The Addl.CIT, Navsari Range, Navsari V. Gufic Private Limited, Navsari

MA 37/SRT/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2688 (ITAT-SURAT)
• Duration Of Justice: 1 year(s) 11 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-11-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 27-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RASESH SHAH
• Assessee Lawyers: ANUPAMA SINGLA
• Section: 254(2); 22

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM MA NO.37/SRT/2018 [ARISING OUT OF ITA NOS.1506,1468,2652, &2653/AHD/2015/SRT] ASSESSMENT YEAR: (2010-11 TO 12-13) (VIRTUAL COURT HEARING) THE ADDITIONAL COMMISSIONER OF INCOME TAX, NAVSARI RANGE, NAVSARI. VS. GUFIC PRIVATE LIMITED, N.H. NO.8, NEAR GRID, KABILPORE, NAVSARI- 396424. ./ ./ PAN/GIR NO.: AABCG1082E (ASSESSEE) (RESPONDENT) ASSESSEE BY : SHRI RASESH SHAH CA RESPONDENT BY : MS ANUPAMA SINGLA SR. DR / DATE OF HEARING : 06/11/2020 /DATE OF PRONOUNCEMENT : 24/11/2020 / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: BY WAY OF THE CAPTIONED APPLICATION, THE ASSESSEE HAS SOUGHT TO POINT OUT THAT A MISTAKE APPARENT FROM RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE INCOME TAX ACT, 1961( IN SHORT THE ACT) HAS CREPT IN THE ORDER OF THE TRIBUNAL DATED 26.06.2018. 2. THE CASE OF THE REVENUE IN THIS MISCELLANEOUS APPLICATION IS THAT THIS TRIBUNAL HAD SET-ASIDE THE ORDER OF THE LD. CIT(A) AND RESTORED BACK THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH DIRECTION TO WORK OUT THE ANNUAL VALUE OF THE PROPERTY AS PER THE PROVISIONS OF SECTION 22 AND 23 OF THE ACT AND IN ACCORDANCE WITH THE RATIO LAID DOWN IN THREE CASE LAWS DISCUSSED IN THE ORDER, NAMELY, (I) DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF C1T VS. MONI KUMAR SUBBA REPORTED IN [2011] 333 1TR 0038 (DEL.), (II) DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. JK INVESTORS (BOMBAY) LTD. REPORTED IN [2001] 248 1TR 0723 (BOM.) & (III) DECISION OF THE HON'BLE KOLKATA HIGH COURT IN THE CASE OF CIT VS. SATYA CO. LTD. REPORTED IN [1997] 140 CTR 0569 (KOL). PAGE | 2 MA 37/SRT/2018 AY. 2010-11 TO 2012-13 GUFIC PRIVATE LIMITED THE CONTENTION OF MS. ANUPAMA SINGLA, LD DR FOR THE REVENUE IS THAT THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. JK INVESTORS (BOMBAY) LTD(SUPRA), IS SUBSEQUENTLY, DISCUSSED BY THE HON'BLE PUNJAB AND HARYANA HIGH COURT IN THE CASE OF CIT VS. K. STREETLITE ELECTRIC CORPORATION REPORTED IN [2011] 336 ITR 348 WHEREIN THE ISSUE WAS DECIDED IN FAVOUR OF THE REVENUE. THEREFORE, LD DR PRAYED THE BENCH TO RECALL THE ORDER OF THIS TRIBUNAL AND TO ADJUDICATE THE ISSUE IN FAVOUR OF REVENUE. 3. ON THE OTHER HAND, SHRI RASHESH SHAH, LD. COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US THAT THERE IS NO APPARENT MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL. THE TRIBUNAL HAS REMITTED THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER AFTER TAKING INTO ACCOUNT THE VARIOUS JUDGMENTS OF HIGH COURTS CITED BY THE ASSESSEE AND REVENUE AT THE TIME OF HEARING THE CASE AND ANY JUDGMENT DELIVERED SUBSEQUENTLY, BY ANY HIGH COURT IN FAVOUR OF REVENUE, DOES NOT MEAN APPARENT MISTAKE, THEREFORE, THE REVENUE`S INSTANT MISCELLANEOUS APPLICATION SHOULD BE REJECTED. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE NOTE THAT THE REVENUE HAS STATED IN PARA NO.6 OF ITS MISCELLANEOUS APPLICATION THAT THE ISSUE OF NOTIONAL RENT CHARGED ON LEASED PROPERTY IS DEBATABLE ISSUE AS TWO DIFFERENT HIGH COURTS HAD EXPRESSED DIFFERENT VIEW IN THIS MATTER, AND PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. K. STREETLITE ELECTRIC CORPORATION [2011] 336 ITR 348 HAD DECIDED THE ISSUE IN FAVOUR OF THE REVENUE AND THEREFORE, THE ORDER PASSED BY THE TRIBUNAL SHOULD BE RECTIFIED. IT IS SETTLED LAW THAT WHEN THERE ARE TWO VIEWS OF DIFFERENT HIGH COURTS IN THAT SITUATION, THE VIEW WHICH IS FAVOURABLE TO THE ASSESSEE MAY BE ADOPTED. THE HON'BLE SUPREME COURT IN THE CASE OF VEGETABLE PRODUCTS 88 ITR 192(SC) HELD THAT IF IN CASE OF TAXING PROVISION, TWO REASONABLE CONSTRUCTIONS ARE POSSIBLE, CONSTRUCTION WHICH FAVOURS THE ASSESSEE MUST BE ADOPTED. HENCE, WE DO NOT AGREE WITH THE PLEA TAKEN BY THE LD DR TO THE EFFECT THAT WHEN THERE IS DEBATABLE ISSUE AS TWO DIFFERENT HIGH COURTS HAD EXPRESSED DIFFERENT VIEW IN THIS MATTER, THEN IN THAT SITUATION THE ISSUE MAY BE DECIDED IN FAVOUR OF THE REVENUE. PAGE | 3 MA 37/SRT/2018 AY. 2010-11 TO 2012-13 GUFIC PRIVATE LIMITED 5. IT IS SETTLED LAW THAT A MISTAKE MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG-DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW CANNOT BE A MISTAKE APPARENT FROM THE ORDER OF THE TRIBUNAL. THUS, WHEN THE ISSUE UNDER CONSIDERATION IS ITSELF OPEN TO ARGUMENT AND DEBATE, THEN SUCH ISSUE CAN NEVER BE AN ERROR APPARENT ON THE FACE OF THE ORDER, WHICH CAN BE RECTIFIED. WE NOTE THAT ARGUMENTS ARE POSSIBLE AND IF THE POSITION IS DEBATABLE AND NOT PATENT AND CLEAR, THEN RESORT TO SECTION 254 (2) OF THE ACT DOES NOT APPEAR TO BE JUSTIFIED AND CALLED FOR. ON DEBATABLE ISSUES, THE TRIBUNAL CAN NOT REVIEW ITS OWN ORDER. HENCE, IN THE PRESENT CASE THERE IS NO ANY APPARENT MISTAKE OR ERROR IN THE ORDER OF THE TRIBUNAL THEREFORE, WE DISMISS THE MISCELLANEOUS APPLICATION OF THE REVENUE. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE (IN MA.37/SRT/2018 FOR AY.2010-11 TO 2012-13) IS DISMISSED. ORDER IS PRONOUNCED ON 24/11/2020, AS PER RULE 34 OF INCOME TAX APPELLATE TRIBUNAL, RULE 1963. SD/- SD/- (PAWAN SINGH) (DR. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER LWJR /SURAT / DATE: 24/11/2020 SAMANTA, PS COPY OF THE ORDER FORWARDED TO 1. THE ASSESSEE 2. THE RESPONDENT 3. THE CIT(A) 4. PR.CIT 5. DR/AR, ITAT, SURAT 6. GUARD FILE // TRUE COPY // BY ORDER ASSISTANT REGISTRAR/SR. PS/PS ITAT, SURAT