MANOJ B. MANDAVIA, MUMBAI V. INCOME TAX OFFICER 26(1)(3), MUMBAI

MA 790/MUM/2017

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 2701 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 16-10-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITTAL
• Assessee Lawyers: JITENDRA SINGH
• Keywords: Additional evidence
• Section: 142(1); 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C MUMBAI BEFORE SHRI JOGINDER SINGH (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) M.A. NO. 790/MUM/2017 (ITA NO. 4414/MUM/2015) ASSESSMENT YEAR: 2010 - 11 MR. MANOJ B. MANDAVIA BLDG. NO. 32, ROOM NO. 802 PRAKASH GHAD, D.N. NAGAR ANDHERI WEST MUMBAI - 400058 VS. ITO 26(1)(3) INCOME TAX OFFICE, C - 12 BANDRA KURLA COMPLEX BANDRA MUMBAI - 400051. PAN NO. AFYPM2474B APPELLANT RESPONDENT ASSESSEE BY : MR. JITENDRA SINGH, AR REVENUE BY : MR. RAJAT MITTAL, DR DATE OF HEARING : 20/07/2018 DATE OF PRONOUNCEMENT : 12/10/2018 ORDER PER N.K. PRADHAN, AM BY MEANS OF THIS MISCELLANEOUS APPLICATION (MA), THE APPLICANT SEEKS RECALL OF THE ORDER DATED 28.07.2017 PASSED BY THE ITAT C BENCH MUMBAI (ITA NO. 4414/MUM/2015) FOR THE ASSESSMENT YEAR (AY) 2010 - 11. IN PART - I ,HERE - IN - BELOW, WE MENTION THE CONTENTIONS OF THE LD. COUNSEL OF THE APPLICANT, IN PART - II, THE SUBMISSIONS OF THE LD. DR AND IN PART - III, THE REASONS FOR OUR DECISION. I 2. THE CONTENTIONS OF THE LD. COUNSEL FOLLOW THE WRITTEN SUBMISSION DATED 26.09.2017 FILED BY THE APPLICANT BEFORE THE TRIBUNAL. THEREFORE, WE REFER BELOW THE SAID WRITTEN SUBMISSION. MR. MANOJ B. MANDAVIA M.A. NO. 790/MUM/2017 2 THE APPLICANT SUBMITS THAT WHILE REJECTING THE APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE, THE TRIBUNAL HAS NOT CONSIDERED THE VITAL FACT THAT THE COPY OF SUIT WAS OBTAINED BY HIM ONLY ON 13.04.2017 AND THE SAME WAS FURNISHED BEFORE THE TRIBUNAL ON 27.04.2017. THUS THE SAME COULD NOT HAVE BEEN FURNISHED BEFORE THE LOWER A UTHORITIES, AS THE SAME WAS NOT AVAILABLE WITH HIM . THUS IT IS STATED THAT NON - CONSIDERATION OF VITAL DOCUMENTS WHILE PASSING THE IMPUGNED ORDER AMOUNTS TO MISTAKE APPARENT FROM RECORD WHICH MAY BE RECTIFIED U/S 254(1) OF THE ACT. IT IS ALSO SUBMITTED THA T DURING THE COURSE OF HEARING BEFORE THE BENCH, AFTER CONSIDERING THE RELEVANT MATERIALS FURNISHED BEFORE IT IN THE FORM OF ADDITIONAL EVIDENCE, IT WAS ORALLY PRONOUNCED IN THE OPEN C OURT THAT THE MATTER IS SET ASIDE TO THE FILE OF THE AO FOR DECIDING THE ISSUE AFTER CONSIDERING THE EVIDENCE FURNISHED. THUS IT IS STATED THAT REJECTING THE ADDITIONAL EVIDENCE FURNISHED BY THE APPLICANT IS WITHOUT ANY BASIS AND THE SAME AMOUNTS TO MISTAKE APPARENT ON RECORD, RECTIFIABLE U/S 254(1) OF THE ACT. RELYING ON THE DECISION IN THE CASE OF HONDA SIEL POWER PROD UCTS LTD. V. CIT (2007) 295 ITR, THE APPLICANT WANTS THAT THE TRIBUNAL MAY SET ASIDE THE IMPUGNED ORDER AND GIVE RELIEF AS IT DEEMS FIT. II 3. ON THE OTHER HAND, THE LD. DR SUBMITS THAT THE SAID SUIT WAS FILED IN THE COURT 16.01.2012. THE APPLICANT COULD HAVE FILED IT BEFORE THE AO OR THE LD. CIT(A). AS HE FAILED TO DO SO, THE LD. DR SUBMITS THAT THE TRIBUNAL HAS RIGHTLY DISMISSED THE APPEAL VIDE ITS ORDER DATED 28.07.2017. AS THERE IS NO MISTAKE APPARENT FROM R ECORD, THE LD. DR SUBMITS THAT THE PRESENT MA FILED BY THE APPLICANT BE DISMISSED. MR. MANOJ B. MANDAVIA M.A. NO. 790/MUM/2017 3 III 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. THE POINT RAISED BY THE APPLICANT HEREIN IS THE COPY OF SUIT FILED BY HIM AND ITS R EJECTION BY THE TRIBUNAL FOR ADMISSION AS ADDITIONAL EVIDENCE. IT IS CRYSTAL CLEAR THAT THE SUIT WAS FILED IN THE COURT ON 16.01.2012. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER (AO) HAD ISSUED NOTICE U/S 142(1) TO THE ASSESSEE ON 1 6.01.2013 AND IT WAS SERVED ON 28.01.2013. THERE WAS NO COMPLIANCE BY THE ASSESSEE. THE AO COMPLETED THE ASSESSMENT ON 28.03.2013. IT IS FOUND THAT THE ASSESSEE APPEARED BEFORE THE LD. CIT(A) DURING THE COURSE OF APPELLATE PROCEEDINGS. WE FIND THAT THE ASS ESSEE WAS GIVEN SUFFICIENT OPPORTUNITY BY THE LD. CIT(A) TO EXPLAIN HIS CASE. THE APPELLATE ORDER WAS PASSED BY THE LD. CIT(A) ON 19.03.2015. THE A SSESSEE COULD HAVE PRODUCED A COPY OF THE SAID SUIT BEFORE THE AO OR THE LD. CIT(A). HE FAILED TO DO SO. THE APPLICANT HAS NOT FILED EVIDENCE TO INDICATE THAT A COPY OF THE ABOVE WAS NOT AVAILABLE WITH HIM DURING THE ASSESSMENT PROCEEDINGS BEFORE THE AO AND/OR THE APPELLATE PROCEEDINGS BEFORE THE LD. CIT(A). WE HAVE OBSERVED AT PARA 8.1 OF THE IMPUGNED ORDER THAT THE MERE FACT THAT THE EVIDENCE SOUGHT TO BE PRODUCED IS VITAL AND IMPORTANT DOES NOT PROVIDE A SUBSTANTIAL CAUSE TO ALLOW ITS ADMISSION AT THE APPELLATE STAGE ESPECIALLY WHEN THE EVIDENCE WAS AVAILABLE TO THE PARTY AT THE INITIAL STAGE AND WAS NOT PRODUC ED BY HIM. IN THIS REGARD, RELIANCE HAS BEEN PLACED BY US ON THE DECISION IN VELJI DEORAJ & CO. VS. CIT (1968)68 ITR 708 713 - 14 (BOM) CF. DESHAV MILLS LTD. VS. CIT (1965) 56 ITR 365, 381 (SC); UNION OF INDIA VS. ANGRUP THAKAR, AIR 1969 DEL 279; SWASTIK OIL MILLS LTD. VS. H.B. MUNSHI (1968) 21 STC 383 (SC); STATE OF ANDHRA PRADESH VS. HYDERABAD ASBESTOS CEMENT PRODUCTION LTD. (1994) 94 STC 410, 417 - 18 (SC). MR. MANOJ B. MANDAVIA M.A. NO. 790/MUM/2017 4 4.1 THE IMPUGNED ORDER HAS BEEN PASSED BY THE BENCH AFTER HEARING THE RIVAL SUBMISSIONS AND PERUSING THE RELEVANT MATERIALS ON RECORD. IT HAS BEEN MENTIONED AT PARA 8 OF THE IMPUGNED ORDER. IN COCA - COLA INDIA PVT. LTD. V. ASSISTANT REGISTRAR REPRESENTING THE I TAT AND ORS. (WP NO. 3650 OF 2014), I T HAS BEEN HELD BY THE HONBLE BOMBAY HIGH COURT VIDE ORDER DATED 14.08.2014 THAT : A BLANKET REMAND CAUSES SERIOUS PREJUDICE TO PARTIES. NONE BENEFITS BY NON ADJUDICATION OR NON CONSIDERATION OF AN ISSUE OF FACT AND L AW BY AN APPELLATE AUTHORITY AND BY WHOLESALE REMAND OF THE CASE BACK TO THE ORIGINAL AUTHORITY. THIS IS A CLEAR FAILURE OF DUTY WHICH HAS TO BE PERFORMED BY THE APPELLATE AUTHORITY IN LAW. 4.2 IN HONDA SIEL POWER PRODUCTS LTD . (SUPRA), IT IS HELD THAT ON E OF THE IMPORTANT REASONS FOR GIVING THE POWER OF RECTIFICATION TO THE TRIBUNAL U/S 254(2) WAS TO SEE THAT NO PREJUDICE WAS CAUSED TO EITHER OF THE PARTIES APPEARING BEFORE IT; THE RULE PRECEDENT WAS AN IMPORTANT ASPECT OF CERTAINTY IN THE RULE OF LAW, AN D PREJUDICE HAD RESULTED TO THE ASSESSEE SINCE THE PRECEDENT HAD NOT BEEN CONSIDERED BY THE TRIBUNAL AND THEREFORE, THE TRIBUNAL WAS JUSTIFIED IN RECTIFYING THE MISTAKE ON RECORD. THIS IS NOT SO IN THE INSTANT CASE AS EVIDENT FROM THE FACTS DELINEATED AT P ARA 4 HEREINBEFORE. THEREFORE, THE PRESENT CASE IS DISTINGUISHABLE FROM THE ABOVE DECISION RELIED ON BY THE APPLICANT. 4.3 A PERUSAL OF THE ABOVE FACTS CLEARLY INDICATE THAT THE APPLICANT HAS NOT POINTED OUT ANY MISTAKE APPARENT FROM THE RECORD. A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE AP PARENT FROM THE RECORD. THIS VIEW IS SUPPORTED BY THE DECISION OF THE HONBLE SUPREME COURT IN MR. MANOJ B. MANDAVIA M.A. NO. 790/MUM/2017 5 T.S. BALARAM, ITO V. VOLKART BROS ., (1971) 82 ITR 50 (SC), MASTER CONSTRUCTION CO. P. LTD. V. STATE OF ORISSA , AIR 1966 SC 1047, KARAM CHAND THAPAR & BROS. (COAL SALES) LTD. V. STATE OF U.P. (1976) TAX LR 1921, 1927 (SC) AND CCE V. ASCU LTD ., (2003) 9 SCC 230, 232. IN FACT, NOT A SINGLE ERROR IN THE IMPUGNED ORDER HAS BEEN POINTED OUT BY THE APPLICANT. WHAT THE APPLICANT WANTS IS A REVIEW OF THE ORDER PASSED BY TH E TRIBUNAL. THE TRIBUNAL IS A CREATURE OF THE STATUTE. THE TRIBUNAL CANNOT REVIEW ITS OWN DECISION UNLESS IT IS PERMITTED TO DO SO BY THE STATUTE. THE HONBLE SUPREME COURT HAS HELD IN PATEL NARSHI THAKERSHI V. PRADYUMANSINGHJI ARJUNSINGHJI [AIR 1970 SC 12 73] THAT THE POWER TO REVIEW IS NOT AN INHERENT POWER. IT MUST BE CONFERRED BY LAW EITHER SPECIFICALLY OR BY NECESSARY IMPLICATION. IT IS A SETTLED LAW THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER IN THE GARB OF SECTION 254(2) OF THE ACT AS HELD IN C IT V. GLOBE TRANSPORT CORPN. [1992] 195 ITR 311 (RAJ) (HC), CIT V. ROOP NARAIN SARDAR MAL [2004] 267 ITR 601 (RAJ) (HC), CIT V. DEVILAL SONI [2004] 271 ITR 566 (RAJ) (HC), JAINARAIN JEEVRAJ V. CIT [1980] 121 ITR 358 (RAJ.) (HC), PRAJATANTRA PRACHAR SAMITI V. CIT [2003] 264 ITR 160 (ORISSA) (HC), CIT V. JAGABANDHU ROUL [1984] 145 ITR 153 (ORISSA) (HC), CIT & ANR. V. ITAT & ANR. [1992] 196 ITR 640 (ORISSA) (HC), SHAW WALLACE & CO. LTD. V. ITAT & OTHERS [1999] 240 ITR 579 (CAL) (HC), CIT V. SUMAN TEA & PLYWOOD INDUSTRIES PVT. LTD. [1997] 226 ITR 34 (CAL) (HC), ITO V. ITAT & ANR. [1998] 229 ITR 651 (PAT.) (HC), CIT & ANR. V. ITAT & ANR. [1994] 206 ITR 126 (AP) (HC), ACIT V. C. N. ANANTHRAM [2004] 266 ITR 470 (KAR) (HC). 4.4 IN THE CASE OF RAMESH ELECTRIC & TRAD ING CO . (SUPRA), THEIR LORDSHIPS OF THE HONBLE BOMBAY HIGH COURT HAVE HELD: MR. MANOJ B. MANDAVIA M.A. NO. 790/MUM/2017 6 UNDER S. 254(2) OF THE IT ACT, 1961, THE TRIBUNAL MAY, WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, AMEND ANY ORDER PASSED BY IT UNDER SUB - S (1) WITHIN THE TIME PRESCRIBED THEREIN. IT IS AN ACCEPTED POSITION THAT THE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER THE PROVISIONS OF THE IT ACT, 1961. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO RECTIFY ANY MISTAKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD. THIS IS MERELY A POWER OF AMENDING ITS ORDER. IN THE PRESENT CASE, IN THE FIRST ORDER, THERE IS NO MISTAKE WHICH IS APPARENT FROM THE RECORD AT ALL. THE TRIBUNAL WAS REQUIRED TO DECIDE WHETHER THE COMMISSION PAYMENT OF RS.54,000 WAS DEDUCTIBLE UNDER S. 37. AFTER EXAMINING THE CIRCUMSTANCES, THE TRIBUNAL CAME TO A CONCLUSION THAT IT WAS NOT SO DEDUCTIBLE. THE TRIBUNAL CANNOT, IN EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SU PPORT ITS CONCLUSION SO ARRIVED AT. THE MISTAKE THE TRIBUNAL IS ENTITLED TO CORRECT IS NOT AN ERROR OF JUDGMENT BUT A MISTAKE WHICH IS APPARENT FROM THE RECORD ITSELF. THE TRIBUNAL HAS, PATENTLY, FAR EXCEEDED ITS JURISDICTION UNDER S. 254(2) IN REDECIDING THE ENTIRE DISPUTE WHICH WAS BEFORE IT, IN THIS FASHION, AND THE TRIBUNAL HAS COMMITTED A GROSS AND INEXPLICABLE ERROR. FAILURE BY THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RE CORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. 5. IN VIEW OF THE FACTUAL SCENARIO AND POSITION OF LAW DELINEATED HEREINBEFORE, THE PRESENT MA BEING DEVOID OF MERIT, IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 12/10/2018. SD/ - SD/ - ( JOGINDER SINGH ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 12/10/2018 RAHUL SHARMA, SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// ( SR. PRIVATE SECRETARY ) ITAT, MUMBAI