DEPUTY COMMISSIONER OF INCOME TAX 1 (1) (2), MUMBAI V. HINDUSTAN UNILEVER LIMITED , MUMBAI

MA 348/MUM/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7539 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-10-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: K
• Assessment Year: 2009-2010
• Appeal Filed On: 07-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMIT PRATAP SINGH
• Section: 254(2)

Judgement Text

P A G E | 1 ITA NO.348/MUM/2019 (ARISING OUT OF M.A. NO.497/MUM/2018) THE DY. COMMISSIONER OF INCOME - TAX - 1(1)(2) VS. M/S HINDUSTAN UNILEVER LTD. IN THE INCOME TAX APPELLATE TRIBUNAL K BENCH, M UMBAI BEFORE SHRI MANOJ KUMAR AGGARWAL , AM AND SHRI RAVISH SOOD, JM M.A. NO. 348 /MUM/2019 (ARISING OUT OF M.A . NO.497/MUM/2018 ) ( / ASSESSMENT YEAR: 2009 - 10 ) THE DY. COMMISSIONER OF INCOME - TAX 1(1)(2), ROOM NO.533, 5TH FLOOR, M.K. ROAD, MUMBAI 400 020 / VS. M/S HINDUSTAN UNILEVER LTD. 165/166, BACKBAY RECLAMATION, MUMBAI 400 020 ./ ./ PAN NO. AAACH1004N ( / APPLICANT) : ( / RESPONDENT ) / APPLICANT BY : SHRI AMIT PRATAP SINGH, SR. D.R / RESPONDENT BY : SHRI NISHANT THAKKAR & MS. JASMIN AMALSADVALA, A .R S / DATE OF HEARING : 04.10 .2019 / DATE OF PRONOUNCEMENT : 1 6 . 10.2019 / O R D E R PER RAVISH SOOD, JM: THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE REVENUE ARISES FROM THE ORDER PASSED BY THE TRIBUNAL WHILE DISPOSING OFF THE EARLIER MISCELLANEOUS APPLICATION OF THE REVENUE IN M.A. NO. 497/MUM/2018, DATED 28.12.2018 2. AS THE REVENUE BY FILING THE PRESENT APPLICATION HAS SOUGHT RECTIFICATION OF AN IMPUGNED MISTAKE IN THE ORDER THAT WAS PASSED BY THE TRIBUNAL UNDER SEC. 254(2) OF THE ACT, THEREFORE, THE LD. AUTHORIZED REPRESENTATIVE (FOR SHORT A.R) FOR THE ASSESSEE AT THE VERY OUTSET OF THE HEARING OF THE APPEAL ASSAILED THE MAINTAINABILITY OF THE SAID APPLICATION. IT WAS SUBMITTED BY P A G E | 2 ITA NO.348/MUM/2019 (ARISING OUT OF M.A. NO.497/MUM/2018) THE DY. COMMISSIONER OF INCOME - TAX - 1(1)(2) VS. M/S HINDUSTAN UNILEVER LTD. THE LD. A.R , THAT AS THE TRIBUNAL IN EXERCISE OF THE POWERS VESTED WITH IT UNDER SUB - SECTION 2 OF SEC.254 CAN ONLY RECTIFY A MISTAKE IN ITS ORDER PASSED UNDER SUB - SECTION (1) OF SEC. 254, THEREFORE, THE PRESENT APPLICATION FILED BY THE REVENUE SEEKING RECTIFICATION OF A MISTAKE IN THE EARLIER ORDER OF THE TRIBUNAL PASSED UNDER SUB - SECTION (2) OF SEC. 254 WAS NOT MAINTAINABLE. IN SUPPORT OF HIS AFORESAID CONTENTION, THE LD. A.R HAD RELIED ON THE ORDER OF THE SPECIAL BENCH OF THE ITAT, DELHI BENCH E, IN THE CASE OF SHRI PADAM PRAKASH (HUF) VS. ITO, WARD - 2(1), MEERUT (2011) 131 ITR 121 (DEL). ACCORDINGLY, IT WAS THE CLAIM OF THE LD. A.R, THAT AS THE APPLICATION FILED BY THE REVENUE WAS NOT MAINTAINABLE, THEREFORE, THE SAME WAS LIABLE TO BE DISMISSED ON THE SAID COUNT ITSELF. 3. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE (F OR SHORT D.R) SUBMITTED THAT A MISTAKE EMERGED FROM THE ORDER PASSED BY THE TRIBUNAL UNDER SUB - SECTION (2) OF SEC.254, DATED 28.12.2018. ON BEING CONFRONTED WITH THE FACT THAT AS TO HOW THE PRESENT APPLICATION WAS MAINTAINABLE, THE LD. D.R FAILED TO REBUT THE CONTENTIONS ADVANCED BY THE COUNSEL FOR THE ASSESSEE. 4. WE HAVE HEARD THE AUTHORIZED REPRESENTATIVES FOR BOTH THE PARTIES, AND PERUSED THE MATERIAL AVAILABLE ON RECORD. AS IS DISCERNIBLE FROM A PERUSAL OF SUB - SECTION (2) OF SEC.254 OF THE ACT, THE A PPELLATE TRIBUNAL MAY, AT ANY TI ME WITHIN SIX MONTHS FROM THE END OF THE MONTH IN WHI CH THE ORDER WAS PASSED, WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE REC ORD, AMEND ANY ORDER PASSED BY IT UNDER SUB - SECTION (1) OF SEC. 254, AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BR OUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER. ACCORDINGLY, IT CAN SAFELY BE GATHERED, THAT THE POWERS OF THE TRIBUNAL TO REC TIFY A MISTAKE APPARENT FROM RECORD IS CONFINED ONLY IN RESPECT OF AN ORDER PASSED BY IT UNDER SUB - SECTION (1) OF SE C.254 OF THE ACT. OUR AFORESAID VIEW IS FORTIFIED BY THE ORDER OF THE S PECIAL BENCH OF ITAT DELHI IN THE CASE OF SHRI PADAM PRAKASH (HUF) VS. ITO, WARD - 2(1), MEERUT (2011 ) 131 ITR 121 (DEL). I N THE AFORESAID CASE, IT WAS HELD THAT THE POWER S VESTED WITH THE TRIBUNAL UNDER SUB - SECTION (2) OF SEC.254 CAN BE INVOKED ONLY IN A SITUATION IF THERE IS A MISTAKE IN THE ORDER PASSED BY IT UNDER SUB - SECTION (1) OF SEC.254. AS THE MISCELLANEOUS APPLICATION THAT WAS FILED BY THE ASSESSEE BEFORE THE TRIBUNAL WAS AGAIN ST AN ORDER PASSED UNDER SEC.254(2), THEREFORE, OBSERVING THAT THE APPLICATION FILED BY THE ASSESSEE WAS PRINCIPALLY NOT MAINTAINABLE, THE SAME WAS REJECTED BY THE TRIBUNAL . ALSO, A SIMILAR VIEW HAD BEEN TAKEN BY THE HONBLE HIGH COURT OF P A G E | 3 ITA NO.348/MUM/2019 (ARISING OUT OF M.A. NO.497/MUM/2018) THE DY. COMMISSIONER OF INCOME - TAX - 1(1)(2) VS. M/S HINDUSTAN UNILEVER LTD. ORIS S A, IN THE CA SE OF CIT VS. PRESIDENT, ITAT (1992) 196 ITR 838 (ORI) AND ALSO THE HONBLE HIGH COURT OF DELHI IN MENTHA & ALLIED PRODUCTS COMPANY LTD. VS. ITAT (2000) 244 ITR 470 (DEL). IN THE BACKDROP OF THE AFORESAID SETTLED POSITION OF LAW, AS THE R EVENUE IN THE CASE BEFORE US HAS PREFERRED THE PRESENT MISCELLANEOUS APPLICATION SEEKING RECTIFICATION OF AN EARLIER ORDER PASSED BY THE TRIBUNAL UNDER SUB - SECTION (2) OF SEC.254 , DATED 28.12.2018, THEREFORE, THE SAME NOT BEING PRINCIPALLY MAINTAINABLE IS LIABLE TO BE DISMI SSED ON THE SAID COUNT ITSELF. 5. THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED AS NOT MAINTAINABLE. ORDER P RONOUNCED IN THE OPEN COURT 1 6 . 10.2019 S D / - S D / - ( MANOJ KUMAR AGGARWAL ) (RAVISH SOOD ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 16 .10.2019 PS. ROHIT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI P A G E | 4 ITA NO.348/MUM/2019 (ARISING OUT OF M.A. NO.497/MUM/2018) THE DY. COMMISSIONER OF INCOME - TAX - 1(1)(2) VS. M/S HINDUSTAN UNILEVER LTD.