RE NDERED BY THIS TRIBUNAL IN THE ORDER DATED 28-11-2008. IN THE CIRCUMSTANCES, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. 7. THE ORDER WAS PRONOUNCED IN THE COURT ON 30-07-2 010. SD/- SD/- (ABRAHAM P. GEORGE) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 30 TH JULY, 2010. H. COPY TO: ASSESSEE/AO/CIT (A)/CIT/D.R./GUARD FILE