BOMBAY OXGYEN CORPORATI LTD, v. JCIT 10(3),

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I MUMBAI BEFORE SHRI D.MANMOHAN VICE PRESIDENT & SHRI R.K.PANDA AM M.A. NO. 874/MUM/2009 ARISING OUT OF I.T.A. NO. 48/MUM/2002 (ASSESSMENT YEAR 1998-99) M/S. BOMBAY OXYGEN CORPORATION LTD. 22-B MITTAL TOWER NARIMAN POINT MUMAI-400 021 PAN:AAACB1753A VS. THE JCIT PIRAMAL CHAMBER 3 RD FLOOR ROOM NO. 407 MUMBAI APPELLANT RESPONDENT APPELLANT BY : SHRI DIVYESH J. SHAH RESPONDENT BY : SHRI VIVEK BAT ORDER DATE OF HEARING: 19.03.2010 DATE OF ORDER: 21.04.2010 PER R.K.PANDA AM THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATIO N (MA) REQUESTS THE TRIBUNAL TO AMEND ITS ORDER DATED 20 TH MAY 2005 IN VIEW OF THE SUBSEQUENT DECISION OF THE HONBLE SUPREME C OURT IN THE CASE OF NECTAR BEVERAGES PVT. LTD. VS. DCIT VIDE ORDER DATE D 6 TH JULY 2009. 2. IN THIS CASE THE ASSESSEE PURCHASED GAS CYLINDERS WORTH RS.40 25 000 AND CLAIMED DEPRECIATION @ 100%. IT W AS NOTICED BY THE ASSESSING OFFICER THAT THE ASSESSEE SOLD GAS CYLIND ERS FOR A TOTAL CONSIDERATION OF RS.6 74 248 WHICH WAS NOT ADJUSTED IN THE BLOCK OF ASSETS. ACCORDINGLY THE ASSESSING OFFICER HAD DISA LLOWED THE CLAIM OF THE ASSESSEE TO THE EXTENT OF RS.6 74 248 WHICH WAS CONFIRMED BY THE CIT(A). ON FURTHER APPEAL THE TRIBUNAL UPHELD THE ACTION OF THE CIT(A). THE ASSESSEE THROUGH THIS MA RELIED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF NECTAR BEVERAGES PVT. LTD. (SUPRA) AND DREW THE ATTENTION OF THE BENCH TO THE FOLLOWING: MA NO. 874/MUM/2009 M/S. BOMBAY OXYGEN CORPORATION LTD. ============================ 2 SINCE THOSE BOTTLES AND CRATES PURCHASED PRIOR TO 31.3.1995 DID NOT FORM PART OF THE BLOCK OF ASSETS PROFITS ON SALE OF SUCH ASSETS WERE NOT TAXABLE AS A BALANCING CHARGE (SINCE SECTION 41(2) STOOD DELETED W.E.F. 14.1988) NEITHER UNDER SECTION 41(1 NOR UNDER SECTION 50. HOWEVER IN RESPECT OF BOTTLES AND CRATES PURCHASED AFTER 1.4.1995 ON ACCOUNT OF DELETION OF PROVISO T O SECTION 32(1(II) (VIDE FINANCE ACT 1995) SUCH BOTTLES AND CRATES FORMED PART OF BLOCK OF ASSETS AND CONSEQUENTLY SUCH ASSETS PURCHASED AFTER 1.4.1995 IN THIS CASE BECAME EXIGIBLE TO CAPITAL GAINS TAX UNDER SECTION 50. SINCE THE ASSESSEE HAS EARMARKED THE SALE PROCEEDS FROM BOTTLES AND CRATES AS MISCELLANEOUS INCOME AND NOT AS PROFIT ON SALE OF ASSETS THE CASE WAS REMITTED TO THE ASSESSING OFFICER TO THAT LIMITED EXTENT TO GO THROUGH THE COMPUTATION SUBMITTED BY THE ASSESSEE AND TO FIND OUT WHETHER EARMARKING PROFITS FROM SALE OF ASSETS AS MISCELLANEOUS INCOME HAS RESULTED IN THE UNDERSTATEMENT OF NET PROFITS AT THE PRE-SECTION 28 STAGE AND TAXABLE PROFITS AT POST-SECTION 28 STAGE. 3. REFERRING TO A NUMBER OF DECISIONS THE LEARNED COU NSEL FOR THE ASSESSEE SUBMITTED THAT AN ORDER CAN BE AMENDED IN THE LIGHT OF SUBSEQUENT DECISION OF THE HONBLE SUPREME COURT AN D THE PRINCIPLE OF LAW DECLARED BY THE HONBLE SUPREME COURT CAN BE ST RAIGHTAWAY APPLIED WITH CONSEQUENCE OF RENDERING THE ORDER MIS TAKEN. HE ALSO RELIED ON THE CIRCULAR NO. 68 DATED 17.11.1971 ISSU ED BY THE CBDT. HE ACCORDINGLY SUBMITTED THAT THE ORDER OF THE TRIBUNA L SHOULD BE RECALLED/AMENDED IN THE LIGHT OF THE DECISION OF TH E HONBLE SUPREME COURT. 4. THE LEARNED DR ON THE OTHER HAND SUBMITTED THAT T HE TRIBUNAL HAS PASSED THE ORDER ON 20 TH MAY 2005 WHICH WAS DULY SERVED ON THE ASSESSEE. THE ASSESSEE HAS FILED THE MA ON 24 TH DECEMBER 2009. THUS THE MA HAS BEEN FILED BY THE ASSESSEE AFTER A PERIO D OF MORE THAN 4 YEARS. REFERRING TO THE PROVISIONS OF SECTION 254( 2) HE SUBMITTED THAT SINCE THE MA HAS BEEN FILED BEYOND THE STATUTORY PE RIOD OF FOUR YEARS MA NO. 874/MUM/2009 M/S. BOMBAY OXYGEN CORPORATION LTD. ============================ 3 FROM THE DATE OF THE ORDER THE TRIBUNAL HAS NO POWE R TO RECTIFY ANY ORDER PASSED BY IT AND THE MA FILED BY THE ASSESSEE IS LIABLE TO BE DISMISSED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS MADE BY BO TH THE SIDES AND PERUSED THE RECORD. WE FIND THE ORDER HA S BEEN PASSED BY THE TRIBUNAL ON 20 TH MAY 2005 AND THE ORDER WAS ISSUED TO THE ASSESSEE ON 30 TH MAY 2005. WE FIND THE MA VERIFIED BY THE ASSESSE E ON 21 ST DECEMBER 2009 HAS BEEN FILED BEFORE THE TRIBUNAL ON 24 TH DECEMBER 2009. 5.1 WE FIND THE PROVISIONS OF SECTION 254(2) READ A S UNDER: (2) THE APPELLATE TRIBUNAL MAY AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER WITH A VIEW TO RE CTIFYING ANY MISTAKE APPARENT FROM THE RECORD AMEND ANY ORD ER PASSED BY IT UNDER SUB-SECTION (1) AND SHALL MAKE SUCH AMENDMENT IF THE MISTAKE IS BROUGHT TO ITS NOTICE BY THE ASSESSEE OR THE [ASSESSING] OFFICER : 6. FROM THE ABOVE IT IS CLEAR THAT THE TRIBUNAL MAY AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER RECTIF Y ANY MISTAKE APPARENT FROM THE RECORD OR AMEND ANY ORDER PASSED BY IT UNDER SUBSECTION (1) OF SECTION 254 OF THE ACT. IN THE I NSTANT CASE ADMITTEDLY THE MA HAS BEEN FILED BEYOND THE STATUTORY PERIOD O F FOUR YEARS FROM THE DATE OF THE ORDER. THEREFORE THE MA FILED BY THE ASSESSEE BEING BEYOND THE STATUTORY PERIOD OF FOUR YEARS FROM THE DATE OF THE ORDER IS NOT MAINTAINABLE AND ACCORDINGLY DISMISSED. SINCE THE MA IS DISMISSED ON THE GROUND OF LIMITATION WE ARE NOT DECIDING TH E ISSUE ON MERIT BEING ACADEMIC IN NATURE. 7. IN THE RESULT THE MA FILED BY THE ASSESSEE IS DISM ISSED. PRONOUNCED ON 21 ST APRIL 2010 SD/- (D. MANMOHAN) VICE PRESIDENT SD/- (R.K. PANDA) ACCOUNTANT MEMBER MUMBAI DATED 21 ST APRIL 2010 MA NO. 874/MUM/2009 M/S. BOMBAY OXYGEN CORPORATION LTD. ============================ 4 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-X MUMBAI 4. THE CIT -X MUMBAI 5. THE DR I BENCH. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI TPRAO