MSM DISCOVERY P.LTD, MUMBAI V. ASST CIT CEN CIR 12(3)(2), MUMBAI

MA 769/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6433 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-04-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: K
• Assessment Year: 2011-2012
• Appeal Filed On: 05-10-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SAURABH DESHPANDE
• Assessee Lawyers: P PARDIWALA

Judgement Text

1 , INCOME-TAX APPELLATE TRIBUNAL -KBENCH MUMBAI , , , BEFORE S/SHRI RAJENDRA,ACCOUNTANT MEMBER AND SAKTIJ IT DEY,JUDICIAL MEMBER / MA NO.769/MUM/2017 (ARISING OUT OF / ITA NO.971/MUM/2016) /ASSESSMENT YEAR-2011-12 MSM DISCOVERY PVT. LTD. INTERFACE BUILDING NO.7 4TH FLOOR, MALAD LINK ROAD, MALAD WEST MUMBAI-400 064. PAN:AAGCS 4253 E VS. THE ACIT, CENTRAL CIRCLE-12(3)(2) ROOM NO.147B, 1ST FLOOR, AAYAKAR BHAVAN MAHARSHI KARVE ROAD, CHURCHGATE MUMBAI-400 020. ( /APPLICANT ) ( / RESPONDENT ) REVENUE BY: SHRI SAURABH DESHPANDE ASSESSEE BY: SHRI P. PARDIWALA / DATE OF HEARING: 13/04/2018 / DATE OF PRONOUNCEMENT: 13/04/2018 /ORDER , / PER RAJENDRA A.M. - VIDE ITS APPLICATION,DATED 05/10/2017, THE ASSESSEE HAS STATED THAT THERE WERE CERTAIN MISTAKES IN THE ORDER OF THE TRIBUNAL DATED 11/01/2017, THAT SA ME WERE TO BE RECTIFIED AS PER THE PROVISIONS OF SECTION 254 (2) OF THE ACT,THAT IN THE APPEAL FILED BY IT THE ASSESSEE HAD RAISED CERTAIN ISSUE WITH REGARD TO DIRECTIONS OF THE DISPUTE RESOLUTION PANE L (DRP). 2. DURING THE COURSE OF HEARING BEFORE US, THE AUTHOR ISED REPRESENTATIVE(AR) NARRATED THE FACTS OF THE CASE AND STATED THAT IT WAS ARGUED THAT PAYM ENT IN QUESTION COULD NOT CONSIDERED ROYALTY, THAT THE TRIBUNAL HAD RECORDED ALL THE ARGUMENTS AD VANCED AS THE TIME OF HEARING, THAT CASES REFERRED BY THE ASSESSEE WERE ALSO MENTIONED IN THE ORDER, THAT THE TRIBUNAL DID NOT DEAL WITH THE ARGUMENT PERTAINING TO ROYALTY. THE DEPARTMENTAL RE PRESENTATIVE (DR) STATED THAT TRIBUNAL HAD PASSED A SPEAKING ORDER, THAT THERE WAS NO MISTAKE IN THE ORDER OF THE TRIBUNAL, THAT ASSESSEE COULD RAISE ALL THE ISSUES BEFORE THE DEPARTMENTAL AUTHORITIES. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND THAT T HE TRIBUNAL HAS DECIDED ALL THE GROUNDS OF APPEAL AS WELL AS THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE, THAT ASSESSEE HAD MADE CERTAIN SUBMISSIONS IN SUPPORT OF THE GROUNDS OF APPEAL FIL ED BY IT, THAT ONE OF THE ARGUMENT WAS ABOUT 2 CHARACTERISATION OF THE RECEIPT, THAT THE TRIBUNAL HAD RESTORED BACK THE ISSUE TO THE FILE OF THE DEPARTMENTAL AUTHORITIES FOR FRESH ADJUDICATION, TH AT IT HAD DIRECTED THAT THE ASSESSEE SHOULD BE GIVEN AN OPPORTUNITY OF PROPER HEARING. IN OUR OPIN ION, THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL AS THE ASSESSEE CAN RAISE ALL THE ISSUES B EFORE THE APPROPRIATE AUTHORITY. THERE IS NO BAR IN MAKING SUBMISSIONS, INCLUDING THE NATURE OF THE PAY MENT I.E. ROYALTY BEFORE THE DEPARTMENTAL AUTHORITIES.THE ASSESSEE WANTS US TO REVIEW OUR ORD ER VIA THE APPLICATION FILED BY IT. THE PROVISIONS OF SECTION 254 (2) DO NOT PERMIT THE REV IEW.HERE,WE WOULD LIKE TO REFER TO THE CASE OF RAMESH ELECTRICAL COMPANY LTD. (203 ITR 497), DELIV ERED BY THE HONORABLE DIVISION HIGH COURT. WE ARE REPRODUCING THE RELEVANT PORTION OF T HE JUDGMENT AND SAME READS AS UNDER: UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961, T HE APPELLATE TRIBUNAL MAY, 'WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD', A MEND ANY ORDER PASSED BY IT UNDER SUB- SECTION (1) WITHIN THE TIME PRESCRIBED THEREIN. IT IS AN ACCEPTED POSITION THAT THE APPELLATE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER THE PROVISIONS OF THE ACT. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO RECTI FY ANY MISTAKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD. THIS IS MERELY A POWER OF AMENDING ITS ORDER. THE POWER OF RECTIFICATION UNDER SECTION 254(2) 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. FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD, ( EMPHASIS BY US )ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE TRIBU NAL CANNOT, IN THE EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO S OME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION. IN THE CASE UNDER CONSIDERATION, THERE IS NO FAILUR E TO CONSIDER THE ARGUMENTS ADVANCED BY THE PARTY. THE TRIBUNAL AFTER CONSIDERING THE PECULIAR FACTS AND CIRCUMSTANCES OF THE CASE HAS RESTORED BACK THE ISSUE FOR FRESH ADJUDICATION AND HAS DIREC TED THE DEPARTMENTAL AUTHORITIES TO AFFORD A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THEREFORE, IN OUR OPINION, THERE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL. HENCE REJECT THE PLAY ER MADE BY THE ASSESSEE. AS A RESULT, MISCELLANEOUS APPLICA TION FILED BY THE ASSESSEE STANDS DISMISSED. . ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH APRIL , 2018. 13 , 2018 SD/- SD/ - ( / SAKTIJIT DEY ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; /DATED :13/04/2018. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 3 5. DR K BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.