ITC Limited, Kolkata V. DCIT, Circle-8, Kolkata, Kolkata

MA 58/KOL/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5802 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-08-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2006-2007
• Appeal Filed On: 18-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DAVID Z CHOWNGTHU
• Assessee Lawyers: J P KHAITAN
• Section: 43B; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA [BEFORE HONBLE SHRI M.BALAGANESH, AM & SHRI S.S. VISWANETHRA RAVI, JM] M.A. NO. 58 OF 2017 (A/O I.T.A NO. 336/KOL /2011) ASSESSMENT YEAR : 2006-0 7 M/S I.T.C. LIMITED -VS- DCIT, CIRCLE-8, KOLKATA [PAN: AAACI 5950 Z] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI J.P. KHAITAN, SR. ADVOCATE FOR THE RESPONDENT : SHRI DAVID Z. CHOWNGTHU , ADDL. CIT DR DATE OF HEARING : 11.08.2017 DATE OF PRONOUNCEMENT : 08.09.2017 ORDER PER M.BALAGANESH, AM 1. BY VIRTUE OF THIS MISCELLANEOUS APPLICATION, THE ASSESSEE SEEKS TO RECTIFY THE ORDER OF THIS TRIBUNAL DATED 22.03.2017 SEEKING FOR MINOR RE CTIFICATION ON THE GROUND THAT THIS TRIBUNAL WHILE DECIDING GROUND NO. 3 OF CAPTIONED A PPEAL GAVE DIRECTION TO LD. AO TO DECIDE THE ISSUE BASED ON THE DECISION OF HONBLE C ALCUTTA HIGH COURT IN ASSESSEES OWN CASE. 2. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSESS EE CLAIMED DEDUCTION U/S 80IA OF THE ACT IN RESPECT OF ITS CAPTIVE POWER PLANT WHICH WAS DIR ECTED TO BE GRANTED AS PER THE DECISION OF HONBLE CALCUTTA HIGH COURT IN ASSESSEES OWN CA SE FOR ASSESSMENT YEAR 2002-03. HOWEVER, WITH REGARD TO THE ISSUE OF DETERMINATION OF MARKET VALUE OF ELECTRICITY, THE SAME WAS REMANDED TO THE FILE OF THE LD. AO BY THIS TRIBUNAL TO DECIDE AS PER THE DECISION RENDERED BY THE HONBLE CALCUTTA HIGH COUR T IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2002-03. THE LD. AR OF THE ASSESSEE INDEED MADE REFERENCE TO THE FACT 2 M.A. NO. 58 OF 2017 A/O I.T.A NO. 336/KOL/2011 I.T.C. LIMITED A.YR.2006-07 2 THAT AGAINST THIS ORDER OF HONBLE CALCUTTA HIGH CO URT, THE ASSESSEE HAD PREFERRED A SPECIAL LEAVE PETITION (SLP) BEFORE THE HON'BLE SUP REME COURT AND THE SAME HAS BEEN ADMITTED AND LEAVE IS GRANTED BY THE HON'BLE SUPREM E COURT. THE LD. AR STATED THAT IT WAS ARGUED BY HIM AT THE TIME OF HEARING (I.E. ORIG INAL APPELLATE PROCEEDINGS) THAT THIS ISSUE MAY BE REMANDED TO THE FILE OF THE LD. AO TO DECIDE ON THE VALUATION OF THE POWER FOR CAPTIVE CONSUMPTION OF ELECTRICITY, BASED ON THE OUTCOME OF HON'BLE SUPREME COURT. THIS ARGUMENT WAS NOT REFLECTED IN THE ORDER OF THIS TRIBUNAL WHICH, IN THE OPINION OF THE LD AR, HAD MADE THE ORDER OF THIS TR IBUNAL ERRONEOUS WARRANTING RECTIFICATION IN TERMS OF SECTION 254(2) OF THE ACT , FOR WHICH MISCELLANEOUS APPLICATION HAS BEEN PREFERRED BY THE ASSESSEE. IN SUPPORT OF THIS ARGUMENT, THE ASSESSEE PLACED RELIANCE ON THE DECISION OF THIS TRIBUNAL IN THE CA SE OF HINDUSTAN GUM & CHEMICALS LTD. [2017] (3) TMI 1173 (ITAT KOLKATA), WHEREIN, W HILE DISPOSING OF APPEAL WITH REGARD TO ALLOWANCE OF LEAVE ENCASHMENT ON PROVISIO N BASIS VIS--VIS SECTION 43B OF THE ACT, THE TRIBUNAL HAD GIVEN A SPECIFIC DIRECTION TO THE LD. AO TO GIVE EFFECT TO THE SAME BASED ON THE FINAL OUTCOME OF THE HON'BLE SUPREME C OURT IN THE CASE OF EXIDE INDUSTRIES LTD. THE LD. AR ALSO PLACED ON RECORD THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. I.T.C. HOTELS REPORTED IN 363 I TR 254 (KAR) WHEREIN THE HONBLE HIGH COURT HELD IN THE CONTEXT OF GRANTING DEDUCTIO N U/S 80HHD OF THE ACT TO DECIDE THE SAME BASED ON THE FINAL OUTCOME OF THE APPEAL B Y THE HON'BLE SUPREME COURT. 3. IN RESPONSE TO THIS, THE LD. DR STATED THAT THER E WAS NO ERROR IN THE ORDER OF THIS TRIBUNAL WARRANTING RECTIFICATION. HE ARGUED THAT I N ANY CASE IF THE ASSESSEE SUCCEEDS IN HONBLE APEX COURT ON THE VALUATION OF MARKET VALUE OF POWER FOR CAPTIVE CONSUMPTION VIS--VIS DEDUCTION U/S 80IA OF THE ACT, THE LD. AO HAD TO GIVE EFFECT FOR THE SAME PURSUANT TO THE ORDER OF THE HON'BLE SUPREME COURT. HENCE, THE ASSESSEE WOULD NOT HAVE ANY GRIEVANCE IN THIS REGARD. 3 M.A. NO. 58 OF 2017 A/O I.T.A NO. 336/KOL/2011 I.T.C. LIMITED A.YR.2006-07 3 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE CASE LAWS RELIED UPON BY THE LD. AR. WE FIND THAT THIS TRIBUNAL HAD PASSED AN ORDER ON THE ASPECT OF DETERMINATION OF MARKET VALUE OF POWER FOR CAPTIVE CONSUMPTION OF EL ECTRICITY TO BE DECIDED BASED ON THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT I N ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2002-03. MERELY BECAUSE, THE SAID O RDER HAS BEEN APPEALED BY THE ASSESSEE TO THE HON'BLE SUPREME COURT, PASSING OF A N ORDER BY THIS TRIBUNAL FOLLOWING THE HONBLE JURISDICTIONAL HIGH COURT ORDER COULD NOT BE TERMED AS AN ERROR, MUCH LESS AN ERROR FALLING WITHIN THE MEANING OF PROVISION OF SECTION 254(2) OF THE ACT WARRANTING ANY RECTIFICATION THEREON. WE FIND THAT IN THE CASE LAW RELIED UPON BY THE LD. AR ON THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF H INDUSTAN GUMS & CHEMICALS LTD. , THIS WAS AN ISSUE ON THE ALLOWABILITY OF PROVISION FOR LEAVE ENCASHMENT VIS--VIS SECTION 43B(F) OF THE ACT. THE VERY SAME ISSUE HAD TRAVELLE D TO HONBLE SUPREME COURT WHICH HAD INITIALLY STAYED THE ORDER OF HONBLE CALCUTTA HIGH COURT IN THE CASE OF EXIDE INDUSTRIES LTD REPORTED IN 292 ITR 470 (CAL) AND LA TER DURING LEAVE PROCEEDINGS IN CIVIL APPEAL NO. CC 22889 OF 2008 DATED 08.05.2009, HAD PASSED AN INTERIM ORDER STATING THAT THE ASSESSEE HAS TO PAY THE TAX ON PRO VISION FOR LEAVE ENCASHMENT AS IF THE PROVISION OF SECTION 43B(F) IS PRESENT IN THE STAT UTE BOOK AND CLAIM THE SAME AS DEDUCTION IN THE RETURN OF INCOME. HENCE, IN VIEW O F THIS INTERIM ORDER, THIS TRIBUNAL IN VARIOUS CASES HAD PASSED ORDERS REMANDING THE ISSUE OF ALLOWABILITY TOWARDS PROVISION FOR LEAVE ENCASHMENT TO THE FILE OF THE LD. AO TO D ECIDE THE SAME BASED ON THE FINAL OUTCOME OF HON'BLE SUPREME COURT IN THE CASE OF EXI DE INDUSTRIES LTD. (SUPRA). BUT IN THE INSTANT CASE, NO SUCH INTERIM ORDER OF HON'BLE SUPREME COURT HAS BEEN BROUGHT TO OUR NOTICE BY THE LD. AR FOR THE ASSESSEE. HENCE, T HE DECISION RELIED THEREON BY THE LD. AR WOULD NOT COME TO THE RESCUE OF THE ASSESSEE. 4.1. WITH REGARD TO ANOTHER DECISION OF HONBLE KAR NATAKA HIGH COURT RELIED UPON BY THE LD. AR IN THE CASE OF CIT VS. I.T.C. HOTELS REP ORTED IN 363 ITR 254 (KAR), WE FIND THAT IN THE SAID CASE, THE REVENUE HAD NO OBJECTION TO REMAND THIS MATTER TO THE FILE OF 4 M.A. NO. 58 OF 2017 A/O I.T.A NO. 336/KOL/2011 I.T.C. LIMITED A.YR.2006-07 4 THE LD. AO TO DECIDE THE ALLOWABILITY OF DEDUCTION U/S 80HHD OF THE ACT BASED ON THE FINAL OUTCOME OF THE DECISION OF THE HON'BLE SUPREM E COURT. THIS WAS A CONCESSION GIVEN BY THE REVENUE BEFORE THE HONBLE HIGH COURT. IT IS WELL SETTLED THAT WHEN A CONCESSION HAS BEEN GIVEN BY THE REVENUE AT THE TIM E OF HEARING, THE SAME WOULD NOT ACT AS A BINDING PRECEDENT. HENCE, THIS DECISION AL SO WOULD NOT COME TO THE RESCUE OF THE ASSESSEE IN THE INSTANT CASE. 4.2. WE FIND THAT THIS TRIBUNAL HAD PASSED AN ORDER BY PLACING PROPER RELIANCE ON THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT O N THE ISSUE OF ALLOWABILITY OF DEDUCTION U/S 80IA OF THE ACT AND DETERMINATION OF QUANTUM THEREON WITH REGARD TO CAPTIVE CONSUMPTION OF ELECTRICITY. WE DO NOT FIND ANY ERROR IN THE SAID ORDER PASSED BY THIS TRIBUNAL WARRANTING ANY RECTIFICATION IN TERMS OF SECTION 254(2) OF THE ACT. WE ADMIT THE ARGUMENT OF THE LD. AR THAT HE HAD INDEED MADE THIS ARGUMENT AT THE TIME OF ORIGINAL APPELLATE PROCEEDINGS BEFORE US THAT ASSE SSEE HAD PREFERRED AN APPEAL BEFORE THE HONBLE SUPREME COURT AND LEAVE WAS GRANTED THE REON. BUT MERE NON-INCORPORATION OF THE SAID ARGUMENT ALONE WOULD NOT CHANGE THE DEC ISION OF THIS TRIBUNAL AND WOULD NOT MAKE THE PREVIOUS ORDER ERRONEOUS WARRANTING IT S RECALL. EVEN OTHERWISE, IT WOULD ONLY TANTAMOUNT TO EXERCISE OF JUDICIAL DISCRETION BY THIS TRIBUNAL. WE HOLD THAT UNLESS THERE ARE MANIFEST ERRORS WHICH ARE OBVIOUS, CLEAR AND SELF-EVIDENT, HAVING BEARING ON THE FINAL DECISION OF THE GROUNDS RAISED, THE TRIBU NAL CANNOT RECALL ITS PREVIOUS ORDER IN AN ATTEMPT TO RE-WRITE THE SAME. IT HAS BEEN HELD BY THE CO-ORDINATE BENCH OF MUMBAI TRIBUNAL IN J.C.I.T. VS. GRASIM INDUSTRIES LTD. IN M.A. NO. 247/MUM/2010 (ARISING OUT OF I.T.A. NO. 6253/MUM/1999) DATED 25.03.2011 , THAT FAILURE OF THE TRIBUNAL TO CONSIDER THE ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. IT HAS BEEN FURTHER HELD THAT THE TRIBUNAL CANNOT IN EXERCISE OF ITS POWER O F RECTIFICATION LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT IT S CONCLUSION. 5 M.A. NO. 58 OF 2017 A/O I.T.A NO. 336/KOL/2011 I.T.C. LIMITED A.YR.2006-07 5 4.3. WE ALSO FIND THAT THE GRIEVANCE OF THE ASSESSE E IS OTHERWISE TAKEN CARE BY THE STATUTE ITSELF AS RIGHTLY POINTED OUT BY THE LD DR , THAT I N CASE THE ASSESSEE SUCCEEDS BEFORE THE HONBLE SUPREME COURT, THE LD AO WOULD ANY WAY PASS A GIVING EFFECT ORDER FOR THE SAME, GRANTING NECESSARY RELIEF TO THE ASSESSEE BAS ED ON THE ORDER OF THE HONBLE SUPREME COURT. HENCE THE APPREHENSIONS OF THE LD AR WOULD ANY WAY GET ADDRESSED AT THAT POINT OF TIME. HENCE WE ARE NOT INCLINED TO AC CEPT THE ARGUMENTS OF THE LD AR. 4.4. IN THE AFORESAID REASONS, WE ARE OF THE VIEW T HAT THE PRESENT APPLICATION OF THE ASSESSEE U/S 254(2) OF THE ACT IS DEVOID OF MERITS AND DESERVES TO BE DISMISSED AND IS ACCORDINGLY DISMISSED. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 08.09.2017 SD/- SD/- [S.S.VISWANETHRA RAVI] [ M.BALAGAN ESH ] JUDICIAL MEMBER ACCOUNTANT MEMB ER DATED : 08.09.2017 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. M/S I.T.C. LIMITED, 37, J.L. NEHRU ROAD, KOLKATA -700071 2. DCIT, CIRCLE-8, KOLKATA, AAYAKAR BHAWAN, 5 TH FLOOR, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069 3..C.I.T.(A), KOLKATA 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S 6 M.A. NO. 58 OF 2017 A/O I.T.A NO. 336/KOL/2011 I.T.C. LIMITED A.YR.2006-07 6