EID Parry (India) Ltd., CHENNAI V. DCIT, CHENNAI

MA 391/CHNY/2017

• Counselvise Citation: [2018] 111 COUNSELVISE.COM (IT) 1452 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-07-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2000-2001
• Appeal Filed On: 27-12-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Opportunity of being heard
• Section: 254(2)

Judgement Text

, , IN THE INCOME-TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . , . , BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY, JUDICIAL MEMBER M.P. NO. 391/CHNY/2017 [ARISING OUT OF M.P. NO. 26/CHNY/2017 IN I.T.A.NO.2370/CHNY/2014] / ASSESSMENT YEAR :2000-01 M/S. E.I.D. PARRY (INDIA) LTD., DARE HOUSE, 234 NSC BOSE ROAD, CHENNAI 600 001. [PAN: AAACE0702C] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, LARGE TAXPAYER UNIT II, CHENNAI 600 101. ( /APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI PHILIP GEORGE, ADVOCATE / RESPONDENT BY : SHRI AR.V. SREENIVASAN, JCIT / DATE OF HEARING : 27.07.2018 /DATE OF PRONOUNCEMENT : 27.07.2018 / O R D E R PER DUVVURU RL REDDY, JUDICIAL MEMBER: THIS MISCELLANEOUS PETITION IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL IN M.P. NO. 26/CHNY/2017 DATED 21.06.2017 SEEKING TO MODIFY ITS ORDER BY HOLDING THAT THE ISSUE WITH REGARD TO DELETION OF ADDITION UNDER SECTION 40A(9) OF THE ACT IN RESPECT OF BENEVOLENT FUND AND SOCIAL SECURITY BENEVOLENT FUND IS HELD IN FAVOUR OF THE ASSESSEE FOLLOWING THE EARLIER ORDER OF THE COORDINATE BENCH OF THIS TRIBUNAL DATED 02.08.2011WHILE DEALING WITH THE APPEAL IN I.T.A. NO. 705/MDS/2010 FILED BY THE REVENUE AND M.P. NO.391/CHNY/17 2 PASS APPROPRIATE ORDERS BY AFFORDING THE PETITIONER AN OPPORTUNITY OF BEING HEARD. 2. PER CONTRA, THE LD. DR SUBMITTED THAT IN THE SAID ORDER IN M.P. NO. 26/CHNY/2017, THE TRIBUNAL RECALLED THE SAID ORDER FOR LIMITED PURPOSE FOR FRESH ADJUDICATION AND THUS, THERE WAS NO MISTAKE IN THE ORDER OF THE TRIBUNAL WARRANTING MODIFICATION OF THE SAID ORDER UNDER SECTION 254(2) OF THE ACT, WHICH IS NOT PERMISSIBLE. 3. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE ORDER OF THE TRIBUNAL. WHAT WAS HELD BY THE TRIBUNAL IN THE ORDER DATED 21.06.2017 IN M.P. NO. 26/CHNY/2017 READS AS UNDER: 6. WE HAVE HEARD BOTH SIDES, PERUSED THE ORDERS OF THE TRIBUNAL AND FIND THAT AGAINST THE REVENUES APPEALS IN I.T.A. NO. 705 & 706/MDS/2010 FOR THE ASSESSMENT YEARS 2004-05 AND 2006-07 IN ASSESSEES OWN CASE, THE TRIBUNAL HAS ADJUDICATED THE ISSUE WITH REGARD TO DISALLOWANCE OF CONTRIBUTION TO EMPLOYEES RECREATION & SPORTS CLUB EXPENSES AND ADMITTEDLY, THE ISSUES WITH REGARD TO CONTRIBUTION TO BENEVOLENT SCHEME & CONTRIBUTION TO SOCIAL SECURITY FUND ARE NOT RAISED OR ADJUDICATED BY THE TRIBUNAL. WE FIND THAT, BY OVERSIGHT, THE TRIBUNAL HAS CONCLUDED THE ISSUES BY FOLLOWING EARLIER ORDER, WHICH IS MISTAKE APPARENT ON RECORD. IN VIEW OF THE ABOVE AND CONSIDERING THE PLEA OF THE LD. COUNSEL FOR THE ASSESSEE TO GIVE AN OPPORTUNITY OF BEING HEARD, WE RECALL THE TRIBUNALS ORDER FOR LIMITED PURPOSE AND DIRECT THE REGISTRY TO POST THE APPEAL FOR HEARING. 4. IN OUR OPINION, A FAIR READING OF THE MP ORDER OF THE TRIBUNAL, THERE IS NO MISTAKE APPARENT ON RECORD WARRANTING MODIFICATION UNDER SECTION 254(2) OF THE ACT, SINCE, THE TRIBUNAL HAS RECALLED THE MAIN APPEAL FOR LIMITED M.P. NO.391/CHNY/17 3 PURPOSE TO ADJUDICATE THE ISSUE. FURTHER, SECTION 254(2) OF THE ACT EMPOWERS THE TRIBUNAL TO AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1) OF SECTION 254 OF THE ACT WITH A VIEW TO RECTIFY/MODIFY ANY MISTAKE APPARENT FROM THE RECORD. TO ATTRACT THE APPLICABILITY OF SECTION 254(2) OF THE ACT, THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED OR MODIFIED MUST BE APPARENT FROM THE RECORD AND THE SAME MUST BE IN ANY ORDER PASSED UNDER SUB-SECTION (1) OF SECTION 254 OF THE ACT. AN ORDER PASSED IN THE MISCELLANEOUS PETITION SEEKING FURTHER MODIFICATION/RECTIFICATION UNDER SECTION 254(2) OF THE ACT IS NOT AN ORDER PASSED UNDER SECTION 254(1) OF THE ACT AND IT CANNOT BE MODIFIED UNDER SECTION 254(2) OF THE ACT. IN VIEW OF THE ABOVE FACTS, THE PRESENT PETITION FILED BY THE ASSESSEE STANDS DISMISSED. 5. IN THE RESULT, THE MP FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH JULY, 2018 AT CHENNAI. SD/ - SD/ - (ABRAHAM P. GEORGE) ACCOUNTANT MEMBER (DUVVURU RL REDDY) JUDICIAL MEMBER CHENNAI, DATED, THE 27.07.2018 VM/- /COPY TO: 1. / APPELLANT, 2. / RESPONDENT, 3. ( ) /CIT(A), 4. /CIT, 5. /DR & 6. /GF.