J.K. HELENE CURTIS LTD, V. DCIT 2(2),

MA 428/MUM/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2875 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-03-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2007-2008
• Appeal Filed On: 03-12-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR BORA
• Assessee Lawyers: Y P TRIVEDI

Judgement Text

, L LL LH HH H INCOME TAX APPELLATE TRIBUNAL,MUMBAI - C BENCH. , ! , BEFORE S/SH.VIJAY PAL RAO, JUDICIAL MEM BER & RAJENDRA,ACCOUNTANT MEMBER MA NO.428/MUM/2014 (ARISING OUT OF ITA NO.5139/MU M/2010)-ASSESSMENT YEAR 2007-08 J.K.HELENE CURTIS LIMITED, POKHRAN ROAD NO.1, JEKEGRAM, THANE-400606 PAN:AAACJ2511L VS DCIT 2(2), MUMBAI. ( '# / APPELLANT) ( $%'# / RESPONDENT) &'( &'( &'( &'( ) ) ) ) / ASSESSEE BY : SHRI Y.P.TRIVEDI * ) / REVENUE BY : SHRI VIJAY KUMAR BORA & & & & * ** * (+ (+ (+ (+ / DATE OF HEARING : 20 -03-2015 ,-. * (+ / DATE OF PRONOUNCEMENT : 25-03-2015 & & & &1961 1961 1961 1961 * * * * 254 254 254 254( (( (1 11 1) )) ) (7( (7( (7( (7( 8 8 8 8 ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,AM ! ! ! ! & & & & : VIDE ITS APPLICATION DATED 03.02.2014,ASSESSEE-COMP ANY HAS STATED THAT THERE WERE MISTAKES APPARENT IN THE ORDER PASSED BY THE TRIBUNAL ON 20. 08.2014,THAT SAME HAVE TO BE RECTIFIED AS PER THE PROVISIONS OF SECTION 254(2) OF THE ACT.IN HIS APPLICATION THE ASSESSEE HAS STATED THAT SHORT QUESTIONS TO BE DECIDED BY THE TRIBUNAL WAS ABOUT E XPENDITURE OF RS.14 LAKHS TOWARDS PROVISION FOR REPAIRS AND MAINTENANCE,THAT BILLS FOR THE REPA IRING WORK WERE RECEIVED IN SUBSEQUENT YEAR,THAT IT HAD MADE PROVISION OF RS.14 LAKHS ON THE BASIS O F ESTIMATE GIVEN BY THE CONTRACTOR,THAT THE ASSESSEE HAD CITED SEVERAL JUDGMENTS OF THE HIGH CO URT AND SUPREME COURT IN SUPPORT OF ITS CLAIM,THAT THE TRIBUNAL HAD NOT DISCUSSED THE RATIO OF THE HIGH COURT AND SUPREME COURT JUDGMENTS, EVEN THOUGH, THEY WERE ARGUED AT GREAT L ENGTH AND ANALYSED IN DETAILS,THAT THE ASSESSEE HAD MADE ALTERNATE CLAIM FOR PARTIALLY ALLOWING THE EXPENDITURE,THAT TRIBUNAL SHOULD HAVE GIVEN DIRECTIONS TO THE ASSESSING OFFICER TO ALLOW THE SA ID DEDUCTION IN THE SUBSEQUENT YEAR I.E. 2008- 2009. 2. DURING THE COURSE OF HEARING BEFORE US,AUTHORISED R EPRESENTATIVE (AR) REITERATED THE ARGUMENTS MADE IN THE APPLICATION. IT ALSO STATED THAT ARGUME NTS ADVANCED BY THE ASSESSEE ABOUT EXPENDITURE BEING OF REVENUE NATURE WAS NOT CONSIDERED, THAT AL TERNATE CLAIM MADE BY THE ASSESEE REMAINED TO BE CONSIDERED BY THE TRIBUNAL THAT NON-CONSIDERATIO N OF THE ARGUMENTS WAS MISTAKE APPARENT FROM THE RECORD AND HAD TO BE RECTIFIED.DEPARTMENTAL REP RESENTATIVE (DR) STATED THAT THERE WAS NO MISTAKE IN THE ORDER OF THE TRIBUNAL,THAT IN THE GR OUNDS OF APPEAL THE ASSESSEE HAD NOT MADE ANY ALTERNATE CLAIM. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT WHILE DECIDING THE APPEAL,ON PAGE NO.5 OF THE ORDER ,THE TRIBUNAL HAS DISCUSSED THE CASE OF BHARAT EARTH MOVERS(245 ITR 428) AND HINDUSTAN FERTILIZERS CORPORATION LTD.(140 ITD 221), THAT THE TRIBUNAL HAD DISTINGUISHED THE FACTS OF BOTH THE CA SES AND HELD THAT THERE WERE OF NO HELP TO THE CAUSE OF THE ASSESSEE.TRIBUNAL HAD ALSO DISCUSSED T HE MATTER OF ELECTRONICS CORPORATION OF INDIA OF HYDERABAD BENCH,ELIED UPON BY THE ASSESSEE.THEREFOR E, WE ARE OF THE OPINION THAT ARGUMENT RAISED BY THE ASSESSE ABOUT NON-CONSIDERATION OF TH E JUDGMENTS OF THE COURT OR THE TRIBUNAL IS FACTUALLY INCORRECT.THE TRIBUNAL HAD,AFTER CONSIDER ING THE FACTS OF THE CASE,HELD THAT THE AMOUNTS IN QUESTION FELL UNDER THE CATEGORY OF PROVISIONS A ND THEREFORE WERE NOT ALLOWABLE AS PER THE 2 MA/428//MUM/2014-JKH,ITA/5139/M/10 PROVISIONS OF THE ACT.THE TRIBUNAL WAS DECIDING APP EAL FOR THE AY.IN QUESTION AND HAD DECIDED IT. AS THE APPEAL FOR THE OTHER AY.WAS NOT HEARD BY IT, SO,THERE WAS NO QUESTION TO GIVE DIRECTION TO THE AO FOR THAT YEAR.IT IS A FACT THAT THE PROVISIO N MADE BY THE ASSESSEE WAS ON ESTIMATE BASIS AND AFTER CONSIDERING ALL THE RELEVANT FACTORS THE APPE AL WAS DECIDED.IN OUR OPINION,NO MISTAKE WAS APPARENT IN THE IMPUGNED ORDER OF THE TRIBUNAL. THE SCOPE OF SECTION 254(2) OF THE ACT IS VERY LIMI TED AND SPECIFIC.IF A MISTAKE IS SO GLARING THAT ON THE FACE OF IT SAME HAS TO BE AMENDED,THEN ONLY THE PROVISIONS OF SECTION 254(2)CAN BE INVOKED. IT IS SAID THAT THE SECTION IS LIMITED TO MISTAKE APPARENT FROM RECORD LIKE ARITHMETICAL ERRORS,TYPOGRAPHICAL MISTAKES,NON-ADJUDICATION OF G ROUND OF APPEAL OR NON-CONSIDERATION OF A JUDGMENT OF HONBLE SUPREME COURT OR JURISDICTIONAL HIGH COURT HAVING DIRECT BEARING ON THE CASE.HONBLE DELHI HIGH COURT HAS,IN THE MATTER OF GEOFIN INVESTMENT (P.) LTD.,DESCRIBED THE CONCEPT OF MISTAKE APPARENT FROM RECORD AS UNDER: THE POWER IS CIRCUMSCRIBED AND LIMITED. THERE SHOUL D BE A MISTAKE WHICH IS APPARENT BEFORE THE POWER CAN BE EXERCISED. THIS IS A MANDATORY PRE-CON DITION. THE TRIBUNAL IN ITS ORDER REFERRED TO THE CONTROVERSY IN QUESTION RELATING TO THE DISALLO WANCE MADE ON ACCOUNT OF SHORT-TERM CAPITAL LOSS AND LONG-TERM CAPITAL LOSS. THE ENTIRE ISSUE WAS EX AMINED ON THE MERITS INCLUDING THE JUDGMENTS RELIED UPON BY THE ASSESSEE. AFTER EXAMINING THE MA TTER IN DETAIL, IT ALLOWED THE APPEAL FILED BY THE REVENUE. (348ITR118). IN THE CASE OF BHAGWATI DEVELOPERS (P.) LTD.(261 IT R 658),HONBLE CALCUTTA HIGH COURT HAS HELD AS UNDER : UNDER SECTION 254(2), THE APPELLATE TRIBUNAL IS CL OTHED WITH THE POWER TO AMEND WITH A VIEW TO RECTIF Y ANY MISTAKE APPARENT FROM THE RECORD EITHER ON ITS OWN MOTION OR ON AN APPLICATION BY THE ASSESSEE OR THE ASSESSING OFFICER CONCERNED. THE LAW BY NOW IS WELL -SETTLED. SECTION 254(2) DOES NOT CONFER A POWER ON THE TRIBUNAL TO REVIEW ITS EARLIER ORDER. A MISTAKE APP ARENT FROM THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH COULD BE ESTABLISHE D BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. FOLLOWING IS THE DECISION OF THE HONBLE JURISDICTI ONAL HIGH COURT HAS IN THE CASE OF RAMESH ELECTRICALS (203ITR497): UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961, THE APPELLATE TRIBUNAL MAY, 'WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD', A MEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1) WITHIN THE TIME PRESCRIBED THEREIN. IT IS AN AC CEPTED POSITION THAT THE APPELLATE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER T HE PROVISIONS OF THE ACT. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO RECTIFY ANY MISTAKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD. THIS IS MERELY A POWER OF AMENDING ITS ORDER. THE P OWER OF RECTIFICATION UNDER SECTION 254(2) CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM THE RECORD, AND NOT A MISTAK E WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. FAILURE OF THE TRIBUNAL TO CONSIDER A N ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT O N THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE TRIBUNAL CANNOT, IN THE EXERCISE OF I TS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT IT S CONCLUSION. FROM THE ABOVE IT IS CLEAR THAT TRIBUNAL HAS GOT LI MITED POWER TO RECTIFY MISTAKE U/S.254(2) OF THE ACT. IN THE CASE BEFORE US,THE ASSESSEE HAS NOT POINTED OUT ANY ARITHMETICAL MISTAKE IN THE ORDER OF THE TRIBUNAL NOR HAS HE PROVED THAT LEGAL POSITION TAKE N BY THE TRIBUNAL HAS ALTERED BECAUSE OF SUBSEQUENT JUDGMENT OF THE JURISDICTIONAL HIGH COUR T OR THE APEX COURT.THE TRIBUNAL HAS DECIDED THE ISSUE AFTER CONSIDERING ALL THE FACTS AND PROVI SIONS OF LAW.THE ASSESSEE IS AGGRIEVED BY THE DECISION TAKEN BY IT.IS SUCH A CASE PROPER COURSE O F ACTION IS TO CHALLENGE THE ORDER OF THE TRIBUNAL BEFORE THE HONBLE HIGH COURT.THE ASSESSEE,IN THE MATTER UNDER CONSIDERATION,WANTS THE TRIBUNAL TO REVIEW ITS ORDER.BUT,SAME IS NOT PERMISSIBLE.THE REFORE,WE ARE OF THE OPINION THAT APPLICATION FILED BY THE ASSESSEE DESERVES TO BE REJECTED. AS A RESULT,MISCELLANEOUS APP LICATION FILED BY THE ASSESSEE DISMISSED. 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