BOMBAY MUDIBAZAR KARIANA MERCHANTS ASSOCIATION, V. ITO 10(3)4,

MA 772/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0631 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-06-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 26-12-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MOHIT JAIN SR
• Assessee Lawyers: S C TIWARI
• Keywords: Earning of tax free income
• Section: 14A

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL MUMBAI - B BENCH MUMBAI . . . . , !' !' !' !' / # # # # $%&' $%&' $%&' $%&', ,, ,% %% % )* )* )* )* BEFORE S/SH. D.MANMOHAN,VICE PRESIDENT & RAJENDRA,ACCOUNTANT MEMBER M.A. NO.772/M/2012 (ARISING OUT OF ITA NO. 2672/ MUM/ 2011 )AY . .. . 2008-09 M/S.BOMBAY MUDIBAZAR KARIANA MERCHANTS ASSOCIATION, C64, APMI -PHASE II, SECTOR 19, VASHI TURBHE,NAVI MUMBAI 400 703 VS. INCOME TAX OFFICER 10(3)(4), MUMBAI. *+ % *+ % *+ % *+ % . .. . / PAN: AACCB8702B ( +, / APPELLANT) ( -.+, / RESPONDENT) +, +, +, +, / // / 0 0 0 0 % %% % / ASSESSEE BY : SH.S.C TIWARI -.+, / 0 % /RESPONDENT BY : SHRI MOHIT JAIN (SR. AR) / // / 1 1 1 1 / DATE OF HEARING : 1 4 .06.2013 23 / 1 / DATE OF PRONOUNCEMENT :19 .06.2013 , 1961 / // / 2 254 % %% % &141 &141 &141 &141 )%5 )%5 )%5 )%5 ORDER U/S.254OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,A.M: VIDE ITS APPLICATION,FILED ON 26.12.2012,ASSESSEE H AS SUBMITTED THAT THERE WERE MISTAKES APPARENT FROM THE ORDER OF THE TRIBUNAL ORDER DTD.1 6.11.2012 AND SAME SHOULD BE RECTIFIED U/S.254(2) OF THE ACT.ASSESSE HAS MENTIONED THAT DU RING THE COURSE OF HEARING BEFORE THE TRIBUNAL, IT WAS SUBMITTED THAT THE COMPUTATION OF INCOME/LOSS BY THE ASSESSING OFFICER(AO)WAS CONTRARY TO THE PROVISIONS OF INCOME-TAX ACT,THAT THE ASSESS ES HAS MAINTAINED AND SUBMITTED A CONSOLIDATED INCOME AND EXPENDITURE ACCOUNT,THAT THE AO MISDIRECTED HIMSELF IN LAW IN ATTRIBUTING THE ENTIRE EXPENDITURE AGAINST T HE SO-CALLED EXEMPT INCOME AND ASSESSING INTEREST INCOME ON GROSS BASIS WITHOUT DEDUCTION OF ANY EXPENDITURE,THAT PROVISIONS OF SECTION 14A REQUIRED AND LAID DOWN SPECIFIC METHOD OF ATTRIBUTING AND DISALLOWING THE EXPENSES IN RELATION TO AN EXEMPT INCOME, THAT THE ABOVE PRINCIPAL SUBMISSION MADE ON BEHALF OF T HE APPELLANT DURING THE COURSE OF HEARING HAD NEITHER BEEN MENTIONED NOR HAD BEEN CONSIDERED IN THE ORDER OF THE TRIBUNAL, THAT IT WAS A MISTAKE A PPARENT FROM RECORD,THAT THERE WAS INHERENT CONTRADICTION IN THE ORDER OF THE TRIBUNAL, THAT IN RELATION TO GROUND OF APPEAL NO.1TRIBUNAL HAD RESTORED THE MATTER BACK TO THE FILE OF THE AO FOR DECIDING UPON MUTUAL AS WELL AS NON-MUTUAL ACTIVITIES, THAT GROUND NO.2 WAS DECIDED ON THE ASS UMPTION THAT THERE WAS LOSS ARISING FROM THE SOURCE OF INCOME ALTOGETHER EXEMPTED FROM TAX, THAT IN VIEW OF THE QUESTION OF EXEMPTION OF INCOME HAVING BEEN SENT BACK TO THE AO FOR DECISION AFRESH,THE ISSUE OF SET-OFF OF SO-CALLED LOSS ARISING DID NOT SURVIVE. 2 M.A.NO.772/MUM/2012 2. BEFORE US,AUTHORISED REPRESENTATIVE(AR) SUBMITTED T HAT THERE WERE MISTAKES IN THE ORDER PASSED BY THE TRIBUNAL,THAT BY NOT REMANDING BACK T HE GROUND NO.2 TO THE FILE OF AO ITAT HAD COMMITTED AN ERROR,THAT SUBMISSION OF SECTION 14A W AS NOT MENTIONED BY THE TRIBUNAL,THAT ORDER SHOULD BE RECTIFIED/MODIFIED ACCORDINGLY.DEPARTMENT AL REPRESENTATIVE (DR) SUBMITTED THAT THERE WAS NO MISTAKE IN THE ORDER DATED 16.11.2012. 2.1. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD.WE FIND THAT IN THE APPEAL FILED BEFORE THE TRIBUNAL,ASSESSEE HAD RAISE D TWO GROUNDS.WHILE DISPOSING OFF THE GROUND NO.1TRIBUNAL HAD MENTIONED THAT AR OF THE ASSESSEE HAD SUBMITTED THAT SUBMITTED THAT INTEREST PAID HAD TO BE ADJUSTED AGAINST INTEREST RECEIVED,T HAT EXEMPT INCOME SHOULD BE TAKEN OUT, THAT IF SUBSCRIPTION IS EXEMPT THEN PROVISIONS OF SECTION 1 4A WOULD BE APPLICABLE, THAT AO HAD NOT WORKED THE DISALLOWANCE CORRECTLY.WHILE DISCUSSING THE SUBMISSIONS IT WAS MENTIONED THAT DR SUBMITTED THAT SECTION 14A WAS NOT APPLICABLE.THUS, WE HAD TAKEN NOTE OF THE SUBMISSIONS MADE BY THE ASSESSEE AND THE DR WITH REGARD TO SECTION 1 4 A OF THE ACT.AFTER CONSIDERING THE SUBMISSI -ONS OF BOTH THE PARTIES WE HAD ARRIVED AT SOME CON CLUSION.IN OUR OPINION SUCH CONCLUSION CANNOT BE TERMED MISTAKE APPARENT FROM RECORD.IT IS NOT THE CASE OF THE ASSESSEE THAT WE HAVE NOT CONSID -ERED ANY JUDGMENT DELIVERED BY THE HONBLE JURISDICTIONAL HIGH COURT OR SUPREME COURT RELIED BY THE ASSESSEE.THUS, ON THIS COUNT ALSO NO MISTAKE IS APPARENT FROM THE RECORD,AS ENVISAGED BY THE SECTION 245(2)OF THE ACT. 2.2. IN OUR HUMBLE OPINION MISTAKE APPARENT FROM RECORD AS PER THE PROVISIONS OF SECTION 254(2) HAS A SPECIAL MEANING AND DEFINITE CONNOTATION.AS P ER THE SETTLED PRINCIPLE OF TAXATION JURISPRUDE -NCE A PATENT, MANIFEST AND SELF-EVIDENT ERROR WHIC H DOES NOT REQUIRE ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENTS TO ESTABLISH IT, CAN BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORD AND CAN BE CORRECTED WHILE APPLYING PROVISIO NS OF SECTION 254(2) OF THE ACT.IN OTHER WORDS AN ERROR CANNOT BE SAID TO BE APPARENT ON THE FACE OF THE RECORD,IF ONE HAD TO TRAVEL BEYOND THE RECORD TO SEE WHETHER THE JUDGMENT WAS CORRECT OR NOT ?AN ERROR APPARENT ON THE RECORD MEANS AN ERROR WHICH STRIKES ON MERE LOOKING AND DO ES NOT NEED A LONG DRAWN OUT PROCESS OF REASONING ON POINTS ON WHICH THERE MIGHT BE CONCEIV ABLY TWO OPINIONS.IT IS ALSO SAID THAT IF THE VIEW ACCEPTED BY THE TRIBUNAL IN THE ORIGINAL JUDGM ENT IS ONE OF POSSIBLE VIEWS, THE MATTER CANNOT BE RECTIFIED U/S. 254 (2)OF THE ACT. NOW,IF THE CASE OF THE ASSESSEE IS TESTED ON THE TO UCHSTONE OF THE ABOVE REFERRED PARAMETERS IT IS EVIDENT THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD. IN OUR OPINION.BY A LONG DRAWN PROCESS OF REASONING,ASSESSEE WANTS US TO REVIEW TH E ORDER OF 16 TH NOVEMBER, 2012. BUT,WE ARE OF THE OPINION THAT IT IS NOT PERMISSIBLE AS PER TH E PROVISIONS OF SECTION 254(2) OF THE ACT. HERE,WE WOULD ALSO LIKE TO DISCUSS THE SCOPE OF THE RECTIFICATION PROVISIONS I.E. SECTION 254(2) OF THE ACT. WE ARE OF THE OPINION UNDER THESE PROVISIO NS,IT IS NOT PERMISSIBLE FOR THE PETITIONER TO CONTEND THAT THE APPELLATE ORDER WAS VITIATED ON TH E GROUND THAT THE TRIBUNAL FAILED TO DISCUSS ALL THE CONTENTIONS RAISED BY COUNSEL BEFORE IT AND TO GIVE REASONS FOR COMING TO THE CONCLUSION WHICH IT DID. IF ASSESSEE FINDS AN ORDER DEFECTIVE ON THIS GROUND, THE REMEDY LAY ELSEWHERE,AND NOT BY WAY OF A MISCELLANEOUS APPLICATION. IN OUR O PINION,TRIBUNAL IS A CREATURE OF THE STATUTE AND IT IS NOT BEEN VESTED WITH THE REVIEW JURISDICT ION.IN OTHER WORDS,IT DOES NOT HAVE ANY POWER TO REVIEW ITS ORDERS.WHAT ASSESSEE DESIRES,IN THE C ASE UNDER CONSIDERATION, IS REVIEW OF THE ORDER PASSED ON 16. 11.2012.AS PER THE HONBLE MUMBAI HIG H COURT,THE POWER OF RECTIFICATION AVAILABLE TO THE TRIBUNAL U/S.254(2) OF THE ACT,CAN NOT BE EXERCISED ON FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR A RRIVING AT A CONCLUSION ,BECAUSE IT IS AN ERROR OF JUDGMENT AND NOT AN ERROR APPARENT ON THE RECORD .(203ITR497AND 323ITR577). WE ARE,THEREFORE, OF THE VIEW THAT THE MISCELLANEOU S APPLICATION FILED BY THE ASSESSEE IS WITHOUT ANY MERIT AND SAME IS LIABLE TO BE DISMISSED-IT DOE S NOT DISCLOSE ANY APPARENT ERROR IN THE ORDER OF THE TRIBUNAL. 3 M.A.NO.772/MUM/2012 IN THE RESULT,MISCELLANEOUS APPLICATION FILED BY TH E ASSESSEE STANDS DISMISSED. 6 17 61 8 ) 9 : 4 ;; )% $< : $ 1 = . ORDER PRONOUNCED IN THE OPEN COURT ON 19 TH JUNE,2013 . )%5 / 23 % & > :) 19 $< , 2013 / 4 C SD/- SD/- ( . /D.MANMOHAN) ( $%&' / RAJENDRA) !' / VICE PRESIDENT % )* /ACCOUNTANT MEMBER) / MUMBAI, :) / DATE 19 TH JUNE,2013 )%5 )%5 )%5 )%5 / // / -1; -1; -1; -1; D%;31 D%;31 D%;31 D%;31 / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / +, 2. RESPONDENT / -.+, 3. THE CONCERNED CIT (A) / E F 4. THE CONCERNED CIT / E F 5.DR B BENCH, ITAT, MUMBAI/ ;G 4 -1 , . . & . 6. GUARD FILE/ 4 H . ;1 -1 //TRUE COPY// )%5 / BY ORDER, / $ DY./ASST. REGISTRAR , /ITAT, MUMBAI