SANJAY HEVAY ELECTRICAL AND ENGG CO. P. LTD, v. ITO 10(2)(4),

MA 342/MUM/2011 | 2004-2005
Pronouncement Date: 04-11-2011 | Result: Dismissed

Appeal Details

RSA Number 34219924 RSA 2011
Assessee PAN AAACS5565B
Bench Mumbai
Appeal Number MA 342/MUM/2011
Duration Of Justice 4 month(s) 17 day(s)
Appellant SANJAY HEVAY ELECTRICAL AND ENGG CO. P. LTD,
Respondent ITO 10(2)(4),
Appeal Type Miscellaneous Application
Pronouncement Date 04-11-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted E
Tribunal Order Date 04-11-2011
Date Of Final Hearing 21-10-2011
Next Hearing Date 21-10-2011
Assessment Year 2004-2005
Appeal Filed On 17-06-2011
Judgment Text
1 SAINY HEAVY ELECTRICAL & ENGG CO P LTD IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI E BENCH MUMBAI BENCHES MUMBAI BEFORE SHRI R S SYAL AM & SHRI VIJAY PAL RAO J M MISCELLANEOUS APPLICATION NO. 342/MUM/2011 ARISING OUT OF ITA NO. 3406/MUM/2009 (ASST YEAR 2004-05 ) SAINY HEAVY ELECTRICAL & ENGG CO P LTD 14B KURLA INDL ESTATE NSS ROAD NARAYAN NAGAR GHATKOPAR (W) MUMBAI 86 |VS THE INCOME TAX OFFICER WARD 10(2)(4) MUMBAI (APPLICANT) (RESPONDENT) PAN NO. AAACS5565B ASSESSEE BY SH H S REHEJA REVENUE BY SH G B P TRIVEDI DT.OF HEARING 21 ST OCT 2011 DT OF PRONOUNCEMENT 4 TH NOV 2011 PER VIJAY PAL RAO JM THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE IS D IRECTED AGAINST THE ORDER DATED 6.8.2011 OF THIS TRIBUNAL WHEREBY THE APPEAL OF THE ASSESSEE IN ITA NO.3406/MUM/2009 FOR AY 2004-05 WAS DISPOSED OFF. 2 THOUGH IN THE MISCELLANEOUS APPLICATION THE ASS ESSEE HAS ALLEGED THE MISTAKE/ERROR IN THE IMPUGNED ORDER OF THIS TRIBUNA L WITH REGARD TO THE FINDING ON THE LABOUR CHARGES PAYABLE TO M/S INDUSTRIAL MACHINERY MANUFACTURING THE SECOND PART OF THE GROUND NO.1 OF THE APPEAL AND GROUND NO.2 R EGARDING PURCHASES FROM FOUR PARTIES; HOWEVER THE LD AR OF THE ASSESSEE HAS CON FINED HIS ARGUMENT ONLY TO THE ISSUE OF LAHOUR CHARGES PAYABLE TO M/S INDUSTRIAL M ACHINERY MANUFACTURING. DURING THE COURSE OF ARGUMENTS THE LD AR OF THE ASSESSEE HAS SUBMITTED THAT THERE IS A 2 SAINY HEAVY ELECTRICAL & ENGG CO P LTD MISTAKE IN THE FINDING OF THE TRIBUNAL IN PARA 16 O F THE IMPUGNED ORDER. THIS TRIBUNAL HAS DECIDED THE ISSUE WITHOUT CONSIDERING THE FACTS AS CONTAIN IN THE DOCUMENTS AS PAGES 50 TO 125 OF THE PAPER BOOK BEING THE DETAILS OF PAYMENT MADE TO M/S INDUSTRIAL MACHINERY MANUFACTURING. HE HAS FURTHER CONTENDED THAT FROM THE DETAILS IT IS APPARENT THAT THE PAYMENT OF LABOUR CHARGES HAS BEEN PROPERLY EVIDENCED BY THE ASSESSEE AND THE ASSESSING OFFICER AND THE CIT (A) FAILED TO CONSIDER THESE DETAILS. EVEN THE TRIBUNAL WHILE DECIDING THE ISS UE HAS IGNORED THIS MATERIAL FACT. THUS THE LD AR HAS SUBMITTED THAT OMISSION ON THE PART OF THE TRIBUNAL TO CONSIDER THE DETAILS CONSTITUTE A MISTAKE APPARENT FROM THE RECO RDS. HE HAS PLEADED THAT THE IMPUGNED ORDER MAY BE RECALLED FOR REHEARING BY DEC IDING THE ISSUE AFRESH. 2.1 ON THE OTHER HAND THE LD DR SUBMITTED THAT THE TRIBUNAL HAS GIVEN A FINDING ON MERIT AFTER CONSIDERING ALL THE CONTENTION AND R ELEVANT MATERIAL ON RECORD. THEREFORE THE RELIEF PRAYED IN THE MISCELLANEOUS A PPLICATION IS IN THE NATURE OF REVIEW OF IMPUGNED ORDER WHICH IS BEYOND THE SCOPE OF SEC. 254(2) OF THE I T ACT. 3 AFTER CONSIDERING THE RIVAL CONTENTION AND CAREFU LLY PERUSED THE RELEVANT MATERIAL ON RECORD WE FIND THAT THE ASSESSEE BY W AY OF THIS MISCELLANEOUS APPLICATION IS SEEKING RE-APPRAISAL OF THE EVIDENC E AND FACTS. THIS TRIBUNAL AFTER CONSIDERING THE RIVAL CONTENTION AS WELL AS RELEVA NT MATERIAL IN PARA 12 TO 15 OF THE IMPUGNED ORDER ADJUDICATED THE ISSUE OF LABOUR CHAR GES PAYABLE TO M/S INDUSTRIAL MACHINERY MANUFACTURING IN PARA 16 AS UNDER: 16. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND REL EVANT V RECORD. WE NOTE THAT THE ASSESSEE HAS NOT FURNISHED OR PRODUCED A NY RECORD BEFORE THE AO TO PROVE GENUINENESS OF THE CLAIM. HOWEVER THE A SSESSEE HAS PRODUCED ALLEGED RECORD BEFORE THE CIT(A) WHO HAS ISSUED REMAND ORDER. THE ASSESSEE IS SAYING THAT THE ENTIRE CHARGES HAVE BEEN EXPLAINE D IN THE BOOKS OF ACCOUNT WHEREAS THE OTHER PARTY WHO IS A PARTNERSHIP FIRM CONSTITUTES A THE FAMILY MEMBER OF THE ASSESSEE DID NOT SHOW THE SAID LABOUR CHARGES RECEIVABLE FROM THE ASSESSEE AS INCOME. AT THE SAME T IME THE SAID PARTY ALSO NOT SHOWN THE LABOUR CHARGES PAYABLE TO THE LABOURS AS EXPENDITURE. IT SEEMS 3 SAINY HEAVY ELECTRICAL & ENGG CO P LTD TO BE A CASE OF MERE ENTRIES IN THE BOOKS OF ACCOUN T WITHOUT ACTUAL PAYMENT OF LABOUR CHARGES. V IT IS PERTINENT TO NOTE THAT HO W THE OTHER PARTY HAS NOT PAID LABOUR CHARGES TO THE LABOURS. IN THESE CIRCUMST ANCES WE ARE NOT ABLE TO ACCEPT THE EXPLANATION OF THE ASSESSEE. THEREFORE WE DO NOT FIND ANY MERITS IN THE CONTENTION OF THE LEARNED AR. THE ORDER S OF THE LOWER AUTHORITIES ARE CONFIRMED QUA THIS ISSUE. 3.1 THUS IT IS CLEAR THAT WHILE ADDRESSING THE ISS UE THE TRIBUNAL HAS ALREADY CONSIDERED THE ENTIRE RELEVANT EVIDENCES. NOW THE ASSESSEE HAS REITERATED THE CONTENTIONS AS MADE AT THE TIME OF HEARING OF THE A PPEAL. FURTHER IT IS TO BE NOTED THAT THE TRIBUNAL HAS OBSERVED IN THE IMPUGNED ORDE R THAT THE LABOUR CHARGES CLAIMED TO BE PAYABLE TO M/S INDUSTRIAL MACHINERY M ANUFACTURING WHICH IS A SISTER CONCERN OF THE ASSESSEE. THEREFORE IN THE ABSENCE OF ACTUAL PAYMENT OF LABOUR CHARGES THE CLAIM IS NOT FREE FROM SERIOUS DOUBTS AS EVIDENT FROM THE PROFIT &LOSS ACCOUNT OF M/S INDUSTRIAL MACHINERY MANUFACTURING T HAT THE ONLY SALE TURNOVER SHOWN WAS LABOUR CHARGES RECEIVABLE FROM THE ASSESS EE COMPANY. IN THOSE CIRCUMSTANCES THE ACTUAL PAYMENT TO THE LABOURS IS REQUIRED TO BE PROVED BUT THE ASSESSEE DID NOT PRODUCE ANY MATERIAL OR RECORD TO SHOW THE ACTUAL PAYMENT TO THE LABOURS. FURTHER THE SAID FIRM HAS SHOWN ONLY RS . 7 968/- AS INCOME OUT OF THE SAID LABOUR CHARGES RECEIVABLE FROM THE ASSESSEE. THEREF ORE WE DO NOT FIND ANY SUBSTANCE IN THE MISCELLANEOUS APPLICATION ON THIS ISSUE. 4 AS REGARDS GROUND NO2 THIS TRIBUNAL HAS GIVEN A FINDING AFTER DULY CONSIDERING THE RELEVANT MATERIAL ON RECORD. MOREOVER NOTHING HAS BEEN SUBMITTED OR ARGUED BY THE ASSESSEE IN SUPPORT OF THE AVERMENTS MADE IN THE MISCELLANEOUS APPLICATION ON THIS POINT. THEREFORE WHEN THIS ISSUE HAS BEEN DEALT WITH ON MERIT AFTER CONSIDERING THE RELEVANT EVIDENCES THEN THE TRIBUN AL HAS NO POWER/JURISDICTION OF RE- EXAMINATION OF EVIDENCE AND FACTS AND REVIEW OF ITS OWN ORDER. 5 EVEN OTHER OTHERWISE WE FIND THE SCOPE OF SEC 25 4(2) IS VERY LIMITED AND CIRCUMSCRIBED. FOR EXERCISING THE JURISDICTIONAL U/ S 254(2) IT IS THE MANDATORY 4 SAINY HEAVY ELECTRICAL & ENGG CO P LTD CONDITION THAT SUCH MISTAKE SHOULD BE WIDE APPARENT MANIFEST AND PATENT AND NOT SOMETHING WHICH COULD BE SERIOUS CIRCUMSTANCES OF DISPUTES OF QUESTION OF FACTS OR LAW AND CAN BE ESTABLISHED BY LONG DRAWN PROCESS AN D REASONING ON THE POINT TO BE RECTIFIED. A PATENT MISTAKE AS WELL AS EVIDENT ERROR WHICH DOES NOT REQUIRE AN ELABORATE DISCUSSION OF EVIDENCE OR ARGUMENTS TO ES TABLISH CAN BE SAID TO BE AN ERROR APPARENT ON THE FACE OF THE RECORDS AND CAN B E RECTIFIED UNDER THE AMBIT OF SECTION 254(2). IT IS WELL SETTLED THAT SEC 254(2) DOES NOT CONFER POWER ON THE TRIBUNAL TO REVIEW IS EARLIER ORDER. THUS THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER PASSED ON MERIT AND IN THE GRAB OF RECTIFICATION OF MISTAK E NO ORDER CAN BE PASSED U/S 254(2) WHICH AMOUNTS TO REVERSAL OF THE ORDER PASSE D AFTER DISCUSSING ALL THE FACTS AND STATUTORY PROVISIONS IN DETAIL. THEREFORE WE DO NOT FIND ANY MERIT IN THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. 6 IN THE RESULT THE MISCELLANEOUS APPLICATION FILE D BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THE 4 TH DAY OF NOV 2011. SD/ SD/- ( R S SYAL ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 4 TH NOV 2011 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR ITAT MUMBAI