Income Tax Appellate Tribunal - Kolkata
Philips India Limited, Kolkata vs Acit, Circle-11, Kolkata, Kolkata on 22 February, 2017
IN THE INCOME TAX APPELLATE TRIBUNAL
KOLKATA BENCH "C" KOLKATA
Before Shri N.V.Vasudevan, Judicial Member and
Shri Waseem Ahmed, Accountant Member
व वध आवेदन (Misc. Application)
M. ANo.139/Kol/2016
(arising out ITA No.1545/Kol/2009)
नधारण वष / Assessment Year:2004-05
Philip Electronics Ltd., बनाम ACIT, Circle-11, P-7,
7, Justice Chandra /V/s. Chowringhee Square,
Madhab Road, Kolkata-20 Kolkata-700 069
[P AN No. AABCP 9487 A]
(original appellant) (original Respondent)
(Appellant) .. (Respondent)
अपीलाथ /By Appellant Shri Aloke Kathotia, CA &
Mrs. Pooja Jain, CA
यथ क ओर से / By Respondent Shri Sallong Yad, DR
सन
ु वाई क तार ख / Date of Hearing 20-01-2017
घोषणा क तार ख / Date of Pronouncement 22-02-2017
आदे श / ORDER
PER Waseem Ahmed, Accountant Member:-
By way of this Miscellaneous Application (MA) u/s 254(2) of the Act the assessee has prayed to rectify the order passed by the Hon'ble Tribunal dated 16-05-2016 in ITA No. 1545/Kol/2009 pertaining to assessment year 2004-05 by pointing out that there are certain mistakes apparent from the record within the meaning of Section 254(2) of the Act.
2. The issue in the instant case relates to the disallowance of the deduction claimed by the assessee for Rs. 50 lakh for the lease rentals paid for the vehicle taken on finance lease. The same disallowance was confirmed by the ld. CIT(A) and Hon'ble ITAT after having reliance in the own case of the MA No.139/Kol/2016 Philips India Ltd. v. ACIT, Cir-11, Kol Page 2 assessee for the AY 2003-04 in ITA No. 1075/Kol/2009 wherein the Hon'ble ITAT decided the issue in favour of Revenue.
3. The ld. AR before us submitted that the principles laid down by the Hon'ble Supreme Court in the case of I.C.D.S. Vs CIT reported in 350 ITR 527 (SC) were brought to the notice of Hon'ble ITAT at the time of hearing for consideration. Similarly various clauses of lease agreements were also highlighted to the Hon'ble Bench to show the similarity between the facts of the case of assessee vis-a-vis I.C.D.S. (supra). However, the Hon'ble ITAT has not considered the judgment of Hon'ble Supreme Court in the case of I.C.D.S. as relied by the assessee while passing the order. The Hon'ble ITAT has passed the order after having reliance in the own case of the assessee for the AY 2003-04 in ITA No. 1075/Kol/2009 wherein the issue was decided in favour of Revenue. Accordingly the ld. AR of the assessee submitted that the mistake apparent from record has crept in the order of Hon'ble Tribunal due to non-consideration of the I.C.D.S.(supra). The ld. AR in support of his claim drew our attention in the case of ACIT Vs. Saurashtra Kutch Stock Exchange Ltd. reported in 305 ITR 227 where the Hon'ble Supreme Court held that non- consideration of a decision of the Jurisdictional High Court or of the Supreme Court can be said to be a "mistake apparent from record". Similarly the Ld Counsel for the assessee also relied in the case of J.J. Leasing and Financing Ltd v. CIT where the Hon'ble jurisdictional High Court of Calcutta has held that an order which is contrary to the judgment of the Supreme Court is patently erroneous. When the Hon'ble Supreme Court renders a decision enunciating a principle of law, it is assumed that what was enunciated by the Supreme Court was in fact the law from the inception.
4. In view of above, the assessee prayed to the Bench to rectify the mistake apparent from record as discussed above by allowing the deduction of the rentals paid on the vehicles taken on finance lease.
MA No.139/Kol/2016Philips India Ltd. v. ACIT, Cir-11, Kol Page 3 On the other hand, learned counsel for the Revenue, besides supporting the order passed by the Tribunal, submitted that the application filed by the assessee u/s. 254(2) of the Act, if allowed, would amount to review of the order which is not permissible. The ld. DR further submitted that the Hon'ble Supreme Court in the case Mysore Mineral Limited Vs. CIT reported in 239 ITR 775 (SC) has directed to allow the depreciation to the assessee on the building though the building was not registered in the name of the assessee. In the case of Mysore Minerals Limited (supra) the Hon'ble Supreme Court has observed as under :
The term 'owned' as occurring in s. 32(1) must be assigned a wider meaning. Anyone in possession of property in his own title exercising such dominion over the property as would enable others being excluded therefrom and having right to use and occupy the property and/or to enjoy its usufruct in his own right would be the owner of the buildings though a formal deed of title may not have been executed and registered as contemplated by Transfer of Property Act, Registration Act, etc. The learned DR has also relied in the case of CIT vs. Podar Cement Private Ltd etc. reported in 226 ITR 625 (SC) wherein the Hon'ble Supreme Court has observed as under :
"The liability under s. 22 is on a person who receives or is entitled to receive the income from the property in his own right. The requirement of registration of the sale-deed in the context of the s. 22 is not warranted."
According to the ld DR for Revenue, the Tribunal was, thus, right in rejecting the application filed by the assessee.
5. We have heard the rival contentions of both the parties and perused and carefully considered the materials on record; including the judicial pronouncements cited and placed reliance upon. Indeed, the Article 141 of the Constitution of India creates obligation on all the Courts and Tribunals to abide by the law declared by the Hon'ble Apex Court in the Indian Territory. The declaration of law is complete once the judgment is pronounced. However, the issues which are not covered by the judgment of Hon'ble Supreme Court, can MA No.139/Kol/2016 Philips India Ltd. v. ACIT, Cir-11, Kol Page 4 be decided keeping in view the law laid down by the Hon'ble High Courts in the country which hold the field.
5.1 Applying the above principles in the facts on hand, we find that there are other judgments of Hon'ble Supreme Court which are in favour of the Revenue in the given facts and circumstances. These cases have been discussed in the preceding paragraph and the same are not repeated here for the sake of brevity. In view of above, we find that the instant issue is debatable.
5.2 Further, we find it is well settled that statutory authority exercise power of review unless such power is expressly conferred. There is no express power of review conferred on this Tribunal. Even otherwise, the scope of review does not extend to re-hearing of the case on merit.
5.3 The scope and ambit of application of section 254( 2) is very limited. The same is restricted to rectification of mistake apparent from the record. As the instant issue is debatable therefore we cannot infer that there is a mistake apparent from the record. Thus the dispute no longer remains restricted to any mistake sought to be rectified. Thus, the case is hand, the rectification of mistake would amount to a review of the entire order and that is not permissible under the IT Act. The power to rectify a mistake u/s 254( 2) cannot be used for recalling the entire order. No power of review has been given to the Tribunal under the IT Act. Thus, what it could not do directly could not be allowed to be done indirectly.
5.4 In the instant case, the Tribunal while deciding the appeal of the assessee has relied in the order of its own case as discussed above where the issue was decided by this Tribunal in favour of Revenue. Thus, the rule of consistency is also to be applied in the given facts of the case as held by the Hon'ble Supreme Court in the case of Radhasoami Satsang v. CIT reported in [1992] 193 ITR 321 wherein it was held as under :
"One these reasonings, in the absence of any material change justifying the Revenue to take a different view of the matter--and, if there was no MA No.139/Kol/2016 Philips India Ltd. v. ACIT, Cir-11, Kol Page 5 change, it was in support of the assessee - we do not think the question should have been reopened and contrary to what had been decided by the CIT in the earlier proceedings, a different and contradictory stand should have been taken. We are, therefore, of the view that these appeals should be allowed and the question should be answered in the affirmative, namely, that the Tribunal was justified in holding that the income derived by the Radhasoami Satsang was entitled to exemption under ss. 11 and 12 of the IT Act of 1961."
All the facts in the instant case were same as of earlier years and the view with regard to the issue in those facts has already been taken up by this Tribunal which is in favour of Revenue. Therefore, we are of the view that there is no mistake apparent from the record which has crept in the order of Hon'ble ITAT which needs rectification u/s 254(2) of the Act. However, the assessee is free to explore the remedy available under the law. Hence the MA filed by the assessee is dismissed.
6. In the result, MA of assessee stands dismissed.
Order pronounced in the open court on this 22/02/2017.
Sd/- Sd/- (%या यक सद&य) (लेखा सद&य) (N.V.Vasudevan) (Waseem Ahmed) (Judicial Member) (Accountant Member) Kolkata, *Dkp (दनांकः- 22/02/2017 कोलकाता । आदे श क त ल प अ े षत / Copy of Order Forwarded to:-
1. अपीलाथ /Appellant-Philips Electronics Ltc., 7, Jusstice Chandra Madhab Rd.,Kol-20
2. यथ /Respondent-ACIT, Circle-11, P-7, Chowringhee Square, Kolkata-69
3. संबं3धत आयकर आयु4त / Concerned CIT
4. आयकर आयु4त- अपील / CIT (A)
5. वभागीय त न3ध, आयकर अपील य अ3धकरण, Kolkata / DR, ITAT, Kolkata
6. गाड फाइल / Guard file.
By order/आदे श से, /True Copy/ उप/सहायक पंजीकार आयकर अपील य अ3धकरण, कोलकाता ।