ASHISH M. GANATRA, V. ITO WD 5(3)(2),

MA 581/MUM/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5930 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-12-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: misc
• Appeal Filed On: 01-10-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R S SRIVASTAV
• Keywords: Rectification of order; Block assessment
• Section: 244A; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, A, MUMBAI BEFORE SHRI P.M.JAGTAP, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER MA NO.581/MUM/2010 IN IT(SS)A NO. 33/MUM/2008 (BLOCK PERIOD : 1987-97) ASHISH M GANATRA 1, SHYAM KUNJ, 86 WALKESHWAR ROAD MUMBAI-400006 PAN:AAOPG2914P .. APPLICANT VS INCOME TAX OFFICER WARD 5 (3)(2), MUMBAI. RESPONDENT APPLICANT BY : SHRI RAJEEV KUMAR RESPONDENT BY : SHRI R S SRIVASTAV O R D E R PER VIJAY PAL RAO,JM THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE I S FILED FOR RECTIFICATION OF MISTAKE /ERROR IN THE ORDER DA TED 27.08.2010 PASSED BY THIS TRIBUNAL IN ASSESSEES APPEAL BEARI NG IT(SS)A NO.33/2008 FOR THE BLOCK ASSESSMENT PERIOD 1987-97. 2. BY WAY OF THIS MISC. APPLICATION, THE ASSESSEE H AS CLAIMED THAT WHILE DECIDING THE ISSUE OF INTEREST A S WELL AS REFUND OF STATUTORY AUDITOR FEES, THIS TRIBUNAL HA S COMMITTED A MISTAKE APPARENT ON RECORD. MA NO.581/MUM/2010 IN IT(SS)A NO. 33/MUM/2008 2 3. WE HAVE HEARD THE LEARNED AR AS WELL AS THE LEAR NED DR, PERUSED THE TRIBUNAL ORDER AND CONSIDERED THE R ELEVANT RECORD. THE LEARNED AR OF THE ASSESSEE HAS SUBMITT ED THAT THE PROVISIONS OF SECTION 244A HAS PROVIDED FOR IN TEREST ON INTEREST WHICH HAS NOT BEEN PAID BY THE DEPARTMENT. HE HAS RELIED UPON THE ORDER OF HE HONBLE SUPREME COURT IN THE CASE OF SANDVIK ASIA V/S CIT REPORTED IN (2006) 280 ITR 643 (SC). HE HAS POINTED OUT THAT THIS TRIBUNAL HAS N OT TOUCHED THE ISSUE RAISED IN THE APPEAL FILED BY THE ASSESSE E. THUS, WHEN THIS TRIBUNAL HAS NOT DECIDED THE ISSUE AT ALL THERE IS A MISTAKE ON THE FACE OF RECORD. AS FAR AS THE ISSUE OF REFUND OF THE STATUTORY AUDITORS FEES IS CONCERNED, THE LEAR NED AR OF THE ASSESSEE HAS SUBMITTED THAT WHILE DECIDING THIS ISSUE, THIS TRIBUNAL HAS IGNORED THE PROVISIONS OF SECTION 253 OF THE INCOME TAX ACT, 1961 AND REJECTED THE GROUNDS OF AP PEAL FOR THE REASONS THAT THE CIT(A) HAS NOT ADJUDICATED UP ON THE ISSUE AND THE ASSESSEE HAS NOT RAISED THIS ISSUE B EFORE THE AO. HE HAS POINTED OUT THAT VIDE LETTER DATED 23 .4.2007, THE ASSESSEE RAISED THIS ISSUE BEFORE THE AO AND THIS TRIBUNAL HAS MENTIONED THIS LETTER DATED 23.4.2007 IN PARAGR APH 3 OF THE IMPUGNED ORDER. THUS, THE FINDINGS OF THIS TRI BUNAL IS CONTRARY TO THE FACTS AND THEREFORE THERE IS A APPA RENT MISTAKE ON RECORD. MA NO.581/MUM/2010 IN IT(SS)A NO. 33/MUM/2008 3 4. ON THE OTHER HAND, THE LEARNED DR HAS SUBMITTED THAT THIS ISSUE WAS DECIDED AFTER CONSIDERING ALL THE RE LEVANT CONTENTION AND RECORD AS WELL AS THE DECISIONS RELI ED UPON BY THE PARTIES. THEREFORE, WHEN THE ISSUES WERE DECID ED BY GIVING REASONING, HENCE, THE SAME CANNOT BE REVIEWE D UNDER THE PROVISIONS OF SECTION 254 (2). 5. AFTER CONSIDERING THE RELEVANT CONTENTIONS AND R ELEVANT RECORD, WE NOTE THAT WHILE DECIDING THE ISSUE OF INTEREST ON INTEREST, THIS TRIBUNAL HAS ADJUDICATED THE ISSUE IN PARAGRAPHS 6 AND 7 WHICH READ AS UNDER : 6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND RELEVANT RECORD. THE MAIN CONTENTION OF THE ASSESS EE IS THAT THE AO HAS NOT GRANTED THE INTEREST FOR TH E MONTH IN WHICH THE ASSESSEE HAS RECEIVED THE ORDER OF GRANTING THE REFUND. WE NOTE THAT WHEN THE ASSESSEE POINTED OUT TO THE AO THAT THE CREDIT OF T AX PAID WERE NOT ALLOWED BY GIVING EFFECT ORDER OF TH IS TRIBUNAL, THE AO PASSED ORDER U/S 154 AND GRANTED THE CREDIT OF THE AMOUNT WHICH WAS CLAIMED BY THE ASSESSEE IN THE LETTER. THE RELEVANT PART OF THE O RDER U/S 154 IS REPRODUCED BELOW: ON GOING THROUGH THE RECORDS AND TROS RECORDS, ASSESSEES CONTENTION IS FOUND TO BE CORRECT. XEROX COPIES OF THE PAID CHALLAN OF RS.14,13,960/- VERIFIED AND FOR BALANCE, ASSESSEES REPRESENTATIVE HAS SUBMITTED BANK CERTIFICATES ON 1.6.2007. AS MISTAKE IS APPARENT FROM THE RECORDS, ASSESSMENTS IS RECTIFIED U/S 154 OF THE IT ACT, 1961. INCOME OF THE ASSESSEE REMAINS THE SAME I.E. NIL. GIVE CREDIT OF RS.14,68,960/- MA NO.581/MUM/2010 IN IT(SS)A NO. 33/MUM/2008 4 7. THOUGH THE ASSESSEE HAS NOT SPECIFICALLY CLAIMED OR RAISED ANY GROUND BEFORE US THAT THE ASSESSEE IS ENTITLED FOR INTEREST ON INTEREST FOR THE MONTH IN WHICH THE ORDER WAS SENT TO THE ASSESSEE. HOWEVER, THE CIT(A) HAS ADJUDICATED THE ISSUE ON TH IS POINT. IN ANY CASE, WHEN THE REFUND WAS GRANTED VIDE ORDER DATED 05.06.2007 AND THE ASSESSEE RECEIVED THE SAME IN THE MONTH OF JULY 2007 THEN THERE IS NO INORDINATE DELAY IN SENDING THE REFUN D ORDER TO THE ASSESSEE. AS PER THE PROVISIONS OF PROVISO TO SECTION 244A(1), THE INTEREST SHALL BE CALCULATED FROM THE DATE OF PAYMENT OF TAX TO THE DATE ON WHICH THE REFUND IS GRANTED. THERE IS NO DISPUT E THAT THE REFUND WAS GRANTED VIDE ORDER DATED 05.06.2007 AND THERE IS NO DISPUTE OF GRANTING OF INTEREST UPTO THAT DATE. THE GRIEVANCE OF THE ASSESSEE IS THAT THE AO HAS NOT GRANTED THE INTERE ST UOTO THAT DATE ON THE AMOUNT CALCULATED BY THE AO BY THE ORDER OF GRANT OF REFUND TILL THE ASSESSEE RECEIVED THE REFUND. THE ASSESSEE HAS FILED LETTER DATED 17.07.2007 WHEREBY IT WAS CLARIFIED THAT THE REFUND WAS RECEIVED BY THE ASSESSEE IN THE MONTH OF JULY 2007. ACCORDINGLY, WE DO NOT FIND ANY MERIT I N THE CONTENTION OF THE LEARNED AR OF THE ASSESSEES THAT THE ASSESSEE IS ENTITLED FOR THE INTEREST OVE R THE INTEREST