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

MA 314/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 9045 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-10-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 1999-2000
• Appeal Filed On: 21-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D G PANSARI
• Assessee Lawyers: M SUBRAMANIAN
• Section: 147; 148; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI JOGINDER SINGH , VICE PRESIDENT AND SHRI RAJESH KUMAR , A M M.A. 314/MUM/2016 ( ARISING OUT OF ITA NO. 4773 /MUM/201 3 ASSESSMENT YEAR 20 00 - 01 ) D CIT - CIRCLE - 14(2)(2) MUMBAI. VS. M/S. MEHTA SULFITES INDIA LTD . A/302, GOLDEN OAK, HIRANANDANI GARDENS, POWAI, MUMBAI - 400 076. PAN : A A ACM 3109 R ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY SHRI D.G. PANSARI - DR RESPONDENT BY SHRI M. SUBRAMANIAN - AR DATE OF HEARING 12/10 /2 018 DATE OF PRONOUNCEMENT 16 / 10 /2018 O R D E R PER RAJESH KUMAR , ACCOUNTANT MEMBER : BY WAY OF THIS MISCELLANEOUS APPLICATION DATED 21/07/2016, THE REVENUE HAS POINTED OUT THAT THERE IS MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL IN ITA NO.4773 / MU M/2013 FOR ASSESSMENT YEAR 2000 - 01 DATED 20/11/2015, AND SEEKS RECALLING OF THE SAME. 2. THE LD. DR SUBMITTED BEFORE THE BENCH THAT WHILE PASSING THE ORDER , THE TRIBUNAL HELD THAT FOR THE PURPOSE OF INITIATING THE REASSESSMENT U/S 147 R.W.S. U/S. 148 OF T HE ACT PRIOR PERMISSION U/S. 151 (2) OF THE ACT I S REQUIRED TO BE OBTAINED AS ORIGINA L ASSESSMENT WAS FRAMED U/S. 144 (3) R.W.S. 147 OF THE ACT. REVENUE SUBMITTED THAT SINCE ASSESSMENT HAS BEEN FRAMED U/S. 144 OF THE ACT ON 25/03/2003 DETERMINING LOSS AT RS . 2,83,55,630/ - , THE TRIBUNAL FAILED TO APPRECIATE THAT THE ASSESSMENT ORDER FRAMED U/S. 144 OF THE ACT IS COVERED UNDER THE PROVISIONS OF SECTION 151(1) OF THE ACT AND NOT U/S. 151(2) OF THE ACT. 3. THE LD. D R FURTHER SUBMITTED THAT WHILE ALLOWING THE AP PEAL OF THE ASSESSEE , THE TRIBUNAL RELIED ON THE DECISION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF GHANSHYAM MA NO.314 /M/2016 M/S. MEHTA SULFITES INDIA LTD. 2 KHABRANI VS. ACIT (346 ITR 443) , IN COMING TO THE CONCLUSION THAT THE CA SE IS COVERED U/S. 151(2) OF THE ACT. FINALLY, THE LD. DR SUBMITTED T HAT SINCE ASSESSMENT WAS FRAMED U/S. 14 4 ON 25/3/2003 AND WAS RIGHTLY RE - OPENED AFTER OBTAINING THE APPROVAL U/S. 151(1) OF THE ACT BY TAKING APPROVAL OF CIT(A) , AND THEREFORE, THE ORDER OF THE TRIBUNAL SUFFER S FROM APPARENT MISTAKE , IT SHOULD BE RECALLED . 4. THE LD. AR ON THE OTHER HAND SUBMITTED BEFORE THE BENCH THAT A SIMILAR MISCELLANEOUS APPLICATION WAS FILED BEFORE THE BENCH IN MA NO. 274/MUM/2015 FOR (1999 - 2000) ARISING OUT OF ITA NO.2028/MUM/2008 DATED 19/9/2018 AND WAS DISMISSED BY THE CO - ORDINATE BENCH O F THE TRIBUNAL AND THEREFORE PRESENT MISCELLANEOUS APPLICATION FILED BY THE REVENUE SHOULD BE DISMISSED. 5. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD WE, OBSERVE THAT THE MISCELLANEOUS APPLICATION ON SIMILAR ISSUE HAS BEEN RAISED IN EARLIER YEAR WHICH STANDS DISMISSED BY THE TRIBUNAL. THE RELEVANT PARA IS REPRODUCED HEREUNDER : - 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 VE RY LIMITED POWER WITH THE TRIBUNAL, WHICH PERMITS RECTIFICATION OF ANY MISTAKE APPARENT FROM THE 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 BEFORE 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 JUDGMENT. 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 SOUGHT 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 ORDER 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 DISCU SSION, 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. FOLLOWING THE ABOVE, WE DISMISS THE MISCELLANEOUS APPLICATION FILED BY REVENUE. MA NO.314 /M/2016 M/S. MEHTA SULFITES INDIA LTD. 3 IN THE RESULT, MISCELLANEOU S APPLICATION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 16 . 10 .2018. SD/ - SD/ - ( JOGINDER SINGH ) ( RAJESH KUMAR ) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI ; DATED: 16 / 10/ 2018 JV.SR.PS. COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR B BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ / BY ORDER, / DY./ASST. REGISTRAR , / ITAT, MUMBAI. MA NO.314 /M/2016 M/S. MEHTA SULFITES INDIA LTD. 4 THIS ORDER WAS DIRECTLY DICTATED TO THE SR.PS/PS ON COMPUTER 1. DRAFT DICTATED ON 12/10 /18 SR.PS /PS 2. DRAFT PLACED BEFORE AUTHOR 12/10/18 SR.PS /PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/P S SR.PS /PS 6. DATE OF PRONOUNCEMENT SR.PS /PS 7. FILE SENT TO THE BENCH CLERK SR.PS /PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE ON WHICH FILE GOES TO THE AR 10. DATE OF DISPATCH OF ORDER