Income Tax Appellate Tribunal - Gauhati
Williamson Financial Services ... vs Assistant Commissioner Of Income Tax, ... on 2 January, 2023
IN THE INCOME TAX APPELLATE TRIBUNAL GAUHATI BENCH: GAUHATI
VIRTUAL HEARING AT KOLKATA
ी संजय गग, याियक सद य एवं ी मनीष बोरड, लेखा सद य के सम
Before Shri Sanjay Garg, Judicial Member and Dr. Manish Borad, Accountant Member
MA. NOS. 2 TO 4/GTY/2022
In I.T.A Nos.154 to 156/GTY/2019
Assessment years: 2012-13 to 2014-15
&
MA. NO. 5/GTY/2022
In I.T.A No.159/GTY/2019
Assessment year: 2009-10
Williamson Financial Services Ltd. . ...................................... Applicant
(PAN: AAACW4504A)
vs.
Assistant Commissioner of Income Tax, Circle-3, Guwahati ....... Respondent
Appearances by:
Shri N. S. Saini, Advocate, appeared on behalf of the Applicant.
Sm. I. Gyaneshori Devi, JCIT, appeared on behalf of the Respondent.
Date of concluding the hearing : November 10, 2022
Date of pronouncing the order : January 02 , 2023
आदेश / ORDER
संजय गग, याियक सद य ारा / Per Sanjay Garg, Judicial Member:
All these above Misc. Applications have been preferred by the assessee/applicant pleading that some errors apparent on record have occurred in the consolidated order passed by the Tribunal dated July 6th 2022 in ITA Nos. 154 to 156/Gau/2019 and ITA No. 159/Gau/2019 for AYs. 2012-13 to 2014-15 and 2009-10 respectively.
2. A perusal of the Misc. applications moved by the assessee reveals that the assessee in these Misc. Applications has assailed the common order of the Tribunal dated 06.07.2022 on merits as well as on legal ground citing various judicial decisions. The alleged errors pointed out by the Ld. AR are that the Tribunal in its order has referred to certain 2 MA Nos.2 to 5/GTY/2022 Williamson Financial Services Ltd., AY: 2012-13 to 2014-15 & 2009-10 decisions of the Hon'ble High Courts and Hon'ble Supreme Court; but the Ld. Counsel for the assessee was not confronted with those decisions; that in some cases SLP filed by the department has been dismissed by the Hon'ble Supreme Court viz., the decisions of Hon'ble Delhi High Court and Punjab & Haryana High Court holding that the disallowance u/s. 14A of the Act cannot exceed the amount of exempt income; that the amendment to section 14A of the Act seeks to overrule the decision of Hon'ble Delhi High Court in the case of Cheminvest Ltd. Vs. CIT (2015) 378 ITR 33 (Del.); that the observation of the Tribunal that disallowance u/s. 14A of the Act cannot be made in absence of exempt income or has to be restricted to exempt income has not been settled by the Hon'ble Apex Court is not correct rather by the dismissal of the SLP by the Hon'ble Supreme Court the issue gets settled; that the explanation to a provision cannot extend to main provision and further that the legal position of section 14A of the Act as established cannot be simply ruled out by the amendment made vide Finance Act, 2022. Reliance has also been placed on the decision of Hon'ble Delhi High Court in the case of Pr. Commissioner of Income Tax (Central) Vs. Era Infrastructure (India) Ltd. reported in (2022) 141 taxmann.com 289 (Del.), wherein, the Hon'ble High Court has held that the amendment made by Finance Act, 2022 to section 14A of the Act by inserting non- obstante clause and explanation will take effect prospectively from 01.04.2022 and cannot be presumed to have retrospective effect. It has, therefore, been pleaded that errors apparent on record have occurred in the order of the Tribunal dated 06.07.2022.
3. Apart from the above pleadings, the ld. Counsel for the assessee has also filed the following written submission:-
"1. The Hon'ble ITAT in para 31 of the order dated 06.07.2022 after quoting the Memorandum explaining the provision of Finance Bill, 2022 in para 30 has noted 2 3 MA Nos.2 to 5/GTY/2022 Williamson Financial Services Ltd., AY: 2012-13 to 2014-15 & 2009-10 that though it has been specifically mentioned in respect of the insertion of the non-obstante clause in sub-section (1) that amendment will take effect from 1st April 2022 and will accordingly apply in relation to AY 2022-23 and subsequent assessment years, whereas in respect of explanation as noted vide para 5, it is simply written that amendment will take effect on 1st April 2022. It has not been mentioned that this amendment will take effect in relation to AY 2022-23 and subsequent years. Accordingly, it was held that the explanation inserted was applicable retrospectively.
It is humbly submitted that recently on 3rd November 2022 vide Circular No 23/2022 Explanatory Notes to The Provisions of the Finance Act,2022 has stated in respect of both amendments made in sub-section (1) of section 14A and the insertion of explanation in section 14A that this amendment is effective from 1st April 2022. Hence the effective date of both amendments is similarly identically worded. Thus because of this, an inadvertent mistake has crept in the order of the Tribunal dated 06/07/2022. An extract of the Circular is placed in the Paper Book dated 07/11/2022 on pages Nos. 1 - 2.
2. After the order dated 0/10//2022 of the Hon'ble ITAT the Hon'ble Delhi High Court in the case of Principal Commissioner of Income-tax (Central) v. Era Infrastructure (India) Ltd. reported in [2022] 141 taxmann.com 289 (Delhi) has held that the amendment of section 14A, which is "for removal of doubts" cannot be presumed to be retrospective even where such language is used if it alters or changes the law as it earlier stood. This is the only judgement of the High Court and there is no contrary judgement till the date of any other high Court there is a mistake in the order for the Hon'ble Tribunal which requires rectification of the order of the Tribunal dated 06/07/2022.
3. After the order dated 06/07/2022 passed in the case of the Appellant Company, the Hon'ble Accountant Member constituting the Bench at the relevant point of the time has adjudicated the issue in favour of the Appellant while presiding over the SMC Bench Kolkata singly as well as in the Division Bench at Kolkata. Copy of the said orders is placed in the paper Book filed on 07/11/2022 at Page Nos. 6 - 13. Because of this subsequent development, there is a mistake apparent on record in the order of the Tribunal.
4. The Hon'ble Tribunal in the order dated 06/07/2022 in para nos. 32 to 35 has relied on judgements of the Supreme Court and High Court not cited at the Bar by either of the parties to the appeal without allowing the opportunity to the Advocate of the Appellant Company to make its submission on the same as to its applicability or otherwise. This resulted in the violation of the Principles of Natural Justice. Therefore there is a mistake apparent on record in the order of the Hon'ble Tribunal dated 06/07/2022.
It is my humble prayer that the order of the Hon'ble Tribunal may be recalled either totally or partially to rectify the mistake for which the Appellant will suffer an irreparable huge loss."
4. A perusal of the contents of the Misc. Application and the written submission filed by the Ld. Counsel for the assessee would reveal that the assessee in this case wants to assail the order of the Tribunal dated 3 4 MA Nos.2 to 5/GTY/2022 Williamson Financial Services Ltd., AY: 2012-13 to 2014-15 & 2009-10 06.07.2022 on factual matrix as well as on law for which the proper remedy is to file the appeal before the Hon'ble High court. The issues raised by the Ld. Counsel for the assessee, in our view, do not constitute mistake apparent on record. This Tribunal has limited jurisdiction u/s. 254 of the Act only to rectify the mistake apparent on record. This Tribunal has no power of review of its own orders. So far as the contention of the Ld. Counsel that certain decisions of the Hon'ble High courts and Hon'ble Supreme Court as cited in the final order dated 06.07.2022 were not confronted to the Ld. Counsel is concerned, we note that the decision cited in the order of the Tribunal dated 06.07.2022 are all well published decisions and are in the public domain. We have specifically asked the Ld. Counsel during the hearing on present application as to which of the decisions cited by the Tribunal in its order has caused prejudice to the assessee. We also gave opportunity to the Ld. Counsel to bring our attention as to if there was any reply or rebuttal available with him to show that the said decisions were not applicable in this case and as to what the Ld. Counsel wants to say in this respect to rebut the applicability of those decisions. However, the Ld. Counsel was unable to point out as to why the case laws referred to in the impugned order were not applicable to the case of the assessee and could not convince us as to how and what prejudice has been caused to the assessee by referring to the said decisions and how the assessee was aggrieved by referring of the said decisions in the impugned order. It has to be pointed out that the matter was heard at length and all the decisions cited by the Ld. Counsel for the assessee were duly considered and referred to in the order. If the well reported decision of the Hon'ble Supreme Court, which is in public domain, has been referred to in the order and even the Ld. Counsel for the assessee has failed to demonstrate how the said decision was wrongly referred to and how the 4 5 MA Nos.2 to 5/GTY/2022 Williamson Financial Services Ltd., AY: 2012-13 to 2014-15 & 2009-10 same has caused any prejudice to the assessee that in our view, would not constitute any error apparent on record. Thus, in our view neither any prejudice has been caused to the assessee nor any mistake apparent from record had occurred in the said order.
So far as the reliance placed by the Ld. Counsel on the subsequent decision of the Hon'ble Delhi High Court in the case of "Era Infrastructure India Ltd." (supra) is concerned, we note that the said decision of the Hon'ble Delhi High court is subsequent to the order of the Tribunal dated 06.07.2022 and since the decision of the Hon'ble Delhi High Court is of a non-jurisdictional High Court, the same is not binding upon this Tribunal. However, the same being decision of the higher court can be taken into consideration in deciding the relevant issue in future. However, the Tribunal has based its findings taking note of the well published decision of the Apex Court of the country. So far as the contention that in some cases the SLP filed by the department has been dismissed, we note that however, in some other cases, as mentioned in the impugned order, the appeal of the department has been admitted for hearing on the same issue by the Hon'ble Supreme Court. It has been held time and again that mere dismissal of SLP without any discussion on the merits cannot be construed to be laying down of any proposition of law by the Hon'ble Supreme Court. The dismissal of SLP simply means that the Hon'ble Supreme Court has refused to take cognizance of the matter, whereas, in a case, where, SLP has been allowed and the appeal has been admitted for hearing, that means the matter is pending consideration before the Hon'ble Supreme Court on merits.
5. In this case, the finding of the Tribunal has been based on over all facts and circumstances of the case as discussed in the impugned order. The ld. Counsel wants to assail the order in the garb of Misc. Application 5 6 MA Nos.2 to 5/GTY/2022 Williamson Financial Services Ltd., AY: 2012-13 to 2014-15 & 2009-10 u/s. 254(2) of the Act on merits, which is not permissible, the Tribunal having limited power u/s. 254(2) of the Act.
6. The application u/s 254(2) of the Act lies in case where, there is a mistake apparent on record in the order of the Tribunal. The order of the Tribunal cannot be assailed on merits in the garb of Miscellaneous Application u/s 254(2) of t h e A c t . R el i an ce i n t hi s r esp ect can b e pl a ced on t he deci si on o f t he H o n 'bl e B om b ay H i gh C ou r t i n t he ca se of ' C om m i ssi oner O f I nco m e- Tax vs R a m e sh El ect r i c And Tr ad i ng C o. ' ( 1993) 203 I TR 497 ( B om . ) , w her e i n t he H on'b l e H i gh C our t w hi l e r el yi ng upon t he d ec i si o n of t he H on'b l e Su pr em e C ou r t i n t he case of T. S . B a l a r a m , I TO v. Vol k a r t B r ot her s' [ 19 71 ] 8 2 I TR 50 and f ur t h e r r el y i n g up on the d ec i s i ons of t he v ar i ous High C our t s has cat e g o r i cal l y h el d t ha t t he pow er of r ect i f i cat i on under sect i o n 254 ( 2) o f t h e I n com e - t a x Act c an be exer ci sed onl y w hen t he m i s t a ke w h i ch i s s ou ght t o b e r ec t i f i ed i s an obvi o us and pat en t ; m i s t a ke w h i ch is ap p a r ent f rom t he r ecor d, and not a m i s t a ke w h i ch req u i r es t o b e est ab l i s hed by ar gum ent s and a l o ng d r aw n pr ocess of r e a soni ng on poi nt s on w hi ch t her e m ay con c ei va bl y be t w o op i ni ons.
7. In view of this, the Misc. Applications of the assessee/applicant are dismissed.
Order is pronounced in the open court on 2nd January, 2023 Sd/- Sd/-
[डॉ टर मनीष बोरड /Dr. Manish Borad] [संजय गग /Sanjay Garg] लेखा सद य /Accountant Member याियक सद य /Judicial Member Dated: 02.01.2023.
JD (Sr.PS) 6 7 MA Nos.2 to 5/GTY/2022 Williamson Financial Services Ltd., AY: 2012-13 to 2014-15 & 2009-10 Copy of the order forwarded to:
1. Applicant - Williamson Financial Services Ltd., House No. 147, 5th Bye Lane, R. G. Barua Road, Ganeshguri-781005.
2. Respondent - ACIT, Circle-3, Guwahati
4. CIT(A)- , Guwahati.
5. CIT(DR), ITAT, Guwahati.
6. Guard file.
//True copy// By order Assistant Registrar, Kolkata Benches 7