VALIA CHEMICALS P.LTD, V. ITO WD 2(3)(4),

MA 379/MUM/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7566 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-01-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 1998-1999
• Appeal Filed On: 08-07-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: PRAKASH V MEHTA
• Keywords: Additional evidence; Reasonable cause; Condonation of delay
• Section: 263

Judgement Text

1 VALIKA CHEMICALS PVT LTD IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI MUMBAI MUMBAI MUMBAI F FF F BENCH BENCH BENCH BENCH MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI MUMBAI BENCHES, MUMBAI BEFORE SHRI BEFORE SHRI BEFORE SHRI BEFORE SHRI R S SYAL R S SYAL R S SYAL R S SYAL , ,, , AM & AM & AM & AM & SHRI SHRI SHRI SHRI VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM MISCELLANEOUS APPLICATION NOS: 379 TO 382/MUM/2011 MISCELLANEOUS APPLICATION NOS: 379 TO 382/MUM/2011 MISCELLANEOUS APPLICATION NOS: 379 TO 382/MUM/2011 MISCELLANEOUS APPLICATION NOS: 379 TO 382/MUM/2011 ITA NOS. 7470 TO 7473/MUM/2007 (ASST YEAR 1998-99 TO 2000-01 & 2002-03) VALIKA CHEMICALS PVT LTD VILIA HOUSE D 16/1 TCC INDL.AREA MIDC, TURBHE NAVI MUMBAI 705 VS THE INCOME OFFICER WARD 2(3)(4), MUMBAI (APP (APP (APP (APPLICANT LICANT LICANT LICANT) )) ) (RESPONDENT) (RESPONDENT) (RESPONDENT) (RESPONDENT) PAN NO. PAN NO. PAN NO. PAN NO. AAACV1474A AAACV1474A AAACV1474A AAACV1474A ASSESSEE BY SH PRAKASH V MEHTA REVENUE BY SH P C MAURYA DT.OF HEARING 25 TH NOV 2011 DT OF PRONOUNCEMENT 4 TH JAN 2012 ORDER ORDER ORDER ORDER PER PER PER PER VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO, , , , JM JMJM JM THESE MISCELLANEOUS APPLICATIONS FILED BY THE ASS ESSEE ARE DIRECTED AGAINST THE COMPOSITE ORDER DATED 31 ST MARCH 2011 OF THE TRIBUNAL FOR THE AYS 1998-99, 1999-00, 2000-01 AND 2002-03 RESPECTIVELY. 2 THE APPEALS OF THE ASSESSEE WERE DISMISSED BY THE TRIBUNAL VIDE IMPUGNED ORDER AS BARRED BY LIMITATION BECAUSE THE TRIBUNAL WAS OF THE VIEW THAT THE ASSESSEE HAS FAILED TO EXPLAIN THE REASONA BLE CAUSE FOR FILING THE APPEALS LATE BY 670 DAYS AND THEREBY DID NOT INCLIN ED TO CONDONE THE DELAY. 3 IN THE MISCELLANEOUS APPLICATIONS, THE ASSESSEE H AS REITERATED ALL THE SUBMISSIONS AND CONTENTIONS AS RAISED AT THE TIME O F ARGUMENTS OF THE APPEALS OF THE ASSESSEE. 4 WE HAVE HEARD THE LD AR OF THE ASSESSEE AS WELL A S THE LD DR AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE LD AR OF THE ASSESSEE HAS MAINLY 2 VALIKA CHEMICALS PVT LTD CONTENDED THAT AT THE TIME OF HEARING OF THE APPEAL S, THE TRIBUNAL HAS HEARD THE SUBMISSIONS OF THE PARTIES ON ALL THE GROUNDS INCLU DING THE MERIT OF THE APPEALS. WHEREAS WHILE DECIDING THE APPEALS VIDE IMPUGNED OR DER, THE APPEALS WERE DISMISSED ON THE GROUND OF LIMITATION WITHOUT DECID ING THE OTHER ISSUES. THE LD AR HAS FILED AN AFFIDAVIT OF ONE MR PRAKASH V MEHT A, THE CHARTERED ACCOUNTANT OF THE ASSESSEE COMPANY AND SUBMITTED THAT THE AFFIDAV IT MAY BE CONSIDERED AS ADDITIONAL EVIDENCE FOR DECIDING THE ISSUE OF LIMIT ATION. HE HAS ALSO RELIED UPON THE DECISION OF THE HONBLE SUPREME COURT IN THE CA SED OF CIT VS WEST BENGAL INFRASTRUCTURE DEVELOPMENT FINANCE CORPORATION LTD REPORTED IN 334 ITR 269(SC). 4.1 ON THE OTHER HAND, THE LD DR HAS SUBMITTED THAT THE ASSESSEE IS A COMPANY AND HAVING ALL LEGAL AND PROFESSIONAL FACIL ITIES AVAILABLE; THEREFORE, THE ASSESSEE CANNOT TAKE A PLEA THAT THE ASSESSEE WAS N OT AWARE ABOUT THE PROVISIONS OF LIMITATION FOR FILING THE APPEAL AS W ELL AS THE REMEDY AGAINST THE ORDER PASSED BY THE CIT(A). HE HAS FURTHER SUBMITT ED THAT WHEN THE APPEALS OF THE ASSESSEE WERE DECIDED BY THE TRIBUNAL AFTER CON SIDERING ALL THE SUBMISSIONS, ARGUMENTS AS WELL AS RELEVANT MATERIAL, THEN UNDER THE PROVISIONS OF SEC. 254(2), THIS TRIBUNAL HAS NO JURISDICTION TO REVIEW ITS OWN ORDER. 5 HAVING HEARD THE RIVAL CONTENTIONS AND CAREFUL PE RUSAL OF THE RELEVANT MATERIAL, WE FIND THAT THE TRIBUNAL WHILE DECIDING THE APPEALS OF THE ASSESSEE HAS DECIDED THE ISSUE OF CONDONATION OF DELAY IN PA RA 4 AS UNDER: 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE MATERIALS AVAILABLE ON RE CORD. IT IS PERTINENT TO NOTE THAT THE LEARNED CIT(A) HAD PASSE D ORDER ON 20TH FEBRUARY 2006, WHICH, ACCORDING TO THE ENDORSEMENT ON THE APPELLATE ORDER, WAS RECEIVED BY THE ASSESSEE COMPA NY ON 16TH MARCH 2006. THE ASSESSEE-COMPANY FILED PETITION BEF ORE THE CIT UNDER SECTION 264, ON 26TH DECEMBER 2006 (WHICH WAS WRONGLY TYPED AS 26.12.2007 SINCE THE DATE OF ORDER IS 28 TH NOVEMBER 2007). THEREFORE, IT IS TO BE FIRST EXPLAINED BY TH E ASSESSEE- COMPANY AS TO WHAT WAS THE REASON FOR FILING THE AP PLICATION BEFORE THE CIT SO LATE (AFTER ABOUT NINE MONTHS) FROM THE DATE OF RECEIPT OF 3 VALIKA CHEMICALS PVT LTD ORDER BY THE ASSESSEE-COMPANY. THE ASSESSEE-COMPANY HAS NOT GIVEN ANY EXPLANATION IN THIS REGARD EXPLAINING THE DELAY IN FILING THE APPLICATION U/S 264 IN THE AFFIDAVIT. THE ASSES SEE-COMPANYS CLAIM IS THAT IT HAD TILED PETITION UNDER SECTION 2 64, BEFORE THE CIT, AS IT WAS UNDER BONA TIDE BELIEF THAT IN VIEW OF TH E AMENDMENT MADE TO THE PROVISIONS OF SECTION 8OHHC BY THE TAXA TION LAWS (AMENDMENT) ACT, 2006, THE CIT CAN GIVEN DIRECTION. THIS PLEA OF THE ASSESSEE-COMPANY NEEDS TO BE EXAMINED WITH REFE RENCE TO THE PROVISIONS OF SECTION 264. UNDER SECTION 264, THE C IT CAN PASS AN ORDER WHICH IS NOT PREJUDICIAL TO THE INTERESTS OF REVENUE. THE POWER CAN BE EXERCISED WITH REFERENCE TO ANY ORDER OTHER THAN AN ORDER TO WHICH SECTION 263 APPLIES PASSED BY AN AUTHORITY SU BORDINATE TO HIM. THERE CANNOT BE ANY DISPUTE THAT THE LEARNED C IT(A) IS NOT AN AUTHORITY SUBORDINATE TO CIT. IT IS NOT EXPLAINED A S TO HOW THE ASSESSEE-COMPANY WAS HOVERING UNDER THE BELIEF THAT THE CIT HAD POWER TO PASS THE REVISIONAL ORDER. IT IS NOT THE C ASE OF THE ASSESSEE-COMPANY THAT IT HAD ENTERTAINED ALL SUCH B ELIEF ON THE BASIS OF ANY LEGAL ADVICE. UNDER SUCH CIRCUMSTANCES , WE ARE OF THE OPINION THAT THERE WAS NO REASONABLE CAUSE FOR FILI NG THE APPEALS LATE BY 678 DAYS AND, THEREFORE, WE ARE NOT INCLINE D TO CONDONE THE DELAY. WE, ACCORDINGLY, DISMISS THE APPEALS AS BARR ED BY LIMITATION. 6 IT IS MANIFEST FROM THE IMPUGNED ORDER OF THE TRI BUNAL THAT ALL THE CONTENTIONS AND THE RELEVANT RECORDS INCLUDING THE AFFIDAVIT FILED IN SUPPORT OF THE CONDONATION OF DELAY WERE TAKEN INTO CONSIDERATION. THE TRIBUNAL HAS GIVEN A FINDING THAT THERE WAS NO REASONABLE CAUSE FOR FILI NG THE APPEALS LATE BY 670 DAYS AND ACCORDINGLY DECLINED TO CONDONE THE DELAY. ONCE THE FINDING HAS BEEN GIVEN BY THE TRIBUNAL ON A PARTICULAR ISSUE AFTER C ONSIDERING THE RELEVANT SUBMISSIONS AND MATERIAL, THEN, THE TRIBUNAL CANNOT REVIEW ITS OWN ORDER BY RE- APPRECIATING THE SAME FACTS, CIRCUMSTANCES AS WELL AS CONTENTION. 6.1 THIS IS A CASE OF INORDINATE DELAY; THEREFORE, EVEN A LIBERAL APPROACH HAS TO BE TAKEN WHILE CONDONING THE DELAY BUT THE REQUIRE MENT OF SUFFICIENT CAUSE FOR DELAY CANNOT BE IGNORED. ONCE THE TRIBUNAL HAS GIVE N A FINDING THAT THE CAUSE EXPLAINED BY THE ASSESSEE IS NOT REASONABLE, MUCH LESS THEN THE SUFFICIENT CAUSE, THEN THE SAID FINDING CANNOT BE REVERSED IN THE PROCEEDINGS U/S 254(2). 6.2 FURTHER, IN THE PROCEEDINGS U/S 254(2) NO ADDIT IONAL EVIDENCE CAN BE CONSIDERED. THEREFORE, THE FILING OF AFFIDAVIT AT T HIS STAGE WOULD NOT HELP THE 4 VALIKA CHEMICALS PVT LTD ASSESSEE. IN THE CASE OF CONDONATION OF DELAY, THE ISSUE HAS TO BE DECIDED FROM THE FACTS AND CIRCUMSTANCES OF THE CASE ITSELF AND THERE CANNOT BE GENERAL RULE OR PROCEDURE ON THE POINT OF CONDONATION OF DELAY. THEREFORE, IN OUR HUMBLER VIEW, THE DECISION RELIED UPON BY THE ASSESSEE CANN OT BE APPLIED IN THE PROCEEDINGS U/S 254(2) 7 WE FIND THE SCOPE OF SEC 254(2) IS VERY LIMITED A ND CIRCUMSCRIBED. FOR EXERCISING THE JURISDICTIONAL U/S 254(2), IT IS THE MANDATORY CONDITION THAT SUCH MISTAKE SHOULD BE WIDE APPARENT, MANIFEST AND PATEN T AND NOT SOMETHING WHICH COULD BE INVOLVED SERIOUS CIRCUMSTANCES OF DISPUTES OF QUESTION OF FACTS OR LAW AND CAN BE ESTABLISHED BY LONG DRAWN PROCESS AND RE ASONING ON THE POINT TO BE RECTIFIED. A PATENT MISTAKE AS WELL AS EVIDENT ERR OR, WHICH DOES NOT REQUIRE AN ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENTS TO ES TABLISH CAN BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORDS AND CAN B E RECTIFIED UNDER THE AMBIT OF SECTION 254(2). IT IS WELL SETTLED THAT SEC 254(2) DOES NOT CONFER POWER ON THE TRIBUNAL TO REVIEW IS EARLIER ORDER. THUS, THE TRI BUNAL HAS NO POWER TO REVIEW ITS ORDER PASSED ON MERIT AND IN THE GRAB OF RECTIFICAT ION OF MISTAKE NO ORDER CAN BE PASSED U/S 254(2) WHICH AMOUNTS TO REVERSAL OF THE ORDER PASSED AFTER DISCUSSING ALL THE FACTS AND STATUTORY PROVISIONS IN DETAIL. THEREFORE, WE DO NOT FIND ANY MERIT IN THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. 5 IN THE RESULT, THE MISCELLANEOUS APPLICATION FILE D BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THE 4 TH , DAY OF JAN 2012. SD/ SD/ ( (( ( R S SYAL R S SYAL R S SYAL R S SYAL ) )) ) ACCOUNTANT MEMBER ( (( ( VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO VIJAY PAL RAO ) )) ) JUDICIAL MEMBER PLACE: MUMBAI : DATED:4 TH JAN 2012 RAJ* RAJ* RAJ* RAJ* 5 VALIKA CHEMICALS PVT LTD COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI