Shri Areez P. Khambatta, Ahmedabad V. The Dy.CIT.,Circle-10, Ahmedabad

MA 46/AHD/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9753 (ITAT-AHMEDABAD)
• Duration Of Justice: 10 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-01-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 01-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: Y P VERMA
• Assessee Lawyers: PF JAIN
• Keywords: Bonafide mistake

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER M.A. NO.46/AHD/2012 IN I.T.A. NO. 795/AHD/2009 (ASSESSMENT YEAR 2005-06) SHRI AREEZ P. KHAMBATTA, B/4, ELLISBRIDGE GYMKHANA, ELLISBRIDGE, AHMEDABAD VS. DCIT, CIRCLE 10, AHMEDABAD PAN/GIR NO. : ABMPK6322L (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI P F JAIN, AR RESPONDENT BY: SHRI Y P VERMA, SR. DR DATE OF HEARING: 07.12.2012 DATE OF PRONOUNCEMENT: 18.01.2013 O R D E R PER SHRI A. K. GARODIA, AM:- THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASS ESSEE AND VARIOUS MISTAKES ARE ALLEGED IN THE IMPUGNED TRIBUNAL ORDER . IN THE COURSE OF HEARING BEFORE US, LD. A.R. POINTED OUT THAT AS PER THIS MISCELLANEOUS APPLICATION, THERE ARE FOLLOWING MISTAKES IN THE IM PUGNED TRIBUNAL ORDER: (A) THE FIRST MISTAKE ALLEGED IS THIS THAT THE DR WAS N OT PRESENT IN THE COURSE OF HEARING. (B) THE 2 ND ALLEGED MISTAKE IS THIS THAT THE GROUND RAISED BY THE REVENUE IS NOT COMING OUT FROM THE ASSESSMENT ORDER . (C) THE 3 RD ALLEGED MISTAKE IS THIS THAT THE ARGUMENTS MADE BY THE LD. A.R. WAS ONLY AS COVERED MATTER BY THE TRIBUNAL ORDER RENDERED IN THE CASE OF MANRAJ TRADING PVT. LTD. IN I.T.A.NO. M.A.NO.46 /AHD/2012 2 6695/M/04 DATED 27.05.2005 AND HENCE, IF THE TRIBUN AL WAS NOT ACCEPTING IT TO BE COVERED MATTER THEN THE TRIBUNAL SHOULD HAVE ALLOWED FULL HEARING. (D) THE NEXT ALLEGED MISTAKE IS THIS THAT IN ANY CASE, IF THE BENCH WAS NOT FOLLOWING EARLIER TRIBUNAL ORDER CITED BY T HE ASSESSEE, THEN THE MATTER SHOULD HAVE BEEN REFERRED TO SPECIA L BENCH INSTEAD OF TAKING A CONTRARY VIEW. (E) THE NEXT ALLEGED MISTAKE IS THAT THAT PAPER BOOK II FILED BY THE ASSESSEE IN THE COURSE OF HEARING OF APPEAL WAS NOT TAKEN INTO COGNIZANCE. (F) THE NEXT ALLEGED MISTAKE IS THIS THAT THERE IS NO F INDING BY THE TRIBUNAL AS TO HOW LD. CIT(A) IS WRONG. IN THIS RE GARD, RELIANCE WAS PLACED ON JUDGEMENT OF HONBLE GUJARAT HIGH COU RT RENDERED IN THE CASE OF SHAKTI CARGO MOVERS PVT. LT D. VS ACIT IN INCOME TAX APPEAL NO.2324 OF 2009 DATED 19.01.20 10. HE SUBMITTED A COPY OF THIS JUDGEMENT OF HONBLE GUJAR AT HIGH COURT. RELIANCE WAS ALSO PLACED ON THE FOLLOWING JU DICIAL PRONOUNCEMENTS: I) LAXMI ELECTRONIC CORPN LTD. 188 ITR 398, II) SAURASHTRA KUTCH STOCK EXCHANGE LTD. 262 ITR 146 (GUJ.) AND 305 ITR 227 (S.C.) III) ALUM PVT. LTD. IN M.A. NO.119/AHD/2004 DT.25.10.200 4 IV) ROOP TEXTILES MILLS IN M.A. NO.12/AHD/92 DT.25.09.9 2 V) CIT VS S.K.GUPTA, 327 ITR 267 (ALLD.) VI) CIT VS NIRANJAN K ZAVERI 20 DTR 153 VII) GEHNA VS ITO 137 TTJ 17 VIII) 295 ITR 466 HONDA SIEL POWER PRODUCTS LTD. VS CIT M.A.NO.46 /AHD/2012 3 2. AS AGAINST THIS, IT WAS SUBMITTED BY THE LD. D.R . THAT THERE IS NO MISTAKE IN THE IMPUGNED TRIBUNAL ORDER AND HENCE, T HE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS LIABLE TO BE REJECTE D. 3. WE HAVE CONSIDERED THE CONTENTS OF THE MISCELLAN EOUS APPLICATION AS WELL AS THE ARGUMENTS OF THE LD. A.R. REGARDING THE FIRST ALLEGED MISTAKE THAT LD. D.R. WAS NOT PRESENT IN THE COURSE OF HEARING OF THIS APPEAL, WE WOULD LIKE TO MENTION THAT IN THE ORDER SHEET OF DATE 07.10.2011, WHEN THE HEARING OF THE APPEAL TOOK PLA CE, IT IS MENTIONED THAT SHRI JAIRAJ KUMAR, SR. DR WAS PRESENT AND WE D O NOT FIND ANY MERIT IN THIS CONTENTION IN THE MISCELLANEOUS APPLICATION AS WELL AS IN THE ARGUMENT OF THE LD. A.R. THE LD. A.R. HAS ALSO FIL ED AN AFFIDAVIT IN WHICH IT IS STATED THAT WHEN THE HEARING TOOK PLACE ON 07.10.2011, LD. D.R. WAS NOT PRESENT BUT AS PER THE NOTING IN THE O RDER SHEET OF THE TRIBUNAL, HE WAS PRESENT. EVEN IF HE WAS NOT PRESE NT, IT DOES NOT MAKE A DIFFERENCE BECAUSE LD. CIT(A) HAS SIMPLY FOLLOWED A TRIBUNAL ORDER BUT IN THAT ORDER, THIS ASPECT WAS NOT CONSIDERED AND D ECIDED AS TO WHETHER UTI MIP IS A BOND OR NOT. WE HAVE DECIDED THIS ASP ECT AND THEN THAT TRIBUNAL ORDER WAS NOT APPLICABLE. MOREOVER, EVEN IF THE DR WAS NOT PRESENT, IT CAN BE A GRIEVANCE OF THE REVENUE AND W E DO NOT UNDERSTAND THAT HOW IT CAN BE THE GRIEVANCE OF THE ASSESSEE AN D ABSENCE OR PRESENCE OF A PARTY WOULD NOT TANTAMOUNT TO THE TRIBUNAL ORD ER BEING ERRONEOUS. INSTEAD OF FILING AFFIDAVIT OF THE LD. A.R., THE AS SESSEE SHOULD HAVE FILED AFFIDAVIT OF THE LD. D.R. WHOSE NAME IS MENTIONED I N THE TRIBUNAL ORDER I.E. SHRI JAIRAJ KUMAR, SR. DR AND THIS HAS NOT BEE N DONE BY THE ASSESSEE AND, THEREFORE, THIS ALLEGED MISTAKE IS NON EXISTEN T. WE HOLD ACCORDINGLY. 4. THE 2 ND ALLEGED MISTAKE IS THIS THAT THE GROUND OF THE DEP ARTMENT IS NOT COMING OUT OF THE ASSESSMENT ORDER. THE RELEVA NT GROUND IS GROUND NO.3 WHICH IS REPRODUCED BELOW: M.A.NO.46 /AHD/2012 4 THE THIRD GROUND AS RAISED BY REVENUE IS AS UNDER : 3) THE LD. CIT(A) HAS ERRED IN ALLOWING INDEXATION ON UTI DEEP DISCOUNT BONDS DISALLOWED BY A.O. WHILE COMPUT ING INCOME FROM CAPITAL GAINS. 5. WE ALSO FIND THAT AS PER FORM 35 FILED BEFORE LD . CIT(A), THE FOLLOWING GROUNDS WERE RAISED BY THE ASSESSEE BEFOR E LD. CIT(A) I.E. GROUND NO.3.1 TO 3.4 WHICH ARE REPRODUCED BELOW: 3.1) HE HAS GRIEVOUSLY ERRED IN COMPUTING LONG TER M CAPITAL GAIN AT RS.17723901/- AS AGAINST LONG TERM CAPITAL LOSS OF RS.8213555/- COMPUTED BY THE ASSESSEE AFTER INDEXAT ION. 3.2) HE HAS ERRED IN NOT ALLOWING INDEXATION ON SALE OF UTI-99 UNITS ON ACCOUNT OF TERMINATION OF SCHEME. 3.3) HE HAS ERRED IN HOLDING THAT THE UTI MIP 99 IS SIMI LAR TO BONDS AND DEBENTURES AND THEREBY DENYING INDEXATION TO THE APPELLANT. 3.4) HE HAS ERRED IN NOT APPRECIATING AND CONSIDERING TH SUBMISSION OF THE ASSESSEE FURNISHED WITH EVIDENCES PROVING THAT THE UTI MIP 99 IS ELIGIBLE FOR INDEXATION ON S ALE OF SAID UNITS AS PROVIDED IN THE SCHEME ITSELF. 6. FROM THE ABOVE GROUNDS RAISED BY THE ASSESSEE BE FORE LD. CIT(A), IT IS CLEAR THAT THIS ASPECT WAS DECIDED BY THE A. O. AGAINST THE ASSESSEE AGAINST WHICH THE ASSESSEE RAISED ABOVE GROUND BEFO RE LD. CIT(A) AND THIS ISSUE WAS DECIDED BY LD. CIT(A) IN FAVOUR OF T HE ASSESSEE BY FOLLOWING THE TRIBUNAL ORDER IN THE CASE OF MANRAJ TRADING PVT. LTD. IN I.T.A.NO. 6659/AHD/2004 DATED 27.05.2005 AND AGAINS T THIS DECISION OF LD. CIT(A), THIS ABOVE REPRODUCED GROUND NO.3 WAS R AISED BY THE REVENUE BEFORE US AND HENCE, THIS ALLEGED MISTAKE I S NON EXISTENT AND THE ISSUE RAISED BY THE REVENUE IN THIS REGARD IS VERY MUCH ARISING OUT OF THE ORDERS OF AUTHORITIES BELOW. ACCORDINGLY, THE SAME IS ALSO REJECTED. 7. THE NEXT ALLEGED MISTAKE IS THIS THAT THE ARGUME NT OF THE LD. A.R. IN THE COURSE OF HEARING OF THIS APPEAL WAS LIMITED TO THE EXTENT THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE T RIBUNAL ORDER RENDERED IN M.A.NO.46 /AHD/2012 5 HE CASE OF MANRAJ TRADING PVT. LTD. (SUPRA) AND HEN CE, IF THE TRIBUNAL WAS NOT AGREEING TO FOLLOW THE TRIBUNAL ORDER, THE TRIB UNAL SHOULD HAVE ANNOUNCED THIS IN THE OPEN COURT IN THE COURSE OF H EARING ITSELF AND SHOULD HAVE ASKED THE LD. A.R. TO MAKE FULL ARGUMENTS AND IN ANY CASE, IF THE TRIBUNAL WAS NOT WILING TO FOLLOW THIS TRIBUNAL ORD ER THEN, INSTEAD OF TAKING CONTRARY VIEW, THE TRIBUNAL SHOULD HAVE REFE RRED THE MATTER TO SPECIAL BENCH. 8. REGARDING THIS CONTENTION, WE WOULD LIKE TO OBSE RVE THAT EVEN IF IT IS CLAIMED BY ANY SIDE THAT ANY OF THE ISSUE IS COV ERED BY EXISTING TRIBUNAL ORDER OR BY AN EXISTING JUDGEMENT OF ANY H ONBLE HIGH COURT OR HONBLE SUPREME COURT, IT DOES NOT MEAN THAT THE TR IBUNAL HAS TO ACCEPT SUCH CONTENTION AND IF THE TRIBUNAL IS NOT ACCEPTIN G SUCH CONTENTION, THE TRIBUNAL SHOULD ANNOUNCE IN THE COURSE OF HEARING I TSELF THAT THE TRIBUNAL IS NOT ACCEPTING SUCH ARGUMENT. REGARDING THE 2 ND OBJECTION THAT FULL HEARING SHOULD HAVE BEEN ALLOWED, WE DO NOT UNDERST AND THE MEANING OF THIS ARGUMENT BECAUSE WHEN HEARING IS TAKING PLACE IN RESPECT OF AN APPEAL, THE TRIBUNAL HEARS BOTH THE PARTIES TILL TH AT PARTY HAS NOTHING MORE TO SAY AND THE TRIBUNAL DOES NOT STOP ANY SIDE FORM MAKING FURTHER ARGUMENTS. HENCE, IF ANY SIDE DOES NOT MAKE MORE A RGUMENT, IT IS NOT THE FAULT OF THE TRIBUNAL AND ON THIS BASIS, IT CANNOT BE SAID THAT THERE IS MISTAKE IN THE TRIBUNAL ORDER. BOTH THE SIDES ARE INDEPENDENT TO RAISE ALL THE ALTERNATIVE ARGUMENTS WHEN THE HEARING IS TAKIN G PLACE AND IF ANY SIDE DOES NOT MAKE SUCH ARGUMENT, IT IS THE FAULT OF THE ARGUING PARTY AND IT CANNOT BE SAID TO BE A MISTAKE IN THE TRIBUNAL ORDE R UNLESS THE BENCH STOPS ANY PARTY FROM MAKING FURTHER ARGUMENTS. IN THE PR ESENT CASE, THIS IS NOT THE CLAIM THAT THE BENCH STOPPED THE LD. A.R. FROM MAKING FURTHER ARGUMENT AND HENCE, THIS CONTENTION IS ALSO REJECTE D. M.A.NO.46 /AHD/2012 6 9. REGARDING THIS CONTENTION THAT IF THE TRIBUNAL W AS NOT FOLLOWING EARLIER TRIBUNAL ORDER CITED BY THE LD. A.R. THEN I NSTEAD OF TAKING A CONTRARY VIEW, MATTER SHOULD HAVE BEEN REFERRED TO THE SPECIAL BENCH, WE WOULD LIKE TO OBSERVE THAT THE RELEVANT PARA OF TH IS TRIBUNAL DECISION IN THE CASE OF MANRAJ TRADING PVT. LTD. (SUPRA) BEING PARA 16, WAS REPRODUCED BY THE TRIBUNAL IN THE IMPUGNED ORDER ON PAGE 8 AND THE SAME IS AGAIN REPRODUCED HERE IN BELOW: 16. AFTER HEARING BOTH THE PARTIES, WE ARE OF THE VIEW THAT THE THIRD PROVISION OF SECTION 48 PROVIDES THAT THE BEN EFIT OF INDEXATION SHALL NOT BE ALLOWABLE FROM ASSESSMENT YEAR 1998-99 ONWARDS ON THE SALE OF BONDS AND DEBENTURES OTHER THAN CAPITAL INDEXED BONDS ISSUED BY GOVT. THIS PROVISO IS RESTRICTED ONLY TO BONDS AND DEBENTURES AND IT DOES NOT REFER TO ANY OTHER INVES TMENT WHICH IS OF THE SIMILAR NATURE. W HAT IS NOT PROVIDED IN THE S ECTION, CANNOT BE READ INTO IT AND THE BENEFIT CANNOT BE DENIED TO TH E ASS3ESSEE. THERE IS NO AMBIGUITY IN THE PROVISION AS IT APPLIE S TO BONDS AND DEBENTURES ONLY. EVEN IF IT IS PRESUMED THAT THERE IS AMBIGUITY IN THE PROVISION, THEN THE BENEFIT SHOULD BE GIVEN TO THE ASSESSEE AND THE INTERPRETATION FAVOURABLE TO THE ASSESSEE SHOUL D BE APPLIED. ACCORDINGLY, WE DIRECT THE A.O. TO RECOMPUTE THE CA SE AFTER ALLOWING THE BENEFIT OF INDEXATION ON THE UNITS OF UTI MIP (II) 97. 10. AFTER CONSIDERING THIS PARA 16 OF THE TRIBUNAL DECISION AS REPRODUCED ABOVE, IT IS HELD BY THE TRIBUNAL IN THE IMPUGNED ORDER IN PARA 11 THAT UTI MIP 99 IS A BOND AS PER THE DEFINITION OF BOND CONSIDERED BY THE TRIBUNAL IN PARA 9-10 OF THE IMPUGNED TRIBUNAL ORDER. THEREAFTER, IN PARA 12 OF THE IMPUGNED TRIBUNAL ORDER, IT IS OBSER VED BY THE TRIBUNAL THAT IN THE CASE OF MANRAJ TRADING PVT. LTD. ( SUPRA), T HIS ISSUE WAS NOT DECIDED BY THE TRIBUNAL AS TO WHETHER UTI MIP IS A BOND OR NOT AND FOR DECIDING THIS ASPECT, THERE IS NO TRIBUNAL ORDER AV AILABLE TO GUIDE THE TRIBUNAL AND ONCE IT IS HELD THAT UTI MIP IS A BOND , THE TRIBUNAL DECISION CITED BY THE LD. A.R. HAVING BEEN RENDERED IN THE C ASE OF MANRAJ TRADING PVT. LTD. (SUPRA) IS NOT APPLICABLE BECAUSE IN THAT CASE, THE TRIBUNAL HAS M.A.NO.46 /AHD/2012 7 PROCEEDED ON THIS BASIS THAT UTI MIP IS NOT BOND AN D DEBENTURE WITHOUT DECIDING OR EXAMINING THIS ASPECT. HENCE, THIS IS NOT A CASE OF TAKING A CONTRARY VIEW. IN THE PRESENT CASE, THIS ASPECT WA S DECIDED AS TO WHETHER UTI MIP IS A BOND OR NOT AND THERE WAS NO AVAILABLE DECISION OF THE TRIBUNAL OR ANY OTHER AUTHORITY ON THIS ASPECT AS T O WHETHER, UTI MIP IS A BOND OR NOT AND, THEREFORE, THIS ARGUMENT IS ALSO W ITHOUT ANY BASIS THAT THE TRIBUNAL SHOULD HAVE REFERRED THIS MATTER TO A SPECIAL BENCH FOR TAKING A VIEW ON AN ASPECT ON WHICH THERE IS NO DECISION A VAILABLE TO GUIDE THE TRIBUNAL. SINCE, THE BENCH WAS NOT FINDING ANY DI FFICULTY IN TAKING DECISION ON THIS ASPECT ALSO, IT CANNOT BE CONSIDER ED A FIT CASE FOR REFERRING TO SPECIAL BENCH AND ON THIS ASPECT, IT CANNOT BE S AID THAT THERE IS AN APPARENT MISTAKE IN THE TRIBUNAL ORDER. HENCE, THI S OBJECTION IS ALSO REJECTED. 11. THE NEXT OBJECTION IS THIS THAT PAPER BOOK II W AS NOT TAKEN INTO COGNIZANCE BY THE TRIBUNAL IN THE IMPUGNED TRIBUNAL ORDER. WE FIND THAT THE ASSESSEE HAD FILED PAPER BOOK II CONTAINING 30 PAGES CONSISTING OF SUBMISSIONS OF THE ASSESSEE BEFORE LD. CIT(A) FROM PAGE 1-15, EXTRACTS OF CBDT CIRCULAR NO.230 ITR STATUTE 73 ON PAGE 16, MEM O ISSUED BY UTI CONTAINING KEY INFORMATION FOR MIP 99 PAGE 17-18, C OPY OF CERTIFICATE ISSUED BY UTI PAGE 19-29 AND LETTER DATED 15.12.200 3 BY UTI FOR COVERING MIP 99 UNIT AND CESSATION OF MIP 99 FORM 1 .4.2004 ON PAGE 30. THIS PAPER BOOK WAS VERY MUCH SUBMITTED BY THE ASSE SSEE BUT IN THE COURSE OF ARGUMENTS BEFORE US, NO REFERENCE WAS MAD E TO ANY PAGE OF THIS PAPER BOOK. IN THE TRIBUNAL ORDER, ONLY THOSE PAGE S OF THE PAPER BOOK ARE TO BE CONSIDERED UPON ON WHICH REFERENCE IS MADE BY THE ARGUING PARTY AND IN THE ABSENCE OF ANY REFERENCE TO ANY PAGE IN THE PAPER BOOK, THERE IS NO REQUIREMENT AS PER LAW TO CONSIDER SUCH PAPER BO OK AND TO MAKE COMMENT ON ALL THE PAGES OF THE PAPER BOOK IN THE T RIBUNAL ORDER. HENCE, M.A.NO.46 /AHD/2012 8 IT IS ALSO NOT A MISTAKE IN THE TRIBUNAL ORDER. MO REOVER, IT IS ALSO NOT CORRECT TO SAY THAT THE PAPER BOOK WAS NOT CONSIDER ED BY THE TRIBUNAL. IN PARA 11 OF THE IMPUGNED ORDER, IT IS OBSERVED BY TH E TRIBUNAL THAT UTI BINDS ITSELF TO PAY TO THE HOLDER OF MIP 99 A FIXED SUM @ 11.3% P.A. IN EACH MONTH AND TO PAY BACK THE INVESTMENT/CAPITAL A MOUNT AFTER THE LAPSE OF FULL TERM OF 5 YEARS. IT IS ALSO NOTED THAT IN CASE OF PREMATURE WITHDRAWAL BY THE ASSESSEE, THERE IS NO GUARANTEE O R PROTECTION OF THE CAPITAL AND THE CLAIM IS REPAID AS PER NAV. THIS O BSERVATION OF THE TRIBUNAL IS ON THE BASIS OF PAGE 17 OF THE PAPER BO OK II WHICH CONTAINS THE MEMO ISSUED BY UTI CONTAINING KEY INFORMATION FOR M IP 99 AND THESE ASPECTS ARE STATED IN THE HIGHLIGHTS OF THIS MEMO A VAILABLE ON PAGE 17 OF THE PAPER BOOK II. IN VIEW OF ABOVE DISCUSSION, TH IS OBJECTION OF THE LD. A.R. IS ALSO WITHOUT ANY BASIS AND THE SAME IS ALSO REJECTED. 12. THE LAST OBJECTION TAKEN IS THIS THAT THERE IS NO FINDING OF THE TRIBUNAL, AS TO HOW, LD. CIT(A) IS WRONG. THIS OBJ ECTION IS ALSO NOT PROPER BECAUSE AS PER THE ORDER OF LD. CIT(A) ON TH IS ISSUE, HE HAS DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE BY FOL LOWING THE TRIBUNAL ORDER RENDERED IN THE CASE OF MANRAJ TRADING PVT. LTD. (S UPRA). IN THE IMPUGNED TRIBUNAL ORDER, IT IS OBSERVED BY THE TRIB UNAL THAT IN THAT TRIBUNAL ORDER RENDERED IN THE CASE OF MANRAJ TRADING PVT. L TD. (SUPRA), THIS ASPECT WAS NOT DECIDED AS TO WHETHER UTI MIP IS A BOND OR NOT AND IN THE ABSENCE OF ANY GUIDELINES ON THIS ASPECT, BY WAY OF A TRIBUNAL ORDER OR ANY ORDER OF HONBLE HIGH COURT, THIS ASPECT WAS IN DEPENDENTLY DECIDED AND ONCE IT WAS FOUND THAT UTI MIP IS BOND, THE TRI BUNAL DECISION RENDERED IN THE CASE OF MANRAJ TRADING PVT. LTD.(SU PRA), WAS NOT APPLICABLE BECAUSE IN THAT CASE, THE TRIBUNAL HAS P ROCEEDED ON THIS BASIS THAT UTI MIP IS NOT A BOND OR DEBENTURE WITHOUT DEC IDING OR EXAMINING THIS ASPECT. THIS SHOWS THAT VERY GOOD REASONS ARE GIVEN BY THE TRIBUNAL M.A.NO.46 /AHD/2012 9 IN THIS IMPUGNED TRIBUNAL ORDER REGARDING THIS ASPE CT THAT HOW LD. CIT(A) IS WRONG AND, THEREFORE, THIS OBJECTION IS ALSO WIT HOUT ANY BASIS AND THE SAME IS ALSO REJECTED. 13. NOW, WE CONSIDER THE APPLICABILITY OF VARIOUS J UDGEMENTS CITED BY THE LD. A.R. :- - REGARDING THE JUDGMENT OF HONBLE GUJARAT HIGH CO URT, RENDERED IN THE CASE OF SHAKTI CARGO MOVERS PVT. LTD. (SUPRA), WE FIND THAT THIS JUDGEMENT IS NOT APPLICABLE BECAUSE IN THE PRESENT CASE, THE TRIBUNAL HAS DISCUSSED THE BASIS OF THE ORDER OF LD. CIT(A) I.E. THE BASIS OF THE TRIBUNAL ORDER RENDERED IN THE CASE OF MANRAJ TRADING PVT. L TD. (SUPRA) AND HOW, THIS TRIBUNAL ORDER IS NOT APPLICABLE IN THE PRESEN T CASE AND, THEREFORE, THIS JUDGMENT OF HONBLE GUJARAT HIGH COURT IS NOT APPLI CABLE IN THE PRESENT CASE. - THE NEXT JUDGMENT CITED BY THE LD. A.R. IS THE JU DGMENT OF HONBLE ALLAHABAD HIGH COURT RENDERED IN THE CASE O F S. K. GUPTA (SUPRA). THIS JUDGEMENT OF HONBLE ALLAHABAD HIGH COURT IS ALSO NOT APPLICABLE IN THE PRESENT CASE. IN THAT CASE, IT W AS HELD BY HONBLE ALLAHABAD HIGH COURT THAT A MISTAKE IN THE TRIBUNAL ORDER WHICH GOES TO THE ROOT OF THE MATTER, THE TRIBUNAL CAN REHEAR THE APPEAL. IN THE PRESENT CASE, WE DO NOT FIND ANY MISTAKE IN THE TRIBUNAL OR DER WHICH GOES TO THE ROOT OF THE MATTER AND HENCE, THIS JUDGEMENT IS NOT APPLICABLE IN THE PRESENT CASE. - RELIANCE WAS ALSO PLACED ON THE TRIBUNAL DECISION RENDERED IN THE CASE OF GEHNA (SUPRA). IN THAT CASE, IT WAS HELD B Y THE TRIBUNAL THAT NON CONSIDERATION OF SUBMISSIONS AND DECISION AMOUNTS T O APPARENT MISTAKE IN THE TRIBUNAL ORDER. BUT IN THE FACTS OF THE PRESEN T CASE, WE HAVE SEEN THAT ALL THE SUBMISSIONS AS CITED BEFORE THE TRIBUNAL IN THE COURSE OF HEARING OF M.A.NO.46 /AHD/2012 10 THE APPEAL WERE DULY CONSIDERED BY THE TRIBUNAL AND , THEREFORE, THIS TRIBUNAL DECISION IS NOT APPLICABLE IN THE PRESENT CASE. - RELIANCE WAS ALSO PLACED ON THE JUDGEMENT OF HON BLE GUJARAT HIGH COURT RENDERED IN THE CASE OF NIRANJAN K ZAVER I (SUPRA). IN THAT CASE, THE TRIBUNAL FOUND THAT THE OBSERVATION/FINDI NG GIVEN BY THE TRIBUNAL ARE EITHER NOT BASED ON MATERIAL FACTS ON RECORD OR THE MATERIAL ALREADY AVAILABLE HAS NOT BEEN PROPERLY APPRECIATED AND THE ORDER OF THE TRIBUNAL RESULTED INTO GREAT INJUSTICE TO THE ASSESSEE ON AC COUNT OF VARIOUS UNINTENTIONAL MISTAKES IN THE ORDER. IN THE PRESEN T CASE, WE HAVE SEEN THAT NEITHER ANY OBSERVATION OR FINDING OF THE TRIBUNAL IS WITHOUT BASIS OF MATERIAL FACTS ON RECORD AND NO MATERIAL FACTS AVAI LABLE ON RECORD HAS BEEN LEFT TO BE APPRECIATED AND THE TRIBUNAL DECISI ON HAS NOT RESULTED INTO ANY INJUSTICE TO THE ASSESSEE ON ACCOUNT OF ANY UNI NTENTIONAL MISTAKE AND THEREFORE, THIS JUDGEMENT OF HONBLE HIGH COURT IS NOT APPLICABLE IN THE PRESENT CASE. - RELIANCE WAS ALSO PLACED ON THE TRIBUNAL DECISION IN THE MISCELLANEOUS APPLICATION IN THE CASE OF ALUM PVT. LTD. (SUPRA). IN THAT CASE, IT IS NOTED BY THE TRIBUNAL IN PARA 2 THAT CE RTAIN DECISIONS RELIED UPON WERE NOT CONSIDERED. IN THE PRESENT CAS4, WE HAVE SEEN THAT THE FACTS ARE NOT SO AND IN THE PRESENT CASE, WE HAVE SEEN THATS THERE IS NO SUCH JUDGEMENT WHICH WAS CITED BEFORE THE TRIBUNAL IN TH E COURSE OF HEARING WHICH WAS NOT CONSIDERED AND THEREFORE, THIS TRIBUN AL DECISION IS ALSO NOT APPLICABLE IN THE PRESENT CASE. - RELIANCE WAS ALSO PLACED ON ANOTHER TRIBUNAL DECI SION IN MISCELLANEOUS APPLICATION IN THE CASE OF ROOP TEXTI LES MILLS (SUPRA). IN THAT CASE, THIS FINDING IS COVERED BY THE TRIBUNAL IN PARA 3 THAT AFTER LOOKING INTO THE LOG BOOK, IT CANNOT BE RULED OUT A ND POSSIBILITY OF THE ADVOCATE OF THE ASSESSEE AT THE TIME OR HEARING GAT HERED AN IMPRESSION SO M.A.NO.46 /AHD/2012 11 THE BENCH WAS INTENDING TO SEND THE MATTER BACK TO ONE OF THE DEPARTMENTAL AUTHORITIES AND ON THE BASIS OF THAT I MPRESSION, HAVING NOT ARGUED THE MATTER FURTHER. IN THE PRESENT CASE, WE HAVE GONE THROUGH THE LOG BOOK OF ONE OF US I.E. ACCOUNTANT MEMBER AND W E FIND THAT THERE IS NO SUCH POSSIBILITY IN THE PRESENT CASE AND HENCE, THIS TRIBUNAL DECISION IS ALSO NOT APPLICABLE IN THE PRESENT CASE. - NOW, WE CONSIDER THE APPLICABILITY OF THE JUDGMEN T OF HONBLE ALLAHABAD HIGH COURT RENDERED IN THE CASE OF LAXMI ELECTRONIC CORPORATION LTD. VS CIT AS REPORTED IN 188 ITR 398. THIS JUDGEMENT IS OF NO HELP TO THE ASSESSEE IN THE PRESENT CASE BECAUSE IN THAT CASE, THE ISSUE INVOLVED WAS THAT THE TRIBUNAL FAILED TO DECIDE WIT H IMPORTANT CONTENTION AFFECTING MAINTAINABILITY OF MERIT OF THE APPEAL AN D UNDER THESE FACTS, IT WAS HELD THAT FAILURE MUST BE DEEMED TO BE A MISTAK E APPARENT FROM RECORD. IN THE PRESENT CASE, WE HAVE SEEN THAT THE RE IS NO FAILURE OF THE TRIBUNAL TO DECIDE WITH THE IMPORTANT CONTENTION AF FECTING MAINTAINABILITY OF THE MERIT OF THE APPEAL AND HENCE, THIS JUDGEMEN T IS NOT APPLICABLE IN THE PRESENT CASE. - NOW, WE EXAMINE THE APPLICABILITY OF THE JUDGEMEN T OF HONBLE GUJARAT HIGH COURT RENDERED IN THE CASE OF ACIT VS SAURASHTRA KUTCH STOCK EXCHANGE LTD. AS REPORTED IN 262 ITR 146. IN THAT CASE, THE ISSUE INVOLVED WAS THIS THAT THE DECISION OF THE JURISDIC TIONAL HIGH COURT WAS NOT NOTED BY THE TRIBUNAL AND UNDER THESE FACTS, IT WAS HELD THAT THIS AMOUNTS TO MISTAKE APPARENT FROM RECORD AND THE SAM E SHOULD BE RECTIFIED. IN THE PRESENT CASE, THERE IS NO JUDGEM ENT OF A JURISDICTIONAL HIGH COURT, WHICH WAS NOT NOTED BY THE TRIBUNAL AND HENCE, THIS JUDGEMENT IS ALSO OF NO HELP TO THE ASSESSEE. - NOW, WE CONSIDER THE APPLICABILITY OF THE JUDGEME NT OF HONBLE APEX COURT RENDERED IN THE CASE OF ACIT VS SAURASHT RA KUTCH STOCK M.A.NO.46 /AHD/2012 12 EXCHANGE LTD. AS REPORTED IN 305 ITR 227. IN THAT CASE, THE HONBLE APEX COURT HA HELD THAT FAILURE TO APPLY JUDGEMENT OF JURISDICTIONAL HIGH COURT IS A MISTAKE APPARENT ON RECORD AND THE TRIBU NAL HAS JURISDICTION TO RECTIFY THE SAME. WE HAVE ALREADY SEEN THAT IN THE PRESENT CASE, THERE IS NO FAILURE TO APPLY THE JUDGMENT OF HONBLE JURISDI CTIONAL HIGH COURT AND HENCE, THIS JUDGEMENT OF HONBLE APEX COURT IS ALSO NOT APPLICABLE IN THE PRESENT CASE. - NOW, WE CONSIDER THE APPLICABILITY OF THE JUDGEME NT OF HONBLE APEX COURT RENDERED IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD. VS CIT AS REPORTED IN 295 ITR 466. IN THAT CASE, IT W AS HELD THAT FAILURE TO CONSIDER THE DECISION OF COORDINATE BENCH OF THE TR IBUNAL CITED BY THE ASSESSEE IS A MISTAKE APPARENT FROM RECORD AND SUCH TRIBUNAL ORDER SHOULD BE RECTIFIED U/S 254(2) OF THE INCOME TAX AC T, 1961. IN THE PRESENT CASE, THERE IS NO FAILURE OF THE TRIBUNAL TO CONSID ER THE DECISION OF COORDINATE BENCH OF THE TRIBUNAL CITED BY THE ASSES SEE. THE DECISION OF COORDINATE BENCH OF THE TRIBUNAL CITED BY THE ASSES SEE HAS BEEN DULY CONSIDERED BY THE TRIBUNAL AND IT WAS NOTED THAT TH IS DECISION OF COORDINATE BENCH OF THE TRIBUNAL HAS PROCEEDED ON T HIS BASIS THAT UTI MIP IS NOT A BOND WITHOUT EXAMINING THIS ASPECT WHE THER UTI MIP IS A BOND OR NOT AND, THEREFORE, THE TRIBUNAL IN THE IMP UGNED ORDER HAS EXAMINED THIS ASPECT AS TO WHETHER UTI MIP IS A BON D OR NOT AND IT WAS FOUND AND DECIDED THAT UTI MIP IS A BOND. THEREAFT ER, IT WAS HELD BY THE TRIBUNAL IN THE IMPUGNED ORDER THAT SINCE IT IS HEL D THAT UTI MIP IS A BOND, THE DECISION OF COORDINATE BENCH OF THE TRIBU NAL CITED BY THE LD. A.R. IS NOT APPLICABLE BECAUSE IN THAT CASE, THE TR IBUNAL HAS PROCEEDED ON THIS BASIS THAT UTI MIP IS NOT A BOND OR DEBENTURE WITHOUT DECIDING OR EXAMINING THIS ASPECT. UNDER THESE FACTS, IT CANN OT BE SAID THAT THERE IS A FAILURE OF THE TRIBUNAL TO CONSIDER THE DECISION OF COORDINATE BENCH OF THE M.A.NO.46 /AHD/2012 13 TRIBUNAL CITED BY THE ASSESSEE AND HENCE, THIS JUDG EMENT OF HONBLE APEX COURT IS ALSO NOT APPLICABLE IN THE PRESENT CASE. 14. AS PER OUR ABOVE DISCUSSION, WE HAVE SEEN THAT NONE OF THE JUDGEMENTS CITED BY THE LD. A.R. OF THE ASSESSEE IS RENDERING ANY HELP TO THE ASSESSEE IN THE PRESENT CASE. WE HAVE ALREADY DISCUSSED THE OTHER ARGUMENTS OF THE LD. A.R. AND NO MERIT WAS FOUND IN THOSE ARGUMENTS AND HENCE, WE HAVE NO HESITATION IN HOLDING THAT THERE IS NO APPARENT MISTAKE IN THE IMPUGNED TRIBUNAL ORDER. 15. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. 16. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD./- SD./- (MUKUL KUMAR SHRAWAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 08/01/2013 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 09/01/2013.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 18/01/2013 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.18/1 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 18.01.2013 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .