THE NEW INDIA ASSURANCE CO. LTD, V. ADDL CIT RG 1(3),

MA 578/MUM/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9109 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-08-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 12-12-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJARSHI DWIVEDI
• Section: 43B; 263; 2

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI .. , ! .. , ' !, # BEFORE SHRI R.S.SYAL, AM AND SHRI I.P.BANSAL, JM $$ !% ./ MA NO.578/MUM/2011 ( '() * / ARISING OUT OF ITA NO.3846/MUM/2008) ( '% + '% + '% + '% + / / / / ASSESSMENT YEAR : 2004-2005) THE NEW INDIA ASSURANCE CO. LIMITED CENTRAL ACCOUNTS, TAXATION DEPARTMENT NEW INDIA ASSURANCE BUILDING 87 MAHATMA GANDHI ROAD, FORT MUMBAI 400 001. PAN : AAACN4165C. THE ADDL.COMMISSIONER OF INCOME-TAX RANGE 1(3) MUMBAI. ( ! / // / APPLICANT) % % % % / VS. ( ,-.// RESPONDENT) ! 0 00 0 1 1 1 1 / APPLICANT BY : SHRI FARROKH V.IRANI ,-./ 0 1 0 1 0 1 0 1 / RESPONDENT BY : SHRI RAJARSHI DWIVEDI % 0 ) / / / / DATE OF HEARING : 24.08.2012 23+ 0 ) / DATE OF PRONOUNCEMENT : 24.08.2012 !4 !4 !4 !4 / / / / O R D E R PER R.S.SYAL, AM : THIS MISCELLANEOUS APPLICATION U/S.254(2) OF THE IN COME-TAX ACT, 1961 HAS BEEN MOVED BY THE ASSESSEE PRAYING FO R THE RECTIFICATION OF THE ORDER OF THE TRIBUNAL DATED 29 TH JULY, 2011 IN ITA NO.3846/MUM/2008. 2. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED T HAT THE TRIBUNAL ERRED IN UPHOLDING THE ORDER PASSED BY THE CIT U/S 263 BY NOT CONSIDERING THE ARGUMENT WITH REFERENCE TO THE PROVISIONS OF MA NO.578/MUM/2011 THE NEW INDIA ASSURANCE CO. LIMITED. 2 SECTION 43B OF THE ACT READ WITH RULE 5(A) OF THE F IRST SCHEDULE. IT WAS STATED THAT SECTION 43B OUGHT TO HAVE BEEN CONS IDERED AS A WHOLE I.E. BOTH THE ENABLING AND DISABLING PROVISIONS, WH EREAS, THE TRIBUNAL CONSIDERED SECTION 43B AS A DISABLING PROVISION ALO NE. IT WAS FURTHER SUBMITTED THAT THE TRIBUNAL RECORDED IN PARA 23 THA T THERE WAS ONLY ONE POSSIBLE VIEW TAKEN BY THE LEARNED CIT IN UPHOL DING THE REVISIONAL ORDER, WHICH WAS NOT CORRECT BECAUSE A P OSSIBLE VIEW CAN BE CANVASSED ON THE OTHER SIDE AS WELL. THE ABOVE S UBMISSIONS WERE MADE IN THE CONTEXT OF THE FINDING GIVEN BY THE TRI BUNAL IN PARA 16 OF ITS ORDER TOWARDS PENSION AND GRATUITY. IN THE OPPO SITION, THE LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORTED THE IMPUGNED ORDER BY CONTENDING THAT ALL THE RELEVANT FACTS AND CIRCUMST ANCES WERE CONSIDERED BY THE TRIBUNAL IN REACHING THE CONCLUSI ON GIVEN IN THE ORDER AND THERE WAS NO MISTAKE REQUIRING ANY RECTIF ICATION. 3. HAVING HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE RELEVANT MATERIAL ON RECORD WE FIND THAT THE QUESTION OF PEN SION AND GRATUITY AND ALSO PENSION HAS BEEN ELABORATELY DISCUSSED BY THE TRIBUNAL IN PARA 16. A CONCLUSION HAS BEEN DRAWN THAT THE SUM O F ` 365.08 CRORE DEBITED BY THE ASSESSEE WAS RIGHTLY DEDUCTIBLE AND THE EXCESS AMOUNT COULD NOT BE ALLOWED BY TAKING RECOURSE OF THE PROV ISIONS OF SECTION 43B IN THE CONTEXT OF RULE 5(A). IT HAS ALSO BEEN H ELD THAT IT IS IMPERMISSIBLE TO CLAIM DEDUCTION FOR A SUM MORE THA N THAT DEBITED TO THE PROFIT AND LOSS ACCOUNT AND FURTHER WHAT IS CON TEMPLATED FOR DEDUCTION FROM THE PROFITS AS PER ANNUAL ACCOUNTS I S SUBJECT MATTER OF RULE 5 WHICH DOES NOT REFER TO ANY AMOUNT OF THE NA TURE PRESENT IN MA NO.578/MUM/2011 THE NEW INDIA ASSURANCE CO. LIMITED. 