PAREKH PLAST INDIA P.,LTD, V. DCIT 8(2),

MA 535/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9735 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 17-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: MRS INDRA G ANAND
• Section: 143(3); 80IB

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C MUMBAI , / BEFORE SHRI D.K. AGARWAL, JUDICIAL MEMBER /AND , ! SHRI RAJENDRA, ACCOUNTANT MEMBER M.A. NO. 535/MUM/2012 (ARISING OUT OF ITA NO. 5830/MUM/2010) ASSESSMENT YEAR 2005-06 M.A. NO. 536/MUM/2012 (ARISING OUT OF ITA NO. 5831/MUM/2010) ASSESSMENT YEAR 2006-07 M/S. PAREKHPLAST INDIA PVT. LTD., 101, SHIVAL PLAZA, COMPARTMENT NO.1, MAROL INDUSTRIAL CO-OP LTD., ANDHERI KURLA ROAD, ANDHERI (E), MUMBAI 400 056. PAN: AABCP 4523 B VS. DY. COMMISSIONER OF INCOME TAX 8(2), MUMBAI. (APPLICANT) (RESPONDENT) APPLICANT BY : MRS. INDRA G. ANAND RESPONDENT BY : SHRI DINESH KUMAR ' #$! / DATE OF HEARING : 16-11-2012 %&' ' #$! / DATE OF PRONOUNCEMENT : 05-12-2012 / O R D E R PER RAJENDRA, A.M. M.A. NO. 535/MUM/2012 AY 2005-06 AN APPLICATION U/S. 254(2) OF THE INCOME-TAX ACT, 1 961 (ACT) WAS FILED BY THE ASSESSEE-COMPANY ON 17-08-2012 AGAINST THE ORDER DT . 16-05-2012 WHEREIN THE TRIBUNAL HAD REVERSED THE FINDING OF FIRST APPELLAT E AUTHORITY (FAA) AND ALLOWED THE M.A. NO. 535/MUM/2012 (ARISING OUT OF ITA NO. 5830/MUM/2010) AY2005-06 M.A. NO. 536/MUM/2012 (ARISING OUT OF ITA NO. 5831/MUM/2010) AY2006-07 2 APPEAL OF REVENUE REGARDING THE DEDUCTION OF 80IB O N STORAGE CHARGES RECEIVED BY THE APPELLANT AMOUNTING TO RS. 17.5 LAKHS FOR THE AY 20 05-06. 2. IN THIS CASE, ASSESSMENT WAS FINALISED BY THE ASSES SING OFFICER (AO) U/S. 143(3) OF THE ACT DENYING THE ASSESSEES BENEFIT U/ S. 80IB ON STORAGE CHARGES. ASSESSEE HAD PREFERRED AN APPEAL BEFORE THE FAA, WH O ALLOWED THE APPEAL AND ACCORDINGLY GRANTED DEDUCTION U/S. 80IB OF THE ACT. WHILE ALLOWING THE APPEAL, FAA RELIED ON THE DECISIONS OF WHEELS INDIA LTD., [141 ITR 745 (MAD)]; KIRLOSKAR ELECTRODYNE LTD [271 ITR (AT)] 69 (PUNE) AND BUCKAN WOLF NEW INDIA ENGG. WORKS LTD. [187 ITR 464 (BOM.)] AGGRIEVED BY THE ORDER OF THE FAA, REVENUE FILED AN APPEAL BEFORE THE TRIBUNAL THAT WAS DECIDED ON 16-0 5-2012. 3. THE ISSUE OF 80IB DEDUCTION WAS DECIDED AGAINST THE ASSESSEE AND APPEAL FILED BY THE REVENUE WAS ALLOWED. IN THE MISCELLANEOUS A PPLICATION, ASSESSEE HAS SUBMITTED THAT DECISION OF PUNJAB AND HARYANA HIGH COURT IN THE CASE OF MALWA COTTON & SPINNING MILLS (302 ITR 53) AND M/S. GOVIN DA CHOUDHURY & SONS [203 ITR 881 (SC)] WERE RELIED UPON BY THE TRIBUNAL, THA T THE DECISION OF PUNJAB AND HARYANA HIGH COURT (SUPRA) WAS NOT CITED BY EITHER OF THE PARTIES DURING THE PROCEEDINGS. IT IS FURTHER SUBMITTED THAT THE HON BLE BOMBAY HIGH COURT IN THE CASE OF INVENTURE GROWTH AND SECURITIES LTD.