LAUREL WIRES LTD, V. ITO 8(2)(2),

MA 75/MUM/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4800 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-08-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2004-2005
• Appeal Filed On: 21-03-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A RAMCHANDRANDR
• Assessee Lawyers: P V DESAI
• Keywords: Charitable institution
• Section: 143(3); 154

Judgement Text

, - , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC, MUMBAI , ! ' , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, M.A. NO.75/MUM/2016 (ARISING OUT OF ITA NO.1859/MUM/2015) ASSESSMENT YEAR: 2004-05 M/S LAUREL WIRES LTD. C-203, CRYSTAL PLAZA, NEW LINK ROAD, ANDHERI (W), MUMBAI-400053 / VS. THE ITO-8(2)(2), AAYAKAR BHAVAN, CHURCHGATE, MUMBAI-400020 / ASSESSEE / REVENUE P.A. NO. AAACL5522 F $ % & / ASSESSEE BY SHRI P.V. DESAI $ % & / REVENUE BY SHRI A.RAMCHANDRAN-DR / DATE OF HEARING 19/08/2016 & / DATE OF ORDER: 19/08/2016 & / O R D E R THIS MISCELLANEOUS APPLICATION IS FILED BY THE AS SESSEE U/S 254(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) FOR RECALLING/RECTIFICATION OF THE ORDER OF THE TRI BUNAL DATED 12/01/2016 PASSED IN ITA NO.1859/MUM/2015 FOR ASSESSMENT YEAR 2004-05, WHEREIN, RECTIFICATION APP LICATION U/S 154 WAS REJECTED AND THE DISPUTE WAS WITH RESPE CT TO MA. NO.75/MUM/2016 (ARISING OUT OF ITA NO.1859/MUM/2015) M/S LAUREL WIRES LTD. 2 PAYMENT OF SALES TAX LIABILITY OF RS.16,60,332/- . BEFORE COMING TO ANY CONCLUSION, I AM REPRODUCING HEREUNDE R THE ORDER OF THE TRIBUNAL DATED 12/01/2016, AGAINST WHI CH THE ASSESSEE HAS PREFERRED THE PRESENT MISCELLANEOUS APPLICATION, FOR READY REFERENCE AND ANALYSIS:- THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER DA TED 16/04/2014 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. THE ONLY GROUND ARGUED PERTAINS TO SALES TAX LIABIL ITY OF RS.16,60,332/-, PAID BY THE ASSESSEE ON PURCHASES A ND THUS IS ALLOWABLE EXPENDITURE. 2. DURING HEARING OF THIS APPEAL, SHRI P. V. DESAI , CONTENDED THAT THE SALE TAX LIABILITY WAS DEFERRED UNDER THE SCHEME OF THE GOVERNMENT BEFORE DUE DATE OF FILING OF RETURN, THEREFORE, THE ADDITION WAS WRONGLY MADE BY THE LD. ASSESSING OFFICER AND SUSTAINED BY THE LD. COMMISSI ONER OF INCOME TAX (APPEALS). IT WAS ALSO CONTENDED THAT T HE LD. ASSESSING OFFICER, WITHOUT VERIFYING THE FACTS AND DIRECTION OF THE TRIBUNAL, MADE THE ADDITION. ON THE OTHER H AND, SHRI V.S. JADHAV, LD. DR, INVITED MY ATTENTION TO THE FA CTUAL FINDING RECORDED IN 1.3.1 OF THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) BY SUBMITTING THAT IN FACT THE ASSESSEE DID NOT DEPOSIT THE SALES TAX, COLLECTED BY HIM BEFORE DUE DATE OF FILING OF RETURN. 2.1. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACT S, IN BRIEF, ARE THAT ON EARLIER OCCASION ALSO, THE MATTE R TRAVEL TO THE TRIBUNAL, WHEREIN, THE ASSESSING OFFICER WAS DI RECTED TO VERITY THE CLAIM OF THE ASSESSEE. IN VIEW OF SUCH DIRECTION, THE LD. ASSESSING OFFICER ASKED THE ASSESSEE TO FIL E EVIDENCE SUCH AS PAYMENT OF THE SALES TAX OR COPY OF THE SAL ES TAX ORDER DEFERRING SUCH LIABILITY. THE ASSESSEE DID N OT SUBMIT MA. NO.75/MUM/2016 (ARISING OUT OF ITA NO.1859/MUM/2015) M/S LAUREL WIRES LTD. 3 THE DETAILS AND SUBMITTED THAT NEITHER SUCH PAYMENT S WERE MADE BY THE ASSESSEE NOR IT WAS DEFERRED UNDER THE SALES TAX SCHEME. BEFORE ADVERTING FURTHER, I AM REPRODUC ING HEREUNDER THE FINDING RECORDED BY THE LD. COMMISSIO NER OF INCOME TAX (APPEALS) FOR READY REFERENCE:- I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND CONTENTION OF THE LD. AR OF THE APPELLANT AND ALSO CAREFULLY GONE THROUGH THE FACTS AND EXPLANATION GIVEN BY THE LD. AR OF THE APPELLANT AS WELL AS THE ASSESSING OFFICER. I FIND NO INFIRMITY IN THE ORDER OF THE LD.AO AS THE APPELLANT WAS NOT ABLE TO FILE ANY EVIDENCE OF PAYMENT OF SALE TAX ON THE CONTRARY THE APPELLANT BEFORE THE LD. ASSESSING OFFICER ADMITTED THAT THE SUBMISSION MADE BEFORE HONBLE TRIBUNAL THAT SUCH TAX IS PAID OR DEFERRED BEFORE THE DUE DATE OF FILING OF RETURN WAS FACTUALLY WRONG. IT WAS CATEGORICALLY ADMITTED BY THE APPELLANT BEFORE THE LD. ASSESSING OFFICER THAT NEITHER SUCH PAYMENT HAD BEEN MADE BY THE APPELLANT COMPANY NOR WAS IT DEFERRED BY THE SALE TAX DEPARTMENT UNDER THE SCHEME . THEREFORE, THE REPRESENTATION MADE BY THE APPELLANT BEFORE THE TRIBUNAL IS WRONG. FURTHER, I FIND THAT THE CLAIM O F THE APPELLANT THAT TURNOVER TAX LIABILITY OF RS.16,60,332/- WAS NOT INCLUDED IN THE FINAL BALANCE SHEET IS FACTUALLY INCORRECT. I ALSO FIND THAT THE ENTIRE LIABILITY WAS NOT PAID OR DEFERRED BY TH E SALES TAX DEPARTMENT BEFORE THE DUE DATE OF FILING OF RETURN IS ALSO A CORRECT STATEMENT OF FACT. IN VIEW OF THE FOREGOING THE ADDITION MADE BY THE LD. ASSESSING OFFICER IS ACCORDINGLY UPHELD, THIS GROUND OF APPEAL IS DISMISSED. MA. NO.75/MUM/2016 (ARISING OUT OF ITA NO.1859/MUM/2015) M/S LAUREL WIRES LTD. 4 DURING HEARING, THE AFORESAID FACTUAL FINDING WAS BROUGHT TO THE NOTICE OF THE ASSESSEE BY THE BENCH TO WHICH THE LD. COUNSEL CONTENDED THAT THE MATTER MAY BE AG AIN SENT BACK TO THE FILE OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)/ASSESSING OFFICER. HOWEVER, I AM NOT AGR EE WITH THE SUBMISSION OF THE ASSESSEE, BECAUSE, AS MENTION ED EARLIER, THE TRIBUNAL SET ASIDE THE MATTER TO THE F ILE OF THE ASSESSING OFFICER TO EXAMINE THE CLAIM OF THE ASSES SEE. IT IS NOTED THAT NEITHER BEFORE THE ASSESSING OFFICER NOR BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AND EV EN BEFORE THIS TRIBUNAL, NO PLAUSIBLE EXPLANATION WAS ADDUCED BY THE ASSESSEE, THEREFORE, IN VIEW OF THE UNCONTRO VERTED FINDING RECORDED BY THE LD. ASSESSING OFFICER DURIN G SET- ASIDE PROCEEDINGS, RETAINING THE ADDITION AND FACTU AL FINDING RECORDED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS), I FIND NO INFIRMITY IN THE IMPUGNED ORDE R. IT IS AFFIRMED. FINALLY, THE APPEAL OF THE ASSESSEE IS DISMISSED. 2. DURING HEARING OF THIS MISCELLANEOUS APPLICATIO N, THE LD. COUNSEL FOR THE ASSESSEE HAS FILED AN ORDER OF THE TRIBUNAL DATED 28/06/2016 (ITA NO.1860/MUM/2015) FO R ASSESSMENT YEAR 2005-06. IN THIS CASE, THE FACTS WERE NOT APPRECIATED PROPERLY BY THE LD. COMMISSIONER OF INC OME TAX (APPEAL) AND DISALLOWED THE SALES TAX LIABILITY DUE TO SALES TAX ASSESSMENT PASSED IN 2009. IN THAT SITUATION, T HE ORDER OF THE CIT(A) WAS SET ASIDE. I HAVE DISPASSIONATELY WITH OPEN MIND PERUSED THE ORDER OF THE TRIBUNAL DATED 12/01/ 2016. AT THE OUTSET, IT IS MADE CLEAR THAT THE ORDER OF T HE TRIBUNAL DATED 28/06/2016 WAS NOT EVEN IN EXISTENCE BEFORE T HE TRIBUNAL, WHEN THE APPEAL WAS HEARD AND ORDER PASSE D ON MA. NO.75/MUM/2016 (ARISING OUT OF ITA NO.1859/MUM/2015) M/S LAUREL WIRES LTD. 5 12/01/2016. EVEN OTHERWISE, IN THE PRESENT APPEAL, NEITHER FURNISHED THE DETAILS BEFORE THE ASSESSING OFFICER NOR BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEAL) AND EVE N BEFORE THE TRIBUNAL, THEREFORE, THERE IS NO MISTAK E IN THE ORDER OF THE TRIBUNAL. 2.1. EVEN OTHERWISE, IF WE CONSIDER THE FACTUAL MA TRIX, IT IS NOTED THAT THIS MATTER WAS EARLIER TRAVEL TO THE TRIBUNAL AND WAS REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER (ITA NO.2266/MUM/2011) ORDER DATED 31/01/2012 WITH A DIRECTION TO THE ASSESSEE TO PRODUCE THE NECESSARY DETAILS TO SUBSTANTIATE ITS CLAIM. THE FACTUAL FINDING RECORDE D BY THE LD. ASSESSING OFFICER IS REPRODUCED HEREUNDER:- 3. THE HONBLE ITAT HAS ALSO DIRECTED TO THE VERIFY TH E ASSESSEES CLAIM THAT THE INCREASED SALES TAX LIABI LITY WAS PAID BY THE ASSESSEE BEFORE THE DUE DATE OR SAID AMOUNT WAS DEFERRED UNDER THE SCHEME OF STATE GOVERNMENT BEFOR E THE DUE DATE FILING OF INCOME TAX RETURN. IN VIEW OF THE ABOVE DIRECTIONS OF THE HONBLE ITAT THE ASSESSEE VIDE NOTICE DATED 23012013 WAS ASKED TO FI LE THE EVIDENCES OF SUCH PAYMENT OR COPY OF THE SALES TAX ORDER DEFERRING SUCH LIABILITY. THE ASSESSEE DID NOT SUBMIT THESE DETAILS. ON THE CONTRARY, IN THE HEARING HELD ON 25_02.2013 THE MD OF THE ASSESSEE COMPANY SHRI SANDEEP JAIN ADMITTED THAT THE SUBMISSION BEFORE THE HONBLE TRIBUNAL THAT SUCH TAX WAS PAID OR DEFERRED BEFORE THE DUE DATE OF FILING OF THE RETUR N, WAS FACTUALLY WRONG. HE CATEGORICALLY SUBMITTED THA T NEITHER SUCH PAYMENT HAD BEEN MADE BY THE ASSESSEE COMPANY NOR WAS IT DEFERRED BY TILE SALES TAX DEPARTMENT UNDER ANY SCHEME. THUS, THE ASSESSEES MA. NO.75/MUM/2016 (ARISING OUT OF ITA NO.1859/MUM/2015) M/S LAUREL WIRES LTD. 6 SUBMISSION BEFORE THE HONBLE TRIBUNAL ABOUT THE PAYMENT OF TAX WAS A MISREPRESENTATION. 4. THE ABOVE DISCUSSION SHOWS THAT THE ASSESSEES CLA IM BEFORE THE HONBLE TRIBUNAL THAT THE TURNOVER TAX LIABILIT Y OF RS 16,60,332/- WAS NOT INCLUDED IN THE FINAL BALANCE S HEET IS FACTUALLY WRONG THE ASSESSEES FURTHER CLAIM THAT T HE ENTIRE LIABILITY WAS ACTUALLY PAID OR DEFERRED BY THE SALE S TAX DEPARTMENT BEFORE THE DUE DATE OF FILING OF RETURN IS ALSO FACTUALLY INCORRECT AS ADMITTED BY THE MD OF THE ASSESSEE COMPANY. IN FACT 2S PER THE SALES TAX DEPARTMENTS ASSESSMENT ORDER OF THE INSTANT YEAR DATED 25.05.20 09 FILED BY THE ASSESSEE SHOWS TOTAL UNPAID SALES TAX AT RS. 22,67,952 ACCORDINGLY, THE DISALLOWANCE OF UNPAID SALES TAX L IABILITY OF RS.16,60,332/- U/S 436 OF THE ACT MADE BY THE ORIGI NAL ASSESSMENT U/S 143(3) IS RETAINED. PENALTY PROCEEDINGS ARE SEPARATELY INITIATED U/S 271(1)(C) OF THE ACT FOR F URNISHING OF INACCURATE PARTICULARS OF INCOME. 2.2. IT IS NOTED THAT PURSUANT TO THE DIRECTION OF THE TRIBUNAL, THE ASSESSEE DID NOT SUBMIT THE NECESSARY DETAILS. THE HIGHLIGHTED PORTION IN THE PRECEDING PARA CLEAR LY STATES THAT DURING HEARING ON 25/02/2013, SHRI SANDEEP JAI N, MD OF THE ASSESSEE COMPANY ADMITTED THAT THE SUBMISSIO NS MADE BEFORE THE TRIBUNAL WITH RESPECT TO PAYMENT OR DEFERMENT WAS FACTUALLY WRONG AND FURTHER EXPLAINED THAT SUCH PAYMENTS NEITHER WERE PAID NOR DEFERRED BY THE SALES TAX DEPARTMENT. 2.3. EVEN ON FURTHER APPEAL, BEFORE THE LD. FIRST APPELLATE AUTHORITY, NO DETAILS WERE FURNISHED. THE FACTUAL FINDING RECORDED BY THE LD. COMMISSIONER OF INCOME TAX (APPEAL) ARE REPRODUCED HEREUNDER:- MA. NO.75/MUM/2016 (ARISING OUT OF ITA NO.1859/MUM/2015) M/S LAUREL WIRES LTD. 7 I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS AND CONTENTION OF THE LD. AR OF THE APPELLANT AND ALSO CAREFULLY GONE THROUGH THE FACTS AND EXPLANATION GI VEN BY THE LD. AR OF THE APPELLANT AS WELL AS THE ASSES SING OFFICER. I FIND NO INFIRMITY IN THE ORDER OF THE LD .AO AS THE APPELLANT WAS NOT ABLE TO FILE ANY EVIDENCE OF PAYMENT OF SALE TAX ON THE CONTRARY THE APPELLANT BEFORE THE LD. ASSESSING OFFICER ADMITTED THAT THE SUBMISSION MADE BEFORE HONBLE TRIBUNAL THAT SUCH T AX IS PAID OR DEFERRED BEFORE THE DUE DATE OF FILING O F RETURN WAS FACTUALLY WRONG. IT WAS CATEGORICALLY ADMITTED BY THE APPELLANT BEFORE THE LD. ASSESSING OFFICER THAT NEITHER SUCH PAYMENT HAD BEEN MADE BY THE APPELLANT COMPANY NOR WAS IT DEFERRED BY THE SALE TAX DEPARTMENT UNDER THE SCHEME . THEREFORE, THE REPRESENTATION MADE BY THE APPELLANT BEFORE THE TRIBUNAL IS WRONG. FURTHER, I FIND THAT THE CLAIM O F THE APPELLANT THAT TURNOVER TAX LIABILITY OF RS.16,60,3 32/- WAS NOT INCLUDED IN THE FINAL BALANCE SHEET IS FACT UALLY INCORRECT. I ALSO FIND THAT THE ENTIRE LIABILITY W AS NOT PAID OR DEFERRED BY THE SALES TAX DEPARTMENT BEFORE THE DUE DATE OF FILING OF RETURN IS ALSO A CORRECT STAT EMENT OF FACT. IN VIEW OF THE FOREGOING THE ADDITION MADE B Y THE LD. ASSESSING OFFICER IS ACCORDINGLY UPHELD, THIS G ROUND OF APPEAL IS DISMISSED. MA. NO.75/MUM/2016 (ARISING OUT OF ITA NO.1859/MUM/2015) M/S LAUREL WIRES LTD. 8 2.4. IT IS ALSO NOTED THAT EVEN BEFORE THE TRIBUNA L ON 12/01/2016, THE ASSESSEE NEITHER FURNISHED ANY DETA ILS NOR ANY PLEA WAS TAKEN THAT THE FACTUAL FINDING RECORDE D BY THE LD. ASSESSING OFFICER AS WELL AS BY THE LD. COMMISS IONER OF INCOME TAX (APPEAL) ARE WRONG. IN SPITE OF THE FA CT THAT THE MATTER WAS EARLIER TRAVEL TO THE TRIBUNAL AND REMAN DED BACK TO THE ASSESSING OFFICER STILL A PATIENT HEARING WA S GRANTED TO THE ASSESSEE. CONSIDERING THE TOTALITY OF FACTS , A VIEW WAS TAKEN. SURPRISINGLY, THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATION U/S 254(2) OF THE ACT. ST ILL NEITHER ANY DETAILS WERE FURNISHED NOR ANY ERROR WAS POINTE D OUT IN THE ORDER OF THE TRIBUNAL. IT IS MERELY A WASTAGE O F JUDICIAL TIME OF THE TRIBUNAL WHICH COULD HAVE BEEN USED IN OTHER CONSTRUCTIVE WORK. STILL THE ASSESSEE WAS ASKED TO PIN POINT ANY ERROR IN THE ORDER OF THE TRIBUNAL WHICH CAN BE RECTIFIED. HOWEVER, NO SUCH ERROR WAS POINTED OUT. THE LD. DR STRONGLY DEFENDED THE ORDER OF THE TRIBUNAL BY CONTENDING TH AT THERE IS NO ERROR IN THE ORDER OF THE TRIBUNAL, WHICH CAN BE RECTIFIED AND THE ASSESSEE IS MERELY TRYING TO GET THE ORDER RECALLED, WHICH IS NOT PERMISSIBLE U/S 254(2) OF TH E ACT. 2.5. IF THE OBSERVATION MADE IN THE ASSESSMENT OR DER, LEADING TO ADDITION MADE TO THE TOTAL INCOME, CONCL USION DRAWN IN THE IMPUGNED ORDER, MATERIAL AVAILABLE ON RECORD, FACTUAL FINDING RECORDED IN THE ORDER OF THE TRIBUN AL AND ASSERTIONS MADE BY THE LD. RESPECTIVE COUNSEL, IF K EPT IN JUXTAPOSITION AND ANALYZED, I FIND THAT IN VIEW OF THE FACTUAL MA. NO.75/MUM/2016 (ARISING OUT OF ITA NO.1859/MUM/2015) M/S LAUREL WIRES LTD. 9 FINDING RECORDED BY THE LD. ASSESSING OFFICER/ LD. COMMISSIONER OF INCOME TAX (APPEAL) AND EVEN BY THE TRIBUNAL, IT IS NOTICED THAT THE ASSESSEE HAS NOT P RODUCED THE NECESSARY DETAILS EVEN DURING REMAND PROCEEDINGS, D IRECTED BY THE TRIBUNAL. EVEN DURING HEARING BEFORE THIS TR IBUNAL, TODAY, THE ASSESSEE HAS NEITHER FILED ANY DETAILS, SUBSTANTIATING ITS CLAIM NOR PIN POINTED ANY ERROR IN THE ORDER OF THE TRIBUNAL, THEREFORE, THERE IS NO MERIT IN THE MISCELLANEOUS APPLICATION OF THE ASSESSEE. 2.6. NOW, I SHALL ANALYZE WHETHER THE TRIBUNAL HAS COMMITTED ANY ERROR IN ITS ORDER DATED 12/01/2016. I FIND THAT AN ELABORATE DISCUSSION HAS BEEN MADE IN THE O RDER BY THE TRIBUNAL AND FURTHER IT IS NOTICED THAT THE FAC TUAL FINDING RECORDED BY THE ASSESSING OFFICER AND ALSO BY THE L D. COMMISSIONER OF INCOME TAX (APPEAL) HAS NOT BEEN CONTROVERTED BY THE ASSESSEE. 2.7. IN A LATEST DECISION BY THE HON'BLE JURISDICT IONAL HIGH COURT IN THE CASE OF M/S SHIRPUR GOLD REFINERY LTD. VS ITAT (WRIT PETITION NO.1227 OF 2016) ORDER DATED 27/07/2016, IN IDENTICAL SITUATION, THE HON'BLE HIG H 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 MA. NO.75/MUM/2016 (ARISING OUT OF ITA NO.1859/MUM/2015) M/S LAUREL WIRES LTD. 10 RECTIFY / RECALL THE ORDER DATED 4TH MARCH, 2015 PA SSED BY THE TRIBUNAL UNDER SECTION 254(1) OF THE ACT RELATING T O 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 COMMISSIONER OF INCOME TAX (APPEAL) FOR FRESH DETERMINATION WAS IN THE PRE SENT 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 IT BE FORE 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 ACCOUN TANT, WHO REPRESENTED THE PETITIONER AT THE HEARING OF THE RE GULAR 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 MERITS AT THE HEARING WHICH LED TO THE ORDER DATED 4TH MARCH, 201 5 WERE MADE ON BEHALF OF THE PETITIONER. THIS AFFIDAVIT WA S IN SUPPORT OF ITS CONTENTION THAT THE IMPUGNED ORDER IS NOT SU STAINABLE 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'' MA. NO.75/MUM/2016 (ARISING OUT OF ITA NO.1859/MUM/2015) M/S LAUREL WIRES LTD. 11 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 THAT THE PETI TION ITSELF DOES NOT EXPLAIN THE REASON FOR THE DELAY, THE 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, MAHARASHTRA - 425 405. THERE ARE ONLY 5 PERSONS IN THE ADMINISTRATIVE DEPA RTMENT OPERATING FROM THE CORPORATE OFFICE NAMELY MYSELF B EING SR. ACCOUNTS MANAGER; MR. NARESH BETKAT; SR. ACCOUNTS E XECUTIVE, MR. NAVNIT DORJI, JR. ACCOUNTS EXECUTIVE, MR. SHYAM JHA, JR. ACCOUNTS EXECUTIVE AND MR. RAJENDRA BHATI, JR. ACCO UNTS EXECUTIVE. MRS. ARCHITA KOTHARI IS THE CPO OF THE P ETITIONER COMPANY. I SAY THAT NEITHER THE CPO NOR THE 5 ADMIN S HAVE EVER DEALT WITH INCOME TAX WRIT PETITIONS IN THE PA ST' 5. 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 SCARCE RESOU RCES IN TERMS OF THE STAFF AVAILABLE. THUS THE DELAY. THIS CONTENTION MADE ACROSS THE BAR DOES NOT FIND PLACE EITHER IN T HE PETITION OR IN THE AFFIDAVIT. WE DIRECTED THE PETITIONER TO PRODUCE ITS LATEST ANNUAL REPORT. TODAY. DR. SHIVRAM, THE LEARN ED COUNSEL FOR THE PETITIONER PRODUCED THE 30TH ANNUAL REPORT FOR THE YEAR 2014-15. A PERUSAL OF THE SAME REVEALS A COMPL ETELY DIFFERENT PICTURE. IT IS TRUE THAT THE PETITIONER D OES NOT APPEAR MA. NO.75/MUM/2016 (ARISING OUT OF ITA NO.1859/MUM/2015) M/S LAUREL WIRES LTD. 12 TO HAVE A DESIGNATED MANAGING DIRECTOR OR WHOLE TIM E DIRECTOR BUT IT HAS A MANAGER APPOINTED UNDER SECTI ON 269 OF THE COMPANIES ACT, 1956. THEREFORE, SUCH A MANAGER IS EQUIVALENT TO ON WHOLE TIME OR MANAGING DIRECTOR WH OSE APPOINTMENT HAS BEEN APPROVED BY THE CENTRAL GOVERN MENT. THE AFFIDAVIT DOES NOT DISCLOSE THIS FACT, THUS SUG GESTING OTHERWISE. WE FURTHER NOTICE FROM THE ANNUAL REPORT PRODUCED THAT THE PETITIONER FOR THE YEAR ENDING 31 ST MARCH, 2015 HAS A TURNOVER OF RS.32,222 MILLIONS WITH A PR OFIT BEFORE TAX OF RS.216 MILLIONS AND AFTER TAX OF RS.154 MILL IONS. IT HAS OPERATIONS INTERNATIONALLY WITH 100% SUBSIDIARIES I N DUBAI AND SINGAPORE. THE ANNUAL REPORT ALSO REVEALS THAT DUN AND BRADSTREET CD & B) HAD RANKED THE PETITIONER COMPAN Y AS ONE AMONGST INDIA'S TOP 500 COMPANIES IN THE YEAR 2015 IT IS 358 IN TERMS OF TOTAL INCOME, 467 IN TERMS OF NET PROFI T AND 471 IN TERMS OF RETURN ON NET WEALTH. THE AFFIDAVIT IN REJ OINDER FILED BY THE PETITIONER AND THE SUBMISSIONS MADE ON THE C OMPANY 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 S TATIONED AT DHULE AND OTHER 5 PERSONS IN ADMINISTRATIVE DEPA RTMENT OF THE COMPANY. THEREFORE, THE DELAY. THE STATEMENTS M ADE IN THE AFFIDAVIT SEEKS TO PRESENT A PICTURE COMPLETELY DIFFERENT FROM THE FACTS AS ARE EVIDENT FROM THE ANNUAL REPOR T OF THE COMPANY FOR THE YEAR ENDING 2014-15 PRODUCED BY THE PETITIONER AT OUR INSTANCE. AN AFFIDAVIT IS A SWORN STATEMENT AND IT MUST REFLECT THE TRUE AND COMPLETE FACTS. IT MSUT NOT BE AN EXERCISE IN SUPPRESSIO VERY SUGGESTION FALSI. FU RTHER, WHEN A PARTY SEEKS TO EXERCISE THIS COURTS JURISDICTION THE LEAST THAT IS EXPECTED OF THE PETITIONER IS FULL AND TRUE DISC LOSURE. THE CONDUCT ON THE PART OF THE PETITIONER DISENTITLES T HE PETITIONER FROM ANY RELIEF UNDER ARTICLE 226 OF THE CONSTITUTI ON OF INDIA. MA. NO.75/MUM/2016 (ARISING OUT OF ITA NO.1859/MUM/2015) M/S LAUREL WIRES LTD. 13 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. PARTICULARLY WHE N THE SAME WAS NOT FILED BEFORE THE TRIBUNAL. THIS TO MOST UNF AIR TO THE MEMBERS OF THE TRIBUNAL. AT THE TIME OF RECTIFICATI ON APPLICATION WAS BEING HEARD, THE NECESSARY EVIDENCE INCLUDING THE AFFIDAVIT COULD HAVE BEEN FILED BEFORE THE MEMB ERS OF THE TRIBUNAL. IN THE VIEW WE HAVE TAKEN, IT IS NOT NEC ESSARY TO GO INTO THE MERITS OF THE AFFIDAVIT FILED BY THE CHART ERED ACCOUNTANT AS A PART OF THIS PETITION. 9. ACCORDINGLY, THE WRIT PETITION IS DISMISSED. 2.8. IN CIT VS. ITAT & ORS. (2006) 195 TAXATION 288 (DEL.) IT HAS BEEN HELD VIDE PARA 7, PAGE 291 & 292 AS UNDER: THAT BEING THE LEGAL POSITION, THE TRIBUNAL WAS NO T IN OUR OPINION JUSTIFIED IN RECALLING THE ORDER PSSSED 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 SECT ION 254(2) OF THE ACT. MORE IMPORTANTLY JUST BECAUSE A POINT IS DEBATABLE (WHICH IS ONE OF THE REASONS GIVEN BY THE TRIBUNAL IN THE INSTANT CASE) COULD HARDLY PROVIDE 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 MA. NO.75/MUM/2016 (ARISING OUT OF ITA NO.1859/MUM/2015) M/S LAUREL WIRES LTD. 14 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 JUSTIFY THE ORDER OF RECALL MADE BY THE TRIBUNAL. 2.9. 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 O N THE FACE OF THE RECORD. 2.10. I HAVE HEARD THE MISCELLANEOUS APPLICATION O F THE ASSESSEE WITH OPEN MIND BUT I AM NOT CONVINCED WITH THE REASONING OF THE ASSESSEE BECAUSE THE ASSESSEE, THR OUGH THIS APPLICATION IS MERELY TRYING TO GET THE ORDER REVIE WED, WHICH MA. NO.75/MUM/2016 (ARISING OUT OF ITA NO.1859/MUM/2015) M/S LAUREL WIRES LTD. 15 IS NOT PERMISSIBLE U/S 254(2) OF THE ACT. EVEN OTHE RWISE, ONLY ARITHMETICAL ERROR OR OF LIKE NATURE CAN ONLY BE RE CTIFIED. HOWEVER, NO SUCH MISTAKE IS FOUND IN THE ORDER OF T HE TRIBUNAL, THEREFORE, I FIND NO MERIT IN THE CONTENT ION OF THE ASSESSEE. 2.11. WHILE DEALING WITH MISCELLANEOUS APPLICATION U/S 254(2) OF THE ACT, ONLY ARITHMETICAL, GRAMMATICAL O R MISTAKE OF LIKE NATURE, IF ANY, CAN ONLY BE RECTIFIED AND N OT WHICH CAN BE DRAWN BY A LONG PROCESS OF ARGUMENT/REASONING LE ADING TO CONTRARY DECISION. MY VIEW FIND SUPPORTS FROM VARI OUS DECISIONS FROM HONBLE APEX COURT AND HONBLE HIGH COURTS, THAT THE TRIBUNAL CANNOT REVIEW ITS EARLIER ORDER B UT ONLY CAN RECTIFY MISTAKE, IF ANY, WHICH IS APPARENT FROM REC ORD. THE SCOPE AND AMBIT OF APPLICATION U/S 254(2) OF THE AC T IS VERY LIMITED AND MERITS OF THE CASE CANNOT BE GONE INTO, THEREFORE, I FIND NO MISTAKE IN THE ORDER OF THE TRIBUNAL. THE RATIO LAID DOWN IN FOLLOWING CASES SUPPORTS MY 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, F) JAIN DHARMSHALA CHARITABLE TRUST VS CIT 121 CTR (DE L.) 86, G) CIT VS ITAT 206 ITR 126 (AP), MA. NO.75/MUM/2016 (ARISING OUT OF ITA NO.1859/MUM/2015) M/S LAUREL WIRES LTD. 16 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.), 2.12. IN VIEW OF THE FACTUAL MATRIX, CASES DISCUSS ED 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) 293 ITR 118 (DEL.), HONBLE M.P. HIGH COURT IN CIT VS K.D. WIRE S 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.), CIT VS M CDOWELL & COMPANY LTD. (2009) 310 ITR 215 (KARN.), CIT VS PEA RL WOOLEN MILLS (2011) 330 ITR 164 (P & H), DHOLADHAR INVESTMENT PVT. LTD. VS CIT (2014) 362 ITR 111 (DEL .), RAJENDRA PRASAD BORAH VS ITAT (2008) 302 ITR 243 (G UWAH.) AND CIT VS FIVE STAR MARINE EXPORT PVT. LTD. (2010) 322 ITR 218 (MAD.), CIT VS TATA IRON & STEEL COMPANY LTD. ( 2001) 248 ITR 190, 192 (BOM.), J.M. SAHNI VS ITAT 257 ITR 16 (DEL.), KARAN & COMPANY VS ITAT 253 ITR 131 (DEL.). THE RA TIO LAID DOWN BY THE TRIBUNAL IN BRIJMOHAN SAGARMAL CAPITAL SERVICES PVT. LTD. (MA NO.217/MUM/2015), ORDER DATED 18/01/2 016, SUPPORTS MY VIEW. THUS, IN VIEW OF THE CLEAR FACTS AND THE MA. NO.75/MUM/2016 (ARISING OUT OF ITA NO.1859/MUM/2015) M/S LAUREL WIRES LTD. 17 JUDICIAL PRONOUNCEMENTS DISCUSSED, HEREINABOVE, I F IND NO ERROR IN THE ORDER OF THE TRIBUNAL. THROUGH THIS AP PLICATION THE ASSESSEE IS TRYING TO GET THE ORDER RECALLED, W HICH IS NOT PERMISSIBLE U/S 254(2) OF THE ACT. RESPECTFULLY FOL LOWING THE RATIO OF THE ABOVE DECISIONS, I AM OF THE VIEW THAT THERE IS NO MISTAKE IN THE ORDER PASSED BY THE TRIBUNAL. ACCORD INGLY, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS REJECTED. FINALLY, THE MISCELLANEOUS APPLICATION OF THE ASSES SEE IS DISMISSED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN TH E PRESENCE OF LD. REPRESENTATIVE FROM BOTH SIDES AT T HE CONCLUSION OF THE HEARING ON 19/08/2016. SD/- (JOGINDER SINGH) !' / JUDICIAL MEMBER MUMBAI; DATED : 19/08/2016 F{X~{T? P.S / ! &($)!*+,&+-* / COPY OF THE ORDER FORWARDED TO : 1. '#$%& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. )) * ( '#$ ) / THE CIT, MUMBAI. 4. )) * / CIT(A)- , MUMBAI 5. -./' , )'#$' 1 , / DR, ITAT, MUMBAI 6. /23$ / GUARD FILE. &( / BY ORDER, (-#' //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI MA. NO.75/MUM/2016 (ARISING OUT OF ITA NO.1859/MUM/2015) M/S LAUREL WIRES LTD. 18 DATE INITIAL THIS ORDER WAS DIRECTLY DICTATED ON COMPUTER TO ME BY THE HONBLE JUDICIAL MEMBER 1. DRAFT DICTATED ON 18/08/16 TO 19/08/16 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 19/08/16 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS 6. DATE OF PRONOUNCEMENT SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER