INTERGRATED TECHNOLOGIES SOLUTIONS P.LTD, V. ITO 6(1)(3),

MA 98/MUM/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2116 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-07-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2009-2010
• Appeal Filed On: 03-03-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: J D MISTRY
• Keywords: Wrong claim; Bad and doubtful debts
• Section: 115JB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH I, MUMBAI BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER M.A. NO. 98/MUM/2014 (ARISING OUT OF ITA NO. 6021/MUM/2013) ASSESSMENT YEAR: 2009-10 M/S. INTEGRATED TECHNOLOGY SOLUTIONS PVT. LTD. 4 TH FLOOR, KALPATARU SQUARE, KONDIVITA LANE, J.B. NAGAR, ANDHERI EAST, MUMBAI 400 059 PAN :AAACI 8672 B VS. ITO 6(1)(3) MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI J.D. MISTRY RESPONDENT BY : SHRI MAURYA PRATAP DATE OF HEARING : 18.07.2014 DATE OF PRONOUNCEMENT : 25.07.2014 O R D E R PER DR. S.T.M. PAVALAN, JM: BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE IS SEEKING RECALL OF THE ORDER OF THE TRIBUNAL DATED 15.01.2014 PASSED IN ITA NO. 6021/MUM/2013 FOR THE A.Y. 2009-10 ON THE GROUND THAT THE TRIBUNAL HAD ADJUDIC ATED THE ISSUE IN RESPECT OF THE LEVY OF PENALTY U/S 271(1)(C) OF THE ACT WITHOUT CO NSIDERING THE DECISION OF THE DELHI HIGH COURT IN THE CASE OF NALWA SONS INVESTMENT LI MITED (21 TAXMANN.COM 184), WHEREIN THE DELHI HIGH COURT HAD CONFIRMED THE LEGA L POSITION THAT WHEN THE ASSESSMENT IS MADE ON INCOME COMPUTED U/S 115JB AND TAX HAS BEEN PAID ON INCOME SO COMPUTED, PENALTY U/S 271(1)(C) WOULD NOT BE IMPOSED WITH REFERENCE TO ADDITIONS MADE WHILE MAKING ASSESSMENT UNDER NORMAL PROCEDURE. 2. FURTHER, IT IS THE CONTENTION OF THE LEARNED SEN IOR COUNSEL FOR THE ASSESSEE THAT THERE ARE SOME MISTAKES APPEARING AT PARA 5 OF THE IMPUGNED ORDER OF THE TRIBUNAL DATED 15.01.2014, WHICH GOES TO ROOT OF TH E MATTER AND VITIATED THE ULTIMATE CONCLUSION OF THE TRIBUNAL. THE ALLEGED MI STAKES POINTED OUT BY THE LEARNED SENIOR COUNSEL ARE THAT (I) THE IMPUGNED ORDER HOLD S THAT THE ASSESSEES CLAIM IS NOT M.A. NO. 98/MUM/2014 (ARISING OUT OF ITA NO. 6021/MUM/2013) M/S. INTEGRATED TECHNOLOGY SOLUTIONS PVT. LTD. ASSESSMENT YEAR: 2009-10 2 SUPPORTED BY ANY EVIDENCE AS TO THE MISTAKE COMMITT ED BY THE ACCOUNTANT WITHOUT TAKING ASSISTANCE FROM THE PROFESSIONALS RESULTED I N CLAIMING BAD DEBTS HAS NOT BEEN EXPLAINED WITH COGENT REASONS, (II) THE TRIBUNAL HA S WRONGLY HELD THAT THE RATIO OF THE DECISION OF THE DELHI HIGH COURT IN SUMANGAL OV ERSEAS CASE IS NOT APPLICABLE IN THE CASE OF ASSESSEE AND ALSO THE DECISION OF THE T RIBUNAL IS IN CONTRAVENTION OF THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CA SE OF CIT VS. TATA CHEMICAL LTD. 256 ITR 395 , (III) THE TRIBUNAL HAS DISBELIEVED THE SUBMISSION S OF THE ASSESSEE THAT IT DID NOT PRESS ITS CLAIM FOR DEDUCTION OF THE RIGHT DUE TO INACCESSIBILITY OF THE DOCUMENTS, (IV) THE TRIBUNAL HAS FURTHER RELIED ON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF MAC DATA PVT. LTD. VS. CIT 358 ITR 593 (SC) WHEREAS THE COUNSEL FOR THE ASSESSEE HAS NOT BEEN PERMITTED TO MAKE SUBMISSIONS THEREON, (V) THE TRIBUNAL FURTHER ERRED IN CONCLUDING THAT THE A SSESSEE HAS NOT BROUGHT ANYTHING ON RECORD TO ESTABLISH THAT THE WRONG CLAIM IN THE RETURN OF INCOME IS ACTUATED BY ANY BONA FIDE ACT OR ARISES OUT OF ANY DEBATABLE IS SUE AND THEREFORE, THE DECISION OF THE HONBLE APEX COURT IN RELIANCE PETRO PRODUCTS LTD. 322 ITR 158 (SC) IS NOT APPLICABLE. (VI) THE TRIBUNAL HAS OVERLOOKED THAT E VEN AFTER DISALLOWANCE OF THE WRITE OFF, THE TAX LEGALLY PAID BY THE ASSESSEE REMAINS U NCHANGED SINCE IT INCOME WAS OFFERED AND ASSESSED U/S 115JB WITHOUT ANY CHANGE. 3. DURING THE COURSE OF THE PROCEEDINGS, THE LEARNE D SENIOR COUNSEL FOR THE ASSESSEE HAS RELIED ON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD VS. CIT, 295 ITR 466 (SC) AND DECISION OF THE TRIBUNAL IN THE CASE OF ONGC LIMITED CPF TRUST VS. ITO, DEHRADUN 24 SOT 48 (DEL) , TO SUPPORT THE PROPOSITION THAT THE TRIBUNAL CAN RECTIFY THE M ISTAKES ALLEGEDLY COMMITTED BY THE TRIBUNAL WHILE ADJUDICATING THE CASE OF THE ASSESSE E. ON THE OTHER HAND, THE LD. DR HAS STRONGLY OPPOSED THE MOVE OF THE ASSESSEE AND P RAYED THE SAME CANNOT BE PERMITTED AS THE MISCELLANEOUS APPLICATION IS INTEN DED TO REOPEN THE ARGUMENT ON THE WHOLE MATTER WHICH IS BEYOND THE SCOPE OF THE P OWER OF THE TRIBUNAL U/S 254(2) OF THE INCOME TAX ACT. 4. HAVING HEARD BOTH THE SIDES AND PERUSED THE MATE RIAL ON RECORD, IT IS PERTINENT TO MENTION THAT THE DECISION OF THE DELHI COURT IN THE CASE OF NALWA SONS M.A. NO. 98/MUM/2014 (ARISING OUT OF ITA NO. 6021/MUM/2013) M/S. INTEGRATED TECHNOLOGY SOLUTIONS PVT. LTD. ASSESSMENT YEAR: 2009-10 3 INVESTMENT LTD. (SUPRA) HAS NOT BEEN CITED BEFORE T HE TRIBUNAL WHEN THE APPEAL WAS HEARD AND THE SAME HAS BEEN ADMITTED BY THE LEARNED SENIOR COUNSEL FOR THE ASSESSEE DURING THE HEARING OF THIS MISCELLANEOUS A PPLICATION. THEREFORE, NOT CONSIDERING THE DECISION WHICH WAS NOT CITED DURING THE COURSE OF THE APPELLATE PROCEEDING CANNOT BE THE BASIS FOR INVOKING PROVISI ONS OF SECTION 254(2) OF THE INCOME TAX ACT. MOREOVER, THE DECISION IN THE CASE OF NALWA SONS INVESTMENT LTD. (SUPRA) IS NEITHER RENDERED BY THE HONBLE JURISDIC TIONAL HIGH COURT OF BOMBAY NOR BY THE HONBLE APEX COURT AND HENCE THE SAME HAS ON LY PURSUASIVE VALUE SO FAR THIS BENCH OF THE TRIBUNAL. THEREFORE, IT CANNOT BE SAID THAT THE TRIBUNAL HAS IGNORED/NOT CONSIDERED A PROVISION OF LAW OR BINDING DECISION O F A COURT. THE OTHER MISTAKES ALLEGED BY THE ASSESSEE ARE NOT MISTAKE APPARENT ON THE RECORD FOR THE PURPOSE OF SECTION 254(2) OF THE ACT. 4.1 AS REGARDS THE CONTENTION OF THE LEARNED COUNSE L THAT NO PARTY APPEARING BEFORE THE TRIBUNAL SHOULD SUFFER ON ACCOUNT OF MIS TAKE COMMITTED BY THE TRIBUNAL BY PLACING RELIANCE ON THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD., (SUPRA), IT IS PERTINENT TO MENTION THAT THE SAID DECISION HAS BEEN RENDERED BY THE HONBLE APEX COURT IN THE CONTEXT THAT FAILURE TO CONSIDER THE DECISION OF THE CO-ORDINATE BENCH CITED BY THE ASSESSEE IS A MISTAKE RECTIFIABLE UNDER SECTION 254(2), WHEREAS THE SAME IS NOT THE P OSITION AS REGARDS THE FACTS IN THE CASE IN HAND. REGARDING THE DECISION OF THE TRI BUNAL IN THE CASE OF ONGC LTD CPF TRUST (SUPRA), RELIED ON BY THE LEARNED SENIOR COUNSEL, IT IS RELEVANT TO STATE THAT SINCE THE TRIBUNAL WHILE ADJUDICATING THE APPEAL HA S NOT CONSIDERED THE PROVISIONS OF SECTION 17(3)(II) WHICH HAD DIRECT BEARING ON THE I SSUE BEFORE THE TRIBUNAL, IT ALLOWED THE RECTIFICATION APPLICATION FILED IN THE SAID CAS E. HOWEVER, THE FACTS OF THE CASE IN HAND ARE DISTINGUISHABLE FROM THE FACTS OF THE CASE CITED BY THE LEARNED SENIOR COUNSEL. 4.2 CONSIDERING THE ENTIRETY OF THE FACTS AND THE R ELEVANT PROVISIONS OF LAW, MORE PARTICULARLY, THE LIMITED SCOPE OF SECTION 254(2), WE ARE OF THE CONSIDERED OPINION THAT THE MISTAKE ALLEGED BY THE ASSESSEE IN THE IMP UGNED ORDER OF THE TRIBUNAL DATED 15.01.2014 ARE NOT MISTAKES APPARENT FOR THE PURPOSE OF SECTION 254(2) AND M.A. NO. 98/MUM/2014 (ARISING OUT OF ITA NO. 6021/MUM/2013) M/S. INTEGRATED TECHNOLOGY SOLUTIONS PVT. LTD. ASSESSMENT YEAR: 2009-10 4 IN FACT THE ASSESSEE INTENDS A REVISION OR REVIEW O F THE ORDER OF THE TRIBUNAL WHICH IS BEYOND THE SCOPE OF THE SAID PROVISION. RESULTANTLY , THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 25 TH DAY OF JULY, 2014 SD/- SD/- (P.M. JAGTAP) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 25.07.2014. *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR I BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.