M/s Cadchem Laboratories Ltd., Chandigarh V. ACIT, Chandigarh

MA 75/CHANDI/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0167 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-04-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 09-11-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 26-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N K SAINI
• Assessee Lawyers: MINKY MITTAL
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A, CHANDIGARH BEFORE SHRI T.R. SOOD, A.M AND MS. SUSHMA CHOWLA, J M MISC. APPLICATION NO. 75/CHD/2012 ARISING OUT OF ITA NO. 548/CHD/2010 A.Y: 2006-07 CADCHEM LABORATORIES LTD V A.C.I.T. C-1(1), CHANDIGARH CHANDIGARH (APPELLANT) (RESPONDENT) APPELLANT BY MS. MINKY MITTAL RESPONDENT BY: SHRI N.K. SAINI DATE OF HEARING 15.3.2013 DATE OF PRONOUNCEMENT 1.4.2013 O R D E R PER T.R.SOOD, A.M THIS MISC. APPLICATION IS DIRECTED AGAINST THE ORDE R OF THE TRIBUNAL IN ITA NO. 548/CHD/2010 DATED 30.11.2011. 2. THROUGH THIS MISC. APPLICATION THE ASSESSEE HAS SOUGHT RECTIFICATION IN THE ORDER OF THE TRIBUNAL IN ITA N O. 548/CHD/2010. 3 THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT WH ILE DECIDING THE ISSUE OF DEPRECIATION THE ISSUE REGARD ING ELECTRICITY CONSUMPTION WAS NOT CONSIDERED. SHE A LSO RELIED ON THE WRITTEN SUBMISSIONS FILED ON BEHALF OF THE ASSE SSEE. 4 ON THE OTHER HAND, THE LD. DR FOR THE REVENUE STR ONGLY SUPPORTED THE ORDER OF THE TRIBUNAL AND SUBMITTED T HAT THE ISSUE 2 REGARDING ELECTRICITY CONSUMPTION HAS BEEN CONSIDER ED IN THE FINDING GIVEN BY THE TRIBUNAL IN PARA 5. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS CAREFULLY AN D FIND THAT ONLY DISPUTE WAS REGARDING CLAIM OF DEPRECIATION ON EFFLUENT TREATMENT PLANT. THE TRIBUNAL HAS ADJUDICATED THIS ISSUE AND IT WAS FOUND THAT ONLY VARIOUS PARTS OF THE PLANT WERE PUR CHASED AND THERE WAS NO EVIDENCE THAT THE PLANT WAS ASSEMBLED AND TH EREFORE, DEPRECIATION WAS DENIED. THE ARGUMENT REGARDING EL ECTRICITY CONSUMPTION HAS DULY BEEN CONSIDERED IN PARA 5 OF T HE ORDER OF THE TRIBUNAL WHICH READS AS UNDER: 5. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY CON SIDERED THEIR SUBMISSIONS. THE ASSESSEE HAS FIELD COPY OF ETP ACCOUNT AS APPEARING IN ITS LEDGER FOR THE YEAR UNDER APPEA L WHICH SHOWS THAT THE ASSESSEE CONTINUED TO PROCURE VARIOU S PARTS OF THE ETP TILL 28.1.2006. HOWEVER, THE FACT REMAINS THAT THE PARTS OF ETP PROCURED BY THE ASSESSEE CAN NEITHER B E PUT TO USE NOR ACTUALLY USED UNLESS THEY ARE ASSEMBLED, COMMISSIONED AND INSTALLED. THE ASSESSEE HAS NOT P LACED ANY EVIDENCE ON RECORD TO ESTABLISH THAT IT HAD ACTUALL Y ASSEMBLED, COMMISSIONED AND INSTALLED THE ETP AND ACTUALLY USE D THE SAME DURING THE YEAR UNDER APPEAL. THE PAPER BOOK PLACED BY THE DEPARTMENT BEFORE US CONTAINS A COPY OF LETTER DATED 11.11.2008 SUBMITTED ON BEHALF OF THE M/S 21 ST CENTURY CONSULTANCY ENGINEERING, CHANDIGARH BEFORE THE AO I N WHICH IT IS STATED THAT THE SAID FIRM HAS NOT PROVIDED THE I NSTALLATION. THE CONTENTS OF THE AFORESAID LETTER HAVE NOT BEEN REBUTTED BY THE ASSESSEE. BESIDES, THE ASSESSEE HAS PLACED NO EVIDENCE ON RECORD TO ESTABLISH THAT IT HAD ACTUALLY ASSEMBL ED, COMMISSIONED AND INSTALLED THE ETP AND ACTUALLY USE D THE SAME FOR ITS BUSINESS DURING THE YEAR UNDER APPEAL. ETP, WHICH WAS PROCURED IN THE YEAR UNDER APPEAL, WOULD HAVE REQUIRED THE CONSUMPTION OF 270 KW OF ELECTRICITY. THE ASSESSEE HAS, HOWEVER, NOT PRODUCED ANY EVIDENCE TO ESTABLISH THAT IT HAD GOT ADDITIONAL POWER LOAD OF 270 KW. REFERENCE TO THE ELECTRICITY BILLS OF THE ASSESSEE AS FILED BY THE DEPARTMENT BEFORE US, DOES NOT INDICATE ANY INCREAS E IN THE ELECTRICITY CONSUMPTION. IF THE ASSESSEE HAD INSTA LLED SECOND ETP IN RESPECT OF WHICH THE DEPRECIATION IS BEING C LAIMED, THE CONSUMPTION OF ELECTRICITY WOULD HAVE GONE UP SUBST ANTIALLY. BUT THAT IS NOT THE CASE HERE. 3 WE FURTHER FIND THAT WRITTEN SUBMISSIONS RUNNING IN TO 12 PAGES CONTAINING VARIOUS ARGUMENTS AS WELL AS CASE LAWS H AS ALSO BEEN FILED WITHOUT PIN-POINTING WHAT IS THE PARTICULAR E RROR IN THE ORDER OF THE TRIBUNAL. IT IS SETTLED POSITION OF LAW THAT O NLY AN ERROR CAN BE RECTIFIED AND SUCH ERROR SHOULD BE APPARENT FROM RE CORD. HON'BLE SUPREME COURT HAS CONSIDERED THIS ISSUED IN DETAIL IN CASE OF T.S. BALARAM, INCOME TAX OFFICER V VOLKART BROTHERS AND OTHERS, 82 ITR 50 (S.C). THE HEAD NOTE READS AS UNDER: A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOU S AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTAB LISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHIC H THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A D EBATABLE POINT OF LAW IS NOT MISTAKE APPARENT FROM THE RECOR D. THUS IT IS CLEAR THAT UNLESS AND UNTIL THERE IS A P ATENT ERROR WHICH IS APPARENT FROM RECORD IT CANNOT BE CALLED THAT MISTA KE HAS CREPT IN THE ORDER OF THE TRIBUNAL. VERY FACT THAT WRITTEN SUBMISSIONS CONTAINING 12 PAGES HAVE BEEN FILED, SHOWS THAT THE ASSESSEE IS TRYING TO ESTABLISH A MISTAKE BY LONG DRAWN PROCESS OF REASONING WHICH IS NOT PERMISSIBLE UNDER LAW. SINCE THERE IS NO MISTAKE APPARENT FROM RECORD, WE DECLINE TO RECTIFY THE ORD ER PASSED BY THE TRIBUNAL IN ITA NO. 548/CHD/2010. 6. IN THE RESULT, MISC. APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 1.4.2013. SD/- SD/- (SUSHMA CHOWLA) (T.R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEM BER DATED : 1.4.2013 SURESH COPY TO: THE APPELLANT/THE RESPONDENT/THE CIT/THE C IT(A)/THE DR 4 5