GRANTED VIDE ORDER DATED 05.06.2007 WHEN THE ASSESSEE RECEIVED THE SAID REFUND IN THE MONTH OF JULY 2007. THE DECISION OF THE HONBLE SUPREME COUR T IS APPLICABLE WHEN AFTER GRANT OF REFUND, THE REFUN D WAS NOT PAID TO THE ASSESSEE FOR A LONG PERIOD AND THERE WAS AN INORDINATE DELAY IN PAYING THE REFUND . IN THE SAID CASE, THERE WAS A DELAY OF 17 YEARS IN GRANTING OF THE REFUND. THUS, WE DO NOT FIND ANY ERROR OR ILLEGALITY ON THE ORDER OF THE CIT(A) QUA THIS ISSUE. 6. THUS, IT IS CLEAR FROM THE RELEVANT PORTION OF T HE IMPUGNED ORDER AS REPRODUCED ABOVE THAT ALL THE CON TENTIONS WHICH ARE RAISED BY THE ASSESSEE IN THE MISCELLANEO US APPLICATION HAVE BEEN CONSIDERED BY THIS TRIBUNAL WHILE PASSING THE ORDER AND DECIDED THE ISSUE IN THE IMPU GNED ORDER. THEREFORE, IT IS NOT A CASE OF NON-ADJUDIC ATION OF THE MA NO.581/MUM/2010 IN IT(SS)A NO. 33/MUM/2008 5 ISSUE OR NON-CONSIDERATION OF ANY DECISION OF HON. HIGH COURTS OR THE DECISION OF THE HON.SUPREME COURT ON THAT POINT. THE ASSESSEE HAS REITERATED ALL THE CONTENTIONS WH ICH WERE RAISED IN THE APPEAL. THEREFORE, IF THE CONTENTION S RAISED IN THE MISCELLANEOUS APPLICATION ARE ACCEPTED THE SA ME WILL AMOUNT TO REVIEW OF TRIBUNALS ORDER, WHICH IS BEY OND THE SCOPE AND JURISDICTION OF THIS TRIBUNAL U/S 254(2) . IT IS SETTLED PROPOSITION OF LAW THAT A MISTAKE APPARENT ON RECOR D MUST BE OBVIOUS, PATENT AND MANIFEST MISTAKE AND NOT SOMETH ING WHICH CAN BE ESTABLISHED BY MAKING LONG DRAWN PROCESS OF REASONING ON THE POINT ON WHICH THERE MAY CONCE IVABLY BE TWO OPINIONS. A DECISION ON A DEBATABLE POINT O F LAW IS NOT A MISTAKE APPARENT FROM RECORD. THEREFORE, IN OUR VI EW, THE RELIEF SOUGHT BY THE ASSESSEE IN THE MA IS BEYOND THE SCOPE OF SECTION 254(2) AS FAR AS THE INTEREST ON INTERES T IS CONCERNED. 7. AS REGARDS THE REFUND OF FEES PAID TO THE STATUT ORY AUDITOR, THIS TRIBUNAL IN THE IMPUGNED ORDER HAS A DJUDICATED UPON THIS ISSUE IN PARAGRAPHS 12 OF THE IMPUGNED A PPEAL ORDER WHICH READ AS UNDER : 12. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AS WELL AS RELEVANT RECORD. IT IS CLEAR FROM THE RECO RD THAT THE ASSESSEE DID NOT CLAIM THE REFUND OF FEE P AID TO THE SPECIAL AUDITOR BEFORE THE AO. THOUGH THE ASSESSEE HAS RAISED THIS GROUND BEFORE THE CIT(A) B UT THE CIT(A) HAS NOT ADJUDICATED UPON THIS ISSUE WHIL E PASSING THE IMPUGNED ORDER. IN VIEW OF THE FACT THA T THE ASSESSEE HAS NOT RAISED THE CLAIM OF REFUND OF SPECIAL AUDITOR FEE BEFORE THE AO AND THEN THE CIT (A) HAS NOT ADJUDICATED THIS ISSUE AT ALL THEN, THE SAM E DOES NOT ARISE FROM THE ORDER OF THE CIT(A). THE MA NO.581/MUM/2010 IN IT(SS)A NO. 33/MUM/2008 6 ASSESSEE DID NOT TAKE ANY STEP BEFORE THE CIT(A) FO R ADJUDICATION OF THE ISSUE ACCORDINGLY, WE DO NOT FI ND ANY REASON TO ADJUDICATE UPON THE ISSUE UPON THE ISSUE WHICH WAS NOT RAISED BEFORE THE AO ALSO NOT ADJUDICATED BY THE LEARNED CIT(A). THE SAME IS REJECTED. 8. FROM THE ORDERS OF THE AO AS WELL AS THE LEARNED CIT(A) IT DOES NOT EXHIBIT THAT THE ASSESSEE HAS RAISED T HIS ISSUE BEFORE THE AO THOUGH THE ISSUE WAS RAISED BEFORE T HE CIT(A), BUT WAS NOT ADJUDICATION UPON. SINCE, THE ALLEGED LETTER DATED 23.4.2007 WAS NOT FILED BEFORE THIS TRIBUNAL IN TH E APPEAL OF THE ASSESSEE AND THEREFORE, THE SAID RECORD WAS NO T AVAILABLE BEFORE THIS TRIBUNAL WHEN THE IMPUGNED ORDER WAS P ASSED. THIS TRIBUNAL HAS RECORDED THE BRIEF FACTS FROM TH E ORDERS OF THE LOWER AUTHORITIES AND PARTICULARLY THE ORDER OF THE AO PASSED U/S 154, WHEREIN IT HAS BEEN RECORDED BY THE AO IN PARAGRAPHS 1 AS UNDER : ORDER U/S 154 OF THE IT ACT, 1961 THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE VIDE LETTER DATED 23.4.2007 AND 1.6.2007 HAS POINTED OUT THAT CREDIT OF TAXES PAID OF RS.14,68,960/- HAVE N OT BEEN ALLOWED WHILE GIVING EFFECT TO THE ORDER OF TH E HON. ITAT 9. THIS FACT WAS RECORDED BY THE AO HAS NOT BEEN CONTROVERTED BY THE ASSESSEE EITHER BEFORE THE CIT( A) OR BEFORE THIS TRIBUNAL. SINCE THE AO HAS RECORDED I N THE ASSESSMENT ORDER THAT THE ASSESSEE VIDE HIS LETT ER HAS POINTED OUT THE CREDIT OF TAX PAID NOT ALLOWED WHIL E GIVING MA NO.581/MUM/2010 IN IT(SS)A NO. 33/MUM/2008 7 EFFECT TO THE ORDER OF THIS TRIBUNAL APART FROM TH E ORDER U/S 154 AND THE ORDER OF THE CIT(A). THERE WAS NO MAT ERIAL BEFORE THIS TRIBUNAL WHILE PASSING THE IMPUGNED APP EAL ORDER TO SHOW THAT THE ASSESSEE HAD CLAIMED REFUND OF FEE PAID TO THE STATUTORY AUDITOR BEFORE THE AO. THEREFORE, TH IS TRIBUNAL HAS DECIDED THE ISSUE AS PER THE RECORD AVAILABLE B EFORE THE TRIBUNAL AND IT CANNOT BE AN ERROR OR MISTAKE APPA RENT ON RECORD. EVEN OTHERWISE, THE ASSESSEE WAS NOT REME DILESS WHEN THE CIT(A) DID NOT ADJUDICATE THE ISSUE. THE REFORE, THE RELIEF CLAIM BY THE ASSESSEE IN THE MISCELLANEOUS APPLICATION IS NOT FOR RECTIFICATION OF ANY APPARENT/OBVIOUS OR PATENT MISTAKE BUT IT IS IN THE NATURE OF REVIEW OF EARLIE R ORDER OF THIS TRIBUNAL WHICH IS NOT PERMISSIBLE UNDER THE PROV ISIONS OF SECTION 254(2). IN VIEW OF THE ABOVE DISCUSSION, W E DO NOT FIND ANY MERIT AND SUBSTANCE IN THE MISC. APPLICATI ON FILED BY THE ASSESSEE, THE SAME IS LIABLE TO BE REJECTED AND ACCORDINGLY REJECTED. 10. IN THE RESULT, THE MISCELLANEOUS APPLICATION FI LED BY THE ASSESSEE STANDS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 10.12.2010 SD SD (P.M.JAGTAP) (V IJAY PAL RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, ON THIS 10 TH DAY OF DEC, 2010 SRL:21210 MA NO.581/MUM/2010 IN IT(SS)A NO. 33/MUM/2008 8 COPY TO: 1. APPLICANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A)XXXII 5. DR CONCERNED BENCH BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI