SUJAUDDIN KASIMSAB SAYYED, MUMBAI v. INCOME TAX OFFICER 2(2), KALYAN

MA 379/MUM/2019 | 2015-2016
Pronouncement Date: 25-11-2019 | Result: Dismissed

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Appeal Details

RSA Number 37919924 RSA 2019
Assessee PAN AXOPS1247C
Bench Mumbai
Appeal Number MA 379/MUM/2019
Duration Of Justice 4 month(s) 21 day(s)
Appellant SUJAUDDIN KASIMSAB SAYYED, MUMBAI
Respondent INCOME TAX OFFICER 2(2), KALYAN
Appeal Type Miscellaneous Application
Pronouncement Date 25-11-2019
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted G
Tribunal Order Date 25-11-2019
Last Hearing Date 12-07-2019
First Hearing Date 12-07-2019
Assessment Year 2015-2016
Appeal Filed On 04-07-2019
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH G MUMBAI BEFORE SHRI PAWAN SINGH (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) M.A. NO. 379/MUM/2019 (ITA NO. 5498/MUM/2018 ) ASSESSMENT YEAR: 2015 - 16 SUJAUDDIAN KASIMSAB SAYYED A - 5 202 VAISHALI LOK NAGRI CHS LTD. MIDC ROAD AMBERNATH (E) - 421501. VS. INCOME TAX OFFICER - 2(2) 2 ND FLOOR MOHAN PLAZA WAYLE NAGAR KHADAKPADA KALYAN - 421301. PAN NO. AXOPS1247C APPELLANT RESPONDENT ASSESSEE BY : MR. RAJIV KHANDELWAL & MR. NEELKHANTH KHANDELWAL ARS REVENUE BY : MS. KAVITA KAUSHAL DR DATE OF HEARING : 20/09/2019 DATE OF PRONOUNCEMENT: 25/11/2019 ORDER PER N.K. PRADHAN A.M. BY MEANS OF THIS MISCELLANEOUS APPLICATION (MA) THE APPLICANT SEEKS RECTIFICATION OF THE ORDER DATED 10.06.2019 PASSED BY THE ITAT G BENCH MUMBAI (ITA NO. 5498/MUM/2018 ) F OR THE ASSESSMENT YEAR (AY) 2015 - 16 . IN PART - I HERE - IN - BELOW WE MENTION THE CONT ENTIONS OF THE LD. COUNSEL OF THE APPLICANT IN PART - II THE SUBMISSIONS OF THE LD. DR AND IN PART - III THE REASONS FOR OUR DECISION. SUJAUDDIAN KASIMSAB MA NO. 379/MUM/2019 2 I 2. THE CONTENTIONS OF THE LD. COUNSEL S FOLLOW THE WRITTEN SUBMISSION FILED BY THE APPLICANT BEFORE THE TRIBUNAL. THEREFORE WE REFER BELOW THE SAID WRITTEN SUBMISSION. IT IS STATED THAT THE AUTHORIZED REPRESENTATIVE (AR) DURING THE COURSE OF HEARING BEFORE THE TRIBUNAL SUBMITTED THAT THE PRE - AMENDED PROVISION OF SECTION 56(2)(VII)(B) HAS TO BE CONSIDERED AND THAT THE SAME SHALL NOT APPLY TO THE FACTS OF THE APPELLANT IN AS MUCH AS THE IMMOVABLE PROPERTY IS NOT PURCHASED WITHOUT CONSIDERATION. IT IS FURTHER STATED THAT RELYING ON THE DECISION O F THE HONBLE BOMBAY HIGH COURT IN THE CASE OF VEMBU VAIDYNATHAN (101 TAXMANN.COM 436) IT WAS CONTENDED THAT THE APPLICANT