(324 ITR 319 ) HAD HELD AS UNDER: ON THE ALTERNATIVE CONTENTION OF THE ASSESSEE, THE TRIBUNAL, FOLLOWED ITS OWN DECISION IN THE CASE OF DEPUTY CIT V. KHAND-WALA FINANCE LIMITED [2 009] 309 ITR (AT) 8 (MUMBAI) AND HELD THAT THE EXPENDITURE INCURRED TO ACQUIRE THE C ARD WOULD NOT BE ALLOWABLE UNDER SECTION 37(1 ).THE ASSESSEE FILED A MISCELLANEOUS APPLICATI ON UNDER SECTION 254(2) ON THE GROUND THAT THE TRIBUNAL, WHILE RELYING UPON THE DECISION OF A CO-ORDINATE BENCH IN KHANDWALA FINANCE LIMITED, HAD NOT FURNISHED AN OPPORTUNITY TO THE AS SESSEE TO DEAL WITH THE DECISION WHICH HAD NOT BEEN CITED BY EITHER SIDE WHEN ARGUMENTS WERE H EARD. THE APPLICATION WAS DISMISSED. ON A WRIT PETITION CONTENDING THAT THERE WERE DISTINGU ISHING FEATURES IN THE CASE WHICH CAME UP BEFORE THE TRIBUNAL IN KHANDWALA FINANCE LIMITED AN D IF AN OPPORTUNITY WAS GRANTED TO THE ASSESSEE, THESE DISTINGUISHING FEATURES WOULD HAVE BEEN BROUGHT TO THE NOTICE OF THE TRIBUNAL : HELD, ALLOWING THE PETITION, THAT IT COULD NOT BE LAID DOWN AS AN INFLEXIBLE PROPOSITION OF LAW THAT AN ORDER OF REMAND ON A MISCELLANEOUS APPLICAT ION UNDER SECTION 254(2) WOULD BE WARRANTED MERELY BECAUSE THE TRIBUNAL HAD RELIED UP ON A JUDGMENT WHICH WAS NOT CITED BY EITHER PARTY BEFORE IT. IN EACH CASE, IT WAS FOR TH E COURT TO CONSIDER AS TO WHETHER A PRIMA FACIE OR ARGUABLE DISTINCTION HAD BEEN MADE AND WHI CH SHOULD HAVE BEEN CONSIDERED BY THE TRIBUNAL. THE DISTINGUISHING FEATURES IN THE CASE O F KHANDWALA FINANCE LIMITED WHICH HAD BEEN POINTED OUT BY THE ASSESSEE WERE SUFFICIENT TO HOLD THAT AN OPPORTUNITY SHOULD BE GRANTED TO THE PETITIONER TO PLACE ITS CASE ON THE APPLICAB ILITY OR OTHERWISE OF THE DECISION IN KHANDWALA FINANCE LIMITED BEFORE THE TRIBUNAL. THER EFORE THE APPEAL AND THE CROSS- OBJECTIONS WERE TO BE RESTORED FOR FRESH CONSIDERAT ION ON THE MERITS BEFORE THE TRIBUNAL. 4. BEFORE US, AUTHORISED REPRESENTATIVE (AR) SUBMITTE D THAT THE ISSUE OF TAXABILITY OF STORAGE CHARGES WAS NOT DECIDED AFTER CONSIDERING ALL THE SUBMISSIONS MADE BY HER, THAT THE TRIBUNAL HAD RELIED UPON A DE CISION THAT WAS NOT CITED BY EITHER OF THE PARTIES, THAT MATTER RELIED UPON WAS DISTING UISHABLE ON FACTS, THAT JUDGMENT DELIVERED BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF INVENTURE GROWTH AND SECURITIES LTD (SUPRA)WAS APPLICABLE TO THE FAC TS OF THE CASE UNDER CONSIDERATION. M.A. NO. 535/MUM/2012 (ARISING OUT OF ITA NO. 5830/MUM/2010) AY2005-06 M.A. NO. 536/MUM/2012 (ARISING OUT OF ITA NO. 5831/MUM/2010) AY2006-07 3 FINALLY, IT WAS SUBMITTED THAT THE ORDER DT.16-05-2 012 SHOULD BE RE-CONSIDERED AND SET ASIDE. DEPARTMENTAL REPRESENTATIVE (DR) SUBMITTED THAT THERE WAS NO MISTAKE APPARENT FROM THE RECORD AND THAT APPLICATION FILED U/S. 254(2) SHOULD BE REJECTED. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON FILE. IN OUR HUMBLE OPINION UNDER THE PROVISIONS O F SECTION 254(2) OF THE ACT IT IS NOT PERMISSIBLE FOR THE PETITIONER TO CONTEND THAT THE APPELLATE ORDER WAS VITIATED ON THE GROUND THAT THE TRIBUNAL FAILED TO DISCUSS ALL THE CONTENTIONS RAISED BY COUNSEL BEFORE IT AND TO GIVE REASONS FOR COMING TO THE CONCLUSION WHICH IT DID. IF ASSESSEE FINDS AN ORDER DEFECTIVE ON THIS GROUND, THE REMEDY LAY ELSE WHERE, AND NOT BY WAY OF A MISCELLANEOUS APPLICATION. IT IS SAID THAT THE INC OME-TAX APPELLATE TRIBUNAL IS A CREATURE OF THE STATUTE AND IT IS NOT BEEN VESTED W ITH THE REVIEW JURISDICTION BY THE STATUTE CREATING IT. THE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN JUDGMENTS OR ORDERS. WHAT ASSESSEE DESIRES, IN THE CASE UNDE R CONSIDERATION, IS REVIEW OF THE ORDER PASSED ON IN THE GRAB OF RECTIFICATION APPLIC ATION. THE LANGUAGE OF SECTION 254(2) OF THE ACT IS VERY CLEAR. THE FOUNDATION FO R EXERCISING THE JURISDICTION IS WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT ON THE RECOR D AND THE OBJECT IS ACHIEVED BY AMENDING ANY ORDER PASSED BY IT. A MISTAKE APPARE NT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG- DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT ON THE RECORD. IN THE CASE UNDER CONSIDERATION ASEESSEE W ANTS REAPPRAISAL OF THE ENTIRE CASE. IT IS NOT POSSIBLE UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT. AS PER THE HONBLE JURISDICTIONAL HIGH COURT, THE POWER OF REC TIFICATION U/S. 254(2) OF THE ACT, CANNOT BE EXERCISED ON FAILURE OF THE TRIBUNAL TO C ONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION BECAUSE I T IS AN ERROR OF JUDGMENT AND NOT AN ERROR APPARENT ON THE RECORD.(203ITR497 AND 323ITR5 77). 5.1. IN THE CASE UNDER CONSIDERATION BEFORE ARRIVING AT FIN AL CONCLUSION MANY A CASES AND PRINCIPLES WITH REGARD TO THE ISSUE INVOL VED WERE DISCUSSED. BUT, IN THE OPERATIVE PART OF THE ORDER, NO CASE LAW WAS REFERR ED TO OR RELIED UPON. ISSUE OF INTEREST RECEIVED BY THE ASSESSEE AND APPLICABILITY OF SECTION 80IB OF THE ACT WERE DECIDED AFTER CONSIDERING THE FACTS OF THE PRESENT CASE. FOR BETTER UNDERSTANDING OF THE MATTER WE HAD HIGHLIGHTED PRINCIPLES ENUMERATED BY THE HIGHER FORUMS OF JUDICIARY. IN OUR OPINION SUCH REFERENCES CANNOT BE CONSIDERED THE CASES RELIED UPON. AFTER PERUSING THE JUDGMENT OF THE HONBLE BOMBAY HIGH CO URT, IN THE CASE OF INVENTURE GROWTH AND SECURITIES LTD.(SUPRA),WE ARE OF THE OPI NION THAT IT IS NOT APPLICABLE TO THE FACTS OF THE CASE UNDER CONSIDERATION. AS A RESULT MA NO. 535/MUM/2012 (AY 2005-06) FILED BY THE ASSESSEE STANDS DISMISSED. M.A. NO. 536/MUM/2012 AY 2006-07 6. IN THE MISCELLANEOUS APPLICATION FILED FOR THE AY UNDE R CONSIDERATION, ASSESSEE HAS RAISED THE SAME ISSUES THAT WERE RAISE D FOR THE AY 2005-06. WE HAVE ALREADY HELD THAT THERE WAS NO MISTAKE APPARENT FRO M RECORD WHILE DECIDING THE MA M.A. NO. 535/MUM/2012 (ARISING OUT OF ITA NO. 5830/MUM/2010) AY2005-06 M.A. NO. 536/MUM/2012 (ARISING OUT OF ITA NO. 5831/MUM/2010) AY2006-07 4 FILED BY THE ASSESSEE FOR THE LAST YEAR I..E, 2005- 06. FOLLOWING THE SAME, MA FILED BY THE ASSESSEE FOR THE CURRENT YEAR STANDS DISMISSED. AS A RESULT MA NO. 536/MUM/2012 (AY 2006-07) FILED BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH DECEMBER, 2012. SD/- SD/- ( / D.K. AGARW AL) ( / RAJENDRA) / JUDICIAL MEMBER ! / ACCOUNTANT MEMBER MUMBAI, DATE: 5 TH DECEMBER, 2012 TNMM COPY TO: 1. APPLICANT 2. RESPONDENT 3. THE CONCERNED CIT (A) 4. THE CONCERNED CIT 5. DR C BENCH, ITAT, MUMBAI 6. GUARD FILE )*# +# //TRUE COPY// / BY ORDER, , ,, , / - - - - DY./ASST. REGISTRAR , / ITAT, MUMBAI