Maitri Real Estate Developers, , ... vs Department Of Income Tax
- CitationITA No. 2395/AHD/2012)
Ratio decidendi
The rule this decision rests on
The power of rectification under section 254(2) of the Income-tax Act may be exercised only where the mistake sought to be rectified is an obvious and patent mistake apparent from the record, and not a mistake which must be established by argument and a long process of reasoning on points on which two opinions may conceivably be taken. The Tribunal, in exercising its rectification power, cannot look into other circumstances to support or undermine the conclusion already reached; the mistake it may correct is an error apparent on the face of the record, not an error of judgment. The Tribunal has no power to review its own order under the guise of rectification.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
IN THE INCOME TAX APPELLATE TRIBUNAL " D " BENCH, AHMEDABAD (BEFORE SHRI SHAILENDRA Kr. YADAV, J.M. & SHRI ANIL CHATURVEDI, A.M.)
M. A. No. 06/AHD/2015 (in ITA No. 2395/AHD/2012) (Assessment Year: 2007-08).
I.T.O., Ward-6(1)(3), V/S M/s. Maitri Real Estate Ahmedabad Developer, Utsav First Floor, Opp, Rajivbhai Tower, Maninagar (Appellant) (Respondent)
PAN: AAIFM 3770B
Appellant by : Shri Narendra Singh, Sr. D.R. Respondent by : Ms. Urvashi Shodhan, A.R.
(आदे श)/ORDER
Date of hearing : 17-07-2015 Date of Pronouncement : 17-07-2015
PER ANIL CHATURVEDI, ACCOUNTANT MEMBER.
1. The M.A. is filed by the Revenue against the order of Tribunal dated 07.08.2014 in respect of appeal in ITA No. 2395/Ahd/2012 for A.Y. 2007-
08.
2. In the Miscellaneous Application, the Revenue has interalia submitted that the ground was decided in favour of the Assessee on the basis of the conclusion that the commencement of supply of energy started on 25.01.2007 which according to the Revenue is on the basis of wrong factual 2 M.A No. 06/A/15 (in ITA No. 2395/A/12) . A.Y. 2007-08 premises. Before us, ld. D.R. submitted that since the Assessee was following mercantile system of accounting, the expenses can only be allowed in the year of accrual of liability and not in any other year. It is further submitted that the Assessee had failed to make the claim in the year of payment in which the liability accrued and therefore it could not have claimed the expenditure in later year and in such a situation the finding of the Hon'ble Tribunal is contrary to the facts of the case which has resulted into a mistake which is apparent from record within the meaning of section 254(2) of the Act and therefore it is prayed that the order dated 07.08.2014 be rectified/ recalled. The ld. A.R. on the other hand submitted that there is no mistake in the order of Hon'ble Tribunal and further there is no apparent error in the order of Tribunal and that any interference in the order shall amount to review which is not permissible in law.
3. We have heard the rival submissions and perused the material on record. The grievance of the Revenue as stated in M.A. is that the Tribunal has wrongly considered the commencement of supply of energy on 25.01.2007 and therefore the claim of expenditure was allowed which is incorrect. It is a settled law that the power of rectification under section 254(2) of the Income-tax Act can be exercised only when the mistake which is sought to be rectified is an obvious and patent mistake which is apparent from the record, and not a mistake which requires to be established by arguments and a long drawn process of reasoning on points on which there may conceivably be two opinions. Further, the Tribunal cannot in exercise of its power of rectification, look into some other circumstances which would support or not support its conclusion so arrived at. The mistake which the Tribunal is entitled to correct is not an error of judgment but a mistake 3 M.A No. 06/A/15 (in ITA No. 2395/A/12) . A.Y. 2007-08 which is apparent from the record itself. In the present case, no such mistake was apparent from the record. Further, the Tribunal has no power to review its own order as held by Hon'ble Bombay High Court in the case of CIT vs. Ramesh Electric & Trading Co. (1993) 203 ITR 497 (Bom.) In view of the aforesaid facts, we are of the view that since the Revenue has failed to point out any mistake apparent from record in the order, we are not inclined to recall the order of the Co-ordinate Bench in ITA. No. 2395/A/2012 order dated 07.08.2014 and thus the Miscellaneous Application bearing no. 06/Ahd/2015 is hereby dismissed.
4. In the result, the Miscellaneous Application is dismissed.
Order pronounced in Open Court on 17- 07 - 2015.
Sd/- Sd/- (SHAILENDRA Kr. YADAV) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad. TRUE COPY Rajesh
Copy of the Order forwarded to:- 1. The Appellant. 2. The Respondent. 3. The CIT (Appeals) - 4. The CIT concerned. 5. The DR., ITAT, Ahmedabad. 6. Guard File. By ORDER
Deputy/Asstt.Registrar ITAT,Ahmedabad
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