ASSISTANT COMMISSIONER OF INCOME TAX 3(1)(1), MUMBAI V. ALD AUTOMOTIVE PRIVATE LIMITED , MUMBAI

MA 740/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6486 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-04-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2010-2011
• Appeal Filed On: 18-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Charitable institution

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES H, MUMBAI , . . , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI N.K. PRADHAN, ACCOUNTANT MEMBER MA. NO.740/MUM/2017 (ARISING OUT OF ITA NO. 3303/MUM/2015) ASSESSMENT YEAR: 2010-11 DCIT - 3(1)(1) R.NO. 607, 6TH FLOOR AAYAKAR BHAVAN, MUMBAI-400020 / VS. ALD AUTOMOTIVE PRIVATE LIMITED 13TH FLOOR, MAKER CHAMBER-IV NARIMAN POINT MUMBAI-400021 ( ' / REVENUE) ( #$ % /ASSESSEE) P.A. NO. AAFCA0924K ' / REVENUE BY SHRI SAURABH KUMAR RAI #$ % / ASSESSEE BY NONE & '' ( % ) / DATE OF HEARING : 20/04/2018 ( % ) / DATE OF ORDER: 20/04/2018 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THIS MISCELLANEOUS PETITION IS BY THE REVENUE SEEKI NG RECALLING OF THE ORDER OF THE TRIBUNAL DATED 22/03/ 2017 (ITA NO.3303/MUM./2015) FOR ASSESSMENT YEAR 2010-11 PAS SED BY THIS TRIBUNAL FOR RECTIFICATION OF APPARENT ERRO RS. M.A. NO.740/MUM/2017, (ARISING OUT OF ITA NO.3303/MUM2015 ) ALD AUTOMOTIVE PVT. LTD . 2 2. DURING HEARING, SHRI SAURABH KUMAR RAI, LD. DR, ADVANCED ARGUMENTS WHICH IS IDENTICAL TO THE CONTEN TS OF THE APPLICATION MADE BEFORE THIS TRIBUNAL. OUR ATTENTIO N WAS INVITED TO THE DIRECTIONS ISSUED BY THE TRIBUNAL CO NTAINED IN PARA-6 OF ITS ORDER, WHICH IS UNDER CHALLENGE FOR RECTIFICATION/RECALLING. NONE WAS PRESENT FOR THE A SSESSEE IN SPITE OF ISSUANCE OF RPAD LETTER ISSUED ON 23/03/20 18. THE ASSESSEE NEITHER PRESENTED ITSELF NOR MOVED ANY ADJOURNMENT PETITION. IT SEEMS THAT THE ASSESSEE HA S NOTHING TO SAY, THEREFORE, WE HAVE NO OPTION BUT TO PROCEED EX-PARTE, QUA THE ASSESSEE AND TEND TO DISPOSE OF T HIS MISCELLANEOUS APPLICATION ON THE BASIS MATERIAL AVA ILABLE ON RECORD. 2.1. WE HAVE CONSIDERED THE SUBMISSIONS OF LD. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE F ACTS, IN BRIEF ARE THAT THE TRIBUNAL DISPOSE OF THE APPEAL O F THE REVENUE CHALLENGING THE ORDER OF THE LD. COMMISSION ER OF INCOME TAX (APPEAL) DATED 27/02/2015 VIDE ORDER DAT ED 22/03/2017 WITH RESPECT TO ALLOWING DEPRECIATION ON VEHICLE GIVEN ON LEASE WITHOUT APPRECIATING THE FACT THAT T HE VEHICLES WERE NOT REGISTERED IN THE NAME OF THE ASSESSEE. I T IS NOTED M.A. NO.740/MUM/2017, (ARISING OUT OF ITA NO.3303/MUM2015 ) ALD AUTOMOTIVE PVT. LTD . 3 THAT THERE IS MENTION IN THE IMPUGNED ORDER THAT TR IBUNAL HAS FOLLOWED THE DECISION FROM HON'BLE APEX COURT I N THE CASE OF ICDS LTD. VS CIT (2013) 350 ITR 527 AND IT WAS FOUND THAT IDENTICAL CONTROVERSY WAS RAISED IN ASSE SSMENT YEAR 2007-08 AND 2008-09 AND ALSO FOR ASSESSMENT YE AR 2009-10, WHEREIN, VIDE RESPECTIVE ORDER DATED 25/07 /2016 AND 20/07/2016, THE TRIBUNAL DIRECTED THE ASSESSING OFFICER TO SATISFY HIMSELF WHETHER THE PARTIES WHO ARE USIN G THE VEHICLES MAY NOT GET THE BENEFIT OF DEPRECIATION AN D IT IS FOUND THAT THE DEPRECIATION IS CLAIMED BY THE ASSES SEE AS WELL AS THE PARTIES, WHO ARE USING THE VEHICLES IN THAT CASE, THE LD. ASSESSING OFFICER IS FREE TO TAKE A DECISIO N IN ACCORDANCE WITH LAW, WITH THESE REMARKS, THE STAND TAKEN BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL) WAS AFF IRMED. WE FIND NO INFIRMITY IN THE ORDER, WHICH CAN BE REC TIFIED THROUGH THIS APPLICATION MADE U/S 254(2) OF THE AC T. 2.2. NOW, WE SHALL ANALYZE CERTAIN CASE LAWS SO TH AT WE CAN REACH TO A FAIR CONCLUSION. IN A DECISION BY TH E HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF M/S SHIRPU R GOLD REFINERY LTD. VS ITAT (WRIT PETITION NO.1227 OF 201 6) ORDER M.A. NO.740/MUM/2017, (ARISING OUT OF ITA NO.3303/MUM2015 ) ALD AUTOMOTIVE PVT. LTD . 4 DATED 27/07/2016, IN IDENTICAL SITUATION, THE HON'B LE HIGH COURT HELD AS UNDER:- 1. THIS PETITION UNDER ARTICLE 226 OF THE CONSTITUT ION OF INDIA SEEKS TO CHALLENGE THE ORDER DATED 4TH DECEMBER, 20 15 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL (THE TR IBUNAL). THE IMPUGNED ORDER, DISMISSED THE PETITIONER'S APPL ICATION UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 (T HE ACT) TO RECTIFY / RECALL THE ORDER DATED 4TH MARCH, 2015 PA SSED BY THE TRIBUNAL UNDER SECTION 254(1) OF THE ACT RELATI NG TO THE ASSESSMENT YEAR 2006-07. 2. THE IMPUGNED ORDER HELD THAT THE ORDER DATED 4TH MARCH, 2015 DOES NOT CALL FOR ANY RECTIFICATION AS THERE I S NO ERROR APPARENT FROM THE RECORD. RECORD. IT ALSO HOLDS THAT THE ISSUE IN DISPUTE HAD BEEN DECIDED ON MERITS AFTER ANALYZI NG THE FACTS AND ARGUMENTS OF THE PETITIONER BY ITS ORDER DATED 4TH MARCH, 2015. THUS, THE PRAYER FOR RECALL OF THE ORD ER DATED 4TH MARCH, 2015 AND RESTORING IT TO THE COMMISSIONE R OF INCOME TAX (APPEAL) FOR FRESH DETERMINATION WAS I N THE PRESENT FACTS NOT CALLED FOR. 3. THE GRIEVANCE OF THE PETITIONER IS THAT THE IMPU GNED ORDER DATED4TH DECEMBER, 2015 INCORRECTLY PROCEEDS ON THE BASIS THAT THE ORDER DATED 4TH MARCH, 2015 PASSED UNDER S ECTION 254(1) OF THE ACT ALSO DEALT WITH THE MERITS OF THE DISPUTE AFTER HEARING THE PETITIONER. IT IS THE PETITIONER' S CASE THAT THE MERITS OF THE DISPUTE WERE NOT EVEN ARGUED BY I T BEFORE THE TRIBUNAL LEADING TO THE ORDER DATED 4TH MARCH, 2015. IN SUPPORT THE PETITIONER HAS FILED A COPY OF AN AFFID AVIT DATED 23 RD APRIL, 2016 OF MR. B.S. SHARMA, CHARTERED ACC OUNTANT, WHO REPRESENTED THE PETITIONER AT THE HEARING OF TH E REGULAR APPEAL UNDER SECTION 254(1) OF THE ACT AS WELL AS A T THE MISCELLANEOUS APPLICATION UNDER SECTION 254(2) OF T HE ACT. THE AFFIDAVIT CONTENDS THAT NO SUBMISSIONS ON MERIT S AT THE HEARING WHICH LED TO THE ORDER DATED 4TH MARCH, 201 5 WERE M.A. NO.740/MUM/2017, (ARISING OUT OF ITA NO.3303/MUM2015 ) ALD AUTOMOTIVE PVT. LTD . 5 MADE ON BEHALF OF THE PETITIONER. THIS AFFIDAVIT WA S IN SUPPORT OF ITS CONTENTION THAT THE IMPUGNED ORDER I S NOT SUSTAINABLE IN LAW. 4. WE FIND THAT THE IMPUGNED ORDER OF THE TRIBUNAL WAS PASSED ON 4TH DECEMBER, 2015, RECEIVED BY THE PETIT IONER ON 28TH DECEMBER, 2015. THIS PETITION HAS BEEN FILED O N 29'' APRIL, 2016. THE PETITION STATES THAT ACCORDING TO THE PETITIONER, THERE IS NO DELAY IN FILING THE PETITIO N. HOWEVER, IF THIS COURT IS OF THE VIEW THAT THERE IS A DELAY AND DELAY MAY BE CONDONED. HOWEVER, NO REASONS WITH PARTICULARS ARE SPECIFIED IN THE PETITION. IN VIEW OF THE FACT THA T THE PETITION ITSELF DOES NOT EXPLAIN THE REASON FOR THE DELAY, T HE PETITION IS LIABLE TO BE DISMISSED. 5. ON 19TH JULY, 2016 THE PETITIONER HAS FILED AN A FFIDAVIT-IN- REJOINDER. IN IT FOR THE FIRST TIME THE PETITION HA S ATTEMPTED TO EXPLAIN THE DELAY BY STATING AS UNDER: '3. I SAY THAT THE PETITIONER COMPANY DOES NOT HAVE A MANAGING DIRECTOR OR A WHOLE TIME DIRECTOR. IT ONLY HAS A MANAGER MR. SUB HASH PAREEK, WHO IS STATIONED AT TH E FACTORY AT REFINERY SITE, SHIRPUR; DIST. DHULE, MAH ARASHTRA - 425 405. THERE ARE ONLY 5 PERSONS IN THE ADMINISTRA TIVE DEPARTMENT OPERATING FROM THE CORPORATE OFFICE NAME LY MYSELF BEING SR. ACCOUNTS MANAGER; MR. NARESH BETKA T; SR. ACCOUNTS EXECUTIVE, MR. NAVNIT DORJI, JR. ACCOUNTS EXECUTIVE, MR. SHYAM JHA, JR. ACCOUNTS EXECUTIVE AND MR. RAJEN DRA BHATI, JR. ACCOUNTS EXECUTIVE. MRS. ARCHITA KOTHARI IS THE CPO OF THE PETITIONER COMPANY. I SAY THAT NEITHER THE C PO NOR THE 5 ADMINS HAVE EVER DEALT WITH INCOME TAX WRIT PETI TIONS IN THE PAST' 3. DURING THE HEARING ON 20TH JULY, 2016 THE ABOVE ASP ECT WAS EXPLAINED TO SUPPORT THE SUBMISSION MADE ACROSS THE BAR THAT IT IS A LOSS MAKING COMPANY LEADING TO SCA RCE RESOURCES IN TERMS OF THE STAFF AVAILABLE. THUS THE DELAY. THIS CONTENTION MADE ACROSS THE BAR DOES NOT FIND PLACE EITHER IN M.A. NO.740/MUM/2017, (ARISING OUT OF ITA NO.3303/MUM2015 ) ALD AUTOMOTIVE PVT. LTD . 6 THE PETITION OR IN THE AFFIDAVIT. WE DIRECTED THE P ETITIONER TO PRODUCE ITS LATEST ANNUAL REPORT. TODAY. DR. SHIVRA M, THE LEARNED COUNSEL FOR THE PETITIONER PRODUCED THE 30T H ANNUAL REPORT FOR THE YEAR 2014-15. A PERUSAL OF THE SAME REVEALS A COMPLETELY DIFFERENT PICTURE. IT IS TRUE THAT THE P ETITIONER DOES NOT APPEAR TO HAVE A DESIGNATED MANAGING DIREC TOR OR WHOLE TIME DIRECTOR BUT IT HAS A MANAGER APPOINTED UNDER SECTION 269 OF THE COMPANIES ACT, 1956. THEREFORE, SUCH A MANAGER IS EQUIVALENT TO ON WHOLE TIME OR MANAGING DIRECTOR WHOSE APPOINTMENT HAS BEEN APPROVED BY THE CENTRAL GOVERNMENT. THE AFFIDAVIT DOES NOT DISCLOSE THIS FACT, THUS SUGGESTING OTHERWISE. WE FURTHER NOTICE FROM T HE ANNUAL REPORT PRODUCED THAT THE PETITIONER FOR THE YEAR ENDING 31ST MARCH, 2015 HAS A TURNOVER OF RS.32,222 MILLIONS WITH A PROFIT BEFORE TAX OF RS.216 MILLION S AND AFTER TAX OF RS.154 MILLIONS. IT HAS OPERATIONS INTERNATI ONALLY WITH 100% SUBSIDIARIES IN DUBAI AND SINGAPORE. THE ANNUA L REPORT ALSO REVEALS THAT DUN AND BRADSTREET CD & B) HAD RANKED THE PETITIONER COMPANY AS ONE AMONGST INDIA' S TOP 500 COMPANIES IN THE YEAR 2015 IT IS 358 IN TERMS O F TOTAL INCOME, 467 IN TERMS OF NET PROFIT AND 471 IN TERMS OF RETURN ON NET WEALTH. THE AFFIDAVIT IN REJOINDER FILED BY THE PETITIONER AND THE SUBMISSIONS MADE ON THE COMPANY PETITIONER AND THE SUBMISSION MADE ON THE LAST OCCA SION SOUGHT TO CONVEY THAT THE OPERATIONS OF THE COMPANY ARE OF A SMALL NATURE AND THERE IS ONLY ONE MANAGER WHO IS STATIONED AT DHULE AND OTHER 5 PERSONS IN ADMINISTR ATIVE DEPARTMENT OF THE COMPANY. THEREFORE, THE DELAY. TH E STATEMENTS MADE IN THE AFFIDAVIT SEEKS TO PRESENT A PICTURE COMPLETELY DIFFERENT FROM THE FACTS AS ARE EVIDENT FROM THE ANNUAL REPORT OF THE COMPANY FOR THE YEAR ENDING 20 14-15 PRODUCED BY THE PETITIONER AT OUR INSTANCE. AN AFFI DAVIT IS A SWORN STATEMENT AND IT MUST REFLECT THE TRUE AND CO MPLETE FACTS. IT MUST NOT BE AN EXERCISE IN SUPPRESSION VE RY SUGGESTION FALSI. FURTHER, WHEN A PARTY SEEKS TO EX ERCISE THIS M.A. NO.740/MUM/2017, (ARISING OUT OF ITA NO.3303/MUM2015 ) ALD AUTOMOTIVE PVT. LTD . 7 COURTS JURISDICTION THE LEAST THAT IS EXPECTED OF THE PETITIONER IS FULL AND TRUE DISCLOSURE. THE CONDUCT ON THE PAR T OF THE PETITIONER DISENTITLES THE PETITIONER FROM ANY RELI EF UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA. 7. MOREOVER, IN ANY CASE, THE PETITIONER HAS NOT BE EN ABLE TO EXPLAIN THE REASON FOR THE DELAY IN FILING THIS PETITION. 8. BEFORE PARTING, WE WOULD LIKE TO MAKE AN OBSERVA TION THAT LEADING FRESH EVIDENCE BY FILING A COPY OF AN AFFIDAVIT DATED 28 TH APRIL, 2016 AFTER THE IMPUGNED ORDER AND ANNEXING IT TO PETITION IS NOT APPROPRIATE. PARTICU LARLY WHEN THE SAME WAS NOT FILED BEFORE THE TRIBUNAL. THIS TO MOST UNFAIR TO THE MEMBERS OF THE TRIBUNAL. AT THE TIME OF RECTIFICATION APPLICATION WAS BEING HEARD, THE NECE SSARY EVIDENCE INCLUDING THE AFFIDAVIT COULD HAVE BEEN FI LED BEFORE THE MEMBERS OF THE TRIBUNAL. IN THE VIEW WE HAVE T AKEN, IT IS NOT NECESSARY TO GO INTO THE MERITS OF THE AFFIDAVI T FILED BY THE CHARTERED ACCOUNTANT AS A PART OF THIS PETITION . 9. ACCORDINGLY, THE WRIT PETITION IS DISMISSED. 2.3. IN CIT VS. ITAT & ORS. (2006) 195 TAXATION 288 (DEL.) IT HAS BEEN HELD (VIDE PARA 7, PAGE 291 & 29 2) AS UNDER: THAT BEING THE LEGAL POSITION, THE TRIBUNAL WAS NO T IN OUR OPINION JUSTIFIED IN RECALLING THE ORDER PASSED BY IT IN TOTO AND SETTING THE MATTER DOWN FOR A FRESH HEARING. JU ST BECAUSE A PRONOUNCEMENT MADE ON THE SUBJECT EITHER BY THE TRIBUNAL OR BY ANY OTHER COURT WAS NOT NOTICED BY THE TRIBUNAL WHILE TAKING A PARTICULAR VIEW ON THE MERI T OF THE CONTROVERSY MAY CONSTITUTE AN ERROR THAT WOULD CALL FOR CORRECTION IN AN APPROPRIATE APPEAL AGAINST THE ORD ER. ANY SUCH ERROR MAY HOWEVER FALL SHORT OF CONSTITUTING A MISTAKE APPARENT FROM THE RECORD WITHIN THE MEANING OF SECTION 254(2) OF THE ACT. MORE IMPORTANTLY JUST BE CAUSE M.A. NO.740/MUM/2017, (ARISING OUT OF ITA NO.3303/MUM2015 ) ALD AUTOMOTIVE PVT. LTD . 8 A POINT IS DEBATABLE (WHICH IS ONE OF THE REASONS G IVEN BY THE TRIBUNAL IN THE INSTANT CASE) COULD HARDLY PROV IDE A JUSTIFICATION FOR RECALLING THE ORDER AND FIXING TH E APPEAL FOR A DE NOVO HEARING. WHILE DOING SO, THE TRIBUNAL HAS NO DOUBT MADE CERTAIN OBSERVATIONS IN REGARD TO THE LE VY OF INTEREST UNDER SECTION 158 BFA BEING STATUTORY IN N ATURE WITH NO POWER VESTED IN ANY AUTHORITY OR TRIBUNAL T O CONDONE THE SAME, BUT THE VERY FACT THAT THE TRIBUN AL HAS MADE THOSE OBSERVATIONS WOULD NOT RENDER VALID THE ORDER OF RECALL PASSED BY IT. THE NET RESULT OF THE ORDER MADE BY THE TRIBUNAL CONTINUES TO REMAIN THE SAME VIZ. THE APPEAL HAS TO BE HEARD AGAIN SIMPLY BECAUSE ONE OF THE ISS UES DECIDED BY THE TRIBUNAL IS DEBATABLE OR THE TRIBUNA L HAS NOT NOTICED AN EARLIER DECISION RENDERED BY ANOTHER BENCH. BOTH THESE REASONS WERE INSUFFICIENT TO JUST IFY THE ORDER OF RECALL MADE BY THE TRIBUNAL. 2.4. IN SAURASHTRA KUTCH STOCK EXCHANGE LTD. (SUP RA) IT HAS BEEN LAID DOWN (PLACITUM 37 AT PAGE 239) : IN OUR JUDGMENT, THEREFORE, A PATENT, MANIFEST AND SELF-EVIDENT ERROR WHICH DOES NOT REQUIRE ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENT TO ESTABLISH IT, CAN BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORD AND CAN BE CORRECTED WHILE EXERCISING CERTIO RARI JURISDICTION. AN ERROR CANNOT BE SAID TO BE APPAREN T ON THE FACE OF THE RECORD IF ONE HAS TO TRAVEL BEYOND THE RECORD TO SEE WHETHER THE JUDGMENT IS CORRECT OR NO T. AN ERROR APPARENT ON THE FACE OF THE RECORD MEANS A N ERROR WHICH STRIKES ON MERE LOOKING AND DOES NOT NE ED A LONG DRAWN OUT PROCESS OF REASONING ON POINTS WHE RE THERE MAY CONCEIVABLY BE TWO OPINIONS. SUCH ERROR SHOULD NOT REQUIRE ANY EXTRANEOUS MATTER TO SHOW IT S INCORRECTNESS. TO PUT IT DIFFERENTLY, IT SHOULD BE SO MANIFEST AND CLEAR THAT NO COURT WOULD PERMIT IT TO REMAIN ON RECORD. IF THE VIEW ACCEPTED BY THE COURT IN THE ORIGINAL JUDGMENT IS ONE OF POSSIBLE VIEWS, THE CASE CANNOT BE SAID TO BE COVERED BY AN ERROR APPARENT ON THE FACE OF THE RECORD. M.A. NO.740/MUM/2017, (ARISING OUT OF ITA NO.3303/MUM2015 ) ALD AUTOMOTIVE PVT. LTD . 9 2.5. WE HAVE HEARD THE MISCELLANEOUS APPLICATION O F THE REVENUE WITH OPEN MIND BUT WE ARE NOT CONVINCED WITH THE REASONING OF THE LD DR BECAUSE THE REVENUE, THR OUGH THIS APPLICATION IS MERELY TRYING TO GET THE ORDER REVIEWED WHICH IS NOT PERMISSIBLE U/S 254(2) OF THE ACT. EVE N OTHERWISE, ONLY ARITHMETICAL ERROR OR OF LIKE NATUR E CAN ONLY BE RECTIFIED. HOWEVER, NO SUCH MISTAKE IS FOUND IN THE ORDER OF THE TRIBUNAL, THEREFORE, WE FIND NO MERIT IN THE CONTENTION OF THE REVENUE BECAUSE WHILE DEALING WITH MISCELLAN EOUS APPLICATION U/S 254(2) OF THE ACT, ONLY ARITHMETICA L, GRAMMATICAL OR MISTAKE OF LIKE NATURE, IF ANY, CAN ONLY BE RECTIFIED AND NOT WHICH CAN BE DRAWN BY A LONG PROC ESS OF ARGUMENT/REASONING LEADING TO CONTRARY DECISION. O UR VIEW FINDS SUPPORTS FROM VARIOUS DECISIONS FROM HONBLE APEX COURT AND HONBLE HIGH COURTS, THAT THE TRIBUNAL CA NNOT REVIEW ITS EARLIER ORDER BUT ONLY CAN RECTIFY MISTA KE, IF ANY, WHICH IS APPARENT FROM RECORD. THE SCOPE AND AMBIT OF APPLICATION U/S 254(2) OF THE ACT IS VERY LIMITED A ND MERITS OF THE CASE CANNOT BE GONE INTO, THEREFORE, WE FIND NO MISTAKE IN THE ORDER OF THE TRIBUNAL. THE RATIO LAI D DOWN IN FOLLOWING CASES SUPPORTS OUR VIEW:- A) CIT VS GOKULCHAND AGRAWAL, 202 ITR 14 (CAL.), B) CIT VS RAMESH ELECTRIC & TRADING COMPANY 203 ITR 49 7, 502 (BOM.), C) GAYWAYS PUBLICITY PVT. LTD. 211 ITR 506 (DEL.), D) CIT VS RAMLAL RAJGARIA 104 CTR (CAL.) 403, E) CIT VS MODEL MANUFACTURING COMPANY PVT. LTD. 111 CT R (CAL.) 2016, M.A. NO.740/MUM/2017, (ARISING OUT OF ITA NO.3303/MUM2015 ) ALD AUTOMOTIVE PVT. LTD . 10 F) JAIN DHARMSHALA CHARITABLE TRUST VS CIT 121 CTR (DE L.) 86, G) CIT VS ITAT 206 ITR 126 (AP), H) CIT VS KABIRDAS INVESTMENT LTD. 210 ITR 898 (DEL.) FOLLOWED IN I) DIRECTOR OF INCOME TAX (EXEMPTION) VS ITAT 232 ITR 688 (DEL.), J) MENTHA & ALLIED PRODUCTS COMPANY PVT. LTD. VS ITAT 244 ITR 470 (DEL.), K) CIT VS VARDHMAN SPINNING 226 ITR 296 (P & H), L) DEEKSHA SURI ETC. VS ITAT 232 ITR 395 (DEL.), M) CIT VS ITAT 196 ITR 564 (ORISSA) 196 ITR 590, AND N) LAXMI ELECTRONIC CORPORATION LTD. VS CIT 188 ITR 39 8 (ALL.), 3.8. IN VIEW OF THE FACTUAL MATRIX, CASES DISCUSSE D HEREINABOVE, IT CAN BE CONCLUDED THAT THE SCOPE AND THE AMBIT OF APPLICATION U/S 254(2) IS VERY LIMITED AS WAS HELD BY HONBLE DELHI HIGH COURT IN CIT VS ITAT (2007) 2 93 ITR 118 (DEL.), HONBLE M.P. HIGH COURT IN CIT VS K.D. WIRES PVT. LTD. (2010) 323 ITR 257 (M.P.). IDENTICAL RATIO WAS LAID DOWN IN APEX METCHEM P. LTD. VS ITAT (2009) 318 ITR 48 ( RAJ.), STATE BANK OF INDORE VS ITAT 284 ITR 125 (M.P.), CI T VS MCDOWELL & COMPANY LTD. (2009) 310 ITR 215 (KARN.), CIT VS PEARL WOOLEN MILLS (2011) 330 ITR 164 (P & H), D HOLADHAR INVESTMENT PVT. LTD. VS CIT (2014) 362 ITR 111 (DEL .), RAJENDRA PRASAD BORAH VS ITAT (2008) 302 ITR 243 (GUWAH.) AND CIT VS FIVE STAR MARINE EXPORT PVT. LT D. (2010) 322 ITR 218 (MAD.), CIT VS TATA IRON & STEEL COMPAN Y LTD. M.A. NO.740/MUM/2017, (ARISING OUT OF ITA NO.3303/MUM2015 ) ALD AUTOMOTIVE PVT. LTD . 11 (2001) 248 ITR 190, 192 (BOM.), J.M. SAHNI VS ITAT 257 ITR 16 (DEL.), KARAN & COMPANY VS ITAT 253 ITR 131 (DEL .). THE RATIO LAID DOWN BY THE TRIBUNAL IN BRIJMOHAN SAGARM AL CAPITAL SERVICES PVT. LTD. (MA NO.217/MUM/2015), OR DER DATED 18/01/2016, SUPPORTS OUR VIEW. THUS, THE MISCELLANEOUS APPLICATION OF THE REVENUE DESERVES T O BE DISMISSED. FINALLY, THE MISCELLANEOUS APPLICATION OF THE REVEN UE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LEARNED DR AT THE CONCLUSION OF THE HEA RING ON 20/04/2018. SD/- (N.K. PRADHAN) SD/- (JOGINDER SINGH) ' # / ACCOUNTANT MEMBER $ # / JUDICIAL MEMBER MUMBAI; + DATED : 20/04/2018 F{X~{T? P.S/. .. !%$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ,-./ / THE ASSESSEE 2. 0./ / THE REVENUE M.A. NO.740/MUM/2017, (ARISING OUT OF ITA NO.3303/MUM2015 ) ALD AUTOMOTIVE PVT. LTD . 12 3. 1 1 & 2% , ( ,- ) / THE CIT, MUMBAI. 4. 1 1 & 2% / CIT(A)- , MUMBAI 5. 4'5% , 1 ,-), 6 , & / DR, ITAT, MUMBAI 6. 7#8 / GUARD FILE. ! / BY ORDER, / (DY./ASSTT. REGISTRAR) , & / ITAT, MUMBAI