Income Tax Appellate Tribunal - Mumbai
Yatish Trading Co. P. Ltd, vs Assessee on 31 May, 2012
IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI BENCHES "H", MUMBAI
Before Shri R.S.Syal, AM and Shri Amit Shukla, JM
M.A.No.526/Mum/2011
(Arising out of ITA No.7374/Mum/2005 : Asst. Year 2002-2003)
M/s.Yatish Trading Co. Pvt. Ltd. The Income Tax Officer
Kasturi Building Ward 1(3)(2)
171/172 J.Tata Road Mumbai.
Vs.
Mumbai - 400 020.
PAN : AAACY0189P.
(Applicant) (Respondent)
Applicant by : Shri S.E.Dastur
Respondent by : Shri V.V.Shastri
Date of Hearing : 25.05.2012 Date of Pronouncement :31.05.2012
ORDER
Per R.S.Syal, AM :
This Miscellaneous Application u/s.254(2) of the Income-tax Act, 1961 has been moved by the assessee praying for the rectification of the order of the Tribunal dated 28.09.2011 in ITA No.7374/Mum/2005.
2. The learned Senior Counsel for the assessee contended that the Tribunal has decided ground nos.1 to 4 on confirmation of disallowance u/s 14A by holding that the matter be decided afresh by the A.O. in the light of the judgment of the Hon'ble jurisdictional High Court in the case of Godrej & Boyce Ltd. Mfg. Co. v. DCIT [(2010) 328 ITR 81 (Bom.)]. It was contended that at the time of hearing by the Tribunal, the assessee had requested for dismissing ground nos.1 to 4. It was also argued that during the course of hearing in the original proceedings, the assessee relied on Tribunal order for assessment year 2001-2002 dismissing these grounds raised by the assessee. It was, therefore, requested that the impugned order be amended and the direction so given to the AO for making disallowance u/s 14A be withdrawn. In the opposition, the learned Departmental Representative contended 2 MA No.526/Mum/2011 M/s.Yatish Trading Co. Pvt. Ltd.
that the assessee did not refer to the Tribunal order for assessment year 2001-2002 at the time of original hearing and further the assessee did press the grounds seeking relief in the light of the judgment in the case of Godrej & Boyce ltd. Mfg. Co. (supra).
3. We have heard the rival submissions and perused the relevant material on record. This miscellaneous application came up before the Tribunal on 27.04.2012. Since the issue was raised that, at the time of original hearing the ld. AR had not pressed or requested to dismiss these grounds, it was considered expedient to verify our log book for 22.09.2011, when the case was initially argued by both the sides. Accordingly the case was adjourned for 25.5.2012. On verification of the log book, it is observed that there is no such reference to the assessee's contention for dismissing these grounds on the basis of Tribunal order for assessment year 2001- 2002. On the contrary it is observed from the log book that there is a mention of case of the jurisdictional High Court in the case of Godrej & Boyce Ltd. Mfg. Co. (supra). The ld. AR was offered to see the log book for the said date, which he did not. These facts amply demonstrate that during the course of hearing, the ld. AR did press these grounds with a view to seek relief in the light of the judgment of the jurisdictional High Court in the case of Godrej & Boyce ltd. Mfg. Co. (supra). There is no material to indicate that the assessee requested to dismiss these grounds. If there had been such contention, then there was no question of making mention of the judgment of Godrej & Boyce Ltd. Mfg. Co. (supra) in the log book. It is further observed that there is no material on record, in the shape of the assessee's letter for not pressing these grounds. Nor there is any such mention on the files of either of the members, who heard the appeal. On the contrary, firstly there is a mention in the log book for the pressing by the assessee of these grounds and seeking relief in the light of the judgment of the Hon'ble jurisdictional High Court in Godrej & Boyce Ltd. Mfg. Co. (supra) , secondly the same recording is reflected in the order passed u/s 254(1) and thirdly, the ld. DR has also 3 MA No.526/Mum/2011 M/s.Yatish Trading Co. Pvt. Ltd.
categorically stated that the ld. AR did press these grounds at the time of hearing. In the light of the above facts, it becomes clear that the decision taken by the Tribunal in the order u/s.254(1) is as per the arguments advanced by the assessee at the time of hearing of the appeal.
4. The learned AR submitted that the finding given by the Tribunal in the order u/s 254(1) about the direction to the AO for not applying Rule 8D but making disallowance u/s 14A on some `reasonable basis', fairly indicates that the Assessing Officer must have applied Rule 8D for making disallowance u/s 14A, which was in fact not there. In his opinion this fact demonstrated that the members incorrectly mentioned this fact in the log book and it was also wrongly decided. We are not convinced with this contention for the reason that even if the Assessing Officer had not applied Rule 8D, the direction given by the Tribunal to the AO in the original order was to compute disallowance on some `reasonable basis' and not on the basis of Rule 8D. Making a reference about directing AO not to apply Rule 8D was to forbid the Assessing Officer from resorting to Rule 8D for the purposes of making disallowance u/s 14A in the fresh round of proceedings pursuant to the order of the Tribunal passed u/s 254(1). This is, in fact, the mandate of the Hon'ble jurisdictional High Court in the case of Godrej & Boyce (supra), which was accordingly conveyed to the AO.
5. At this juncture it is relevant to mention that the scope of proceedings u/s 254(2) is to rectify a mistake, which is apparent from record. Such proceedings can't be resorted to for rearguing the matter differently from what was argued at the time of original proceedings. Making an altogether different argument during the rectification proceedings from the one that was taken in the original proceedings, does not make the order erroneous amenable to rectification. It is a different matter that if after the restoration by the tribunal, the AO has made or proposes to make a disallowance to the prejudice of the assessee. Whatever may 4 MA No.526/Mum/2011 M/s.Yatish Trading Co. Pvt. Ltd.
be circumstance, the rectification application can be maintained only if there is some mistake apparent from record in the original order. The crux of the matter is that if there is no such mistake apparent from record, there is no question of seeking rectification within the meaning of section 254(2). If the assessee is still aggrieved with the order of the tribunal in any manner, it is open to it to avail other remedies available to it as per law.
6. In the light of the above discussion, we are of the considered opinion that there is no mistake much less the mistake apparent from record in the original order of the tribunal so as to warrant any rectification. We, therefore, reject the miscellaneous application.
7. In the result, the miscellaneous application is dismissed.
Order pronounced on this 31st day of May, 2012.
Sd/- Sd/-
(Amit Shukla) (R.S.Syal)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Mumbai : 31st May, 2012.
Devdas*
Copy to :
1. The Applicant.
2. The Respondent.
3. The CIT concerned
4. The CIT(A) - XXI, Mumbai.
5. The DR/ITAT, Mumbai.
6. Guard File.
TRUE COPY.
By Order
Assistant Registrar, ITAT, Mumbai.