Jain Irrigation Systems Ltd., Jalgaon V. Deputy Commissioner of Income-tax, Jalgaon

MA 93/PUN/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9271 (ITAT-PUNE)
• Duration Of Justice: 7 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-04-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 04-01-2019
• Assessment Year: 2008-2009
• Appeal Filed On: 30-08-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: PRASHANT MAHESWARI

Judgement Text

] IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURVEDI, AM . / M .A. NO.93/PUN/2018 (ARISING OUT OF ITA NO.1070/PUN/2018) / ASSESSMENT YEAR : 2008-09 JAIN IRRIGATION SYSTEMS LTD., N.H.NO.6, BAMBHORI, JALGAON 425001. PAN : AAACJ7163Q. APPLICANT. V/S THE DY.COMMISSIONER OF INCOME TAX, JALGAON. RESPONDENT ASSESSEE BY : SHRI PRASHANT MAHESWARI. REVENUE BY : SHRI RAJESH GAWALI. / ORDER PER ANIL CHATURVEDI, AM : THE PRESENT MISCELLANEOUS APPLICATION (M.A.) IS FILED BY THE ASSESSEE AGAINST THE ORDER OF TRIBUNAL DATED 28.02.2018 IN RESPECT OF APPEAL IN ITA NO.1070/PUN/2013 FOR A.Y. 2008-09. 2. BEFORE US, LD.A.R. SUBMITTED THAT WHILE DECIDING GROUND NO .1 IN THE IMPUGNED ORDER WHICH WAS WITH RESPECT TO DISALLOWAN CE OF PREMIUM PAID ON REDEMPTION OF PREFERENCE SHARES, THE ISS UE WAS DECIDED BY LD.CIT(A) AGAINST THE ASSESSEE BY RELYING ON H IS PREDECESSORS ORDER OF A.Y. 2006-07 IN ASSESSEES OWN CASE. THE TRIBUNAL WHILE DECIDING THE ISSUE HAD BASED ITS CONCLUSION ON ITS / DATE OF HEARING : 29.03.2019 / DATE OF PRONOUNCEMENT: 02.04.2019 2 ORDER FOR A.Y. 2007-08 IN ASSESSEES OWN CASE WHICH IN TU RN HAD RELIED ON THE ORDER OF A.Y. 2006-07. HE SUBMITTED THAT TH ERE ARE CERTAIN CHANGE IN THE FACTS IN THE YEAR UNDER CONSIDERA TION AS TO A.Y. 2006-07 AND THE NON-CONSIDERATION OF THE CHANGED FACTS HAS RESULTED INTO THE GROUND BEING DECIDED AGAINST THE ASSESSEE. HE FURTHER SUBMITTED THAT THE LD.A.R. DURING THE COURSE OF HEARING IN ADVERTENTLY COULD NOT BRING TO THE ATTENTION OF TRIBUNAL ABOUT THE FACTS BEING DIFFERENT. HE THEREFORE SUBMITTED THAT THE ORDER BE AMEN DED BY RECTIFYING THE MISTAKE WHICH HAS CREPT IN THE ORDER BY P ASSING AN APPROPRIATE ORDER. 3. LD.D.R. ON THE OTHER HAND OBJECTED TO THE PRAYER MA DE BY THE LD.A.R AND FURTHER POINTING TO PARAS 5 AND 6 OF THE M.A. S UBMITTED THAT THE ASSESSEE HAS HIMSELF ADMITTED THAT THE CHANGE IN FACTS WAS NOT BROUGHT TO THE NOTICE OF THE BENCH. HE THEREAFTER POINTED TO PARA 5 OF ORDER OF TRIBUNAL WHEREIN THE TRIBUNAL HAS NOTED THAT AT THE TIME OF HEARING, THE LD.A.R. HAD ADMITTED THE FACT FOR A.Y. 2008-09 BEING IDENTICAL TO A.Y. 2007-08. HE THEREFORE SUBMITTED THAT THE ASSESSEE NOW CANNOT TURN AND STATE THAT THERE WAS A MISTAKE IN THE ORDER OF TRIBUNAL. THE LD.D.R. THEREFORE SUBMITTED THAT THERE IS N O MISTAKE IN THE ORDER OF TRIBUNAL AND THERE IS NO APPARENT ERROR IN THE ORDER THAT REQUIRES ANY INTERFERENCE AND IF THE PRESENT MISCELLA NEOUS APPLICATION OF THE ASSESSEE IS ACCEPTED, IT WOULD AMOUNT T O REVIEW, 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 AND PERUSED THE MATERIAL ON RECORD. THE GRIEVANCE OF THE ASSESSEE AS STATED IN M .A. IS THAT THE TRIBUNAL HAD DECIDED THE ISSUE RAISED IN GROUND NO.1 OF IM PUGNED 3 ORDER BY FOLLOWING THE ORDER FOR A.Y. 2007-08 BUT THE FACT S IN A.Y. 2007-08 AND THE IMPUGNED YEAR ARE DIFFERENT. THE PERUS AL OF PARA 5 OF THE IMPUGNED ORDER CLEARLY DEMONSTRATES THAT THE LD .A.R. HAD CLEARLY STATED THAT THE FACTS IN THE PRESENT GROUND AR E IDENTICAL TO THAT OF A.Y. 2007-08 AND IN A.Y. 2007-08 THE ISSUE WAS DECIDED A GAINST THE ASSESSEE AND THEREFORE THE GROUND BE DECIDED ACCO RDINGLY. THE TRIBUNAL THEREFORE FOLLOWING THE ORDER OF EARLIER YEAR DECIDED THE ISSUE AGAINST THE ASSESSEE. 5. IT IS A SETTLED LAW THAT THE POWER OF RECTIFICATION UNDE R SECTION 254(2) OF THE INCOME-TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT M ISTAKE WHICH IS APPARENT FROM THE RECORD, AND NOT A MISTAKE WHIC H REQUIRES TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCES S OF REASONING. FURTHER, THE TRIBUNAL CANNOT IN EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO SOME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION SO ARRIVED AT. THE MISTAKE WHICH THE TRIBUNAL IS ENTITLED TO CORRECT IS NOT AN ERROR OF JUDGMENT BUT A MISTAKE WHICH IS APPARENT FROM THE RECORD ITSELF. IN THE PRESENT CASE, AS NOTED IN THE IMPUGNED ORDER, THE LD.A.R. HAD CA TEGORICALLY STATED ABOUT THE SIMILARITY OF THE FACTS WITH THAT OF A.Y. 2 007-08 AND THEREFORE BE DECIDED SIMILARLY. THE TRIBUNAL THEREAFTER FOLLOW ING THE ORDER OF A.Y. 2007-08 DECIDED THE ISSUE. WE ARE THUS OF T HE VIEW THAT THERE IS NO MISTAKE WHICH IS APPARENT FROM THE RECOR D. FURTHER, THE TRIBUNAL HAS NO POWER TO REVIEW ITS OWN ORDER AS HELD BY HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. RAMESH ELECTRIC & TRADING CO. (1993) 203 ITR 497 (BOM.) IN VIEW OF THE AFORESAID FACTS, W E ARE OF THE VIEW THAT SINCE THE ASSESSEE HAS FAILED TO POINT OUT ANY MISTAKE 4 APPARENT FROM RECORD IN THE ORDER, WE ARE NOT INCLINED TO RECALL THE ORDER OF CO-ORDINATE BENCH OF THE TRIBUNAL IN ITA NO.1070/PUN/20 13 ORDER DATED 28.02.2018 AND THUS THE MISCELLANEOUS APPLICATION IS DISMISSED. 6. IN THE RESULT, MISCELLANEOUS APPLICATION OF ASSESSE E IS DISMISSED. ORDER PRONOUNCED ON 2 ND DAY OF APRIL, 2019. SD/- SD/ - ( SUSHMA CHOWLA ) ( ANIL CHATURVEDI ) ' / JUDICIAL MEMBER #' / ACCOUNTANT MEMBER PUNE; DATED : 2 ND APRIL, 2019. YAMINI $%&'()(& / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. ! / THE RESPONDENT 3. 4. 5 6. CIT(A)-2, NASHIK. CIT-II, NASHIK. '#$!% %&',)! !&' , / DR, ITAT, B PUNE; $*+,/ GUARD FILE. / BY ORDER // TRUE COPY // - ./%0&1 / SR. PRIVATE SECRETARY )! !&' , / ITAT, PUNE.