ANANDSONS OVERSEAS TRDG P.LD, V. DCIT 6(1),

MA 592/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0616 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-07-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2001-2002
• Appeal Filed On: 13-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G, MUMBAI BEFORE SHRI R.S.SYAL, ACCOUNTANT MEMBER & SHRI I.P.BANSALJUDICIAL MEMBER M.A.N9.592/MUM/2012 (ARISING OUT OF ITA NO.579/MUM/2005,A.Y.2001-02) M/S. ANANDSONS OVERSEAS TRADING PVT. LTD., 1 ST FLOOR, 1 ST MOTISHA CROSS ROAD, LOVE LANE, BYCULLA, MUMBAI 400 027. PAN:AAACA 4012D (APPLICANT) VS. THE DCIT 6(1), MUMBAI. (RESPONDENT) APPLICANT BY : SHRI BHUPENDRA SHAH RESPONDENT BY : SHRI ROUMUAN DATE OF HEARING : 05/07/2013 DATE OF PRONOUNCEMENT : 0 5/07/2013 ORDER PER I.P.BANSAL, J.M: AFOREMENTIONED MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE WITH REFERENCE TO ORDER PASSED BY THIS TRIBUNAL DAT ED 10/08/2012 IN MA NO.122/MUM/2012 (ARISING OUT OF ITA NO.579/MUM/2005 FOR A.Y 2001-02) AS IT CAN BE SEEN FROM FIRST PARA OF THE PRESENT MISCE LLANEOUS APPLICATION, WHICH IS REPRODUCED BELOW: 1. WITH REFERENCE TO ABOVE, PLEASE NOTE THAT THE APPELLANT RECEIVED THE SAID ORDER OF THE HONBLE G BENCH DATED 10/08/201 2). 2. IN THE APPLICATION IT HAS BEEN SUBMITTED THAT AC CORDING TO THE RECENT DECISION OF HONBLE SUPREME COURT IN THE CASE OF TO PMAN EXPORTS, DEPB HAS TO BE TREATED AS INCOME FROM BUSINESS ELIGIBLE FOR DEDUCTION UNDER SECTION 80 HHC OF THE INCOME TAX ACT,1961(THE ACT). THEREFORE , THERE IS A MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL IN ITA NO. 579/MUM/200 5. EARLIER ALSO SIMILAR M.A.N9.592/MUM/2012 2 APPLICATION WAS FILED BY THE ASSESSEE AS MA NO.122/ MUM/2012, WHICH WAS DECIDED BY THIS TRIBUNAL VIDE ORDER DATED 10/08/2 012. THROUGH THE PRESENT APPLICATION THE ASSESSEE IS SEEKING THE SAME RELIEF WHICH WAS EARLIER SOUGHT VIDE MA NO.122/MUM/2012. THE MISCELLANEOUS APPLIC ATION FILED BY THE ASSESSEE WAS DISMISSED AS THE SAME WAS FILED ON 27/ 2/2012, WHICH WAS BEYOND A PERIOD OF FOUR YEARS FROM THE DATE OF THE ORDER PASSED IN ITA NO.579/MUM/2005, WHICH IS DATED 5/9/2007. WHILE DE CIDING THE EARLIER MISCELLANEOUS APPLICATION (MA NO.122/MUM/2012) THE TRIBUNAL HAD TAKEN INTO CONSIDERATION THE ARGUMENTS OF LD. A.R THAT TH E MISCELLANEOUS APPLICATION SHOULD BE CONSIDERED TO BE FILED WITHIN THE TIM E AS ASSESSEE COULD OBTAIN CERTIFIED COPY OF THE ORDER OF THE TRIBUNAL ONLY ON 30/3/2011. THE TRIBUNAL TOOK A DECISION VIDE ORDER DATED 10/8/2012 THAT EVE N IF THE CONTENTION OF THE ASSESSEE IS ACCEPTED THAT ASSESSEE HAD RECEIVED THE ORDER OF THE TRIBUNAL ONLY ON 31/3/2011, THEN ALSO ASSESSEE COULD FILE MISCELL ANEOUS APPLICATION UPTO 5/9/2011 AND THE MISCELLANEOUS APPLICATION WAS FILE D ONLY IN FEBRUARY,2012. MOREOVER, AS PER PROVISIONS OF SECTION 254(2) AND DECISION OF BENCH OF FIVE MEMBERS OF ITAT IN THE CASE OF ARVIND BHAI H. SHAH VS. ACIT, 91 ITD 101, THE RELEVANT DATE FOR RECKONING THE LIMITATION IS DA TE OF ORDER OF THE TRIBUNAL AND NOT THE DATE WHEN THE ORDER WAS SERVED/RECEIVED. IT IS IN THIS MANNER EARLIER MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE WA S REJECTED VIDE ORDER DATED 10/08/2012. NOW, AGAIN THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS APPLICATION SEEKING SAME RELIEF. 3. THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE CANNOT BE ADMITTED FOR MORE THAN ONE REASON. FIRSTLY; THER E IS NO PROVISION IN THE INCOME TAX ACT TO ENTERTAIN MISCELLANEOUS APPLICATI ON U/S. 254(2) AGAINST ORDER PASSED UNDER SECTION 254(2) OF THE ACT AND SU CH PROPOSITION IS SUPPORTED BY DECISION OF HONBLE KERALA HIGH COURT IN THE CAS E OF CIT VS. AISWARYA TRADING COMPANY, 331 ITR 521(KER), IN WHICH IT HAS BEEN HELD THAT TRIBUNAL WAS JUSTIFIED IN REFUSING TO ENTERTAIN AN APPLICA TION FILED BY THE REVENUE UNDER SECTION 254(2) TO RECTIFY THE ORDER PASSED B Y THE TRIBUNAL IN AN EARLIER M.A.N9.592/MUM/2012 3 RECTIFICATION APPLICATION FILED BY THE ASSESSEE, AS THE SECOND APPLICATION ON THE VERY SAME ISSUE IS NOT MAINTAINABLE. REFERENCE IN THIS REGARD ALSO CAN BE MADE TO THE DECISION OF HONBLE ORISSA HIGH COURT IN THE CASE OF CIT VS. ITAT, 196 ITR 838, WHEREIN IT HAS BEEN HELD THAT SECTION 254 (2) EMPOWERS THE TRIBUNAL TO AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1) WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD AT ANY TIME WI THIN FOUR YEARS FROM THE DATE OF THE ORDER. THEREFORE, TO ATTRACT APPLICABI LITY OF SECTION 254(2) THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED MUST BE AP PARENT FROM THE RECORD, AND THE SAME MUST BE IN ANY ORDER UNDER SUB-SECTION (1 ) OF SECTION 254. THEREFORE, AN ORDER REJECTING AN APPLICATION FOR RE CTIFICATION UNDER SECTION 254(2) IS NOT AVAILABLE FOR RECTIFICATION UNDER SE CTION 254(2) OF THE ACT. WHERE ASSESSEES APPLICATION FOR RECTIFICATION UNDER SECT ION 254(2) WAS REJECTED BY THE TRIBUNAL, THE SECOND APPLICATION FILED FOR RECTIFIC ATION OF SAME ALLEGED MISTAKE WAS NOT MAINTAINABLE. 4. SECONDLY; ON MERITS ALSO THE GROUND RELATING TO DEPB WAS DISMISSED BY THE TRIBUNAL ON ACCOUNT OF IT BEING NOT PRESSED BY THE ASSESSEE IN THE ORDER DATED 5/9/2007. FOLLOWING TWO GROUNDS WERE RAISED BY THE ASSESSEE IN ITA NO.579/MUM/2005: 1. WITHOUT PREJUDICE TO OTHER GROUNDS AND ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN NOT ALLOWING NETTING OF BANK INTEREST RECEIVED FROM THE BANK INTEREST PAID IN RESPECT OF COMPUTATION OF INDIRECT EXPENSES ATTRI BUTABLE TO EXPORTS FOR THE PURPOSE OF DEDUCTION UNDER SECTION 80 HHC. 2. WITHOUT PREJUDICE TO OTHER GROUNDS AND ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN NOT ALLOWING BENEFIT OF THE EXPORT INCENTIVES IN COMPUT ATION OF DEDUCTION U/S. 80 HHC ON ACCOUNT INCOME FROM OF DEPB LICENCE. ON FIRST GROUND THE MATTER WAS RESTORED TO THE AO A ND SECOND GROUND WAS DISMISSED WITH THE FOLLOWING OBSERVATION: 3. THE SECOND GROUND HAS NOT BEEN PRESSED BEFORE U S AND THEREFORE THE SAME IS DISMISSED. M.A.N9.592/MUM/2012 4 5. DURING THE COURSE OF HEARING OF APPEAL ITSELF TH E ASSESSEE DID NOT PRESS THIS GROUND, THEREFORE, IT WAS DISMISSED AS NOT PRE SSED. IT IS NOT THE CASE OF ASSESSEE THAT THIS GROUND WAS PRESSED DURING THE CO URSE OF HEARING OF THE APPEAL. IF IT IS SO THE DISMISSAL OF THIS GROUND W AS NOT ON ACCOUNT OF ANY LEGAL OPINION ADOPTED BY THE TRIBUNAL BUT THE DISMISSAL R ESTED UPON THE CONCESSION OF THE ASSESSEE RECORDED DURING THE COURSE OF HEAR ING OF THE APPEAL. IF SUCH CONCESSION HAS NOT BEEN SHOWN TO BE WRONGLY RECORDE D BY THE TRIBUNAL, THEN IT IS NOT OPEN TO THE ASSESSEE TO CLAIM THAT THERE IS A MISTAKE IN THE ORDER OF THE TRIBUNAL AS AFTER THE ISSUE NOT BEING PRESSED, THE TRIBUNAL DID NOT REQUIRE TO GO INTO THE MERITS OF THE ISSUE. THE ALLEGED MISTA KE POINTED OUT IN THE MISCELLANEOUS APPLICATION RELATES TO THE MERIT OF T HE ISSUE WHICH WAS NOT PRESSED BY THE ASSESSEE DURING THE COURSE OF HEARIN G OF THE APPEAL. 5.1 HOWEVER, WE NEED NOT TO GO INTO THIS ISSUE A S THE PRESENT APPLICATION BEING SECOND APPLICATION ITSELF IS NOT MAINTAINABLE AND IS LIABLE TO BE DISMISSED ON THIS GROUND ALONE. 6. IN VIEW OF THE ABOVE DISCUSSIONS, THE MISCELLANE OUS APPLICATION FILED BY THE ASSESSEE IS LIABLE TO BE REJECTED AND IS ACCORD INGLY REJECTED. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON TH E 5 TH DAY OF JULY, 2013 SD/- SD/- ( R.S.SYAL ) (I.P.BANSAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 5 TH JULY 2013 COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CITY CONCERNED 4. THE CIT(A)- CONCERNED 5. THE D.RG BENCH. (TRUE COPY) BY ORDER ASST. REGISTRAR, I TAT, MUMBAI BENCHES MUMBAI. VM.