3 DISPUTE. SIMILAR VIEW HAS BEEN TAKEN IN RELATION TO PENSION BY ALLOWING DEDUCTION OF ` 101.33 CRORE DEBITED BY THE ASSESSEE IN ITS PROFIT AND LOSS ACCOUNT AND THE EXCESS AMOUNT CLAIM ED AS DEDUCTION HAS BEEN HELD TO BE NOT ALLOWABLE WITHIN THE SCOPE OF RULE 5 OF THE SCHEDULE. WE ARE UNABLE TO FIND ANY SUBSTANCE IN THE SUBMISSI ONS SO MADE ON BEHALF OF THE ASSESSEE IN THE PRESENT MISCELLANEOUS APPLICATION. THE CONTENTION OF THE LD. AR THAT THE TRIBUNAL WRONGLY RECORDED A CATEGORICAL FINDING THAT THERE WAS ONLY ONE POSSIBL E, IN OUR CONSIDERED OPINION, IS DEVOID OF ANY FORCE. HERE IT IS IMPORTA NT TO MENTION THAT THE SCOPE OF PROCEEDINGS U/S 254(2) IS TO RECTIFY A MISTAKE WHICH IS APPARENT FROM RECORD. IF AN ISSUE BECOMES DEBATABLE , THAT GOES OUT OF THE KEN OF SECTION 254(2). HERE IS A CASE IN WHICH THE TRIBUNAL, AFTER CONSIDERING ALL THE RELEVANT PROVISIONS, HAS FINALL Y HELD THAT THERE IS ONLY ONE LEGALLY SUSTAINABLE VIEW. THE CONTENTION THAT THE OTHER VIEW IS ALSO POSSIBLE, IN OUR CONSIDERED OPINION, AMOUNT S TO RE-ARGUING THE MATTER IN THE GARB OF RECTIFICATION PROCEEDINGS WIT H THE INTENTION OF CONVINCING THE BENCH TO REVIEW ITS ORDER AND REACH A CONTRARY CONCLUSION FROM WHAT HAS BEEN RECORDED IN THE IMPUG NED ORDER. IN OUR CONSIDERED OPINION SUCH AN ATTEMPT CANNOT BE CO UNTENANCED. A RELIEF WHICH HAS BEEN DENIED IN THE ORDER U/S 254(1 ) BY GIVING ELABORATE REASONS AND ON AN INTERPRETATION OF THE R ELEVANT PROVISIONS, CANNOT BE ASSAILED IN RECTIFICATION PROCEEDINGS. IT IS AXIOMATIC THAT IF THE ASSESSEE IS NOT AGREEABLE WITH THE CONCLUSION D RAWN BY THE MA NO.578/MUM/2011 THE NEW INDIA ASSURANCE CO. LIMITED. 4 TRIBUNAL, IT IS OPEN TO IT TO TAKE RECOURSE TO THE OTHER LEGAL REMEDIES AVAILABLE. IN OUR CONSIDERED OPINION, THERE IS NO L OGIC IN FILING A MISCELLANEOUS APPLICATION WHEN THERE IS NO MISTAKE MUCH LESS THE MISTAKE APPARENT FROM RECORD IN THE TRIBUNAL ORDER REQUIRING ANY RECTIFICATION. WE ARE FULLY SATISFIED THAT THE TRI BUNAL HAS RIGHTLY CONSIDERED ALL THE MATERIAL FACTS AND THE NECESSARY LEGAL POSITION IN HOLDING TO THE EXTENT THE ASSESSEE IS AGGRIEVED. TH ERE IS NO INFIRMITY IN THE TRIBUNAL ORDER REQUIRING ANY RECTIFICATION. 4. 5 )6 ! 0 $$ !% 57 0 7) 89 IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED ON THIS 24 TH AUGUST, 2012. . !4 0 23+ :!%6 3 0 ; SD/- SD/- (I.P.BANSAL) (R.S.SYAL) ' ! ' ! ' ! ' ! / JUDICIAL MEMBER ! ! ! ! / ACCOUNTANT MEMBER MUMBAI ; :!% DATED 24 TH AUGUST, 2012. DEVDAS* !4 0 ,')<$ =$+) !4 0 ,')<$ =$+) !4 0 ,')<$ =$+) !4 0 ,')<$ =$+)/ COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPLICANT. 2. ,-./ / THE RESPONDENT. 3. > () / THE CIT(A) - I, MUMBAI. 4. > / CIT 5. $A; ,')'% , , / DR, ITAT, MUMBAI 6. ;B C / GUARD FILE. !4% !4% !4% !4% / BY ORDER, -$) ,') //TRUE COPY// ' ' ' '/ // /8 7 8 7 8 7 8 7 ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI