NEHA HOME BUILDERS PRIVATE LIMITED , MUMBAI V. COMMISSIONER OF INCOME TAX 13, MUMBAI

MA 62/MUM/2018

• Counselvise Citation: [2018] 111 COUNSELVISE.COM (IT) 1563 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-12-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2012-2013
• Appeal Filed On: 30-01-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAKESH YADAV
• Keywords: Revision of order; Rectification of order
• Section: 254(2); 13; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H , MUMBAI BEFORE S HRI SHAMIM YAHYA (AM) AND SHRI RAM LAL NEGI (JM) M .A. N O. 62 / MUM /2018 ( ARISING OUT OF ITA NO. 2963 /MUM /201 6 ) ( ASSESSMENT YEAR : 2012 13 ) M/S NEHA HOME BUILDERS PVT. LTD., 801, HUBTO WN SOLARIS, N.S. PHADKE MARG, OFF. TELI GALI, ANDHERI (EAST), MUMBAI 400052 PAN: AACCN7092E VS. THE COMMISSIONER OF INCOME TAX 13, MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VIMAL PUNMIYA (A R) REVENUE BY : SHRI RAKESH YADAV (D R) DATE OF HEARING: 28/09 /201 8 DATE OF PRONOUNCEMENT: 26 / 12 /201 8 O R D E R PER RAM LAL NEGI, JM THE ASSESSEE HAS FILED THE PR ESENT MISCELLANEOUS APPLICATION FOR RECTIFICATION OF ORDER DATED 21.04.2017, PASSED BY THE H BENCH OF THE TRIBUNAL IN ASSESSEES APPEAL ITA NO 2963/MUM/2016 PE RTAINING TO THE ASSESSMENT YEAR 20 12 - 1 3 ON THE GROUND THAT THE ITAT HAS NOT CONSIDERED THE PROVISIONS OF EXPLANATION 2(D) TO SECTION 263(1) OF THE INCOME TAX ACT. ( FOR SHO RT THE ACT) WHILE DECIDING THE APPEAL AFORESAID . 2. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT SINCE THE COMMISSIONER OF INCOME TAX (CIT) HAD EXERCISED THE JURISDICTION U/S 263 OF THE ACT ON THE BASIS OF DECISION OF THE HONBLE KARNATAK A HIGH COURT IN THE CASE OF SANKHLA POLYMERS PVT. LTD. 31 TAXMANN.COM 166 AND THE ORDER OF THE 2 M.A. NO . 62 /MUM/2018 ASSESSMENT YEAR: 2012 - 13 ITAT, AHMADABAD , THE ITAT OUGHT TO HAVE DECIDED THE APPEAL TAKING INTO THE CONSIDERATION THE PROVISIONS OF EXPLANATION 2(D) TO SECTION 263 (1) OF THE ACT . 3. T HE LD. COUNSEL FURTHER SUBMITTED THAT D URING THE COURSE OF ARGUMENTS IN THE SAID APPEAL, THIS ISSUE WAS RAISED BY THE AUTHORIZED REPRESENTATIVE OF THE ASSESSEE, HOWEVER, THE BENCH HAS NOT CONSIDERED THE SAME. THE LD. CIT HAS PASSED THE ORDER U/S 263 OF THE ACT BY FOLLOWING THE DECISION OF NON JURISDICTIONAL HIGH COURT WHICH IS AGAINST THE SCOPE OF PROVISIONS OF EXPLANATION 2(D) TO SECTION 263 (1) OF THE ACT . SINCE, THE ITAT HAS UPHELD THE WRONG FINDINGS OF THE CIT, THE MISTAKE IS REQUIRED TO BE RECTIFIED U/ S 254 (2) OF THE ACT. IN ORDER TO SUBSTANTIATE HIS CONTENTIONS, T HE LD. COUNSEL RELIED UP ON THE DECISION S OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF COCA - COLA INDIA PVT. LTD VS. ASSISTANT REGISTRAR REPRESENTATIVE ITAT (2014) 368 ITR 487 ; AMORE JEWELS PVT. LTD. VS. DCIT WRIT PETITION NO. 1833 OF 2018 AND THE DECISION S OF THE HONBLE SUPREME COURT IN THE CASE OF M. AHEMMEDKUTTI HAJI VS. TEHSILDAR KOZIKODE ( 2005 ) 3 SCC 351 AND ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE (2008) 305 ITR 227 . 4. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) OPPOSED THE MA ON THE GROUND THAT SINCE THERE IS NO MISTAKE APPARENT IN THE ORDER , THE PRESENT APPLICATION IS NOT MAINTAINABLE. MOREOVER, AS PER THE SETTLED LAW, THE TRIBUNAL HAS NO JURISDICTION TO REVIEW ITS ORDER UNDER SECTION 254 (2) OF THE ACT. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO GONE THROUGH THE ENTIRE MATERIAL ON RECORD INCLUDING THE CASES RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE. UNDER SECTION 254 (2) OF THE ACT, THE TRIBUN AL HAS POWER TO AMEND ANY ORDER PASSED BY IT UNDER SUB - SECTION 254( 1 ) OF THE ACT WITH A VIEW TO RECTIFY ING ANY MISTAKE APPARENT FROM THE RECORD, HOWEVER, UNDER THE SAID SECTION, THE TRIBUNAL HAS NO JURISDICTION TO REVIEW THE ORDER PASSED BY IT. THE 3 M.A. NO . 62 /MUM/2018 ASSESSMENT YEAR: 2012 - 13 HONBLE JURISDICTIONAL HIGH COURT HAS HELD IN THE CASE OF CIT VS. RAMESH ELECTRONICS AND TRADING COMPANY 203 ITR 497 THAT THE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDER UNDER THE PROVISIONS OF THE ACT. UNDER SECTION 254(2) OF THE ACT, T HE TRIBUNAL H AS ONLY POWER TO RECTIFY ANY MISTAKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD. THE HONBLE COURT HAS FURTHER HELD THAT FAILURE BY THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD. 6. IN THE PRESENT CASE, THE ASSESSEE HAS NOT POINTED OUT ANY MISTAKE APPARENT WHICH CAN BE RECTIFIED UNDER SECTION 254 (2) OF THE ACT. RATHER THE ASSESSEE HAS MOVED THE PRESENT APPLICATION WITH THE PRAYER TO DECIDE THE APPEAL AFRESH AFTER HEARING THE ASSESSEE , WHICH DOES NOT FALL WITHIN THE AMBIT OF SECTION 254(2) . HENCE, I N OUR CONSIDERED VIEW, SINCE THE PRESENT APPLICATION DOES NOT DISCLOSE ANY APPARENT MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL TO RECTIFY THE SAME , THERE IS NO MERIT IN THE CONTENTION OF THE ASSESSEE. SO FAR AS THE CASES RELIED UPON THE LD. COUNSEL FOR THE ASSESSEE IS CONCERNED, THE RATIO LAID DOWN BY THE COURTS IN THE SAID CASES ARE ON DIFFERENT POINTS AND DO NOT SUBSTANTIATE THE CONTENTION OF THE ASSESSEE. HENCE, WE DIS MISS THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE . IN THE RESULT, MISC. APPLICATION FILED BY THE ASSESSEE FOR A SSESSMENT 2012 - 13 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH DECEMBER , 2018 . SD/ - SD/ - ( SHAMIM YAHYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 26 / 12 / 2018 ALINDRA, PS 4 M.A. NO . 62 /MUM/2018 ASSESSMENT YEAR: 2012 - 13 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A ) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI