DCIT CORPORATE CIRCLE 2, COIMBATORE V. SHIVA DISTILLERIES PRIVATELIMITED, COIMBATORE

MA 34/CHNY/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4177 (ITAT-CHENNAI)
• Duration Of Justice: 8 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-05-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 29-08-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 254(2); 13

Judgement Text

आयकर अपील य अ धकरण, ‘डी’ यायपीठ, चे नई IN THE INCOME TAX APPELLATE TRIBUNAL , ‘D’ BENCH, CHENNAI ी महावीर संह, उपा य एवं ी जी. मंज ु नाथ, लेखा सद&य के सम BEFORE SHRI MAHAVIR SINGH, VICE-PRESIDENT AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER Misc. Petition N o. 3 4 /C hn y/ 2 0 2 1 (In ITA No.1788/Chny/2018) ( नधा रणवष / As s es s m en t Ye ar : 20 13 - 1 4) The Deputy Commissioner of Income Tax, Corporate Circle-1 Coimbatore. V s M/s. Shiva Distilleries Pvt.Ltd. 1212, Trichy Road, Coimbatore-641 018 PA N: A A C CS 71 99 B (अपीलाथ!/Appellant) ("#यथ!/Respondent) अपीलाथ!क&ओरसे/ Appellant by : Mr. Sajit Kumar, JCIT "#यथ!क&ओरसे/Respondent by : Mr.Saroj Kumar Parida, Advocate स ु नवाईक&तार-ख/D a t e o f h e a r i n g : 27.05.2022 घोषणाक&तार-ख /D a t e o f P r o n o u n c e m e n t : 27.05.2022 आदेश / O R D E R PER G.MANJUNATHA, AM: The Revenue has filed present Miscellaneous Application against order of the Tribunal in ITA No.1788/Chny/2018 dated 28.12.2020 for the assessment year 2013-14. 2. The learned DR for the Revenue referring to Misc. Application filed by the Revenue, narrated facts of the assessee and mistakes stated to be apparent on record from the order of the Tribunal dated 28.12.2020. The learned DR further submitted that there is an error in the order of the Tribunal, 2 Misc.Petition No. 34/Chny/2021 inasmuch as the Tribunal has disposed off appeal on the wrong assumption of fact that appeal filed by the assessee against order of the learned CIT(A) is pending, when the PCIT initiated proceedings u/s.263 of the Act and said findings of the Tribunal constitutes mistake apparent on record, which needs to be rectified u/s.254(2) of the Income Tax Act, 1961. 3. The learned AR, on the other hand, submitted that there is no merit in the Misc. Application filed by the Revenue, because, the Tribunal has discussed the issue at length in light of various facts brought out by both the parites and observed that when the issue on which the PCIT has exercised his jurisdiction u/s.263 of the Act, is subject matter of appeal before the learned CIT(A), then said issue is merged with jurisdiction of the learned CIT(A) and CIT(A) can taken any decision, including enhancement assessment, if any, and thus, on very same issue the PCIT cannot exercise jurisdiction u/s.263 of the Act. The said findings of the Tribunal is perfectly in order and in accordance with law and thus, arguments of the learned DR that there is mistake apparent on record from order of the Tribunal is incorrect. 3 Misc.Petition No. 34/Chny/2021 4. We have heard both the parties and considered Misc. Application filed by the Revenue in light of order passed by the Tribunal in ITA No.1788/Chny/2018 dated 28.12.2020. After carefully considering relevant contents of Misc. Application filed by the Revenue, we find that what was sought from grounds of objection taken by the Revenue in their Misc. Application is reviewing decision rendered by the Tribunal in given facts and circumstances of the case, which is not permissible under the provisions of section 254(2) of the Income Tax Act, 1961. Further, issue involved in the appeal filed by the assessee against order of the Principal CIT u/s.263 of the Act, is additions made towards disallowance of expenditure u/s.14A read with Rule 8D(ii) of the I.T. Rules, 1962, and said issue was subject matter of appeal before the first appellate authority. In the meantime, the Principal CIT had exercised his jurisdiction and revised the assessment order passed by the Assessing Officer on very same issue. Under those facts, the Tribunal gave its finding that once issue on which the Principal CIT exercised his jurisdiction was subject matter of appeal before the CIT(A), then there is no power for the Principal CIT to exercise his jurisdiction u/s.263 of the Act and said finding is 4 Misc.Petition No. 34/Chny/2021 supported by the decision of the Hon’ble Delhi High Court in the case of CIT Vs. Sera Sera Productions Ltd. (2015) 374 ITR 503. From the above, what is clear is that the Revenue seeks to review decision rendered by the Tribunal in the guise of mistake apparent on record as stated under the provisions of section 254(2) of the Income Tax Act, 1961. In our considered view, there is no scope of revision of order passed by the Tribunal in the given facts and circumstances of the case and thus, we are of the considered view that there is no merit in the Misc.Application filed by the Revenue and thus, same is dismissed. 5. In the result, Misc. Application filed by the Revenue is dismissed. Order pronounced in the open court on 27 th May, 2022 Sd/- Sd/- (महावीर संह) (जी. मंज ु नाथ) (Mahavir Singh) (G. Manjunatha ) उपा य / Vice-President लेखा सद2य / Accountant Member चे4नई/Chennai, 5दनांक/Dated 27 th May, 2022 DS आदेश क& " त9ल:प अ;े:षत/Copy to: 1. Appellant 2. Respondent 3. आयकर आय ु <त (अपील)/CIT(A) 4. आयकर आय ु <त/CIT 5. :वभागीय " त न@ध/DR 6. गाड फाईल/GF.