Income Tax Appellate Tribunal - Pune
Assistant Commissioner Of Income-Tax, ... vs Indo Global Warehousing & Services Pvt. ... on 17 December, 2018
आयकर अपीलीय अिधकरण "बी" �यायपीठ पुणे म� ।
IN THE INCOME TAX APPELLATE TRIBUNAL "B" BENCH, PUNE
�ी डी. क�णाकरा राव, लेखा सद�य एवं �ी िवकास अव�थी, �याियक सद�य के सम�
BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM
िविवध आवेदन सं. / MA No.16/PUN/2018
(Arising out of ITA No.589/PUN/2015)
िनधा�रण वष� / Assessment Year : 2011-12
ACIT, Circle- 11,
Pune. .......अपीलाथ� / Appellant
बनाम / V/s.
Indo Global Warehousing &
Services Pvt. Ltd.,
Ashoka Arch, E - 28/29,
Market Yard, Pune.
PAN : AABCI9000N ......��यथ� / Respondent
Revenue by : Shri Sudhendu Das
Assessee by : Shri Pramod Shingte
सुनवाई क� तारीख / Date of Hearing : 02.11.2018
घोषणा क� तारीख / Date of Pronouncement : 17.12.2018
आदेश / ORDER
PER D. KARUNAKARA RAO, AM:
This Miscellaneous Application arises from the order of the Tribunal vide ITA No.589/PUN/2015 for the assessment year 2011-12 dated 09.06.2017.
2. Before us, ld. DR for the Revenue submitted that the Tribunal passed the order on 09.06.2017 and the same was served to the Pr.CIT-1, Pune on 22.09.2017. Against the said order of the Tribunal, the Revenue filed Miscellaneous Application dated 29.01.2018 with delay of 30 days before the Tribunal.
2MA No.16/PUN/2018
Preliminarily Issue
3. On the issue of delay, the Revenue filed an affidavit before us stating that the scrutiny report was submitted by the Assessing Officer on 09.10.2017 whereas the Pr. CCIT, Pune decided not to file any appeal before the Hon'ble High Court and also decided to explore the MA route vide Pr. CCIT, Pune's letter dated 10.01.2018. It was communicated to the Pr.CIT-1, Pune on 11.01.2018. Draft of the MA was submitted for approval on 16.01.2.018. Eventually, the Pr.CIT-1, Pune approved the Miscellaneous Application on 25.01.2018. Accordingly, this Miscellaneous Application is filed on 30.01.2018.
4. Further, on the issue of delay of 30 days, ld. DR for the Revenue submitted that actually there is no delay when the period of limitation is counted from the date of service of order of the Tribunal in the office of the Pr. CIT-1, Pune on 22.09.2017. In this regard, ld. DR filed copy of the order of the Tribunal of Chandigarh Bench in the case of Jagmohan Gurbakshish Singh vs. DCIT vide MA no.42/Chd/2018 (arising out of ITA No.101/Chd/2017) dated 27.04.2018 for the assessment year 2013-14. Bringing our attention to para 5 of the said order of Chandigarh Bench of the Tribunal in the MA proceedings, ld. DR for the Revenue submitted that counting of days of limitation should commence from the "date of dispatch or receipt" of the copy of the order by the Pr. CIT and not the "date of passing of the order". The ld. DR further submitted that there is no delay in this case and, therefore, requirement of condoning the delay does not arise. He also submitted that the said decision of the Chandigarh Bench of the Tribunal relied on in the 3 MA No.16/PUN/2018 judgement of the Hon'ble Gujarat High Court in the case of Peterplast Synthetics (P) Ltd. vs. ACIT, 86 CCH 314. He fairly submitted that the decision of the Hon'ble Gujarat High Court was decided in the context of pre-amended provisions of section 254(2) of the Act.
5. Per contra, ld. Counsel for the assessee relied on the decision of Pune Bench of the Tribunal in the case of Shri Kasturilal Sardarilal Luthra vs. DCIT vide MA No.38/PUN/2017 (arising out of ITA No.923/PUN/2011) for the assessment year 2003-04 dated 04.04.2018. In this case, the Tribunal adopted principle of provisions of section 254(2) of the Act and held that the period of limitation commences from the end of the month in which the Tribunal passed the order. The Pune Bench of the Tribunal did not appreciate the argument of the assessee that the limitation commences from the date of service of the order of the Tribunal. The contents of para 4 of the order of the Tribunal is relevant to extract and the same is extracted hereunder :-
"4. We have heard the submissions made by representatives of rival sides. This Miscellaneous Application has been filed by the assessee u/s. 254(2) of the Act seeking rectification in the order of Tribunal dated 29-07- 2016. The provisions of section 254(2) have been amended by the Finance Act, 2016 w.e.f. 01-06-2016. The amended provisions of Sub- section (2) of Section 254 reads as under :
"The Appellate Tribunal may, at any time within [six months from the end of the month in which the order was passed], with a view to rectifying any 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 its notice by the assessee or the [Assessing] Officer]."
6. The said order is also relevant for another proposition that the Tribunal does not have the power of condonation of the delay if there is a delay in filing of the Miscellaneous Application. 4 MA No.16/PUN/2018
7. Brining our attention to another decision of Mumbai Bench of the Tribunal in the case of DCIT vs. Hita Land Private Limited vide MA No.103/Mum/2017 (arising out of ITA No.8247/Mum/2011) for the assessment year 2009-10 dated 25.04.2017 and taking us through the contents of para 4 of the said order, ld. Counsel submitted that principle of illiteral interpretation held valid in this case in the light of post- amended provisions of section 254(2) of the Act. Thus, the decisions of Mumbai Bench and Pune Bench of the Tribunal have taken identical "principle of illiteral interpretation" of the said provisions of section 254(2) of the Act.
8. From the above judicial precedents, it is evident that the decision of Chandigarh Bench of the Tribunal is in favour of the literal interpretation of the provisions of section 254(2) of the Act. The decisions of Pune Bench and Mumbai Bench of the Tribunal are in favour of illiteral interpretation of the provisions of section 254(2) of the Act.
9. We proceed to extract the relevant part from both the divergent views with regard to literal interpretation of the provisions of section 254(2) of the Act or otherwise in the above cited judicial precedents. A. Chandigarh Bench - Jagmohan Gurbakshish Singh (supra) :
"5. We have considered the rival submissions. The assessee has moved an application for recalling of the order pleading that a mistake apparent on the record has occurred in the impugned order. The mistake can be due to wrong appreciation of facts or wrong application of law; it may either be due to mistaken belief of the parties to the litigation or wrong application of law by the adjudicating authority. So far as the issue relating to the date of commencement of the limitation for filing the rectification application is concerned, the position is settled by the various Courts of law including that of the Hon'ble Gujarat High Court in 'Peaterplast Synthetics (P) Ltd Vs. 5 MA No.16/PUN/2018 CIT' (supra) and 'Liladhar T Khushlani Vs. Commissioner of Customs' (supra), holding that the relevant date has to be taken as the date of dispatch / receipt of the copy of the order and not the date of passing of the order.
Since as on both the dates i.e. date of dispatch as well as dated of receipt, the application of the assessee would be deemed to be filed within the limitation period, hence, we leave the question of law open as to whether the date of dispatch of order or the date of receipt of copy of the order by the concerned party is to be taken as date of commencement of limitation period.
6. So far as the arguments of the Ld. DR that the date of communication is to be taken either as 'communication or knowledge, actual or constructive' of the order sought to be reviewed' is concerned, we are guided by the decision of the full Bench of the Hon'ble Supreme Court in the case of 'State of Punjab Vs. Mst.Qaisar Jehan Begum and Another' AIR 1963 SC 1604 : (1964) 1 SCR 971. (Full Bench), wherein the Hon'ble Supreme Court while considering the words 'knowledge either actually or constructively' has held that the knowledge of award does not mean a mere knowledge of the fact that the award has been made. The knowledge must relate to the essential contents of the award.
7. The said proposition of law can be safely applied to the case in hand. Though the operative part of the order may be in the knowledge of the assessee, however, whether there is any mistake apparent on record in the contents of the order, it can be noticed only after going through the contents of the order. The order in this case admittedly was dispatched on 29.6.2017, even if that is taken the date of communication, the application of the assessee can be safely said to have been filed within the period of limitation. This issue is accordingly decided in favour of the assessee." This order was decided on the strength of the pre-amended provision of section 254(2) of the Act.
B. Gujarat High Court - Peterplast Synthetics (P.) Ltd. (supra) :
"Held, that the Tribunal passed the order which was sought to be rectified on February 20, 2007, and it had been admittedly received by the assessee on November 19, 2008. The assessee preferred the application of May 9, 2012. The application was not barred by limitation."
The same in the case here and the judgement relates the pre- amended provisions of section 254(2) of the Act.
C. Pune Bench - Shri Kasturilal Sardarilal Luthra (supra) :
"4. .........
..........
We find that the facts in the said case are distinguishable. In the said case the order of Tribunal was passed MA No. 38/PUN/2017, A.Y. 2003-04 before amendment of section 254(2) by the Finance Act 2016. The Tribunal 6 MA No.16/PUN/2018 rejected application of the assessee u/s. 254(2) by applying amended provisions. The Hon'ble High Court allowing the petition of assessee held that the new law of limitation providing a shorter period cannot be applied retrospectively. It is not the case of assessee that the Tribunal order sought to be rectified is passed prior to amendment. Thus, the case law on which the ld. Counsel for the assessee has placed reliance does not support the cause of assessee.
7. The Tribunal cannot go into the reasons/merits for filing of Miscellaneous Application, as the Miscellaneous Application of the assessee suffers from limitation, hence, the same is dismissed."
D. Mumbai Bench - Hita Land Private Limited (supra) :
"4. ..........
It is to be noted that the earlier period of 'four years' has been substituted with 'six months' by the Finance Act, 2016 with effect from 01/06/2016. However, we find that no distinction has been made in this section between orders passed before 01/06/2016 and orders passed after 01/06/2016. Moreover, the Tribunal order was dated 22/03/2013 and therefore, the Revenue had ample time to go through the same and pin point the mistakes in the order but it has failed to do so. Therefore, we find no force in these miscellaneous petitions primarily because of the reason that the Statute does not authorize us to entertain any petition which has been filed u/s 254(2) at any time beyond a period of six months from the date of the order. The Tribunal has been given power to admit an appeal after the expiry of the relevant period, if it is satisfied that there was sufficient cause for not presenting it within that period as per Section 253(5). However, this Tribunal is not enshrined with such powers in respect of a miscellaneous petition filed u/s 254(2) of the Income Tax Act. If we are not given that power, then it is not expected from us to exercise such power which is not provided in the Act. The Tribunal, being creation of law, is bound by the statutory provisions and our jurisdiction is simply to interpret and follow the Statute. There is no scope for us to import any word into the Statute which is not there. Such importation would be nothing but to amend the Statute. We therefore hold that the condonation of delay of these petitions is beyond our jurisdiction, hence rejected. Similar view has been taken by the Mumbai Tribunal in the cited order. Hence, finding the petitions time barring, we dismiss the same."
10. We perused the aforesaid judgment of the Hon'ble Gujarat High Court in the case of Peterplast Synthetics (P.) Ltd. (supra) and find the same pertains to the pre-amended provisions of section 254(2) of the Act for the assessment year 1996-97. According to the said judgement, limitation starts from the "actual date of receipt" of order of the Tribunal. This is the case where the Tribunal passed the order on 28.02.2007 and the same was received by the assessee on 19.11.2008. The assessee 7 MA No.16/PUN/2018 preferred a Miscellaneous Application and filed the same on 09.05.2012. The Hon'ble High Court held that the Miscellaneous Application is not barred by limitation considering the actual date of receipt of order of the Tribunal. The present MA suffers from limitation issue. Further, it is decided issue that the Tribunal cannot go into the merits of the delay. Thus, the preliminary issue stands dismissed.
On Merits
11. Further, on the merits of the mistake, ld. DR for the Revenue brought our attention to the contents of para 9 of the order of the Tribunal and submitted that the issue of invoking of provisions of section 194H/40(a)(ia) of the Act was not adjudicated by the Tribunal. In this regard, ld. DR submitted that this is the case where a sum of Rs.60 lakhs was paid by the assessee to M/s. Global Properties towards nomination fees for release of rights without making TDS.
12. It is the case of the assessee that the said payment being compensation in nature and does not need affecting of the TDS. The said line of interpretation was not adopted by the Assessing Officer and treated the same as kind of 'commission' paid by the assessee to M/s Global Properties. If, this is a commission, the same should suffer from TDS u/s 194H of the Act. The CIT(A) dismissed the appeal of the assessee holding that the said payment as 'non-genuine transaction', therefore, argument of the Revenue relating to the applicability of the TDS provisions as well as provisions of section 40(a)(ia) of the Act was rejected.
8MA No.16/PUN/2018
13. Aggrieved with such unfavourable decision of the CIT(A) on the issue of genuineness of transaction, the assessee was preferred an appeal before the Tribunal. However, Revenue did not file any appeal on the issue relating to the applicability of the provisions of section 194H r.w.s. 40(a)(ia) of the Act. While adjudicating the ground of the assessee, the Tribunal decided the issue in favour of the assessee upholding the genuineness of transaction. Therefore, the Revenue is in this Miscellaneous Application in the context of appeal filed by the assessee.
14. On the other hand, ld. Counsel for the assessee submitted that the issue of applicability of the provisions of section 194H r.w.s. 40(a)(ia) of the Act was never raised by the Revenue before the CIT(A) or before the Tribunal. Therefore, the Miscellaneous Application of the Revenue has no legs to stand as the issue arises from the order of the CIT(A). The ld. Counsel submitted that the same is superfluous and also the same is reckoned to the Assessing Officer's findings on the issue otherwise there is no requirement for the Tribunal to consider the same. In-effect, the Miscellaneous Application filed by the Revenue should be dismissed in view of the fact that the same does not arise from the impugned order of the CIT(A).
15. On considering the above arguments of the ld. Counsel for the assessee, we are of the opinion that the issue of applicability of provisions of section 194H r.w.s. 40(a)(ia) of the Act was not adjudicated by the CIT(A) as he confirmed the addition on merits holding that the payment of Rs.60 lakhs is non-genuine transactions. Ideally, the Revenue should have filed an appeal against the said finding of the CIT(A). Without prejudice to the finding of the CIT(A) on merits of 9 MA No.16/PUN/2018 genuineness of transactions, Revenue did not file any appeal before the Tribunal on this issue. Thus, raising this issue i.e. applicability of the provisions of section 194H r.w.s. 40(a)(ia) of the Act to the said genuineness of transaction as held by the Tribunal cannot be raised through this Miscellaneous Application route in the context of appeal of the assessee. Accordingly, the issue raised by the Revenue on merits stands dismissed.
16. In the result, the Miscellaneous Application filed by the Revenue is dismissed.
Order pronounced on 17th day of December, 2018.
Sd/- Sd/- (िवकास अव�थी /VIKAS AWASTHY) (डी. क�णाकरा राव/D. KARUNAKARA RAO) �याियक सद�य/JUDICIAL MEMBER लेखा सद�य/ACCOUNTANT MEMBER पुणे / Pune; �दनांक / Dated : 17th December, 2018. Sujeet
आदेश क� �ितिलिप अ�े िषत / Copy of the Order forwarded to :
1. अपीलाथ� / The Appellant.
2. ��यथ� / The Respondent.
3. The CIT(A)-I, Pune.
4. The CIT-I, Pune.
5. िवभागीय �ितिनिध, आयकर अपीलीय अिधकरण, "बी" ब�च, पुणे / DR, ITAT, "B" Bench, Pune.
6. गाड� फ़ाइल / Guard File.
आदेशानुसार / BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे / ITAT, Pune.