Ganesh Wines, R.R.Dist V. ITO, Wd-8(2), Hyderabad

MA 56/HYD/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0530 (ITAT-HYDERABAD)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-06-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 12-02-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMISHA S GUPT
• Assessee Lawyers: S RAMA RAO
• Keywords: Difference of opinion; Change of opinion

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER. M.A.NO.55/HYD/2013 (IN ITA NO.1357/HYD/2012) : ASSESSME NT YEAR 2007-08 M.A.NO.56/HYD/2013 (IN ITA NO.1358/HYD/2012) : ASSESSME NT YEAR 2008-09 M/S. GANESH WINES, SHAMSHABAD, R.R.DIST. (PAN - AAGFG 3188 F ) V/S INCOME TAX OFFICER, WARD-8(2), HYDERABAD (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI S.RAMA RAO RESPONDENT BY : MS.AMISHA S.GUPT, DR DATE OF HEARING 2 4. 0 5 .2013 DATE OF PRONOUNCEMENT 10.06.2013 O R D E R PER SAKTIJIT DEY, JUDICIAL MEMBER: BY THESE APPLICATION UNDER S.254(2) OF THE INCOME -TAX ACT, 1961, THE ASSESSEE SEEKS RECTIFICATION/RECALL OF TH E COMMON ORDER OF THIS TRIBUNAL DATED 5 TH DECEMBER, 2012 IN ITA NO.1357-1358/HYD/2012 FOR THE ASSESSMENT YEARS 2007-08 AND 2008-09, ON THE GR OUND THAT CERTAIN MISTAKE APPARENT FROM RECORD HAS CREPT INTO THE SAM E. 2. THE LEARNED COUNSEL FOR THE APPLICANT-ASSESSEE SUBMITTED THE INCOME OF THE ASSESSEE FROM LIQUOR BUSINESS WAS DET ERMINED BY THE ASSESSING OFFICER BY RESORTING TO ESTIMATION, AND O N THE APPEALS PREFERRED BY THE ASSESSEE AGAINST THE DETERMINATION OF SUCH E STIMATED INCOME BY THE ASSESSING OFFICER, THE CIT(A) GRANTED CERTAIN R ELIEF TO THE ASSESSEE BY DIRECTING ESTIMATION OF NET PROFIT AT 3% OF THE PUR CHASE COST. ON APPEAL BY THE REVENUE AGAINST SUCH DIRECTION OF THE CIT(A) , THE TRIBUNAL DIRECTED MA 55 & 56/HYD/13 (IN ITA NO.1357 & 1358/HYD/2012) M/S. GANESH WINES, SHAMSHABAD, RR DIST. 2 THE ASSESSING OFFICER TO DETERMINE THE INCOME OF TH E ASSESSEE ADOPTING A RATE OF 5%, NET OF ALL DEDUCTIONS, AND FROM THE INC OME SO DETERMINED, NO FURTHER DEDUCTION TOWARDS REMUNERATION AND INTEREST TO PARTNERS SHOULD BE ACCEPTED, AND THUS PARTLY ALLOWED THE APPEALS OF THE REVENUE. IT IS THE CONTENTION OF THE ASSESSEE IN THE PRESENT APPLI CATIONS THAT THE ALLOWABILITY OR OTHERWISE OF SEPARATE DEDUCTIONS TO WARDS REMUNERATION AND INTEREST PAYMENTS TO PARTNERS WAS NOT SUBJECT M ATTER OF DISPUTE BEFORE THE TRIBUNAL, AND AS SUCH, THERE WAS A MISTA KE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL, WHICH NEEDS RE CTIFICATION. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND, STRONGLY SUPPORTED THE ORDER OF THE TRIBUNAL AND SU BMITTED THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL. 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS IN THE LIGHT OF THE ORDER OF THIS TRIBUNAL DATED 5 TH DECEMBER, 2012. IT IS AN UNDISPUTED FACT THAT DETERMINATION OF INCOME OF THE ASSESSEE FORM L IQUOR BUSINESS FOR THE ASSESSMENT YEARS 2007-08 AND 2008-09, BY RESORTING TO ESTIMATION, WAS THE SUBJECT MATTER OF APPEAL BEFORE THE TRIBUNAL. T HAT BEING SO, ALL THE ISSUES WHICH HAVE A BEARING ON THE ESTIMATION/DETER MINATION OF INCOME, BECOME SUBJECT MATTER, FOR ADJUDICATION BY THE TRIB UNAL. FURTHER, WHILE FINDING SOME MERIT IN THE GRIEVANCE OF THE REVENUE IN ITS APPEAL, THE TRIBUNAL DIRECTED ESTIMATION OF INCOME ADOPTING A R ATE OF 5%, AS AGAINST 3% ADOPTED BY THE CIT(A), NET OF ALL DEDUCTIONS. ELABORATING THE TERM NET OF ALL DEDUCTION THE TRIBUNAL MADE IT AMPLY CLEAR THAT FROM THE INCOMES SO DETERMINED ADOPTING A RATE OF 5%, NO SEP ARATE DEDUCTION TOWARDS REMUNERATION AND INTEREST PAYMENTS TO PARTN ERS SHOULD BE ALLOWED. THE USE OF TERM NET OF ALL DEDUCTIONS AND SPECIFIC DIRECTION NOT TO ALLOW SEPARATE DEDUCTION TOWARDS REMUNERATIO N AND INTEREST PAYMENTS TO PARTNERS, IS NOTHING BUT THE MANNER OF ESTIMATION OF INCOME OF THE ASSESSEE APPROVED BY THE TRIBUNAL FOR DETERM INING THE INCOMES OF MA 55 & 56/HYD/13 (IN ITA NO.1357 & 1358/HYD/2012) M/S. GANESH WINES, SHAMSHABAD, RR DIST. 3 THE ASSESSEE FOR THE YEARS UNDER CONSIDERATION BY T HE ASSESSING OFFICER. SUCH A DIRECTION NEED NOT SPECIFICALLY ARISE ONLY O N ACCOUNT OF ANY SPECIFIC GROUND RAISED BY THE REVENUE WITH REGARD TO ALLOWAB ILITY OF DEDUCTIONS TOWARDS REMUNERATION AND INTEREST PAYMENTS TO PARTN ERS. IN ANY EVENT, THE TRIBUNAL HAS TAKEN A CONSCIOUS VIEW IN THE MATT ER OF ADOPTING A METHOD ESTIMATION OF INCOME, WHILE GIVING SUCH A DI RECTION. THAT BEING SO, IT CANNOT BE TERMED AS A MISTAKE APPARENT FROM RECORD, NOR THE TRIBUNAL COULD REVIEW OR MODIFY SUCH DIRECTIONS, IN THE GUISE OF RECTIFYING ITS ORDER, WITHIN THE SCOPE OF THE PROVISIONS OF S. 254(2) OF THE INCOME-TAX ACT, 1961. IN THE CIRCUMSTANCES, WE DO NOT FIND AN Y MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL. 5. IN ARRIVING AT THE ABOVE CONCLUSION, WE ARE SU PPORTED BY THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CA SE OF CIT V/S. VED PRAKASH (209 ITR 448)-AP, WHEREIN IT WAS HELD AS FOLLOWS- 'IF TWO VIEWS ARE POSSIBLE ON A POINT OF LAW, AND O NE OF THE ALTERNATIVES IS ACCEPTED BY THE TRIBUNAL, IT CANNOT BE HELD THAT TH E MISTAKE IS APPARENT FROM THE RECORD, UNLESS THERE ARE MANIFEST ERRORS WHICH ARE OBVIOUS, CLEAR AND SELF- EVIDENT, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS OR DER IN AN ATTEMPT TO REWRITE THE ORDER. A CHANGE OF OPINION BY THE TRIBUNAL CONS ISTING OF THE SAME MEMBERS SHALL NOT JUSTIFY RECTIFICATION, NOR CAN FRESH THIN KING BROUGHT IN BY NEW MEMBERS OF THE TRIBUNAL JUSTIFY REWRITING OF THE OR DER UNDER THE GUISE OF RECTIFICATION. THE ONLY FACT THAT HAD THE SECOND SE T OF MEMBERS HEARD THE APPEAL, THEY WOULD HAVE DECIDED IN FAVOUR OF THE AS SESSEE IS NOT A REASON FOR THEM TO RECALL AN ORDER ALLEGEDLY FOR THE PURPOSE O F RECTIFICATION OF A MISTAKE. 6. SIMILARLY, IN THE CASE OF CIT V/S. ITAT & ANR. 206 ITR 126 THE ANDHRA PRADESH HIGH COURT HELD AS UNDER: 'THE APPELLATE TRIBUNAL, BEING A CREATURE OF THE ST ATUTE, HAS TO CONFINE ITSELF IN THE EXERCISE OF ITS JURISDICTION TO THE ENABLING OR EMPOWERING TERMS OF THE STATUTE. IT HAS NO INHERENT POWER. EVEN OTHERWISE, IN CASES WHERE SPECIFIC PROVISION DELINEATES THE POWERS OF THE COURT OR TRI BUNAL, IT CANNOT DRAW UPON ITS ASSUMED INHERENT JURISDICTION AND PASS ORDERS A S IT PLEASES. THE POWER OF RECTIFICATION WHICH IS SPECIFICALLY CONFERRED ON TH E TRIBUNAL HAS TO BE EXERCISED IN TERMS OF THAT PROVISION. IT CANNOT BE ENLARGED O N ANY ASSUMPTION THAT THE TRIBUNAL HAS GOT AN INHERENT POWER OF RECTIFICATION OR REVIEW OR REVISION. IT IS AXIOMATIC THAT SUCH POWER OF REVIEW OR REVISION HAS TO BE SPECIFICALLY MA 55 & 56/HYD/13 (IN ITA NO.1357 & 1358/HYD/2012) M/S. GANESH WINES, SHAMSHABAD, RR DIST. 4 CONFERRED; IT CANNOT BE INFERRED. UNLESS THERE IS A MISTAKE APPARENT FROM THE RECORD IN THE SENSE OF PATENT, OBVIOUS AND CLEAR ER ROR OR MISTAKE, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER. IF THE ERROR OR M ISTAKE IS ONE WHICH COULD BE ESTABLISHED ONLY BY LONG-DRAWN ARGUMENTS OR BY A PR OCESS OF INVESTIGATION AND RESEARCH, IT IS NOT A MISTAKE APPARENT FROM THE REC ORD. IF TWO VIEWS ARE POSSIBLE ON A POINT OF LAW, AND ONE OF THE ALTERNAT IVES IS ACCEPTED IN ITS PREVIOUS ORDER, IT CANNOT BE HELD THAT THE MISTAKE IS APPARENT FROM THE RECORD. UNLESS THERE ARE MANIFEST ERRORS WHICH ARE OBVIOUS, CLEAR AND SELF- EVIDENT, THE TRIBUNAL CANNOT RECALL ITS PREVIOUS ORDER IN AN ATT EMPT TO REWRITE THE ORDER. 7. IN VIEW OF THE FOREGOING DISCUSSION, WE FIND NO MISTAKE APPARENT FROM RECORD, WITHIN THE MEANING OF S.254(2 ) OF THE ACT, THE SCOPE OF WHICH IS CONFINED TO MERE RECTIFICATION O F THE MISTAKES APPARENT FROM RECORD. 8. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICAT ION OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE COURT ON 10.06.2013 SD/- SD/- ( CHANDRA POOJARI ) (SAKTIJIT DEY) ACCOUNTANT MEMBER. JUDICIAL MEMBER. DT/- 10 TH JUNE, 2013 COPY FORWARDED TO: 1. M/S. GANESH WINES, SHAMSHABAD, NATIONAL HIGH WAY NO.7, SHAMSHABAD, R.R.DISTRICT 2. INCOME-TAX OFFICER, WARD 8(2), HYDERABAD 3. 4. COMMISSIONER OF INCOME-TAX(APPEALS) III HYDERABAD COMMISSIONER OF INCOME-TAX II, HYDERABAD 5 . THE DEPARTMENTAL REPRESENTATIVE, ITAT HYDERABAD B.V.S.