ACIT, Ludhiana v. M/s Abhishek Industries Ltd., Ludhiana

MA 50/CHANDI/2014 | 2002-2003
Pronouncement Date: 24-10-2016 | Result: Dismissed

Appeal Details

RSA Number 5021524 RSA 2014
Assessee PAN AABCA4139J
Bench Chandigarh
Appeal Number MA 50/CHANDI/2014
Duration Of Justice 2 year(s) 5 month(s) 1 day(s)
Appellant ACIT, Ludhiana
Respondent M/s Abhishek Industries Ltd., Ludhiana
Appeal Type Miscellaneous Application
Pronouncement Date 24-10-2016
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 24-10-2016
Date Of Final Hearing 15-05-2015
Next Hearing Date 15-05-2015
Assessment Year 2002-2003
Appeal Filed On 23-05-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DIVISION BENCH CHANDIGARH BEFORE SHRI BHAVNESH SAINI JUDICIAL MEMBER AND MS. ANNAPURNA GUPTA ACCOUNTANT MEMBER M.A.NO.50/CHD/2014 IN M.A.NOS.112/CHD/2012 IN ITA NO.582/CHD/2007 (ASSESSMENT YEAR: 2002-03) THE A.C.I.T-I VS. M/S ABHISHEK INDUSTRIES LTD. LUDHIANA. LUDHIANA. PAN: AABCA4139J (APPELLANT) (RESPONDENT) APPLICANT BY : SHRI S.K. MITTAL RESPONDENT BY : SHRI ASHWANI KUMAR DATE OF HEARING : 21.10.2016 DATE OF PRONOUNCEMENT : 24.10.2016 O R D E R PER ANNAPURNA GUPTA A.M . : THIS MISCELLANEOUS APPLICATION IS ARISING OUT OF THE ORDER OF THE TRIBUNAL IN M.A.NO.112/CHD/2012 DA TED 19.7.2013 AND ITA NO.582/CHD/2007 DATED 2.8.2013. 2. THE LEARNED D.R. VIDE THIS MISCELLANEOUS APPLICATION HAS SOUGHT TO RECTIFY/WITHDRAW THE ABOV E ORDERS FOR THE REASON THAT THEY HAVE BEEN PASSED BE YOND THE LIMITATION PRESCRIBED UNDER SECTION 254(2 ) OF THE 2 INCOME TAX ACT 1961 (IN SHORT THE ACT). 3. THE LEARNED D.R. SUBMITTED BEFORE US THAT THE ORIGINAL ORDER WAS PASSED BY THE HON'BLE I.T.A.T. I N ITA NO.582/CHD/2007 DATED 31.3.2009 IN WHICH GROUND OF APPEAL NO.3 RAISED BY THE ASSESSEE WAS DISMISSED. IN THIS GROUND THE ASSESSEE HAD CHALLENGED THE DIRECTIONS OF THE CIT-I LUDHIANA GIVEN IN HIS ORDER PASSED UNDER SEC TION 263 OF THE ACT FOR RECOMPUTATION OF DEDUCTION UNDER SECTION 80HHC OF THE ACT BY HOLDING THAT THE PROFIT ON SALE OF DEPB DOES NOT CONSTITUTE INCOME FROM EXPORT BUSINESS. SINCE THE ISSUE HAD BEEN FOUND TO BE DEC IDED BY THE HON'BLE SUPREME COURT IN THE CASE OF TOPMAN EXPORT VS. CIT 342 ITR 49 (SC) THE ASSESSEE MOVED A MISCELLANEOUS APPLICATION REQUESTING FOR RECALLING OF THE ORDER PASSED. THE I.T.A.T. ALLOWED THE MISCELLANEO US APPLICATION OF THE ASSESSEE VIDE ORDER PASSED IN M.A.NO.112/CHD/2012 DATED 19.7.2013 RECALLING THE O RDER OF THE TRIBUNAL IN THIS RESPECT. THEREAFTER IN PU RSUANCE TO THE ABOVE ORDER THE I.T.A.T. PASSED AN ORDER IN ITA NO.582/CHD/2007 DATED 