SUMITA SHREEGOPAL BARASIA, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX 16(1), MUMBAI

MA 566/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6730 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2008-2009
• Appeal Filed On: 30-08-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH
• Assessee Lawyers: NITESH JOSHI SUNIL
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ' E ' BENCH, MUMBAI BEFORE HONBLE SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER AND HONBLE SHRI SANDEEP GOSAIN , JUDICIAL MEMBER MA NO. 566 /MUM/ 201 8 (ARISING OUT OF ITA NO. 4909 /MUM/2015 (ASSESSMENT YEAR: 2008 - 09 ) SUNITA SHREEGOPAL BARASIA 151 - C, GRAND PRADY APARTMENTS, AUGUST KRANTI MARG, MUMBAI - 400036 / VS. ACIT RG 16(1) MUMBAI ./ ./ PAN NO. AFQPB9010G ( / APPELLANT ) : ( / RESPONDENT ) APPLICANT RESPONDENT APPLICANT BY: SHRI NITESH JOSHI /SUNIL RESPONDENT BY: SHRI CHAUDHARY ARUN KUMAR SINGH DATE OF HEARING: 07 .12 .2018 DATE OF PRONOUNCEMENT: 23.01.2019 O R D E R PER SANDEEP GOSAIN , JUDICIAL MEMBER VIDE THIS MISCELLANEOUS APPLICATION THE ASSESSEE SEEKS RECTIFICATION OF THE MISTAKE APPARENT FROM RECORD, CREPT IN THE ORDER OF THE TRIBUNAL IN ITA NO. 4909/MUM/2015 DATED 21.02.2018 . 2 . THE BRIEF FACTS ARE THAT THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE UNDER SECTION 2 54(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER 'THE ACT') ON THE GROUND THAT THERE ARE CERTAIN ERRORS, WHICH ARE APPARENT FROM THE RECORDS. AS PER THE CONTENTS OF THE APPLICATION, THE ASSESSEE DURING THE COURSE OF HEARING ON THE MAIN APPEAL HAD RELIED UPON THE DECISION OF HONBLE CHENNAI TRIBUNAL IN THE CASE OF RAMASAWMY SENTHIVEL VRS. ACIT (67 SOT 252) (T - CHENNAI), WHEREIN IT WAS MA NO. 566 /MUM/ 2018 SUNITA SHREEGOPAL BARASIA 2 HELD THAT WHERE ASSESSEE HAVING BECOME A RESIDENT UNDER THE ACT BUT BONAFIDE BELIEVED AS CONTINUING AS A NON RESIDENT FOR THE P URPOSES OF FEMA, DID NOT OFFER INTEREST INCOME TO TAX RECEIVED FROM HIS NRE FIXED DEPOSITS ACCOUNTS UNDER A BONAFIDE BELIEVE THAT HIS CASE WAS COVERED U/S 10(4), HENCE NO PENALTY COULD BE IMPOSED UPON HIM. 3 . IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAD RE LIED UPON THE AFOREMENTIONED DECISION OF CHENNAI TRIBUNAL AND SUBMITTED THAT THE EXPLANATION OFFERED BY THE ASSESSEE WAS BONAFIDE AND IN THIS WAY ASSESSEE WAS NOT LIABLE FOR PENALTY AS THE DECISION OF CHENNAI TRIBUNAL WAS SQUARELY APPLICABLE TO THE CASE OF THE ASSESSEE. B UT THE SAME WAS NOT CONSIDERED BY THE BENCH. THE LEARNED A.R. FURTHER SUBMITTED THA T IN THE IMPUGNED ORDER DATED 21.02.2018 THE BENCH HAS ERRED IN ASSUMING , CONTRARY TO THE FACT S, THAT ASSESSEE WAS LIABLE FOR PENALTY . THEREFORE, IN SUCH CIRCUMSTANCES, WHEN THE DECISION CITED BY THE PARTY IS NOT CONSIDERED OR DISTINGUISHED THEN THE SAME FALLS UNDER AMBIT OF MISTAKE APPARENT FROM RECORD, WHICH IS WITHIN THE PURVIEW OF SECTION 254(2) OF THE ACT AND ON THIS ASPECT THE LEA RNED A.R. RELIED UPON TWO JUDGEMENTS OF THE HON'BLE SUPREME COURT; (I) ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. (2008) 305 ITR 227 (SC); AND (II) HONDA SIEL POWER PRODUCTS LTD. VS. CIT (2007) 295 ITR 466 (SC). 4 . ON THE OTHER HAND, THE LEARNED D.R. APPE ARING ON BEHALF OF THE REVENUE SUBMITTED THAT THERE IS NO ERROR WHICH IS APPARENT FROM RECORD AND THE IMPUGNED ORDER DATED 21.02.2018 IS A WELL REASONED AND SPEAKING ORDER AND NO RECTIFICATION IS REQUIRED. 5 . WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED TH E MATERIAL ON RECORD AS WELL AS THE JUDGEMENTS CITED BY THE LEARNED A.R. FROM THE RECORD WE NOTICED THAT THE PHOTOCOPIES OF JUDGMENT CITED ABOVE ARE IN THE COURT FILE, BUT THE SAME COULD NOT BE CONSIDERED BECAUSE OF OVERSIGHT IT WAS MISSED IN THE ORDER WHI LE DISMISSING THE APPEAL FILED BY THE ASSESSEE . WE HAVE ALSO CONSIDERED THE JUDGEMENTS CITED BY THE LEARNED A.R. IN THE CASE OF SAURASHTRA KUTCH STOCK EXCHANGE LTD. (SUPRA) WHEREIN IT WAS HELD THAT SUB - SECTION (2) OF SECTION 254 THUS COVERS TWO DISTINCT SI TUATIONS: - MA NO. 566 /MUM/ 2018 SUNITA SHREEGOPAL BARASIA 3 (I) IT ENABLES THE TRIBUNAL AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER TO AMEND ANY ORDER PASSED UNDER SUB - SECTION (1) WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD; AND (II) IT REQUIRES THE TRIBUNAL TO MAKE SUCH AMENDMENT IF THE MISTAKE IS BOUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER. THUS THE COURT CONCLUDED AS UNDER: - 'IT IS, OF COURSE, NOT EASY TO DEFINE OR ADEQUATELY DESCRIBE WHAT AN ERROR OF LAW APPARENT ON THE FACE OF THE RECORD MEANS. WHA T CAN BE CORRECTED BY A WRIT HAS TO BE AN ERROR OF LAW; BUT IT MUST BE SUCH AN ERROR OF LAW AS CAN BE REGARDED AS ONE WHICH IS APPARENT ON THE FACE OF THE RECORD. WHERE IT IS MANIFEST OR CLEAR THAT THE CONCLUSION OF LAW RECORDED BY AN INFERIOR COURT OR TRI BUNAL IS BASED ON AN OBVIOUS MIS - INTERPRETATION OF THE RELEVANT STATUTORY PROVISION, OR SOMETIMES IN IGNORANCE OF IT, OR MAY BE, EVEN IN DISREGARD OF IT, OR IS EXPRESSLY FOUNDED ON REASONS WHICH ARE WRONG IN LAW, THE SAID CONCLUSION CAN BE CORRECTED BY A W RIT OF CERTIORARI. IN ALL THESE CASES, THE IMPUGNED CONCLUSION SHOULD BE SO PLAINLY INCONSISTENT WITH THE RELEVANT STATUTORY PROVISION THAT NO DIFFICULTY IS EXPERIENCED BY THE HIGH COURT IN HOLDING THAT THE SAID ERROR OF LAW IS APPARENT ON THE FACE OF THE RECORD. IT MAY ALSO BE THAT IN SOME CASES, THE IMPUGNED ERROR OF LAW MAY NOT BE OBVIOUS OR PATENT ON THE FACE OF THE RECORD AS SUCH AND THE COURT MAY NEED AN ARGUMENT TO DISCOVER THE SAID ERROR; BUT THERE CAN BE NO DOUBT THAT WHAT CAN BE CORRECTED BY A WRI T OF CERTIORARI IS AN ERROR OF LAW AND THE SAID ERROR MUST, ON THE WHOLE, BE OF SUCH A CHARACTER AS WOULD SATISFY THE TEST THAT IT IS AN ERROR OF LAW APPARENT ON THE FACE OF THE RECORD. IF A STATUTORY PROVISION IS REASONABLY CAPABLE OF TWO CONSTRUCTIONS AN D ONE CONSTRUCTION HAS BEEN ADOPTED BY THE INFERIOR COURT OR TRIBUNAL, ITS CONCLUSION MAY NOT NECESSARILY OR ALWAYS BE OPEN TO CORRECTION BY A WRIT OF CERTIORARI. IN OUR OPINION, IT IS NEITHER POSSIBLE NOR DESIRABLE TO ATTEMPT EITHER TO MA NO. 566 /MUM/ 2018 SUNITA SHREEGOPAL BARASIA 4 DEFINE OR TO DESCRI BE ADEQUATELY ALL CASES OF ERRORS WHICH CAN BE APPROPRIATELY DESCRIBED AS ERRORS OF LAW APPARENT ON THE FACE OF THE RECORD. WHETHER OR NOT AN IMPUGNED ERROR IS AN ERROR OF LAW AND AN ERROR OF LAW WHICH IS APPARENT ON THE FACE OF THE RECORD, MUST ALWAYS DEP END UPON THE FACTS AND CIRCUMSTANCES OF EACH CASE AND UPON THE NATURE AND SCOPE OF THE LEGAL PROVISION WHICH IS ALLEGED TO HAVE BEEN MISCONSTRUED OR CONTRAVENED'. 6 . IT WAS FURTHER HELD BY THE COURT THAT NON - CONSIDERATION OF A DECISION OF THE JURISDICTIONAL COURT OR OF SUPREME COURT CAN BE SAID TO BE A MISTAKE APPARENT FROM RECORD WHICH CAN BE RECTIFIED UNDER SECTION 254(2) OF THE ACT. 7 . APART FROM THAT WE HAVE ALSO CONSIDERED THE JUDGEMENT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD. (SUPRA) WHEREIN IT WAS HELD AS UNDER: - APPEAL TO APPELLATE TRIBUNAL POWERS OR TRIBUNAL POWERS TO RECRIFY MISTAKES ON RECORD SCOPE OF FUNDAMENTAL PRINCIPLE NO PARTY APPEARING BEFORE TRIBUNAL SHOULD SUFFER ON ACCOUNT OF MISTAKE COMMITTED BY TRIBUNAL FAILURE TO CONSID ER DECISION OF COORDINATE BENCH CITED BY ASSESSEE IS A MISTAKE INCOME TAX ACT, 1961, SS. 43A, 154, 254. IT WAS FURTHER HELD AS UNDER: - REVERSING THE DECISION OF THE HIGH COURT, HAD IN ALLOWING THE RECTIFICATION APPLICATION THE TRIBUNAL GAVE A FINDIN G THAT THE EARLIER DECISION OF A CO - ORDINATE BENCH WAS CITED BEFORE IT BUT THROUGH OVERSIGHT IT HAD MISSED THE JUDGEMENT WHILE DISMISSING THE APPEAL FILED BY THE ASSESSEE ON THE QUESTION OF ADMISSIBILITY/ALLOWABILITY OF THE CLAIM OF THE ASSESSEE FOR ENHANC ED DEPRECIATION UNDER SECTION 43A. ONE OF THE IMPORTANT REASONS FOR GIVING THE POWER OF RECTIFICATION TO THE TRIBUNAL UNDER SECTION 254(2) WAS TO SEE THAT NO PREJUDICE WAS CAUSED TO EITHER OF THE PARTIES APPEARING BEFORE IT. THE RULE OF PRECEDENT WAS AN IM PORTANT ASPECT OF CERTAINTY IN THE RULE OF LAW, AND MA NO. 566 /MUM/ 2018 SUNITA SHREEGOPAL BARASIA 5 PREJUDICE HAD RESULTED TO THE ASSESSEE SINCE THE PRECEDENT HAD NOT BEEN CONSIDERED BY THE TRIBUNAL. THE TRIBUNAL WAS JUSTIFIED IN RECTIFYING THE MISTAKE ON RECORD. 8 . KEEPING IN VIEW THE ABOVE FACTUAL AND LEGAL POSITION WE ARE OF THE VIEW THAT EARLIER DECISION OF THE COORDINATE BENCH OF ITAT CHENNAI, THOUGH WAS CITED BEFORE US, BUT BECAUSE OF OVERSIGHT IT COULD NOT BE CONSIDERED OR DISTINGUISHED IN THE ORDER WHILE DECIDING THE A PPEAL FILED BY THE ASSESSEE . THEREFORE, WHILE KEEPING IN VIEW THE PRINCIPLE LAID DOWN BY THE HON'BLE SUPREME COURT IN THE AFOREMENTIONED TWO JUDGEMENTS, WE ARE OF THE VIEW THAT THERE IS MISTAKE APPARENT FROM RECORD , THEREFORE, WE RECALL THE ORDER DATED 21.02 .1 8 AND DIRECT THE REGI STRY TO FIX THE MATTER FOR RE - HEARING AND AS SUCH THE APPEAL WILL BE HEARD ON MERITS. 9 . BEFORE PARTING WE MAKE IT CLEAR THAT WE HAVE NOT EXPRESSED ANY OPINION IN ONE WAY OR THE OTHER AND NOT STATED ANYTHING ON MERITS OF THE MATTER. THEREFORE THE REGULAR BENC H OF THE TRIBUNAL WILL HEAR THE MATTER AND WILL DECIDE ON ITS OWN MERITS WITHOUT BEING INFLUENCED BY ANY OBSERVATION MADE IN THE ABOVE ORDER. ORDER ACCORDINGLY. 10 . IN THE RESULT, THE MA FILED BY THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD JAN, 2019 . SD/ - SD/ - ( SHAMIM YAHYA ) ( SANDEEP GOSAIN ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 23 .01.2019 SR.PS DHANANJAY MA NO. 566 /MUM/ 2018 SUNITA SHREEGOPAL BARASIA 6 COPY TO: 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) - 32 , MUMBAI 4 . THE CIT - XX , MUMBAI 5 . THE DR, A BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI