NAVIN FLUROINE INTERNATIONAL LIMITED , MUMBAI V. COMMISSIONER OF INCOME TAX 7, MUMBAI

MA 330/MUM/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8153 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 03-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITNYA ANJARIA
• Keywords: Depreciation
• Section: 54; 263; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B, MU MBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER M.A. NO. 330/M/2018 IN ITA NO.1205/M/2014 (ASSESSME NT YEAR- 2009-10) NAVIN FLUORINE INTERNATIONAL LTD. 2 ND FLOOR, SUNTECK CENTRE, 37/40, SUBHASH ROAD, VILE PARLE (EAST), MUMBAI-400057. PAN: AABCP0464B VS. COMMISSION OF INCOME-TAX- 7, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-20. (APPELLANT) (RESPONDENT) ASSESSEE BY : MS. ARATI VISSANJI (AR) REVENUE BY : SHRI CHAITNYA ANJARIA (DR) DATE OF HEARING : 07.12.2018 DATE OF PRONOUNCEMENT : 26.12.2018 ORDER UNDER SECTION 254(2) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS MISCELLANEOUS APPLICATION (MA) IS FILED BY ASS ESSEE FOR RECTIFICATIONS OF MISTAKE IN ORDER DATED 04.04.2018 IN ITA NO. 1205/MUM/2014 FOR AY 2009-10. THE APPLICANT/ASSESSE E IN THE APPLICATION HAS CONTENDED THAT THE LD. CIT(A) ISSUE D SHOW-CAUSE NOTICE ON FOUR ISSUES WHICH HAS BEEN REPRODUCED IN PARA 2 ON PAGE NO. 213 OF THE ORDER. IN RESPECT OF FIRST ISSUE, THE LD. CIT(A ) DIRECTED THE ASSESSING OFFICER TO VERIFY THE FACT AND PASS UNDER SECTION 1 54 OF THE ACT. FOR SECOND ISSUE, WHICH RELATES TO ADJUSTMENT UNDER SEC TION 145A, THE TRIBUNAL SET-ASIDE THE ORDER OF LD. CIT(A). HOWEVER , ISSUE NO. 3 & 4 WHICH RELATES TO DEPRECIATION ON IMPAIRED FIXED ASS ET AND CAPITAL MA NO. 330 MUM 2018-NAVIN FLUORINE INTERNATIONAL L TD. 2 EXPENDITURE ON SCIENTIFIC RESEARCH, THE ORDER OF LD . CIT(A) HAS BEEN UPHELD. WHILE UPHOLDING THE ORDER OF LD. CIT(A), TH E TRIBUNAL CONCLUDED THAT THE ASSESSING OFFICER NEITHER DISCUSSED NOR SH OWED ANY REFERENCE IN THE ORDER AND SILENTLY ALLOWED RELIEF TO THE ASSESS EE AND THAT TWIN CONDITION AS PROVIDED UNDER SECTION 263 ARE AVAILAB LE FOR REVISING ORDER. IT IS FURTHER CONTENDED IN THE APPLICATION THAT WHI LE PASSING THE ORDER, THE RATIO LAID DOWN IN THE DECISION BY JURISDICTIONAL H IGH COURT IN CIT VS. GABRIEL INDIA LTD. (203 ITR 103) HAS NOT BEEN FOLLO WED. 2. IN SUPPORT OF MISCELLANEOUS APPLICATION, THE LD. AR OF THE ASSESSEE SUBMITS THAT THERE IS MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL AS THE TRIBUNAL HAS NOT FOLLOWED THE DECISION OF JURISDICT IONAL HIGH COURT IN GABRIEL INDIA LTD. (SUPRA). THE LD.AR FURTHER SUBMI TS THAT THE HONBLE JURISDICTIONAL HIGH COURT IN HDFC VS. DCIT (382 ITR 529) HELD THAT THE DECISION OF HIGH COURT IS BINDING ON ALL AUTHORITIE S WITHIN THE STATE TILL SUCH TIME AS IT IS STAYED OR SET-ASIDE BY HONBLE S UPREME COURT. THE LD. AR SUBMITS THAT THE ORDER DATED 04.04.2018 MAY BE R ECALLED. 3. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SUBMI TS THAT THE ORDER PASSED BY TRIBUNAL IS BASED ON APPRECIATION OF FACT AND THAT THERE IS NO MISTAKE APPARENT, WHICH REQUIRES RECTIFICATION UNDE R SECTION 254(2). 4. WE HAVE CONSIDERED THE SUBMISSION OF BOTH THE PARTI ES AND PERUSED THE ORDER DATED 04.04.2018. THE LD. AR OF THE ASSESSEE STRONGLY RELIED UPON THE DECISION OF HONBLE BOMBAY HIGH COURT IN GABRIE L INDIA LTD. MA NO. 330 MUM 2018-NAVIN FLUORINE INTERNATIONAL L TD. 3 (SUPRA), WHEREIN IT WAS HELD THAT WHEN THE ASSESSEE HAS GIVEN DETAILED EXPLANATION BY A LETTER IN WRITING, WHICH ARE PART OF THE RECORD OF THE CASE. THE CLAIM WAS ALLOWED BY INCOME-TAX OFFICER ON BEIN G SATISFIED WITH THE EXPLANATION OF ASSESSEE. SUCH DECISION OF ITO CANNO T BE HELD ERRONEOUS SIMPLY BECAUSE IN HIS ORDER HE DID NOT MAKE AN ELABORATE DISCUSSION IN THAT REGARD. THE CONTENTION OF LD.AR OF THE ASSESSEE WAS THAT THE TRIBUNAL HAS NOT FOLLOWED THE DECISION OF JURISDICTIONAL HIGH COURT IN RESPECT OF ISSUE NO. 3 & 4 OF SHOW-CAUSE N OTICE OF SECTION 263. WE HAVE NOTICED THAT WHILE DECIDING THE APPEAL OF T HE ASSESSEE, OUR ATTENTION HAS ESCAPED FROM LAST PARA OF DECISION OF GABRIEL INDIA LTD. (SUPRA). 5. THEREFORE, CONSIDERING THE DECISION OF HDFC VS. DCI T (SUPRA), WE DEEM IT APPROPRIATE THAT NON-CONSIDERATION OF DECISION O F JURISDICTIONAL HIGH COURT IN MISTAKE APPARENT ON RECORD. THEREFORE, THE ORDER DATED 04.04.2018 IN ITA NO. 1205/MUM/2014 IS RECALLED AND THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARING AFRESH BY RE GULAR BENCH. PARTIES BE INFORMED THROUGH PROPER NOTICE. 6. IN THE RESULT, M.A. FILED BY ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 26 TH DAY OF DECEMBER 2018. SD/- SD/- (B.R. BASKARAN) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 26/12/2018 S.K.PS MA NO. 330 MUM 2018-NAVIN FLUORINE INTERNATIONAL L TD. 4 COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT.REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/