02.08.2013 SETTING ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER. THE LE ARNED D.R. STATED THAT SINCE THE ORDER PASSED UNDER SECTION 25 4(2) OF THE ACT IN MA NO.112/CHD/2012 DATED 19.07.2013 WA S BEYOND THE PERIOD OF FOUR YEARS FROM THE DATE OF TH E ORDER SOUGHT TO BE RECTIFIED I.E. 31-03-2009 AS STIPULA TED IN THE SAID SECTION THE SAME NEEDED TO BE 3 RECTIFIED/WITHDRAWN ALONGWITH THE CONSEQUENT ORDER PASSED IN ITA NO.582/CHD/2007 DATED 02.08.2013. 4. THE LEARNED COUNSEL FOR THE ASSESSEE ON THE OTHER HAND STATED THAT THE POWERS OF THE TRIBUNAL UNDER SECTION 254(2) OF THE ACT EXTENDED ONLY VIS--VIS RECTIFICATION OF ORDER PASSED UNDER SECTION 254(1) OF THE ACT AND IN THE PRESENT CASE THE LEARNED D.R. HAS S OUGHT RECTIFICATION OF ORDER PASSED UNDER SECTION 254(2) OF THE ACT WHICH IS NOT PERMISSIBLE AND THEREFORE PLEAD ED THAT THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE BE DISMISSED. 5. AFTER HEARING THE CONTENTIONS AND ARGUMENTS OF BOTH THE PARTIES WE FIND NO MERIT IN THE MISCELLAN EOUS APPLICATION FILED BY THE DEPARTMENT SINCE VIDE THIS MISCELLANEOUS APPLICATION IT HAS SOUGHT RECTIFICATI ON OF AN ORDER PASSED UNDER SECTION 254(2) OF THE ACT WHICH IS NOT PERMISSIBLE AS PER THE PROVISIONS OF THE ACT ITSELF . SECTION 254(2) STATES AS FOLLOWS : 254. (2) THE APPELLATE TRIBUNAL MAY AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER WITH A VIEW TO RECTIFYING AN Y MISTAKE APPARENT FROM THE RECORD AMEND ANY ORDER PASSED BY IT UNDER SUB- SECTION (1) AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO IT S NOTICE BY THE ASSESSEE OR THE ASSESSING] OFFICER : PROVIDED THAT AN AMENDMENT WHICH HAS THE EFFECT OF ENHANCIN G AN ASSESSMENT OR REDUCING A REFUND OR OTHERWISE INCREA SING THE LIABILITY OF THE ASSESSEE SHALL NOT BE MADE UNDER THIS SUB-SECT ION UNLESS THE APPELLATE TRIBUNAL HAS GIVEN NOTICE TO THE ASSESSEE OF ITS IN TENTION TO DO SO AND HAS ALLOWED THE ASSESSEE A REASONABLE OPPORTUNITY OF BE ING HEARD : 4 [ PROVIDED FURTHER THAT ANY APPLICATION FILED BY THE ASSESSEE IN THIS SUB- SECTION ON OR AFTER THE 1ST DAY OF OCTOBER 1998 S HALL BE ACCOMPANIED BY A FEE OF FIFTY RUPEES.] 6. A BARE PERUSAL/READING OF THE SAME SHOWS THAT THE TRIBUNAL HAS BEEN GIVEN POWERS TO RECTIFY ANY M ISTAKE WHICH HAS OCCURRED IN ANY ORDER PASSED BY IT UNDER SUB- SECTION (1) OF SECTION 254 OF THE ACT. THE SECTION THEREFORE IS VERY CLEAR ON THE SCORE THAT THE POWE R OF RECTIFICATION OF ORDER BY THE TRIBUNAL EXTENDS ONLY TO ORDERS PASSED UNDER SECTION 254(1) OF THE ACT. THE HON'BLE ORISSA HIGH COURT IN THE CASE OF COMMISSIO NER OF INCOME