Canara Bank, Bangalore V. Additional/Joint Commissioner of Income tax, Bangalore

MA 41/BANG/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4412 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-07-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 12-05-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUNDAR RAJAN
• Assessee Lawyers: G SARANGAN SENIOR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, BANGALORE BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER MISC.PETN.NO.4 1 /BANG/2016 (IN ITA NO. 479 /BANG/20 09 ) (ASSESSMENT YEAR: 2006 - 07 ) CANARA BANK, BSCA SECTIO N , H EAD OFFICE, JC ROAD, BANGALORE - 560002. PA NO.AABTP5453B VS. PETITIONER ADDL. COMMISSIONER OF INCOME - TAX, LTU BANGALORE . RESPONDENT PETITIONER BY : SHRI G.SARANGAN, SENIOR ADVOCATE AND SHRI S.ANANTHAN, CA. RESPONDENT BY : SHRI SUNDAR RAJAN DATE OF HEARING : 17 /0 6 /2016 DATE OF PRONOUNCEMENT : 13 /0 7 /2016 O R D E R PER INTURI RAMA RAO, AM : THE PRESENT MISCELLANEOUS PETITION HAS BEEN FILED BY THE ASSESSEE - BANK ALLEGING CERTAIN MISTAKES IN THE ORDER OF THE TRIBUNAL WHILE CONSIDERING THE PARITY OF PROVISIONS OF SEC.36(1)(VIIA) AND 36(1)(VIII) . IT WAS ALLEGED THAT THE TRIBUNAL HAD CONSIDERED THE AMENDED PROVISIONS OF SEC.36(1)(VIII). IN A NUTSHELL, IT IS THE CONTENTION OF THE ASSESSEE - BANK THAT THE MP NO.4 1 / BANG/2016 PAGE 2 OF 6 DECISION OF THE HON BLE K ERALA HIGH COURT IN THE CASE OF CIT VS. KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD. (182 ITR 67) AS CONFIRMED BY THE HON BLE SUPREME COURT REPORTED IN 96 TAXMAN.641 AND IN THE CASE OF CIT VS. BIHAR STATE FINANCIAL CORPORATION WERE ON THE PRE - AMENDMENT OF THE PROVISIONS OF SEC TION 36(1)(VI I IA) WHEREAS THIS TRIBUNAL HAD CONSIDERED THE AMENDED PROVISIONS OF SEC.36(1)(VIII A ) TO COME TO THE CONCLUSION THAT THE AMOUNT OF DEDUCTION UNDER THE PROVISIONS OF SEC.36(1)(VIIA) SHOULD BE COMPUTED WITH REFERENCE TO TOTAL INCOME AFTER SET OFF OF BROUGHT FORWARD LOSSES. 2. THE CONTROVER SY IN THIS PARTICULAR GROUND OF APPEAL HINGES AROUND INTERPRETATION OF THE TERM TOTAL INCOME . THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF BIHAR S TATE FINANCIAL CORPORATION (142 ITR 518) AND KERALA STATE INDUSTRIAL DEVELOPMENT CORPORATION LTD. (96 TAXMAN.641) ARE ON THE INTERPRETATION OF OLD PROVISIONS OF SEC.36(1)(VIIIA) OF THE ACT. THOSE DECISIONS OF THE HON BLE APEX COURT ARE PRIOR TO THE DECISI ON OF THE CONSTITUTIONAL BENCH OF THE HON BLE APEX COURT IN THE CASE OF DISTRIBUTORS (BARODA) PVT. LTD. VS. UNION OF INDIA (155 ITR 120) AND H.H.SIR RAMA VERMA VS. CIT (205 ITR 433). THOSE DECISIONS ARE RENDER E D IN THE CONTEXT OF ALLOWING DEDUCTION UNDER CH APTER VIA WITH REFERENCE TO TOTAL INCOME , N EEDLESS TO MENTION THAT THE LATER DECISION OF THE HON BLE APEX COURT SHALL PREVAIL OVER THE OLD DECISIONS OF THE SAME COURT. FURTHERMORE, IN VIEW OF THE EXPRESS PROVISION DEFINING TOTAL INCOME U/S 2(45) OF THE ACT, MP NO.4 1 / BANG/2016 PAGE 3 OF 6 THERE IS NO SCOPE FOR CONSIDERING THE SAID PROVISION DIFFERENTLY FOR THE PURPOSE OF SEC.36(1)(VIIA) OF THE ACT. MERE RELIANCE ON PRE - AMENDED PROVISIONS OF SEC.36(1)(VIIIA) HAS NO BEARING ON THE ISSUE ON APPEAL. THE DECISION HAS BEEN RENDERED CONSIDER ING THE PRECEDENT OF THE APEX COURT ON THE SUBJECT. RECTIFICATION CAN BE MADE ONLY WHEN A GLARING MISTAKE OF FACT OR LAW COMMITTED BY THE OFFICER PASSING THE ORDER BECOMES APPARENT FROM THE RECORD. THE RECTIFICATION IS NOT POSSIBLE IF THE QUESTION IS DEBA TABLE. A POINT WHICH WAS NOT EXAMINED ON FACTS OR IN LAW CANNOT BE DEALT WITH AS A MISTAKE APPARENT FROM THE RECORD. NO ERROR CAN BE SAID TO BE APPARENT ON THE FACE OF THE RECORD IF IT IS NOT MANIFEST OR SELF - EVIDENT AND REQUIRES AN EXAMINATION OR ARGUMENT TO ESTABLISH IT. WHERE WITHOUT ANY ELABORATE ARGUMENT ONE COULD POINT TO THE ERROR AND SAY HERE IS A SUBSTANTIAL POINT OF LAW WHICH STARES ONE IN THE FACE, AND THERE COULD REASONABLY BE NO TWO OPINIONS ENTERTAINED ABOUT IT, IS A CLEAR CASE OF ERROR APPARE NT ON THE FACE OF THE RECORD. VIDE ASSTT. CIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD . (2008) 219 CTR (SC) 90 : (2008) 12 DTR (SC) 346 : (2008) 305 ITR 227 ( SC), HONDA SIEL POWER PRODUCTS LTD. VS. CIT (2007) 213 CTR (SC) 425 : (2007) 295 ITR 466 ( SC), HARI VISHNU KAMATH VS. AHMAD ISHAQUE (1955) 1 SCR 1104, CIT VS. KESHRI METAL (P) LTD . (1999) 155 CTR (SC) 531 : (1999) 237 ITR 165 (SC), DEVA METAL POWER (P) LTD. VS. CIT 2008 (2) SCC 439, CIT VS. HERO CYCLES (P) LTD . (1997) 142 CTR (SC) 122 : (1997) 228 ITR 463 ( SC), SATYANARAYAN LAXMINARAYAN HEGDE VS. MP NO.4 1 / BANG/2016 PAGE 4 OF 6 MALLIKARJUN BHAVANAPPA TIRUMALE (1960) 1 SCR 890, THUNGABHADRA INDUSTRIES LTD. VS. GOVERNMENT OF ANDHRA PRADESH, REP . BY THE DY. CCT AIR 1964 SC 1372, BATUK K. VLYAS VS. SURAT BOROUGH MUNICIPALITY ILR 1953 BOM 191, MRS. K.T.M.S. UMMA SALMA VS. CIT (1983) 144 ITR 890, 895 (MAD), KIL KOTAGIRI TEA & COFFEE ESTATES CO. LTD. VS. ITAT (1989) 75 CTR (KER) 115 : (1988) 174 ITR 579 ( KER), CIT VS. R. CHELLADURAI (1979) 11 CTR (MAD) 157 : (1979) 118 ITR 108 (MAD), STATE OF TAMIL NADU VS. THAKOREBHAI & BROS. (1983) 52 STC 104 ( MAD), JAINARAIN JEEVRAJ VS. CIT (1979) 13 CTR (RAJ) 342 : (1980) 121 ITR 358, 363 ( RAJ), CI T VS. VARDHMAN SPINNING (1997) 139 CTR (P&H) 322 : (1997) 226 ITR 296, 302 ( P&H), BATA INDIA LTD. VS. DY. CIT (1996) 217 ITR 871 ( CAL) AND CIT VS. PRAHL AD RAI TODI (2001) 171 CTR (GAU) 537 : (2001) 251 ITR 833 (GAU). FROM THE VARIOUS JUDGMENTS OF THE SUPREME COURT ABOVE REFERRED TO AND OTHER HIGH COURTS, IT IS CLEAR THAT THE TRIBUNAL'S POWER UNDER SECTIO N 254(2) IS NOT TO REVIEW ITS EARLIER ORDER BUT ONLY TO AMEND IT WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD. WHAT CAN BE TERMED AS 'MISTAKE APPARENT?' . 'MISTAKE' IN GENERAL MEANS TO TAKE OR UNDERSTAND WRONGLY OR INACCURATELY; TO MAKE A N ERROR IN INTERPRETING; IT IS AN ERROR; A FAULT, A MISUNDERSTANDING, A MISCONCEPTION. MISTAKE IN TAXATION LAWS HAS A SPECIAL SIGNIFICANCE. IT IS MOSTLY SUBJECTIVE AND THE DIVIDING LINE IS THIN AND INDISCERNIBLE. 'APPARENT' MEANS VISIBLE, CAPABLE OF BEING SEEN, EASILY SEEN, OBVIOUS PLAIN, OPEN TO VIEW, EVIDENT, MP NO.4 1 / BANG/2016 PAGE 5 OF 6 APPEARS, APPEARING AS REAL AND TRUE, CONSPICUOUS, MANIFEST, SEEMING. THE PLAIN MEANING OF THE WORD 'APPARENT' IS THAT IT MUST BE SOMETHING WHICH APPEARS TO BE EX FACIE AND INCAPABLE OF ARGUMENT AND D EBATE. IF SUCH A 'MISTAKE APPARENT ON THE FACE OF RECORD' IS BROUGHT TO THE NOTICE, S. 254(2) EMPOWERS THE TRIBUNAL TO AMEND THE ORDER PASSED UNDER S. 254( 1) . AMENDMENT OF AN ORDER DOES NOT MEAN OBLITERATION OF THE ORDER ORIGINALLY PASSED AND ITS SUBSTITUTION BY A NEW ORDER. WHAT IS MISTAKE APPARENT ON THE FACE OF THE RECORD OR WHERE DOES A MISTAKE CEASE TO BE MERE MISTAKE, AND BECOME MISTAKE APPARENT ON TH E FACE OF THE RECORD IS RATHER DIFFICULT TO DEFINE PRECISELY, SCIENTIFICALLY AND WITH CERTAINTY. AN ELEMENT OF INDEFINITENESS INHERENT IN ITS VERY NATURE AND IT MUST BE DISCERNIBLE FROM THE FACTS OF EACH CASE BY JUDICIOUSLY TRAINED MIND. MERE EXISTENCE OF A MISTAKE OR ERROR WOULD NOT PER SE RENDER THE ORDER AMENABLE FOR RECTIFICATION, BUT SUCH A MISTAKE MUST BE ONE WHICH MUST BE MANIFEST ON THE FACE OF THE RECORD . THEREFORE, THERE IS NO MISTAKE APPARENT FROM RECORD AS ALLEGED BY THE ASSESSEE - BANK WHICH IS C APABLE OF BEING AMENDED U/S 254(2) OF THE ACT. 3. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE - BANK IS DISMISSED. ORDER PR ONOUNCED IN THE OPEN COURT ON 13 TH JULY, 2016 SD/ - SD/ - ( VIJAY PAL RAO ) (I NTURI RAMA RAO ) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE : BANGALORE D A T E D : 13 / 0 7 /2016 SRINIVASULU, SPS MP NO.4 1 / BANG/2016 PAGE 6 OF 6 COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) - II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE TRIBUNAL BANGALORE