The ITO, Ward-6(1)(3), Ahmedabad V. M/s. Maitri Real Estate Developers, Ahmedabad

MA 6/AHD/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3135 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2007-2008
• Appeal Filed On: 22-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NARENDRA SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BE NCH, AHMEDABAD (BEFORE SHRI SHAILENDRA KR. YADAV, J.M. & SHRI ANI L CHATURVEDI, A.M.) M. A. NO. 06/AHD/2015 (IN ITA NO. 2395/AHD/2012) (ASSESSMENT YEAR: 2007-08). I.T.O., WARD-6(1)(3), AHMEDABAD V/S M/S. MAITRI REAL ESTATE DEVELOPER, UTSAV FIRST FLOOR, OPP, RAJIVBHAI TOWER, MANINAGAR (APPELLANT) (RESPONDENT) PAN: AAIFM 3770B APPELLANT BY : SHRI NARENDRA SINGH, SR. D .R. RESPONDENT BY : MS. URVASHI SHODHAN, A.R. ( )/ ORDER DATE OF HEARING : 17-07-2015 DATE OF PRONOUNCEMENT : 17-07-2015 PER ANIL CHATURVEDI, ACCOUNTANT MEMBER. 1. THE M.A. IS FILED BY THE REVENUE AGAINST THE ORDER OF TRIBUNAL DATED 07.08.2014 IN RESPECT OF APPEAL IN ITA NO. 2395/AHD /2012 FOR A.Y. 2007- 08. 2. IN THE MISCELLANEOUS APPLICATION, THE REVENUE HAS I NTERALIA SUBMITTED THAT THE GROUND WAS DECIDED IN FAVOUR OF THE ASSESSEE ON THE BASIS OF THE CONCLUSION THAT THE COMMENCEMENT OF SUPPLY OF ENERG Y STARTED ON 25.01.2007 WHICH ACCORDING TO THE REVENUE IS ON THE BASIS OF WRONG FACTUAL M.A NO. 06/A/15 (I N ITA NO. 2395/A/12) . A.Y. 2007-08 2 PREMISES. BEFORE US, LD. D.R. SUBMITTED THAT SINCE THE ASSESSEE WAS FOLLOWING MERCANTILE SYSTEM OF ACCOUNTING, THE EXPE NSES CAN ONLY BE ALLOWED IN THE YEAR OF ACCRUAL OF LIABILITY AND NOT IN ANY OTHER YEAR. IT IS FURTHER SUBMITTED THAT THE ASSESSEE HAD FAILED TO M AKE THE CLAIM IN THE YEAR OF PAYMENT IN WHICH THE LIABILITY ACCRUED AND THERE FORE IT COULD NOT HAVE CLAIMED THE EXPENDITURE IN LATER YEAR AND IN SUCH A SITUATION THE FINDING OF THE HONBLE TRIBUNAL IS CONTRARY TO THE FACTS OF TH E CASE WHICH HAS RESULTED INTO A MISTAKE WHICH IS APPARENT FROM RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE ACT AND THEREFORE IT IS PRAYED THAT T HE ORDER DATED 07.08.2014 BE RECTIFIED/ RECALLED. THE LD. A.R. ON THE OTHER H AND SUBMITTED THAT THERE IS NO MISTAKE IN THE ORDER OF HONBLE TRIBUNAL AND FUR THER THERE IS NO APPARENT ERROR IN THE ORDER OF TRIBUNAL AND THAT ANY INTERFE RENCE IN THE ORDER SHALL AMOUNT TO REVIEW WHICH IS NOT PERMISSIBLE IN LAW. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE GRIEVANCE OF THE REVENUE AS STATED IN M.A. IS THAT THE TRIBUNAL HAS WRONGLY CONSIDERED THE COMMENCEMENT OF SUPPLY OF ENERGY ON 25.01.2007 AND THEREFORE THE CLAIM OF EXPENDITURE WAS ALLOWED WHIC H IS INCORRECT. IT IS A SETTLED LAW THAT THE POWER OF RECTIFICATION UNDER S ECTION 254(2) OF THE INCOME-TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTA KE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM THE RECORD, AND NOT A MISTAKE WHICH REQUIRES TO BE ESTA BLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHIC H THERE MAY CONCEIVABLY BE TWO OPINIONS. FURTHER, THE TRIBUNAL CANNOT IN EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUM STANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION SO ARRIVED AT . THE MISTAKE WHICH THE TRIBUNAL IS ENTITLED TO CORRECT IS NOT AN ERROR OF JUDGMENT BUT A MISTAKE M.A NO. 06/A/15 (I N ITA NO. 2395/A/12) . A.Y. 2007-08 3 WHICH IS APPARENT FROM THE RECORD ITSELF. IN THE P RESENT CASE, NO SUCH MISTAKE WAS APPARENT FROM THE RECORD. FURTHER, THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER AS HELD BY HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. RAMESH ELECTRIC & TRADING CO. (1993) 203 IT R 497 (BOM.) IN VIEW OF THE AFORESAID FACTS, WE ARE OF THE VIEW THAT SIN CE THE REVENUE HAS FAILED TO POINT OUT ANY MISTAKE APPARENT FROM RECORD IN THE O RDER, WE ARE NOT INCLINED TO RECALL THE ORDER OF THE CO-ORDINATE BENCH IN ITA . NO. 2395/A/2012 ORDER DATED 07.08.2014 AND THUS THE MISCELLANEOUS APPLICA TION BEARING NO. 06/AHD/2015 IS HEREBY DISMISSED. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DIS MISSED. ORDER PRONOUNCED IN OPEN COURT ON 17- 07 - 20 15. SD/- SD/- (SHAILENDRA KR. YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT, AHMEDABAD