TAX & ANR. VS. PRESIDENT INCOME TAX APPELLA TE TRIBUNAL & OTHERS (1992) 196 ITR 838(ORISSA) HAS HE LD THAT TO ATTRACT THE APPLICABILITY OF SECTION 254(2) OF THE ACT THE MISTAKE MUST BE IN ANY ORDER PASSED UNDER SUB- SECTION (1) OF SECTION 254 AND IT IS NOT EXTENDED T O ORDERS PASSED UNDER SECTION 254(2) OF THE ACT. THE RELEVA NT FINDINGS OF THE HON'BLE HIGH COURT IN THIS REGARD A RE AS FOLLOWS : SECTION 254(2) EMPOWERS THE TRIBUNAL TO AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1) WITH A VIEW TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER. THEREFORE TO ATTRACT THE APPLICABILITY OF SECTION 254(2) THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED MUST BE APPARENT FROM THE RECORD AND THE SAME MUST BE IN ANY ORDER PASSED UNDER SUB-SECTION (1) OF SECTION 254. THE ORDER REFERRED TO IN SECTION 254(1) IS THE ONE 5 RELATING TO AN APPEAL FILED BY EITHER THE ASSESSEE OR THE REVENUE. SECTION 254(1) READS AS FOLLOWS : THE APPELLATE TRIBUNAL MAY AFTER GIVING BOTH THE PARTIES TO THE APPEAL AN OPPORTUNITY OF BEING HEARD PASS SUCH ORDERS THEREON AS IT THINKS FIT. THE APPEAL REFERRED TO IN THE PROVISION IS ONE FILED UNDER SECTION 253. THEREFORE THE ORDER WHICH CAN BE RECTIFIED MUST BE ONE WHICH HAS BEEN PASSED BY THE TRIBUNAL IN AN APPEAL FILED UNDER SECTION 253. IN OUR VIEW AN ORDER REJECTING AN APPLICATION FOR RECTIFICATION UNDER SECTION 254(2) IS NOT AVAILABLE TO BE RECTIFIED UNDER SECTION 254(2). THE SAME MAY RELATE TO AN APPEAL BUT IT IS NOT AN ORDER PASSED BY THE TRIBUNAL UNDER SUB-SECTION (1) OF SECTION 254. AS INDICATED ABOVE THE ASSESSEES APPLICATION FOR RECTIFICATION WAS FOR RECTIFICATION UNDER SECTION 254(2) WAS REJECTED BY THE TRIBUNAL. THE SECOND APPLICATION WAS FOR RECTIFICATION OF SOME ALLEGED MISTAKES IN THE SAID ORDER OF REJECTION. SECTION 254(2) HAD NO APPLICATION TO SUCH AN ORDER. THE TRIBUNAL WAS NOT JUSTIFIED IN PURPORTING TO ACT UNDER SECTION 254(2) AND PASSING THE IMPUGNED ORDER. IN VIEW OF THIS WE DO NOT THINK IT NECESSARY TO DEAL WITH THE SUBMISSIONS RELATING TO THE DISPUTE WHETHER THERE WAS ANY RECTIFIABLE MISTAKE APPARENT FROM THE RECORD OR NOT. 7. THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE NEEDS TO BE DISMISSED FOR THIS REASON ALON E. BUT WE MAY FURTHER ADD THAT IN ANY CASE THERE IS N O ERROR 6 IN THE ORDER PASSED BY THE ITAT IN M.A.NO.112/CHD/2012 BEYOND THE PERIOD OF FOUR YEAR S FROM THE DATE OF ORIGINAL ORDER SINCE THE HON'BLE APEX COURT IN THE CASE OF SHRI AYYANAR SPINNING & WEAVI NG MILLS LTD. VS. CIT (2008) 301 ITR 434(SC) HAS HELD THAT AS LONG THE APPLICATION FOR RECTIFICATION IS MADE WITHIN FO UR YEARS OF THE APPELLATE ORDER OF THE APPELLATE TRIBU NAL THE APPELLATE TRIBUNAL HAS JURISDICTION TO PASS THE ORD ER DISPOSING OF THE APPLICATION AND CANNOT REJECT THE APPLICATION ON THE GROUND THAT FOUR YEARS HAVE ELAP SED. THE HON'BLE SUPREME COURT HELD AT PARA 9 OF ITS ORD ER AS FOLLOWS : ANALYSING THE ABOVE PROVISIONS WE ARE OF THE VIEW THAT SECTION 254(2) IS IN TWO PARTS. UNDER THE FIRST PART THE APPELLATE TRIBUNAL MAY AT ANY TIME WITHIN YEARS FROM THE DATE OF THE ORDER RECTIFY ANY MISTAKE APPARENT FROM THE RECORD AND AMEND ANY ORDER PASSED BY IT UNDER SUB-SECTION (1). UNDER THE SECOND PART OF SECTION 254(2) THE REFERENCE IS TO THE AMENDMENT OF THE ORDER PASSED BY THE TRIBUNAL UNDER SUB-SECTION (1) WHEN THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE ASSESSING OFFICER. THEREFORE IN SHORT THE FIRST PART OF SECTION 254(2) REFERS TO T HE SUO MOTU EXERCISE OF THE POWER OF RECTIFICATION BY THE TRIBUNAL WHEREAS THE SECOND PART REFERS TO RECTIFICATION AND AMENDMENT ON AN APPLICATION BEING MADE BY THE ASSESSING OFFICER OR THE ASSESSEE POINTING OUT THE MISTAKE APPARENT FROM THE RECORD. IN THIS CASE WE ARE CONCERNED WITH THE SECOND PART OF SECTION 254(2). AS STATED ABOVE THE APPLICATION FOR RECTIFICATION WAS MADE WITHIN FOUR YEARS. THE APPLICATION WAS WELL 7 WITHIN FOUR YEARS. IT IS THE TRIBUNAL WHICH TOOK ITS OWN TIME TO DISPOSE OF THE APPLICATION. THEREFORE IN THE CIRCUMSTANCES THE HIGH COURT HAD ERRED IN HOLDING THAT THE APPLICATION COULD NOT HAVE BEEN ENTERTAINED BY THE TRIBUNAL BEYOND FOUR YEARS. 8. IN THE PRESENT CASE IT IS NOT DISPUTED THAT THE MISCELLANEOUS APPLICATION WAS FILED BY THE ASSESSEE WELL WITHIN THE PRESCRIBED PERIOD OF FOUR YEARS FROM THE DATE OF PASSING OF ORDER BEING SOUGHT TO BE RECTIFIED. IN S UCH CIRCUMSTANCES IN VIEW OF THE ABOVE REFERRED DECISI ON OF THE APEX COURT THE TRIBUNAL HAD NOT ERRED IN PASSI NG THE ORDER BEYOND THE PERIOD OF FOUR YEARS. WE THEREFOR E HOLD THAT THERE IS NO ERROR WHICH NEEDS RECTIFICATION I N THE ORDER PASSED BY THE TRIBUNAL IN M.A.NO.112/CHD/2012 . 9. IN VIEW OF THE ABOVE WE HOLD THAT THERE BEING NO ERROR IN THE ORDER BEING SOUGHT TO BE RECTIFIED AND EVEN OTHERWISE THE POWERS OF RECTIFICATION UNDER SECTION 254(2) NOT EXTENDING /APPLYING TO ORDERS PASSED UNDER SECT ION 254(2) THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (BHAVNESH SAINI) (ANNAPURNA GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 24 TH OCTOBER 2016 *RATI* 8 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. THE CIT 5. THE DR ASSISTANT REGISTRAR ITAT CHANDIGARH