ITO, Rudrapur V. Sh. Bidhi Chand Singhal, Rudrapur

MA 351/DEL/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9330 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-11-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 19-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AROOP KUMAR SINGH
• Assessee Lawyers: SUDHANSHU SRIVASTAVA

Judgement Text

INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A, NEW DELHI BEFORE SHRI G.D. AGARWAL, VICE PRESIDENT & SHRI I.C. SUDHIR, JUDICIAL MEMBER M.A NO. 351/DEL/2011 [IN ITA NO. 3419/DEL/2009] ASSESSMENT YEAR: 2006-07 INCOME TAX OFFICER, VS. SHRI BIDHI CHAND SINGHAL, RUDRAPUR. HOTEL TOURIST EMPIRE, AWAS VIKAS, RUDRAPUR. PAN NO. ATOPS4163H (APPELLANT) (RESPONDENT) APPELLANT BY: AROOP KUMAR SINGH, SR. DR RESPONDENT BY: SUDHANSHU SRIVA STAVA, ADV. ORDER PER I.C. SUDHIR, J.M. THE ONLY GRIEVANCE OF THE APPLICANT/ REVENUE IS T HAT THE ORDER DATED 04/11/2010 OF THE TRIBUNAL IN THE APPEAL IS B ASED ON IRRELEVANT CONSIDERATION LIKE GRANT OF APPROVAL TO ASSESSEES HOTEL AND NON-GRANT OF ECOTOURISM (STATUS TO ANY HOTEL) AND WITHOUT CONS IDERING THE RELEVANT MATERIAL LIKE MEANING AND VARIOUS PARAMETERS OF EC OTOURISM AS PER VARIOUS REPUTED DICTIONARIES ETC. THE TRIBUNAL HAS HELD THAT THE HOTEL RUN BY THE ASSESSEE IS ELIGIBLE FOR DEDUCTION U/S 80IC OF THE INCOME TAX ACT. MA NO. 351/DEL/2011 2 2. LD. DR REITERATED THE CONTENTS OF THE APPLICATIO N TO SUPPORT HIS ARGUMENT THAT THERE IS MISTAKE APPARENT FROM RECORD IN THE ORDER DATED 04/11/2010 OF THE TRIBUNAL WHICH NEEDS RECTIFICATIO N U/S 254(2) OF THE ACT. 3. THE LD. AR ON THE OTHER HAND, SUBMITTED THAT THE TRIBUNAL HAS DISCUSSED THE ISSUE IN PARA 6 OF ITS ORDER BEFORE C OMING TO THE CONCLUSION THAT THE HOTEL IS ELIGIBLE FOR DEDUCTION U/S 80IC OF THE ACT. THUS, THERE IS NO MISTAKE APPARENT FROM RECORD IN T HE ORDER DATED 04/11/2010 AS IT HAS BEEN ALLEGED BY THE APPLICANT TO ATTRACT THE PROVISIONS OF SECTION 254(2) OF THE ACT. 4. HE PLACED RELIANCE ON SEVERAL DECISIONS INCLUDIN G THE FOLLOWING: - ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. (200 8) 305 ITR 227; POOTHUNDU PLANTATIONS PVT. LTD. VS. AGRICULTURAL I NCOME TAX OFFICER & ORS. (1996) 221 ITR 557 (SC); CIT VS. KARAM CHAND THAPARS & BROTHERS PVT. LTD., 176 ITR 535 (SC); RAS BIHARI BANSAL VS. COMMISSIONER OF INCOME TAX & ANR. (2007) 293 ITR 365 (DEL.). 5. AFTER HAVING GONE THROUGH THE ORDER DATED 04/11/ 2010 OF THE TRIBUNAL. WE FIND THAT THE TRIBUNAL WHILE DEALING WITH THE ISSUE REGARDING ELIGIBILITY OF THE HOTEL RUN BY THE ASSES SEE TO CLAIM DEDUCTION U/S 80IC, HAS ALREADY CONSIDERED AND DISCUSSED AS T O HOW THE HOTEL IS ENTITLED TO CLAIM DEDUCTION U/S 80IC OF THE INCOME TAX ACT. MA NO. 351/DEL/2011 3 6. THE GRIEVANCE OF THE REVENUE IN THE PRESENT APPL ICATION IS THAT THE WORD ECOTOURISM DEFINED BY THE TRIBUNAL IS BASED ON IRRELEVANT CONSIDERATION AND WITHOUT CONSIDERING THE RELEVANT MATERIAL LIKE MEANING AND VARIOUS PARAMETERS OF ECOTOURISM AS PER VARIO US REPUTED DICTIONARIES ETC. IN OUR VIEW, SUCH GRIEVANCE OF T HE REVENUE MAY BE A GOOD GROUND FOR QUESTIONING THE FINDING OF THE TRIB UNAL ON THE ISSUE BEFORE THE PRESCRIBED APPELLATE FORUM, BUT CERTAINL Y, IT CANNOT BE TREATED AS MISTAKE APPARENT FROM RECORD IN THE ORDER DATED 04/11/2010 OF THE TRIBUNAL TO ATTRACT RECTIFICATION AS PROVIDED U/S 2 54(2) OF THE ACT. THE GRIEVANCE OF THE REVENUE AS DISCUSSED ABOVE IS A DE BATABLE ISSUE WHICH CANNOT BE A SUBJECT MATTER OF RECTIFICATION U /S 254(2) OF THE ACT. THE PROVISIONS LAID DOWN U/S 254(2) DO NOT ALLOW RE VIEW OF ITS ORDER PASSED BY THE TRIBUNAL. THE HONBLE SUPREME COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. (SUPR A) HAS BEEN PLEASED TO HOLD THAT A PATENT MANIFEST AND SELF EVI DENT ERROR WHICH DOES NOT REQUIRE ELABORATE DISCUSSION OF EVIDENCE OR ARG UMENT TO ESTABLISH IT, CAN BE SAID TO BE ERROR APPARENT ON THE FACE OF THE RECORD AND CAN BE CORRECTED WHILE EXERCISING CERTIORARI JURISDICTION. AN ERROR CANNOT BE SAID TO BE APPARENT ON THE FACE OF RECORD IF ONE HAS TO TRAVEL BEYOND THE RECORD TO SEE WHETHER THE JUDGMENT IS CORRECT OR NO T. AN ERROR APPARENT ON THE FACE OF RECORD MEANS AN ERROR WHICH STRIKES ON MERE LOOKING AND DOES NOT NEED LONG DRAWN OUT PROCESS OF REASONING O N POINTS WHERE MA NO. 351/DEL/2011 4 THERE MAY BE CONCEIVABLY TWO OPINIONS. SUCH ERROR SHOULD NOT REQUIRE ANY EXTRANEOUS MATTER TO SHOW ITS INCORRECTNESS, HE LD THE HONBLE SUPREME COURT. WE THUS, DO NOT FIND SUBSTANCE IN THE CONTENTION OF THE APPLICANT THAT THERE IS MISTAKE APPARENT ON RECORD IN THE ORDER DATED 04/11/2010 OF THE TRIBUNAL. 7. IN THE RESULT, THE APPLICATION IS REJECTED. ORDER PRONOUNCED IN THE OPEN COURT ON 23/11/2012 SD/- SD/- (G.D. AGARWAL) (I.C. SUDH IR) VICE PRESIDENT JUDICIAL MEMBER DATED: 23/11/12 *KAVITA COPY TO: 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR TRUE COPY BY ORDER ASSISTANT REGISTRAR