GOPAL HOUSING AND PLANTATIN CORPORATION, V. ASST CIT (OSD) II CEN RG 7,

MA 94/MUM/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3646 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-10-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2006-2007
• Appeal Filed On: 06-04-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

1 , ' INCOME TAX APPELLATE TRIBUNAL,MUMBAI- E,BENCH , , BEFORE S/SHJOGINDERSINGH,JUDICIAL MEMBER & RAJENDRA,ACCOUNTANT MEMBER MA NO.94/MUM/2015(ARISING OUT OF ITA/1075/MUM/2012) -ASSESSMENT YEAR 2006-07 M/S./SHREE GOPAL HOUSING & PLANTATION CORPORATION,MILLENIUM TOWER,3RD FLORR,BEHIND IOC PETROL PUMP PAWAI-MUMBAI-400076 PAN: AACFS1525J ACIT(OSD)CENTRAL RANGE-7 OLD CGO,M K ROAD,MUMBAI-20 ( / ASSESSEE) ( / RESPONDENT) /ASSESSEE BY : SH.NEELKANTH KHANDELWAL / REVENUE BY :SH.SAMIR TEKRIWAL / DATE OF HEARING : 09 - 10-2015 / DATE OF PRONOUNCEMENT : 28 -10-2015 / O R D E R PER RAJENDRA, A.M. : VIDE ITS APPLICATION,DATED 01.04.2015,THE ASSESSEE- FIRM HAS STATED THAT THERE WERE MISTAKES APPARENT IN THE ORDER PASSED BY THE TRIBUNAL,THAT S AME HAVE TO BE RECTIFIED AS PER THE PROVISIONS OF SECTION 254(2) OF THE ACT.IN ITS APPL ICATION,THE ASSESSEE HAS STATED THAT THE ASSESSING OFFICER (AO)HAS ERRED IN LEVYING PENALTY ON THE ENHANCEMENT OF INCOME MADE BY THE FIRST APPELLATE AUTHORITY(FAA) OF RS.2 CRORES,T HAT THE AO COULD NOT HAVE LEVIED PENALTY IN RESPECT OF THE SAID ENHANCEMENT,THAT THE FAA HAD TO INITIATE PENALTY PROCEEDINGS,THAT THE AO LEVIED THE PENALTY WITHOUT ANY INITIATION,THAT T HE TRIBUNAL HAD NOT DISCUSSED THE SAID LEVY OF PENALTY AND HAD IN ITS ORDER DATED 10.02.2015,DI SPOSED THE APPEAL IN RESPECT OF THE SAID ADDITION,THAT THE ASSESSEE HAD RELIED UPON THE CASE S OF SHADIRAM BALMUKUND(84ITR183)AND PARDEEP PUBLICATIONS(130TTJ92). 2. BEFORE US,THE AUTHORISED REPRESENTATIVE(AR)REITERAT ED THE ARGUMENTS RAISED IN THE APPLICA - TION FILED BY THE ASSESSEE.DEPARTMENTAL REPRESENTAT IVE(DR)LEFT THE ISSUE TO THE DISCRETION OF THE BENCH. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT WHILE DECIDING THE APPEAL THE TRIBUNAL HAD NOT ONLY DELIB ERATED UPON ALL THE ARGUMENTS TAKEN BY THE ASSESSEE,THAT THE ASSESSEE HAD RAISED FOUR GROUNDS OF APPEAL,THAT IN THE GROUND NO.4 IT WAS MENTIONED THAT THE PENALTY LEVIED BY THE CIT(A)WAS CONTRARY TO THE PROVISIONS OF LAW,THAT THE TRIBUNAL HAD DELETED THE PENALTY LEVIED U/S.271(1)( C) OF THE ACT,THAT NO ADDITIONAL GROUND WAS RAISED BY THE ASSESSEE BEFORE THE TRIBUNAL ABOUT TH E LACK OF JURISDICTION WITH REGARD TO INITIATION OF THE PENALTY PROCEEDINGS,THAT THE APPE ALS FILED BY IT WERE ALLOWED.IN SHORT,AFTER CONSIDERING THE AVAILABLE MATERIAL,THE TRIBUNAL HAD DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. 4. THE SCOPE OF SECTION 254(2) OF THE ACT IS VERY LIMI TED AND SPECIFIC.IF A MISTAKE IS SO GLARING THAT ON THE FACE OF IT SAME HAS TO BE AMENDED,THEN ONLY THE PROVISIONS OF SECTION 254(2)CAN BE INVOKED.IT IS SAID THAT THE SECTION IS LIMITED TO M ISTAKE APPARENT FROM RECORD LIKE ARITHMETICAL ERRORS,TYPOGRAPHICAL MISTAKES,NON-ADJUDICATION OF G ROUND OF APPEAL OR NON-CONSIDERATION OF A JUDGMENT OF HONBLE SUPREME COURT OR JURISDICTIONAL HIGH COURT HAVING DIRECT BEARING ON THE CASE.HONBLE DELHI HIGH COURT HAS,IN THE MATTER OF GEOFIN INVESTMENT (P.) LTD.,DESCRIBED THE CONCEPT OF MISTAKE APPARENT FROM RECORD AS UNDER: 2 THE POWER IS CIRCUMSCRIBED AND LIMITED. THERE SHOUL D BE A MISTAKE WHICH IS APPARENT BEFORE THE POWER CAN BE EXERCISED. THIS IS A MANDATORY PRE -CONDITION. THE TRIBUNAL IN ITS ORDER REFERRED TO THE CONTROVERSY IN QUESTION RELATING TO THE DISALLOWANCE MADE ON ACCOUNT OF SHORT- TERM CAPITAL LOSS AND LONG-TERM CAPITAL LOSS. THE E NTIRE ISSUE WAS EXAMINED ON THE MERITS INCLUDING THE JUDGMENTS RELIED UPON BY THE ASSESSEE . AFTER EXAMINING THE MATTER IN DETAIL, IT ALLOWED THE APPEAL FILED BY THE REVENUE. (348ITR118). FOLLOWING IS THE DECISION OF THE HONBLE JURISDICTI ONAL HIGH COURT HAS IN THE CASE OF RAMESH ELECTRICALS (203ITR497): UNDER SECTION 254(2) OF THE INCOME-TAX ACT, 1961, THE APPELLATE TRIBUNAL MAY, 'WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD' , AMEND 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 R ECTIFY 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 ARGUMEN TS 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 FO R ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. THE TRIBUNAL CANNOT, IN THE EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO S OME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION. FROM THE ABOVE,IT IS CLEAR THAT TRIBUNAL HAS GOT LI MITED POWER TO RECTIFY MISTAKE U/S.254(2) OF THE ACT.IN THE CASE BEFORE US,THE ASSESSEE HAS NOT POINTED OUT ANY ARITHMETICAL MISTAKE IN THE ORDER OF THE TRIBUNAL NOR HAS HE PROVED THAT LEGAL POSITION TAKEN BY THE TRIBUNAL HAS ALTERED BECAUSE OF SUBSEQUENT JUDGMENT OF THE JURISDICTIONA L HIGH COURT OR THE APEX COURT.THE TRIBUNAL HAS DECIDED THE ISSUE AFTER CONSIDERING AL L THE FACTS AND PROVISIONS OF LAW.IN OUR OPINION,NO MISTAKE IS APPARENT,IN THE IMPUGNED ORD ER OF THE TRIBUNAL.THEREFORE, WE ARE OF THE OPINION THAT APPLICATION FILED BY THE ASSESSEE DESERVES TO BE REJECTED. AS A RESULT ,MA FILED BY THE ASSESSEE STANDS DISMISSED. . ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH OCTOBER,2015. 28 TH 2015 SD/- SD/- ( /JOGINDERSINGH) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / MUMBAI, /DATE: 28.10.2015 . . . JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR E BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.