ACQUIRED/PURCHASED/RECEIVED THE IMMOVABLE PROPERTY ON THE DATE OF THE ISSUE OF LETTER OF ALLOTMENT NAMELY 27.04.2012 AND HENCE THE P ROVISIONS OF UN - AMENDED ACT SHALL NOT BE APPLICABLE. IT IS STATED THAT THEREFORE THERE IS A MISTAKE APPARENT FROM RECORD. IT IS ARGUED THAT THE BACK BONE OF THE ISSUE THAT THE PROVISIONS OF SECTION 56(2)(VII)(B) ARE NOT APPLICABLE IS FOUNDED ON THE ARGUMEN T THAT THE IMMOVABLE PROPERTY IS RECEIVED WITHOUT CONSIDERATION. IT IS FURTHER SUBMITTED BY THE LD. COUNSEL S THAT THE TRIBUNAL HAS DECIDED THE CASE OF THE APPELLANT ON THE TOUCHSTONE OF THE AMENDED PROVISIONS OF SECTION 56 NAMELY SECTION 56(2)(VII)(B)( II) ; HOWEVER THE AR ARGUED THE APPEAL CONSIDERING THE PRE - AMENDED PROVISIONS OF SECTION 56(2)(VII)(B) (II) AND CONTENDED THAT THE SAME ARE NOT APPLICABLE TO THE FACTS ON HAND IN AS MUCH AS THE RECEIPT OF IMMOVABLE PROPERTY IN THE CASE OF THE APPELLANT IS WITHOUT CONSIDERATION. SUJAUDDIAN KASIMSAB MA NO. 379/MUM/2019 3 ALSO IT IS STATED THAT IT WAS SPECIFICALLY MENTIONED THAT THE PROPERTY IS UNDER CONSIDERATION EVEN AT THE STAGE OF AGREEMENT FOR SALE ; THE AGREEMENT FOR SALE ONLY FORMALIZES THE LETTER OF ALLOTMENT IN THE CASE ON HAND. THE LD. COU NSEL S SUBMIT THAT THE TRIBUNAL HAS REFERRED TO THE DECISION IN SANJAY KUMAR GUPTA BUT HAS NOT MENTIONED WHY THE SAID DECISION IS NOT APPLICABLE TO THE CASE OF THE APPELLANT WHEREAS THE AR HAD SUBMITTED THAT THE DECISION IS APPLICABLE TO THE CASE ON HAND O N ALL FOURS. SIMILARLY IT IS STATED THAT THE TRIBUNAL HAS REFERRED TO THE DECISIONS OF ANITA D. KANJANI AND DEEPAK SHASHI BHUSAN ROY BUT HAS NOT DEALT/DISTINGUISHED THE SAME WHEREAS THE AR HAD REFERRED TO THESE DECISIONS AND TAKEN SUPPORT FROM THE RATIO OF THESE DECISIONS. IT IS ARGUED THAT THE TRIBUNAL AFTER REFERRING TO THE DECISION IN VEMBU VAIDYANATHAN HAS DISTINGUISHED BY STATING THAT IN THE INSTANT APPEAL THE ISSUE IS NOT THE ALLOTMENT IN CONSTRUCTION SCHEME PROMISED BY THE BUILDER WHICH IS MATERIALLY SAME AS THE TERMS OF ALLOTMENT AND CONSTRUC TION BY DDA WHEREAS THE AR HAD SPECIFICALLY MENTIONED THAT THE MAIN SPECIFICATIONS OF LETTER OF ALLOTMENT (NAMELY FLAT NO. FLOOR WING NAME OF THE BUILDING SITUATION OF THE BUILDING AND SALE CONSIDERATION) FIND PLACE EVEN IN THE AGREEMENT FOR SALE AND AS SUCH AGREEMENT FOR SALE DATED 10.09.2014 ONLY FORM ALIZES THE LETTER OF ALLOTMENT DATED 27.04.2012 AND THE TERMS ARE MATERIALLY THE SAME AS IN THE LETTER OF ALLOTMENT. IT IS ALSO SUBMITTED THAT DURING THE COURSE OF HEARING IT WAS NEVER MENTIONED THAT THE PROVISIONS OF SECTION 56(2)(VII)(B) WERE INTRODUC ED BY THE FINANCE ACT 2013 W.E.F. 01.04.2014 ; WHAT WAS MENTIONED WAS THAT THE PROVISIONS OF SECTION 56(2)(VII)(B) HAVE BEEN BROUGHT ON THE STATUTE BOOKS BY THE FINANCE ACT 2010 W.R.E.F. 01.10.2009 THE APPLICABILITY OF WHICH HAS SUJAUDDIAN KASIMSAB MA NO. 379/MUM/2019 4 TO BE CONSIDERED AND NOT THE PROVISIONS OF SECTION 56(2)(VII)(B)(II) WHICH HAS BEEN INTRODUCED BY THE FINANCE ACT 2013 W.E.F. 01.04.2014 AND HENCE CANNOT BE CONSIDERED TO DECIDE THE CASE ON HAND AS THE LETTER OF ALLOTMENT IS ISSUED ON 27.04.2012 I.E. DURING THE AY 2013 - 14. IT IS EXPLAINED THAT THE LETTER OF ALLOTMENT IS AN AGREEMENT AS PER SECTION 2(H) OF THE INDIAN CONTRACT ACT IN AS MUCH AS IT IS A CONTRACT MADE BETWEEN TWO OR MORE PARTIES WHICH IS ENFORCEABLE IN LAW AND THEREFORE THE LETTER OF ALLOTMENT (AND ITS DATE) CANNOT JUST BE BRUSHED ASIDE IN THE MANNER AS DONE BY THE TRIBUNAL. IT IS STATED THAT THE TRIBUNAL HAS REFERRED TO A DECISION OF NATIONAL CEMENT MINES INDUSTRIES LTD . (42 ITR 69) WHICH WAS NOT REFERRED TO BY ANY LITIGATING PARTY AND HENCE COULD NOT HAVE BEEN R ELIED ON WITHOUT GIVING AN OPPORTUNITY TO THE PARTIES TO THE LITIGATION. IT IS THUS SUBMITTED BY THE LD. COUNSELS THAT THERE ARE MISTAKES APPARENT FROM RECORD IN THE IMPUGNED ORDER OF THE TRIBUNAL WHICH SHOULD BE RECTIFIED UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT. II 3. ON THE OTHER HAND THE LD. DR SUBMITS THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE IMPUGNED ORDER PASSED BY THE TRIBUNAL. HE SUBMITS THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER IN THE GARB OF SECTION 254(2) OF THE ACT. III 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. THE REASONS FOR OUR DECISIONS ARE GIVEN BELOW. SUJAUDDIAN KASIMSAB MA NO. 379/MUM/2019 5 WE HAVE MENTIONED AT PARA 7.2 OF THE IMPUGNED ORDER THE LETTER OF ALLOTMENT DATED 27.04.2012 WHICH READS AS UND ER: RE: BOOKING OF FLAT NO. 2901 ON 29 TH FLOOR IN CWING OF THE BUILDING METROPOLLS RESIDENCES SITUATED AT C.T.S. NO. 866/B VILLAGE AMBIVALI ANDHERI(WEST) MUMBAI THIS IS TO CONFIRM AND RECORD THAT WE HAVE AGREED TO ALLOT ON YOUR REQUEST FLAT NO. 29 01 ON 29 TH FLOOR IN C WING IN METROPOLIS RESIDENCES FOR THE AGGREGATE VALUE OF RS. 88 30 000/ - (RUPEES EIGHTY EIGHT LACS THIRTY THOUSAND ONLY) EXCLUSIVE OF ALL OTHER CHARGES & DEPOSITS ETC. AS APPLICABLE. YOU WILL ALSO HAVE TO PAY STAMP DUTY AND REGI STRATION CHARGES SEPARATELY. IN CASE IF THE AREA OF THE FLAT IS ALTERED / CHARGED (INCREASED OR DECREASED) THEN IN THAT EVENT YOU SHALL PAY TO USE FOR THE AREA INCREASED AND IN CASE IF THE AREA OF THE FLAT DECREASED WE SHALL REFUND YOU THE AMOUNT OF TH E AREA DECREASED. 4.1 FURTHER AT PARA 7.3 OF THE IMPUGNED ORDER WE HAVE MENTIONED AGREEMENT FOR SALE DATED 10.09.2014 WHICH STIPULATES AT PARA 4 THE FOLLOWING: 4. THE PURCHASER/S HEREBY AGREE/S TO PURCHASE FROM THE DEVELOPER AND THE DEVELOPER HEREBY AGREES TO SELL FLAT NO. 2901 ADMEASURING 123.36 SQ.MTRS . (CARPET AREA) (WHICH IS INCLUSIVE OF CARPET AREA OF BALCONIES AND INTERNAL PASSAGE) ON 29 TH FLOOR OF C WING (HEREAFTER CALLED THE SAID FLAT) TOGETHER WITH OPEN STILT /STACK/UNDER STILT PARKING SPACE NO. _____ (HEREINAFTER CALLED THE SAID PARKING SPACE) IN THE BUILDING/COMPLEX KNOWN AS METROPOLIS UNDER CONSTRUCTION ON THE SAID PROPERTY AND THE SAID FLAT AND THE SAID PARKING SPACE IS HEREINAFTER COLLECTIVELY REFERRED TO AS THE SAID PREMISES FOR THE PRICE OF RS. 8830008/ - (RUPEES EIGHTY EIGHT LAKHS THIRTY THOUSAND EIGHT ONLY) WHICH PRICES SHALL BE PAID BY THE PURCHASER/S TO THE DEVELOPERS AS UNDER: - (A) RS. 300000/ - (RUPEES THREE LAKHS ONLY) AS EARNEST MONEY DEPOSIT PAID BEFORE THE EXECUTION OF THESE PRESENTS AND RS. 1466001 (RUPEES FOURTEEN LAKHS SUJAUDDIAN KASIMSAB MA NO. 379/MUM/2019 6 SIXTY SIX THOUSAND AND ONE ONLY ) AT THE TIME OF EXECUTION OF THESE PRESENTS MAKING ARRANGEMENT OF R S. 1766001/ - (RUPEES SEVENTEEN LAKHS SIXTY SIX THOUSAND AND ONLY ONLY) (THE PAYMENT AND RECEIPT WHEREOF THE DEVELOPER DOTH HEREBY ADMIT AND ACKNOWLEDGE). (B) RS. 7064007/ - (RUPEES SEVENTY LAKHS SIXTY FOUR THOUSAND SEVEN ONLY) BEING THE BALANCE OF THE PURCH ASE PRICE TO BE PAID BY THE PURCHASER/S IN THE MANER AND BY THE INSTALMENTS MENTIONED HEREUNDER: (I) RS. 883000/ - (RUPEES EIGHT LAKHS EIGHTY THREE THOUSAND ONLY) ON CASTING OF THE 3 RD BASEMENT/SLAB I.E. PLINTH SLAB: (II) RS. 6937861/ - ON CASTING OF 3 RD FLOOR SLAB: .......... .......... .......... 4.2 WE HAVE ALSO MENTIONED THE FACTS THAT AS PER THE AGREEMENT FOR SALE DATED 10.09.2014 THE PAYMENT OF RS.3 00 000/ - ON 27.04.2012 WAS AN EARNEST MONEY DEPOSIT PAID BEFORE THE EXECUTION OF THESE PRES ENTS AND RS.14 66 001/ - AT THE TIME OF EXECUTION OF THESE PRESENTS MAKING AN AGGREGATE OF RS.17 66 001/ - I.E. (RS.3 00 000/ - + RS.14 66 001/ - ) AND RS.70 64 007/ - BEING THE BALANCE OF THE PURCHASE PRICE TO BE PAID BY THE PURCHASERS IN THE MANNER AND BY IN STALMENTS MENTIONED THEREIN. 4.3 IN THE INSTANT CASE THERE IS NO DISPUTE THAT THE AGREEMENT FOR SALE IS DATED 10.09.2014. WE HAVE HELD THAT THE LETTER OF ALLOTMENT DATED 27.04.2012 WHICH HAS BEEN PRODUCED AT PARA 4 HEREINABOVE CANNOT BE CONSIDERED AS THE DATE OF EXECUTION OF AGREEMENT BY ANY STRETCH OF IMAGINATION. IN THIS CONTEXT WE HAVE RELIED ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN ALAPATI VENKATARAMIAH V. CIT (1965) 57 ITR 185 (SC) CIT V. PODAR CEMENTS PVT. LTD . (1997) 226 ITR 625 (SC) WHEREIN IT IS HELD THAT SUJAUDDIAN KASIMSAB MA NO. 379/MUM/2019 7 ONCE THE EXECUTED DOCUMENTS ARE REGISTERED TRANSFER WILL TAKE PLACE ON THE DATE OF EXECUTION OF DOCUMENTS AND NOT ON THE DATE OF REGISTRATION OF DOCUMENTS. IT IS WELL - SETTLED THAT IMMOVABLE PROPERTY IS NOT CONVEYED BY DELIVERY OF POSSESSION BUT BY A DULY REGISTERED DEED. FURTHER IT IS THE DATE OF EXECUTION OF REGISTERED DOCUMENT NOT THE DATE OF DELIVERY OF POSSESSION OR THE DATE OF REGISTRATION OF DOCUMENT WHICH IS RELEVANT. 4.4 IN THE INSTANT CASE THE AGREEMENT FOR SALE I S DATED 10.09.2014. SECTION 56(2)(VIII)(B)(II) CLEARLY STIPULATES THAT WHERE ANY IMMOVEABLE PROPERTY IS RECEIVED FOR A CONSIDERATION WHICH IS LESS THAN THE STAMP DUTY VALUE OF THE PROPERTY BY AN AMOUNT EXCEEDING RS.50000/ - THE STAMP DUTY VALUE OF SUCH PRO PERTY AS EXCEEDS SUCH CONSIDERATION SHALL BE CHARGEABLE TO TAX IN THE HANDS OF THE INDIVIDUAL OR HUF AS INCOME FROM OTHER SOURCES. IT IS APPLICABLE FROM A.Y. 2014 - 15. THUS IT IS CRYSTAL CLEAR THAT THE AFORESAID SECTION IS APPLICABLE TO THE INSTANT CASE. ONCE THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN ALAPATI VENKATARAMIAH (SUPRA) AND PODAR CEMENTS PVT. LTD . (SUPRA) IS FOLLOWED THEN THERE SHOULD NOT BE ANY DISPUTE ON FOLLOWING THE PROVISIONS OF SECTION 56(2)(VIII)(B)(II) OF THE ACT. CONSEQUENTLY THERE IS NO NEED OF REFERRING TO OTHER SECTIONS WHICH MAY ARISE IF ONE TAKES INTO CONSIDERATION THE LETTER OF ALLOTMENT DATED 27.04.2012. THEREFORE THE REFERENCE BY THE LD. COUNSEL TO THE OTHER SECTIONS OF THE ACT I.E. SECTION 56(2)(VII)(B) IS NOT REL EVANT IN THE INSTANT CASE. 4.5 AS WE HAVE FOLLOWED THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN ALAPATI VENKATARAMIAH (SUPRA) AND PODAR CEMENTS PVT. LTD . (SUPRA) THERE IS NO NECESSITY OF DISTINGUISHING THE ORDER OF THE TRIBUNAL IN THE CASE OF SANJAY KUMAR GUPTA ANITA D. KANJANI AND DEEPAK SHASHI BHUSAN ROY . SUJAUDDIAN KASIMSAB MA NO. 379/MUM/2019 8 AFTER ALL THE LAW DECLARED BY THE HONBLE SUPREME COURT IS BINDING ON ALL COURTS AS PER ARTICLE 141 OF THE CONSTITUTION. WE HAVE SPECIFICALLY MENTIONED AT PAGE 10 - 11 OF THE IMPUGNED ORDER THE DECISION IN THE CASE OF PR. CIT V. VEMBU VAIDYANATHAN (2019) 101 TAXMANN.COM 436 (BOM) WHEREIN THE ASSESSEE HAD FILED THE RETURN OF INCOME FOR THE AY 2009 - 10 AND CLAIMED LTCG ARISING OUT OF CAPITAL ASSET IN THE NATURE OF A RESIDENTIAL UNIT. THE CONTR OVERSY BETWEEN THE ASSESSEE AND THE REVENUE REVOLVES AROUND THE QUESTION AS TO WHEN THE ASSESSEE CAN BE STATED TO HAVE ACQUIRED THE CAPITAL ASSET. THE ASSESSEE ARGUED THAT THE RESIDENTIAL UNIT IN QUESTION WAS ACQUIRED ON THE DATE ON WHICH THE ALLOTMENT LET TER WAS ISSUED BY THE BUILDER WHICH WAS ON 31.12.2004. THE AO HOWEVER CONTENDED THAT THE TRANSFER OF THE ASSET IN FAVOUR OF THE ASSESSEE WOULD BE COMPLETE ONLY ON THE DATE OF AGREEMENT WHICH WAS EXECUTED ON 17.05.2008. THE HONBLE HIGH COURT REFERRING TO T HE CBDT CIRCULAR NO. 471 DATED 15.10.1986 AND NO. 672 DATED 16.12.1993 HELD THAT IT CAN THUS BE SEEN THAT THE ENTIRE ISSUE WAS CLARIFIED BY THE CBDT IN ITS ABOVEMENTIONED TWO CIRCULARS DATED 15.10.1986 AND 16.12.1993. IN TERMS OF SUCH CLARIFICATIONS THE DATE OF ALLOTMENT WOULD BE THE DATE ON WHICH THE PURCHASER OF A RESIDENTIAL UNIT CAN BE STATED TO HAVE ACQUIRED THE PROPERTY. THERE IS NOTHING ON RECORD TO SUGGEST THAT THE ALLOTMENT IN CONSTRUCTION SCHEME PROMISED BY THE BUILDER IN THE PRESENT CASE WAS MA TERIALLY DIFFERENT FROM THE TERMS OF ALLOTMENT AND CONSTRUCTION BY DDA. IN THAT VIEW OF THE MATTER CIT(A) AND TRIBUNAL CORRECTLY HELD THAT THE ASSESSEE HAD ACQUIRED THE PROPERTY IN QUESTION ON 31.12.2004 ON WHICH THE ALLOTMENT LETTER WAS ISSUED. WE HAV E SPECIFICALLY STATED AT PAGE 11 OF THE IMPUGNED ORDER THAT IN THE INSTANT APPEAL THE ISSUE IS NOT THE ALLOTMENT IN CONSTRUCTION SCHEME SUJAUDDIAN KASIMSAB MA NO. 379/MUM/2019 9 PROMISED BY THE BUILDER WHICH IS MATERIALLY SAME AS THE TERMS OF ALLOTMENT AND CONSTRUCTION BY DDA. THUS THE CASE OF TH E ASSESSEE IN THE INSTANT CASE IS DISTINGUISHABLE FROM THE DECISION IN VEMBU VAIDYANATHAN (SUPRA) RELIED ON BY THE LD. COUNSEL. 4.6 IN THE WRITTEN SUBMISSION FILED BY THE ASSESSEE BEFORE THE CIT(A) IT HAS BEEN MENTIONED AT PAGE 3 THAT THE PROVISIONS OF SECTI ON 56(2)(VII)(B ) WAS INTRODUCED BY THE FINANCE ACT 2013 W.E.F. 01.04.2014 AND HENCE THE AMENDED PROVISION IS NOT APPLICABLE TO THE CASE OF THE ASSESSEE SINCE THE APPELLANT WAS ENTITLED TO THE IMMOVABLE PROPERTY DURING THE AY 2013 - 14. THE SAME SUBMISSION WAS REITERATED DURING THE COURSE OF HEARING AND HENCE IT CANNOT BE SAID THAT IT WAS NEVER MENTIONED. 4.7. THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF NATIONAL CEMENT MINES INDUSTRIES LTD. V. CIT (1961) 42 ITR 69 HAS BEEN REFERRED IN THE IMPUGNED ORDER JUST TO EXPLAIN THAT IN CONSTRUING A COMMERCIAL TRANSACTION 'THE TRUE NATURE AND CHARACTER OF THE TRANSACTION HAVE TO BE ASCERTAINED FROM THE COVENANTS OF THE CONTRACT IN THE LIGHT OF THE SURROUNDING CIRCUMSTANCES.' THERE IS NO MISTAKE IN REFERRING TO THE ABOVE DECISION OF THE HONBLE SUPREME COURT BECAUSE ONLY A SETTLED PRINCIPLE HAS BEEN ILLUSTRATED THEREIN. THE CONCLUSION IN THE IMPUGNED ORDER IS BASED ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE O F ALAPATI VENKATARAMIAH (SUPRA) AND PODAR CEMENTS PVT. LTD . (SUPRA). 4.8 A PERUSAL OF THE ABOVE FACTS CLEARLY INDICATE THAT THE APPLICANT HAS NOT POINTED OUT ANY MISTAKE APPARENT FROM THE RECORD. A MISTAKE APPARENT ON SUJAUDDIAN KASIMSAB MA NO. 379/MUM/2019 10 THE RECORD MUST BE AN OBVIOUS MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. A DECISION ON A DEBATABLE POINT OF LAW IS NOT A MISTAKE APPARENT FROM THE RECORD. THIS VIEW IS SUPPORTED BY THE DECIS ION OF THE HONBLE SUPREME COURT IN T.S. BALARAM ITO V. VOLKART BROS . (1971) 82 ITR 50 (SC) MASTER CONSTRUCTION CO. P. LTD. V. STATE OF ORISSA AIR 1966 SC 1047 KARAM CHAND THAPAR & BROS. (COAL SALES) LTD. V. STATE OF U.P. (1976) TAX LR 1921 1927 (SC) AND CCE V. ASCU LTD . (2003) 9 SCC 230 232. IN FACT NOT A SINGLE ERROR IN THE IMPUGNED ORDER HAS BEEN POINTED OUT BY THE APPLICANT. WHAT THE APPLICANT WANTS IS A REVIEW OF THE ORDER PASSED BY THE TRIBUNAL. THE TRIBUNAL IS A CREATURE OF THE STATUTE. THE TRIBUNAL CANNOT REVIEW ITS OWN DECISION UNLESS IT IS PERMITTED TO DO SO BY THE STATUTE. THE HONBLE SUPREME COURT HAS HELD IN PATEL NARSHI THAKERSHI V. PRADYUMANSINGHJI ARJUNSINGHJI [AIR 1970 SC 1273] THAT THE POWER TO REVIEW IS NOT AN INHERENT POWER. IT MUST BE CONFERRED BY LAW EITHER SPECIFICALLY OR BY NECESSARY IMPLICATION. IT IS A SETTLED LAW THAT THE TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER IN THE GARB OF SECTION 254(2) OF THE ACT AS HELD IN CIT V. GLOBE TRANSPORT CORPN. [1992] 195 ITR 311 (RAJ) (HC) CIT V. ROOP NARAIN SARDAR MAL [2004] 267 ITR 601 (RAJ) (HC) CIT V. DEVILAL SONI [2004] 271 ITR 566 (RAJ) (HC) JAINARAIN JEEVRAJ V. CIT [1980] 121 ITR 358 (RAJ.) (HC) PRAJATANTRA PRACHAR SAMITI V. CIT [2003] 264 ITR 160 (ORISSA) (HC) CIT V. JAGABANDHU ROUL [1984] 145 ITR 153 (ORISSA) (HC) CIT & ANR. V. ITAT & ANR. [1992] 196 ITR 640 (ORISSA) (HC) SHAW WALLACE & CO. LTD. V. ITAT & OTHERS [1999] 240 ITR 579 (CAL) (HC) CIT V. SUM AN TEA & PLYWOOD INDUSTRIES PVT. LTD. [1997] 226 ITR 34 (CAL) (HC) ITO V. ITAT & ANR. [1998] SUJAUDDIAN KASIMSAB MA NO. 379/MUM/2019 11 229 ITR 651 (PAT.) (HC) CIT & ANR. V. ITAT & ANR. [1994] 206 ITR 126 (AP) (HC) ACIT V. C. N. ANANTHRAM [2004] 266 ITR 470 (KAR) (HC). 4.9 IN THE CASE OF CIT V. RAMESH ELECTRIC & TRADING CO. (1993) 203 ITR 497 (BOM) THEIR LORDSHIPS OF THE HONBLE BOMBAY HIGH COURT HAVE HELD: UNDER S. 254(2) OF THE IT ACT 1961 THE TRIBUNAL MAY WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD AMEND ANY ORDER PASSED BY IT UNDER SUB - S (1) WITHIN THE TIME PRESCRIBED THEREIN. IT IS AN ACCEPTED POSITION THAT THE TRIBUNAL DOES NOT HAVE ANY POWER TO REVIEW ITS OWN ORDERS UNDER THE PROVISIONS OF THE IT ACT 1961. THE ONLY POWER WHICH THE TRIBUNAL POSSESSES IS TO RECTI FY ANY MISTAKE IN ITS OWN ORDER WHICH IS APPARENT FROM THE RECORD. THIS IS MERELY A POWER OF AMENDING ITS ORDER. IN THE PRESENT CASE IN THE FIRST ORDER THERE IS NO MISTAKE WHICH IS APPARENT FROM THE RECORD AT ALL. THE TRIBUNAL WAS REQUIRED TO DECIDE WHET HER THE COMMISSION PAYMENT OF RS.54 000 WAS DEDUCTIBLE UNDER S. 37. AFTER EXAMINING THE CIRCUMSTANCES THE TRIBUNAL CAME TO A CONCLUSION THAT IT WAS NOT SO DEDUCTIBLE. THE TRIBUNAL CANNOT IN EXERCISE OF ITS POWER OF RECTIFICATION LOOK INTO SOME OTHER CIR CUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT ITS CONCLUSION SO ARRIVED AT. THE MISTAKE THE TRIBUNAL IS ENTITLED TO CORRECT IS NOT AN ERROR OF JUDGMENT BUT A MISTAKE WHICH IS APPARENT FROM THE RECORD ITSELF. THE TRIBUNAL HAS PATENTLY FAR EXCEEDED ITS JUR ISDICTION UNDER S. 254(2) IN REDECIDING THE ENTIRE DISPUTE WHICH WAS BEFORE IT IN THIS FASHION AND THE TRIBUNAL HAS COMMITTED A GROSS AND INEXPLICABLE ERROR. FAILURE BY THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCL USION IS NOT AN ERROR APPARENT ON THE RECORD ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. 5. IN VIEW OF THE FACTUAL SCENARIO AND POSITION OF LAW DELINEATED HEREINBEFORE THE PRESENT MA BEING DEVOID OF MERIT IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25/11/2019 . SD/ - SD/ - ( PAWAN SINGH ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 25/11/2019 RAHUL SHARMA SR. P.S. SUJAUDDIAN KASIMSAB MA NO. 379/MUM/2019 12 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR ITAT MUMBAI 6. GUARD FILE . BY ORDER (DY./ASSTT. REGISTRAR) ITAT MUMBAI