ASST CIT LTUR CENTRE -I, V. LUBRIZOL INDIA P. LTD,

MA 344/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7291 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-10-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 14-10-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 17-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P K B MENON
• Assessee Lawyers: N D SHETH

Judgement Text

1 MA NO.344/M/2011 ,M/S LUBRIZOL INDIA P. LTD. 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B BEFORE SHRI D. MANMOHAN, V.P. AND SHRI R.K. PANDA, A.M. M.A. NO. 344/MUM/2011 ARISING OUT OF ITA NO. 3837/MUM/2004 ASSESSMENT YEAR 2000-01 A.C.I.T. LTU, CENTRE -1, WORLD TRADE CENTRE, MUMBAI 400 005. VS. M/S LUBROZOL INDIA PVT. LTD., VIP HOUSE, 2 ND FLOOR, 88-C OLD PRABHADEVI ROAD, MUMBAI. 400 025. PAN AAACL 0126H APPLICANT RESPONDENT APPLICANT BY SHRI P.K.B. MENON RESPONDENT BY SHRI N.D. SHETH DATE OF HEARING 14.10.2011 DATE OF PRONOUNCEMENT 19.10.2011 PER R.K. PANDA, A.M. THE REVENUE THROUGH THIS MISCELLANEOUS APPLICATION REQUESTS THE TRIBUNAL TO RECTIFY THE M.A. NO.676/MUM/2004 ARISIN G OUT OF ITA NO. 3837/MUM2002 ORDER DTD. 24.1.2008. 2. THE LD. D.R. REFERRING TO THE M.A. FILED BY THE REVENUE SUBMITTED THAT THE TRIBUNAL VIDE ORDER DTD. 24.1.2008 IN M.A NO. 676/M UM/2007 ARISING OUT OF ITA NO. 3837/MUM/2004 DISMISSED THE M.A. FILED BY T HE DEPARTMENT ON THE GROUND THAT THE REVENUE HAS NOT RECEIVED THE COD AP PROVAL TILL DATE ALTHOUGH THE ASSESSEE IS A CENTRAL GOVERNMENT PUBLIC SECTOR UNDERTAKING. HE SUBMITTED THAT A FRESH M.A. IS BEING FILED IN VIEW OF THE JUD GMENT OF HONBLE SUPREME COURT IN THE CASE OF ELECTRONIC CORPORATION OF INDI A LTD. VIDE CIVIL APPEAL NO. 1883/2/100 DTD. 17.02.2011 ACCORDING TO WHICH THE R ESTRICTION OF COD 2 MA NO.344/M/2011 ,M/S LUBRIZOL INDIA P. LTD. 2 CLEARANCE IS NO LONGER REQUIRED FOR FILING OF APPEA L. REFERRING TO A FEW DECISIONS, HE SUBMITTED THAT EVEN IF THE APPEAL IS FILED BEFOR E THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE ABOVE MENTIONED CASE, APPEAL S HOULD NOT HAVE BEEN DISMISSED FOR WANT OF COD APPROVAL. HE ACCORDINGLY SUBMITTED THAT THE ORDER OF THE TRIBUNAL BE RECALLED AND APPEAL BE DECIDED O N MERIT. 3. THE LD. COUNSEL FOR THE ASSESSEE, ON THE OTHER H AND, STRONGLY OBJECTED TO THE M.A. FILED BY THE REVENUE. HE SUBMITTED THAT I N VIEW OF THE PLETHORA OF DECISIONS INCLUDING THE DECISION OF HONBLE ORISSA HIGH COURT IN THE CASE OF CIT AND ANOTHER VS. ITAT & ANOTHER REPORTED IN 196 ITR 838 REJECTING AN APPLICATION FOR RECTIFICATION U/S 254(2) IS NOT AN ORDER PASSED U/S 254(1) AND, THEREFORE, CANNOT BE RECTIFIED U/S 254(2). BESIDES , NO M.A. CAN BE FILED AGAINST M.A. REFERRING TO THE SECOND M.A. FILED BY THE REV ENUE WHICH IS DTD. 17 TH JUNE, 2011, HE SUBMITTED THAT THE SAME IS AFTER THE STATU TORY PERIOD OF 4 YEARS SINCE THE TRIBUNAL HAS PASSED THE ORDER ON 23 RD MAY, 2007 DISMISSING THE APPEAL OF THE ASSESSEE FOR WANT OF COD AND THE STATUTORY PERI OD OF 4 YEARS ENDS ON 22 ND MAY, 2007. THEREFORE, ON BOTH THE COUNTS, THE M.A. FILED BY THE REVENUE HAS TO BE DISMISSED. 4. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES. ADMITTEDLY, THE REVENUE HAS FILED THIS M.A. AGAINST THE M.A. FILED BY THE DEPARTMENT ON 12.11.2007 WHICH WAS DISMISSED BY THE TRIBUNAL VIDE ITS ORDER DTD. 24.1.2008. IT HAS BEEN DECIDED IN VARIOUS JUDI CIAL PRONOUNCEMENTS INCLUDING THE DECISION OF THE HONBLE ORISSA HIGH C OURT IN THE CASE OF CIT AND ANOTHER VS. ITAT & ANOTHER (SUPRA) THAT NO M.A. CAN BE FILED AGAINST THE M.A. FURTHER SECTION 254(2) EMPOWERS THE TRIBUNAL TO AME ND ANY ORDER BY IT PASSED UNDER SUB-SECTION (1) WITH A VIEW TO RECTIFY ANY MI STAKE APPARENT FROM THE RECORD AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER. SINCE THE M.A. HAS BEEN FILED BY THE REVENUE ON 17 TH JUNE, 2011 WHICH IS AFTER THE PERIOD OF 4 YEARS FROM THE ORDER PASSED BY THE TRIBUNAL WHICH I S DTD. 23 RD MAY, 2007, 3 MA NO.344/M/2011 ,M/S LUBRIZOL INDIA P. LTD. 3 THEREFORE, THE M.A. FILED BY THE REVENUE IS BARRED BY LIMITATION AND DESERVES TO BE DISMISSED. IN THIS VIEW OF THE MATTER, THE M.A. FILED BY THE REVENUE IS DISMISSED. 5. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E REVENUE IS DISMISSED. ORDER PRONOUNCED ON 19.10.2011. SD/- SD/- (D. MANMOHAN) ( R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT M EMBER MUMBAI, DATED 19.10.2011. RK COPY TOTHE APPELLANT 1. THE RESPONDENT 2. THE CIT(A) - CONCERNED, MUMBAI 3. THE CIT, CONCERNED, MUMBAI 4. THE DR BENCH, A 5. MASTER FILE TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI