Sayaji Industries Limited, Ahmedabad V. The ACIT (OSD), Circle-8, Ahmedabad

MA 91/AHD/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4166 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-05-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 19-11-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ALPESH PARMAR DR
• Keywords: Depreciation

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD , , ! BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER MA NO.91/AHD/2015 (IN ./ IN I.T.A. NO.376/AHD/2012 2007-08) ( / ASSESSMENT YEAR : 2007-08) SAYAJI INDUSTRIES PO KATHWADA AHMEDABAD-382 430 / VS. THE ACIT (OSD) CIRCLE-8 AHMEDABAD & ./ ./ PAN/GIR NO. : AADCS 0861 R ( &) / APPLICANT ) .. ( *+&) / RESPONDENT ) &), / APPLICANT BY : SHRI SANJAY R.SHAH, AR *+&) -, / RESPONDENT BY : SHRI ALPESH PARMAR, DR . - / DATE OF HEARING 20/05/2016 /012 - / DATE OF PRONOUNCEMENT 26/05/2016 / O R D E R PER SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER : THROUGH THIS MISCELLANEOUS APPLICATION FILED ON 19 /11/2015, THE ASSESSEE HAS SUBMITTED THAT THERE WAS ERROR WHILE D ECIDING GROUND NO.5 OF REVENUES APPEAL WITH RESPECT TO ALLOWING DEPREC IATION ON THE FLAT AND, THEREFORE, THE ORDER BE RECALLED AND RECTIFIED. 2. BEFORE US, LD.AR REITERATED THE SUBMISSION MADE IN M.A. AND FURTHER SUBMITTED THAT THE GROUND WAS DECIDED IN FAVOUR OF THE REVENUE BY UPHOLDING THAT THE DEPRECIATION IS TO BE ALLOWE D AT 5% (AS HELD BY MA NO.91/AHD/2015 (IN ITA NO.376/AHD/2012 SAYAJI INDUSTRIES VS. ACIT ASST.YEAR 2007-08 - 2 - AO) AS AGAINST THE CLAIM OF DEPRECIATION OF 10% MAD E BY THE ASSESSEE. HE SUBMITTED THAT FOR REACHING THAT CONCLUSION, THE COORDINATE BENCH OF TRIBUNAL (ITATA BENCH, AHMEDABAD) HAD RELIED ON T HE FACT THAT NO MATERIAL WAS PLACED ON RECORD TO SHOW THAT THE REFE RENCE TO MAIZE PRODUCTS WAS TO THE ASSESSEE OR SOME OTHER PARTY. HE SUBMITTED THAT THIS OBSERVATION OF THE TRIBUNAL IS NOT CORRECT AND AGAI NST THE FACTS AS THE REFERENCE TO MAIZE PRODUCTS IS TO THE ASSESSEE O NLY AS COULD BE SEEN FROM COPY OF CORRESPONDENCE PLACED AT PAGE NOS.103 & 104 OF THE PAPER- BOOK AND IN SUPPORT OF THIS CONTENTION, HE ALSO POI NTED TO THE COPY OF ANNUAL REPORTS FOR FYS 1994-95 AND 1995-96 WHICH AR E PLACED AT PAGE NOS.63 & 89 OF THE PAPER-BOOK. HE FURTHER SUBMITTE D THAT DURING THE COURSE OF HEARING, NO QUESTION WAS RAISED BY THE HO NBLE TRIBUNAL REGARDING THE RELATIONSHIP OF IDENTITY OF MAIZE PR ODUCTS TO THE ASSESSEE AND, THEREFORE, ASSESSEE WAS NOT PROVIDED WITH AN O PPORTUNITY TO CLARIFY THE FACT THAT MAIZE PRODUCTS IS A DIVISION OF THE ASSESSEE. HE THEREFORE SUBMITTED THAT THIS BEING MISTAKE APPARENT FROM REC ORD IN TERMS OF SECTION 254(2) OF THE ACT AND, THEREFORE, THE ORDE R BE RECALLED TO CORRECT THE AFORESAID MISTAKE. 3. THE LD.DR, ON THE OTHER HAND, SUBMITTED THAT THE RE IS NO MISTAKE IN THE ORDER OF THE TRIBUNAL. HE POINTED TO PARA NO.9 .5 OF THE AFORESAID TRIBUNAL ORDER AT PAGE NO.16 AND SUBMITTED THAT TH E REASON FOR DECIDING THE ISSUE IN FAVOUR OF THE REVENUE WAS THAT THE ASS ESSEE HAD NOT PLACED MA NO.91/AHD/2015 (IN ITA NO.376/AHD/2012 SAYAJI INDUSTRIES VS. ACIT ASST.YEAR 2007-08 - 3 - ANY MATERIAL ON RECORD TO DEMONSTRATE THAT THE PAYM ENT OF MUNICIPAL TAXES FOR THE FLAT ON WHICH THE ASSESSEE HAD CLAIM ED DEPRECIATION @ 10% WAS FOR COMMERCIAL USE AND NOT FOR RESIDENTIAL USE AND APART FROM THAT REASON, HONBLE ITAT HAD ALSO REFERRED ABOUT THERE BEING NO REFERENCE OF MAIZE PRODUCTS. HE THEREFORE SUBMITTED THAT THE REASONS AS SUBMITTED NOW BY LD.AR WERE NOT THE SOLE REASON FOR DECIDING THE ISSUE AGAINST THE ASSESSEE . HE THEREFORE SUBMITTED THAT THERE IS N O MISTAKE APPARENT ON RECORD IN THE ORDER OF TRIBUNAL THAT REQUIRES INTER FERENCE AND IF THE PLEA OF THE LD.AR IS ACCEPTED, THEN IT WOULD TANTAMOUNT TO REVIEW OF THE ORDER WHICH IS NOT PERMISSIBLE IN LAW. HE THUS SUBMITTED THAT THE M.A. OF THE ASSESSEE BE DISMISSED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ASSESSEES GRIEVANCE IS THAT THE GROUND ABOUT D EPRECIATION OF FLAT WAS DECIDED IN FAVOUR OF REVENUE AND THE REASON FOR REA CHING SUCH A CONCLUSION BY TRIBUNAL WAS ALLEGEDLY ON ACCOUNT OF NOT PLACING ANY MATERIAL ON RECORD BY THE ASSESSEE TO DEMONSTRATE T HAT THE REFERENCE IN THE CORRESPONDENCE TO MAIZE PRODUCTS WAS TO ASSESSEE. AT THIS MOMENT, IT WOULD BE APPROPRIATE TO REFER TO THE FINDING OF THE TRIBUNAL, WHICH IS REPRODUCED AS UNDER:- 9.5. WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSE D THE MATERIAL ON RECORD. THE ISSUE IN THE PRESENT CASE IS WITH RESP ECT TO THE ALLOWING THE DEPRECIATION @ 5% OR 10% ON THE FLAT. BEFORE US AP ART FROM REITERATING THE SUBMISSIONS MADE BEFORE ASSESSING OFFICER AND L D.CIT(A), THE MA NO.91/AHD/2015 (IN ITA NO.376/AHD/2012 SAYAJI INDUSTRIES VS. ACIT ASST.YEAR 2007-08 - 4 - LD.A.R. HAS NOT PLACED ANY MATERIAL ON RECORD TO SU PPORT ITS CONTENTION THAT ASSESSEE IS ELIGIBLE FOR HIGHER DEPRECIATION. THE LD.A.R. HAS ALSO NOT PLACED ANY MATERIAL ON RECORD TO DEMONSTRATE TH AT THE MUNICIPAL TAXES FOR THE AFORESAID FLAT WHICH IS BEING PAID BY THE ASSESSEE HAS BEEN PAID FOR COMMERCIAL USE AND NOT FOR RESIDENTIAL USE . WE FURTHER FIND THAT THE COPY OF CORRESPONDENCE PACED AT PAGE 103 A ND 104 OF THE PAPER BOOK AND WHICH HAS BEEN RELIED UPON BY THE LD.A.R. IS ADDRESSED TO MAIZE PRODUCTS AND NOT TO ASSESSEE. NO MATERIAL HAS BEEN PLACED ON RECORD TO SHOW THAT THE REFERENCE TO MAIZE PRODUCT S IS TO THE ASSESSEE OR SOME OTHER PARTY. IN VIEW OF THE AFORE SAID FACTS WE ARE OF THE VIEW THAT ASSESSING OFFICER WAS FULLY JUSTIFIED IN ALLOWING DEPRECIATION @ 5%. WE THUS SET ASIDE THE ORDER OF THE LD.CIT(A) ON THIS GROUND AND UPHOLD THE ORDER OF ASSESSING OFFIC ER. THUS THIS GROUND OF REVENUE IS ALLOWED. 4.1. THUS, ON PERUSAL OF THE ABOVE OBSERVATION, IT IS CLEAR THAT THE MAIN REASONS FOR DECIDING THE GROUND IN FAVOUR OF THE RE VENUE WAS FIRSTLY THAT ASSESSEE HAD NOT PLACED ANY MATERIAL ON RECORD TO S UPPORT ITS CONTENTION THAT IT WAS ELIGIBLE FOR HIGHER DEPRECIATION AND SE CONDLY THAT THE ASSESSEE HAS NOT PLACED ANY MATERIAL ON RECORD TO DEMONSTRAT E THAT THE MUNICIPAL TAXES FOR THE FLAT ON WHICH IT HAD CLAIMED HIGHER DEPRECIATION, WAS PAID FOR COMMERCIAL USE AND NOT FOR RESIDENTIAL USE. TH E REFERENCE TO THE MAIZE PRODUCTS TO BE TO THE ASSESSEE OR SOME OTH ER PARTY WAS IN ADDITION TO THE AFORESAID FACTS. WE ARE THUS OF TH E VIEW THAT THE MATTER WAS DECIDED BY THE TRIBUNAL BY TAKING INTO THE FACT S CITED THEREIN AND WAS NOT SOLELY BASED ON THE REASONS STATED BY ASSESSEE IN THE M.A. FURTHER, IT IS A SETTLED LAW THAT THE POWER OF RECTIFICATION UN DER SECTION 254(2) OF THE INCOME-TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTA KE WHICH IS SOUGHT MA NO.91/AHD/2015 (IN ITA NO.376/AHD/2012 SAYAJI INDUSTRIES VS. ACIT ASST.YEAR 2007-08 - 5 - TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE WH ICH 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. FURTHER, THE TRIBUNAL CANNOT, IN EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO S OME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION S O ARRIVED AT. THE MISTAKE WHICH THE TRIBUNAL IS ENTITLED TO CORRECT I S NOT AN ERROR OF JUDGMENT BUT A MISTAKE WHICH IS APPARENT FROM THE R ECORD ITSELF. IN THE PRESENT CASE, NO SUCH MISTAKE WAS APPARENT FROM THE RECORD. FURTHER, THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER AS HE LD BY HONBLE BOMBAY HIGH COURT IN THE CASE OF RAMESH ELECTRIC & TRADING CO. (1993) 203 ITR 497 (BOM). 4.2. FURTHER, IF THE PRESENT PRAYER MADE BY THE ASS ESSEE IN ITS MISCELLANEOUS APPLICATION IS ACCEPTED, IT WILL AMOU NT TO REVIEW OF OUR ORDER. THE LAW IS SETTLED THAT WE HAVE NO POWER OF REVIEW FOR WHICH WE FIND SUPPORT BY THE DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OF PERFETTI VAN MELLE INDIA (P) LTD. VS. CIT (2008) 29 6 ITR 595 (DEL) WHERE THE HON'BLE HIGH COURT HAS CONCLUDED THAT ASS ESSEE CANNOT BE ALLOWED TO REOPEN AND REARGUE THE WHOLE MATTER IN T HE GARB OF RECTIFICATION UNDER S. 254(2). THE RELEVANT OBSER VATIONS OF HONBLE HIGH COURT ARE AS UNDER:- 'IT IS WELL SETTLED THAT AN OVERSIGHT OF A FACT CAN NOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER S. 254(2). SIMIL ARLY, FAILURE OF THE MA NO.91/AHD/2015 (IN ITA NO.376/AHD/2012 SAYAJI INDUSTRIES VS. ACIT ASST.YEAR 2007-08 - 6 - 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. THE MERE FACT THAT THE TRI BUNAL HAS NOT ALLOWED A DEDUCTION, EVEN IF THE CONCLUSION IS WRON G, THAT WILL BE NO GROUND FOR MOVING AN APPLICATION UNDER S. 254(2). F URTHER, IN GARB OF APPLICATION FOR RECTIFICATION, THE ASSESSEE CANNOT BE ALLOWED TO BE PERMITTED TO REOPEN AND REARGUE THE WHOLE MATTER, W HICH IS BEYOND THE SCOPE OF THIS SECTION. 4.3. IN THE CASE OF CIT VS MARUTI INSURANCE DISTRIB UTION SERVICES LTD. (W.P.(C) 106/2012 DEL HIGH COURT ORDER DATED 04.09. 2012) THE HON'BLE HIGH COURT HAS HELD AS UNDER: 'SECTION 254(2) OF THE ACT MAKES IT AMPLY CLEAR THA T A 'MISTAKE APPARENT FROM THE RECORD' IS RECTIFIABLE. TO ATTRACT THE JUR ISDICTION UNDER SECTION 254(2), A MISTAKE SHOULD EXIST AND MUST BE APPARENT FROM THE RECORD. THE POWER TO RECTIFY THE MISTAKE, HOWEVER, DOES NOT COV ER CASES WHERE A REVISION OR REVIEW OF THE ORDER IS INTENDED. 'MISTA KE' MEANS TO UNDERSTAND WRONGLY OR INACCURATELY; IT IS AN ERROR; A FAULT, A MISUNDERSTANDING, A MISCONCEPTION. 'APPARENT' IMPLIES SOMETHING THAT CA N BE SEEN, OR IS VISIBLE; OBVIOUS; PLAIN. A MISTAKE WHICH CAN BE REC TIFIED UNDER SECTION 254(2) IS ONE WHICH IS PATENT, OBVIOUS AND WHOSE DI SCOVERY IS NOT DEPENDENT ON ARGUMENT. THE LANGUAGE USED IN SECTION 254(2) IS PERMISSIBLE WHERE IT IS BROUGHT TO THE NOTICE OF THE TRIBUNAL T HAT THERE IS ANY MISTAKE APPARENT FROM THE RECORD. THE AMENDMENT OF AN ORDER THEREFORE, DOES NOT MEAN OBLITERATION OF THE ORDER ORIGINALLY PASSED AN D ITS SUBSTITUTION BY A NEW ORDER WHICH IS NOT PERMISSIBLE, UNDER THE PROVI SIONS OF SECTION 254(2). FURTHER, WHERE AN ERROR IS FAR FROM SELF-EVIDENT, I T CEASES TO BE AN 'APPARENT' ERROR. UNDOUBTEDLY, A MISTAKE CAPABLE OF RECTIFICATION UNDER SECTION 254(2) IS NOT CONFINED TO CLERICAL OR ARITH METICAL MISTAKES. AT THE SAME TIME, IT DOES NOT COVER ANY MISTAKE WHICH MAY BE DISCOVERED BY A COMPLICATED PROCESS OF INVESTIGATION, ARGUMENT OR P ROOF. AS OBSERVED BY THE SUPREME COURT IN MASTER CONSTRUCTION CO. (P) LT D. V. STATE OF ORISSA (1966) 17 STC 360, AN ERROR WHICH IS APPARENT ON TH E FACE OF THE RECORD SHOULD BE ONE WHICH IS NOT AN ERROR WHICH DEPENDS F OR ITS DISCOVERY ON MA NO.91/AHD/2015 (IN ITA NO.376/AHD/2012 SAYAJI INDUSTRIES VS. ACIT ASST.YEAR 2007-08 - 7 - ELABORATE ARGUMENTS ON QUESTIONS OF FACT OR LAW. A SIMILAR VIEW WAS ALSO EXPRESSED IN SATYANARAYAN LAXMINARAYAN HEGDE V. MAL LIKARJUN BHAVANAPPA TIRUMALE AIR 1960 SC 137. 4.4. IN VIEW OF THE FOREGOING DISCUSSIONS, WE ARE OF THE VIEW THAT SINCE THE ASSESSEE HAS FAILED TO POINT OUT ANY MISTAKE AP PARENT FROM RECORD IN THE ORDER, WE ARE NOT INCLINED TO RECALL THE ORDER OF THE CO-ORDINATE BENCH PASSED IN ITA NO.376/AHD/2012 FOR AY 2007-08, DATED 31.08.2015. 5. IN THE RESULT, ASSESSEES MISCELLANEOUS APPLICA TION IS DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON 2 6/05/2016 SD/- SD/- ( ) () (SHAILENDRA KUMAR YADAV) ( ANIL CHATUR VEDI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 26/ 05 /2016 5..,.../ T.C. NAIR, SR. PS !'#$%$' / COPY OF THE ORDER FORWARDED TO : 1. &) / THE APPLICANT 2. *+&) / THE RESPONDENT. 3. 678 9 / CONCERNED CIT 4. 9 ( ) / THE CIT(A)-XIV, AHMEDABAD 5. :;<*78 , 78 2 , 6 / DR, ITAT, AHMEDABAD 6. <>?. / GUARD FILE. / BY ORDER, +:* //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD