Appeal details
Counselvise Citation
[2018] 119 COUNSELVISE.COM (IT) 5254 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
8 month(s) 23 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
22-10-2018
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
K
Assessment Year
2012-2013
Appeal Filed On
30-01-2018
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL K BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI RAMLAL NEGI, JM M .A. NO. 63/MUM/2018 (ARISING OUT OF ITA NO. 689/MUM/2017 ) ( ASSESSMENT YEAR: 2012 - 13 ) ROLLS - ROYCE MARINE INDIA PRIVATE LIMITED PLOT NO. D - 505 , TTC INDUSTRIAL AREA, MIDC SHARAYA HYUNDAI LANE, OPP. BALMER LAWRIE, TURBHE, NAVI MUMBAI - 400 710 VS. DY. CIT 15(3)(1), MUMBAI PAN/GIR NO. AAACU 4687 L ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : MS. KARISHMA R. PHATARPHEVAR & SHRI HARSH R. S HAH RESPONDENT BY : SHRI CHAUDHARY ARUN KUMAR SINGH DATE OF HEARING : 03.08.2018 DATE OF PRONOUNCEMENT : 22.10 .2018 ORDER U/S. 254(2) OF THE INCOME TAX ACT, 1961 PER SHAMIM YAHYA, A. M.: BY WAY OF THIS MISCELLANEOUS APPLICATION THE ASSESSEE S EEKS ORDER U/S. 254(2) OF THE INCOME TAX ACT, 1961 (THE ACT' FOR SHORT) AGAINST THE TRIBUNALS ORDER IN ITA NO. 689 /MUM/201 7 FOR ASSESSMENT YEAR 2012 - 13 VIDE ORDER DATED 18.10.2017 . 2. THE LD. COUNSEL OF THE ASSESSEE HAS ONLY PRESSED THE FOLLOWING POINT WITH RESPECT TO THE ABOVE ITAT ORDER: 15. YOUR HONOURS IN THE ORDER DATED 18 OCTOBER 2017 WERE PLEASED TO ADMIT THE ADDITIONAL EVIDENCES AND HELD AS UNDER: 2 M.A. NO. 63/MUM/2018 '2.3. WE HAVE PERUSED THE ADDITIONAL EVIDENCES SUBMITTED BY THE ASSESSEE AND THE APPLICATION MADE BY IT. AFTER GOING THROUGH THE SAME, WE ARE OF THE OPINION THAT THEY WOULD BE USEFUL TO DECIDE THE ISSUE REGARDING TP ADJUSTMENT MADE UNDER THE HEAD CORPORATE FEES AND THE ASSESSEE WAS PREVENTED FROM SUBMITTING THEM BEFORE THE DEPARTMENTAL AUTHORITIE S BY A REASONABLE CAUSE. THEREFORE, IN THE INTEREST OF JUSTICE, WE ADMIT THE ADDITIONAL EVIDENCES UNDER RULE 29 OF THE RULES.' (EMPHASIS SUPPLIED) 16. HOWEVER AFTER SUCH ADMISSION OF ADDITIONAL EVIDENCES, YOUR HONOURS HAVE NOT PROVIDED ANY FINDINGS WITH RESPECT TO THESE GROUNDS OF APPEAL. THE APPLICANT FEARS THAT WITHOUT ANY SPECIFIC DIRECTIONS, THE LOWER AUTHORITIES WOULD NOT RE - CONSIDER THE ISSUE OF TRANSFER PRICING ADJUSTMENT ON ACCOUNT OF PAYMENT OF 'CORPORATE FEES'. THIS WOULD EFFECTIVELY MEAN THAT THE SAID ADDITION ON ACCOUNT OF PAYMENT OF CORPORATE FEES' IS CONFIRMED. 17. WE MOST RESPECTFULLY SUBMIT THAT SUCH NON - ADJUDICATION OF THE ABOVEMENTIONED GROUNDS OF APPEAL IS A MISTAKE APPARENT FROM RECORD AND OUGHT TO BE RECTIFIED. 18. IT IS OUR H UMBLE SUBMISSION THAT THE HON'BLE ITAT HOLDS THAT THE ABOVEMENTIONED GROUNDS OF APPEAL ARE RESTORED BACK TO THE FILE OF THE AO / TPO. 3. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. WE FIND THAT THE ASSESSEE IN TH E ABOVE PRAYER IS URGING THAT T HE ITAT HAS ERRED INASMUCH AS IT HAS NOT REMITTED T H E ISSUE TO THE FILE OF THE ASSESSING OFFICER (A.O. FOR SHORT) , A FTER ADMITTING THE ADDITIONAL EVIDENCE . WE FIND THAT THE ASSESSEES PLEA FALLS UNDER THE REALM OF RECONSIDERATION/REAPPLICATION OF THE ORDER OF THE ITAT IN THE GARB OF RECTIFICATIONS OF M ISTAKE APPARENT FROM TH E RECORD. THIS IS NOT AT ALL PERMISSIBLE IN LAW. 4. I N THIS REGARD, WE PLACE RELIANCE UPON THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. RAMESH ELECTRIC AND T RADING CO. [1993] 203 ITR 497 (BOM). IN THE SAID ORDER, THE HON'BLE JURISDICTIONAL HIGH COURT HAS REFERRED TO AND DRAWN STRENGTH FROM THE HONBLE APEX COURT DECISION IN THE CASE OF T.S. BALARAM, 3 M.A. NO. 63/MUM/2018 ITO V. VOLKART BROS. [1971 ] 82 ITR 50 ( SC). THE HON'BLE JURISDICTIONAL HIGH COURT HAS REFERRED TO THE FOLLOWING FROM THE HONBLE APEX COURT DECISION: 'A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NO T SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM THE RECORD.' 5. THEREAFTER AFTER CONSIDERING THE VARI OUS FACTS AND DECISIONS, THE HON'BLE JURISDICTIONAL HIGH COURT HAS EXPOUNDED AS UNDER: IN OUR VIEW, THE POWER OF RECTIFICATION UNDER SECTION 254(2) OF THE INCOME - TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE 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 ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS, AS HAS BEEN SHOWN IN THE PRESENT CASE. FAI LURE BY THE TRIBUNAL TO CONSIDER AN 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. 6. THUS FROM THE ABOVE DISCUSSION AND PR ECEDENT, WE FIND THAT THE ISSUE PO INTED OUT BY THE LD. COUNSEL OF THE ASSESSEE DO ES NOT FALL UNDER THE REALM OF MISTAKE APPARENT FROM THE RECORD LIABLE TO BE RECTIFIED U/S. 254(2) OF THE ACT. IT IS SETTLED LAW THAT RE - APPRECIATION/RE - ADJUDICATION IS NOT PERMISSIBLE IN THE GARB OF THE RECTI FICATION OF MISTAKE IN THE ORDER OF THE TRIBUNAL. 7 . IN THE RESULT, THE MISCELLANEOUS APPLICATION BY THE ASSESSEE STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22.10.2018 SD/ - SD/ - ( RAM LAL NEGI ) ( S HAMIM YAHYA) J UDICIAL MEMBER A CCOUNTANT MEMBER MUMBAI ; DATED : 22.10.2018 ROSHANI , SR. PS 4 M.A. NO. 63/MUM/2018 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR, ITAT, M UMBAI 6. GUARD F ILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI
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