Amrit Banaspati Company Ltd., Noida V. DCIT, Central Circle , Ghaziabad

MA 384/DEL/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 6770 (ITAT-DELHI)
• Duration Of Justice: 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-10-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 05-10-2023
• Assessment Year: 2007-2008
• Appeal Filed On: 25-09-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: ROHIT JAIN
• Keywords: Depreciation; Set aside
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘A’, NEW DELHI BEFORE SH. N. K. BILLAIYA, ACCOUNTANT MEMBER AND SH. ANUBHAV SAHRMA, JUDICIAL MEMBER M.A No.384/Del/2023 ( In ITA No.4589/Del/2018) Assessment Year: 2007-08 Amrit Banaspati Company Ltd. SCO, 18-19, First Floor, Sector-8C, Chandigarh PAN No.AABCA6485H Vs DCIT Central Circle, Ghaziabad (APPELLANT) (RESPONDENT) Appellant by Sh. Rohit Jain, Advocate Respondent by Sh. Vivek Kumar Upadhyay, Sr. DR Date of hearing: 06/10/2023 Date of Pronouncement: 06/10/2023 ORDER PER N. K. BILLAIYA, AM: This miscellaneous application by the assessee is directed towards the order of this Tribunal dated 11.09.2023 in ITA No.4589/Del/2018 pertaining to A.Y. 2007-8. 2. The sum and substance of the grievance of the assessee is that the Tribunal disallowed the claim of depreciation on edible oil brands when it has accepted that the assessee has transferred a unit or division of an undertaking or business activity and has rightly transferred the edible oil brands independently to the transfer of edible oil undertaking. 2 3. Referring to his miscellaneous application the Counsel vehemently stated that an error has crept in the findings of the Tribunal when it disallowed the claim of depreciation. 4. We have given a thoughtful consideration to the contents of the miscellaneous application and the submissions of the Counsel. In our considered view what the Counsel is asking us is to review our own order in the garb of the provisions of section 254 (2) of the Act. We are of the considered view that this Tribunal does not have any power to review its own order, therefore, we do not find any merit in this miscellaneous application of the assessee and the same is dismissed. We draw support from the decision of the Hon’ble Supreme Court in the case of Reliance Petro Telecom Limited in Civil Appeal No.7110 and 7112 of 2021 wherein the Hon’ble Supreme Court held as under :- 4. In the present case, a detailed order was passed by the ITAT when it passed an order on 06.09.2013, by which the ITAT held in favour of the Revenue. Therefore, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under Section 254(2) of the Act. If the Assessee was of the opinion that the order passed by the ITAT was erroneous, either on facts or in law, in that case, the only remedy available to the Assessee was to prefer the appeal before the High Court, which as such was already filed by the Assessee before the High Court, which the Assessee withdrew after the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013. Therefore, as such, the order passed by the ITAT recalling its earlier order dated 06.09.2013 which has been passed in exercise of powers under Section 254(2) of the Act is beyond the scope and ambit of the powers of the Appellate Tribunal conferred under Section 254 (2) of the Act. 3 Therefore, the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 is unsustainable, which ought to have been set aside by the High Court. 5. From the impugned judgment and order passed by the High Court, it appears that the High Court has dismissed the writ petitions by observing that (i) the Revenue itself had in detail gone into merits of the case before the ITAT and the parties filed detailed submissions based on which the ITAT passed its order recalling its earlier order; (ii) the Revenue had not contended that the ITAT had become functus officio after delivering its original order and that if it had to relook/revisit the order, it must be for limited purpose as permitted by Section 254(2) of the Act; and (iii) that the merits might have been decided erroneously but ITAT had the jurisdiction and within its powers it may pass an erroneous order and that such objections had not been raised before ITAT. 6. None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors Section 254(2) of the Act. As observed hereinabove, the powers under Section 254(2) of the Act are only to correct and/or rectify the mistake apparent from the record and not beyond that. Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass an order recalling its earlier order which is an erroneous order, cannot be accepted. As observed hereinabove, if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the High Court, but later on the Assessee withdrew the same in the instant case. 7. In view of the above and for the reasons stated above, the impugned common judgment and order passed by the High Court as well as the common order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 deserve to be quashed and set aside and are accordingly quashed and set aside. The original orders passed by the ITAT dated 06.09.2013 passed in the 4 respective appeals preferred by the Revenue are hereby restored. 5. Respectfully following the above, miscellaneous application is dismissed. 6. Decision announced in the open court on 06.10.2023. Sd/- Sd/- [ANUBHAV SHARMA] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: .10.2023 *Neha* Copy forwarded to: 1. Appellant 2. Respondent 3. CITi 4. CIT(A) 5. DR Asst. Registrar ITAT, New Delhi