The DCIT., Indore V. M/s. Narmada Hydroelectric Development Corporation Ltd., Bhopal

MA 75/IND/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0291 (ITAT-INDORE)
• Duration Of Justice: 10 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-04-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 07-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K KARAN

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI R.C. SHARMA, ACCOUNTANT MEMBER M.A. NOS. 75 TO 77/IND/2012 (ARISING OUT OF ITA NOS. 185 TO 187/IND/2010) A.YS. - 2003-04 TO 2005-06 ACIT-2(1), BHOPAL :: APPLICANT VS NARMADA HYDROELECTRIC DEVELOPMENT CORPORATION LTD. (NOW NHDC LTD.), BHOPAL PAN AABCN 1732 G :: RESPONDENT DEPARTMENT BY SHRI V.K. KARAN ASSESSEE BY SHRI HITESH CHIMNANI DATE OF HEARING 5.4.2013 DATE OF PRONOUNCEMENT 5.4.2013 O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THESE MISCELLANEOUS APPLICATIONS U/S 254(2) OF THE ACT ARE PREFERRED BY THE REVENUE ON THE GROUND THAT THE TRI BUNAL VIDE ORDER DATED 17.2.2011 DECIDED THE APPEALS OF THE REVENUE BY REMANDING THE SAME TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO 2 EXAMINE THE NATURE OF RECEIPT OF INTEREST AND DECID E THE ISSUE BY CONSIDERING THE RATIO LAID DOWN BY HON'BLE APEX COU RT IN THE CASES OF TUTICORIN ALKALIES CHEMICALS & FERTILIZERS LTD., BOKARO STEELS LTD., KARNATAKA POWER CORPN. AND AUTOCAST LTD. ETC. 2. DURING HEARING, THE LD. CIT/DR SHRI VINAY KARAN ADVANCED HIS ARGUMENTS WHICH ARE IDENTICAL TO THE MISCELLENA OUS APPLICATIONS. IN PARA 3 OF THE APPLICATIONS, IT HAS BEEN MENTIONED THAT THE TRIBUNAL DID NOT CONSIDER THE DECISION OF TUTICORIN ALKALIES CHEMICALS AND FERTILIZERS. ON THE OTHER HAND, SHRI HITESH CHIMNANI, LEARNED COUNSEL FOR THE ASSESSEE STRONGLY DEFENDED THE ORDER OF THE TRIBUNAL BY SUBMITTING THAT THERE IS N O MERIT IN THE MISCELLANEOUS APPLICATIONS OF THE REVENUE AND IT IS BEYOND THE SCOPE ENSHRINED IN SEC. 254(2) OF THE ACT. 3. WE HAVE PERUSED THE RECORD AND CONSIDERED THE AR GUMENTS ADVANCED BY THE LEARNED RESPECTIVE COUNSEL. IF THE TOTALITY OF FACTS AND THE CONCLUSION OF THE TRIBUNAL AS MENTIONED IN THE ORDER ARE ANALYSED AND KEPT IN JUXTAPOSITION WITH THE ARGUMEN T OF THE LD. SR. DR, WE FIND THAT WHILE DISPOSING OF THE APPEALS OF THE REVENUE, THE TRIBUNAL DULY CONSIDERED THE DECISIONS OF THE TRIBU NAL DATED 3 30.7.2010 (ITA NOS. 375/IND/2009), THAT TOO, IN THE CASE OF THE ASSESSEE ITSELF, WHEREIN THE IDENTICAL ISSUE ON IDE NTICAL FACT WAS REMANDED BACK TO THE FILE OF THE LD. ASSESSING OFFI CER. THE RELEVANT PORTION OF THE SAME HAS BEEN REPRODUCED IN THE ORDE R. WE FURTHER FIND THAT WHILE COMING TO THE AFORESAID CONCLUSION, THE BENCH DULY CONSIDERED THE DECISIONS IN THE CASE OF TUTICORIN A LKALIES CHEMICALS LTD. ALONG WITH OTHER DECISIONS AS HAS BEEN MENTION ED IN THE MISCELLANEOUS APPLICATIONS. IN VIEW OF THESE FACTS, THERE IS NO INFIRMITY IN THE ORDER OF THE TRIBUNAL AND ALSO NO JUSTIFICATION IN THE CONTENTION RAISED BY THE REVENUE IN MISCELLANEOUS A PPLICATIONS U/S 254(2) OF THE ACT. EVEN OTHERWISE, THE TRIBUNAL HAS SPECIFICALLY DIRECTED TO EXAMINE THE NATURE OF RECEIPTS OF INTER EST, THEREFORE, HOW THE REVENUE IS AGGRIEVED IS QUITE SURPRISING. THE A SSESSING OFFICER IS EXPECTED TO FOLLOW THE DIRECTIONS CONTAINED IN T HE ORDER AND THEN DECIDE IN ACCORDANCE WITH LAW. THE TRIBUNAL BEING T HE LAST FACT FINDING AUTHORITY, THEREFORE, THE LD. ASSESSING OFF ICER IS EXPECTED TO EXAMINE THE CLEAR FACTS AND NATURE OF RECEIPT OF IN TEREST, IN THE ABSENCE OF WHICH, NO CLEAR DECISION CAN BE ARRIVED AT. THE ASSESSING OFFICER IS FREE TO TAKE ANY DECISION IN ACCORDANCE WITH LAW AFTER EXAMINATION OF NATURE OF RECEIPT OF INTEREST. 4 4. EVEN OTHERWISE, THE TRIBUNAL HAS LIMITED POWERS TO REVIEW ITS ORDER. THE POWERS OF VIEW MUST BE CONFERRED BY THE STATUTE. REVIEW OF AN ORDER MEANS REEXAMINATION OR TO GIVE A SECOND VIEW OF THE MATTER FOR THE PURPOSES OF ALTERATION OR REVERSAL O F THE VIEW ALREADY TAKEN AFTER CHANGING THE EARLIER OPINION OR VIEW. T HE ORDER PASSED BY THE TRIBUNAL U/S 254(1) IS THE EFFECTIVE ORDER S O FAR AS THE APPEAL IS CONCERNED. ANY ORDER PASSED U/S 254(2) EITHER AL LOWING AMENDMENT OR REFUSING TO AMEND GETS MERGED WITH THE ORIGINAL ORDER PASSED. THE ORDER AS AMENDED OR REMAINING UNA MENDED IS THE EFFECTIVE ORDER FOR ALL PRACTICABLE PURPOSES. T HAT IS THE FINAL ORDER OF THE APPEAL. RECALLING OF ORDER IS NOT PERM ISSIBLE U/S 254(2) AS RECALLING AUTOMATICALLY NECESSITATES REHEARING A ND READJUDICATION OF THE APPEAL. OUR VIEW IS SUPPORTED BY THE RATIO L AID DOWN IN THE FOLLOWING DECISIONS: CIT VS. B.P. AGRAWAL (90 TAXMAN 283) (CAL), KARAN & CO. (253 ITR 131) (DEL), NIRANJAN & CO. LTD. VS. ITAT (122 ITR 519) (CAL), CIT VS. ITAT (196 ITR 640) (ORI), CIT VS. ITAT (155 TAXMAN 378) (DEL), EXPRESS NEWS PAPERS LTD. VS. DCIT, 186 TAXMAN 111 ( MAD), CIT VS. SUMAN TEA & PLYWOOD INDUSTRIES P. LTD., 226 ITR 34 (CAL), CIT VS. ANAMIKA BUILDERS P. LTD., 117 TAXMAN 356 (C AL). 5 5. THE REVENUE HAS NEITHER PINPOINTED ANY SPECIFIC MISTAKE IN THE ORDER OF THE TRIBUNAL NOR IT IS A CASE OF CLERI CAL OR ARITHMETICAL MISTAKE RATHER THROUGH THESE MISCELLANEOUS APPLICAT IONS, THE DEPARTMENT IS TRYING TO GET THE ORDER REVIEWED WHIC H POWERS DO NOT VEST WITH THE TRIBUNAL. IN VIEW OF THESE FACTS AND THE JUDICIAL PRONOUNCEMENTS, NO CASE IS MADE OUT BY THE REVENUE THROUGH THEIR MISCELLANEOUS PETITIONS, THEREFORE, SAME ARE DISMIS SED. FINALLY, THE MISCELLANEOUS PETITIONS OF THE REVENU E ARE DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN T HE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCL USION OF THE HEARING ON 5.4.2013. SD SD (R.C.SHARMA) (JOGINDER SINGH ) ACCOUNTANT MEMBER JUDICIAL ME MBER DATED: 5.4.2013 COPY TO: APPELLANT, RESPONDENT, CIT, CIT(A), DR, GU ARD FILE !VYS!