MSEB HOLDING CO. LTD.(SUCCESSOR TO MAHARASHTRA STATE ELECTRICITY BOARD), MUMBAI V. DCIT 1 (2), MUMBAI

MA 546/MUM/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5855 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2001-2002
• Appeal Filed On: 07-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMIT PRATAP SINGH
• Assessee Lawyers: J D MISTRY
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY , JUDICIAL MEMBER M.A. NO. 546 /MUM./2019 ( ARISING OUT OF ITA NO. 3813 /MUM./20 09 ) ( ASSESSMENT YEAR : 20 01 02 ) M.A. NO.547 /MUM./2019 ( ARISING OUT OF ITA NO. 1647 /MUM./20 10 ) ( ASSESSMENT YEAR : 20 02 03 ) M.A. NO.548 /MUM./2019 ( ARISING OUT OF ITA NO. 1648 /MUM./20 10 ) ( ASSESSMENT YEAR : 20 03 04 ) MSEB HOLDING CO. LTD. (SUCCESSOR TO MAHARASHTRA STATE ELECTRICITY BOARD) HONG KONG BANK BUILDING MAHATMA GANDHI ROAD FORT, MUMBAI 400 001 . APPELLANT V/S DY. COMMISSIONER OF INCOME TAX CIRCLE 1(2), MUMBAI . RESPONDENT ASSESSEE BY : SHRI J.D. MISTRY REVENUE BY : SHRI AMIT PRATAP SINGH DATE OF HEARING 20 .1 2 .2019 DATE OF ORDER 14.02.2020 O R D E R PER SAKTIJIT DEY. J.M. BY THE S E APPLICATION S , THE ASSESSEE SEEKS RECTIFICATION OF THE ORDER DATED 30 TH SEPTEMBER 2015 , PASSED IN ITA NO. 3813/MUM./2009, ITA NO.1647/MUM./2010 AND ITA NO.1648/MUM . /2010. 2 MSEB HOLDING CO. LTD. 2. SHRI J . D. MISTRY, LEANED SR. COUNSEL FOR THE ASSESSEE SUBMITTED , IN THE C OURSE OF HEARING OF GROUND NO.3 IN THE APPEAL FILED BY THE REVENUE PERTAINING TO ALLOWABILITY OF PRIOR PERIOD EXPENSES , VARIOUS CASE LAWS WERE CITED BY THE ASSESSEE. HE SUBMITTED , THE PROPOSITION CANVASSED BY THE ASSESSEE IN THE LIGHT OF DECISIONS CITED EITHER HAVE NOT BEEN PROPERLY AP PRECIATED BY THE TRIBUNAL OR HAVE BEEN CLEARLY OVER LOOKED WHICH IS EVIDENT FROM PARA 4.3 OF THE APPEAL ORDER. FURTHER, HE SUBMITTED , WHILE REFERRING TO THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN CIT V/S NAGRI MILLS CO. LTD., THE TRIBUNAL HAS NOT APPLIED THE RATIO LAID DOWN THEREIN ON A COMPLETELY WRONG FINDING THAT THE JUDGMENT HAS BEEN TREATED AS OVERRULED BY THE HONBLE ALLAHABAD HIGH C OURT IN NEW VICTORIA MILLS CO. LTD., 61 ITR 395 (ALL.). HE SUBMITTED , THE DECISION OF A JURISDICTIONAL HIGH COURT ALWAYS GETS PRE CEDENCE OVER THE DECISION OF A NON JURISDICTIONAL HIGH COURT AND IS BINDING UPON ALL SUBORDINATE COURTS AND TRIBUNAL S WITHIN TH E TERRITORIAL JURISDICTION OF THE JURISDICTIONAL HIGH COURT. THUS, HE SUBMITTED , DUE TO NON FOLLOWING OF THE DECISION OF THE JURISDICTIONAL HIGH COURT, THERE IS A MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL. FURTHER, HE SUBMITTED , THE TRIBUNAL WHILE DISP OSING OFF THE APPEAL HAS FAILED TO DEAL WITH THE PROPOSITION S CANVASSED BY THE ASSESSEE AS WELL AS THE DECISION RELIED UPON. THEREFORE, THERE IS A MISTAKE APPARENT ON THE FACE OF RECORD. THUS, HE SUBMITTED , THE ORDER PASSED BY THE 3 MSEB HOLDING CO. LTD. TRIBUNAL WITH REFERENCE T O GROUND NO.3, HAS TO BE RECALLED FOR DECIDING AFRESH. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE , OPPOSING THE CONTENTIONS OF THE LEANED SR. COUNSEL FOR THE ASSESSEE SUBMITTED , THE APPEAL ORDER PASSED BY THE TRIBUNAL DOES NOT SUFFER FROM ANY MISTAKE APPAREN T ON THE FACE OF RECORD, HENCE, SHOULD NOT BE RECALLED. 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. UNDISPUTEDLY, IN GROUND NO.3 OF ITA NO.3813/MUM./2009 AND GROUND NO.1 OF ITA NO.1648/MUM./2010 AND ITA NO.1647/MUM./ 2010, THE REVENUE HAS RAISED THE COMMON ISSUE OF ALLOWANCE OF ASSESSEES CLAIM FOR PRIOR PERIOD EXPENSES. AS NOTED BY US , IN THE COURSE OF HEARING OF THE APPEALS CONCERNING THE AFORESAID DISPUTE, THE LEANED SR. COUNSEL FOR THE ASSESSEE HAD ADVANCED VARIOUS PROPOSIT ION S SUPPORTING THE DECISION OF LEARNED COMMISSIONER (APPEALS) AND HAD ALSO RELIED UPON A NUMBER OF JUDICIAL PRECEDENTS AS REFERRED TO IN PARA 3 OF THE MISC. APPLICATION. IT IS ALSO EVIDENT , THE TRIBUNAL IN THE APPEAL ORDER HAS ALSO TAKEN NOTE OF THE DECIS IONS CITED ON BEHALF OF THE ASSESSEE. HOWEVER, WHILE DECIDING THE ISSUE, PRIMA FACIE , IT APPEARS THAT THE TRIBUNAL HAS NOT DEALT WITH THE PROPOSITION S CANVASSED BY THE ASSESSEE AS WELL AS THE RATIO LAID DOWN IN THE DECISION RELIED UPON. FURTHER, AS RIGHTLY OBSERVED BY THE LEANED SR. COUNSEL FOR THE ASSESSEE, THE TRIBUNAL DID NOT FOLLOW THE DECISION OF THE HON'BLE 4 MSEB HOLDING CO. LTD. JURISDICTIONAL HIGH COURT IN CASE OF NAGRI MILLS CO. LTD., [1958] 33 ITR 681 (BOM.), ON THE REASONING THAT THE SAID DECISION HAS BEEN TREATED AS O VERRULED BY THE HONBLE ALLAHABAD HIGH COURT IN ANOTHER DECISION. WE FULLY AGREE WITH THE SUBMISSIONS OF LEANED SR. COUNSEL FOR THE ASSESSEE THAT THE DECISION OF THE HON'BLE JURISDICTION AL HIGH COURT WILL GET PRECEDENCE OVER THE DECISION OF THE NON JURISDICTIONAL HIGH COURT ON SIMILAR ISSUE, HENCE, WOULD BE BINDING ON ALL SUBORDINATE COURTS AND TRIBUNAL WITHIN THE TERRITORIAL JURISDICTION OF THE JURISDICTIONAL HIGH COURT. AFTER PERUSING THE APPEAL ORDER PASSED BY THE TRIBUNAL AND ALL OTHE R FACTS AND MATERIALS AVAILABLE ON RECORD, WE ARE OF THE VIEW THAT WHILE DECIDING THE ISSUE RELATING TO ALLOWABILITY OF PRIOR PERIOD EXPENSES, THE TRIBUNAL HAS NOT DEALT WITH VARIOUS PROPOSITION S CANVASSED ON BEHALF OF THE ASSESSEE , AS WELL AS , HAS NOT APP RECIATED / TAKEN NOTE OF THE RATIO LAID DOWN IN VARIOUS JUDICIAL PRECEDENT S CITED BY THE ASSESSEE. THUS, NON CONSIDERATION OF VARIOUS PROPOSITION S CANVASSED BY THE ASSESSEE AS WELL AS CASE LAWS CITED INCLUDING THE DECISION OF THE HON'BLE JURISDICTIONAL HIG H COURT , CONSTITUTE MISTAKE APPARENT ON THE FACE OF RECORD, HENCE, COMES WITHIN THE PURVIEW OF SECTION 254(2) OF THE ACT. IN VIEW OF THE AFORESAID, WE ARE INCLINED TO RECALL THE ORDER DATED 30 TH SEPTEMBER 2015, INSOFAR AS IT RELATES TO GROUND NO.3 OF ITA N O. 3813/MUM./2009 AND GROUND NO.1 OF ITA NO.1647/MUM./2010 AND ITA NO.1648/MUM./2010. IN OTHER WORDS, THE ORDER DATED 30 TH SEPTEMBER 2015, IS HEREBY RECALLED ONLY TO THE EXTENT 5 MSEB HOLDING CO. LTD. OF DECIDING GROUND NO.3 OF THE ITA NO.3813/MUM./2009 AND GROUND NO.1 OF ITA NO. 1647/ MUM./2010 AND ITA NO.1648/MUM./2010 . 5. IN THE RESULT, MISC. APPLICATIONS ARE ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 14.02.2020 SD/ - SHAMIM YAHYA ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 14.02.2020 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI