9911796707
Advanced Search 
TMI Blog2012 (7) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the [Assessing] Officer. In view of this, Misc. Applications Nos.42 to 47/CTK/2010 having been filed beyond the period of four years without any petition for condonation of the delay filed by the assessee, are dismissed being barred by time. 3. In Misc.Applications Nos.48 to 56/CTK/2010, the assessee has raised almost common contention that while disposing of the respective corresponding appeals the Tribunal has dismissed the common ground in all the respective AYs relating to disallowance towards charge on lease hold land for lease period expire on misconceived facts and the orders have been passed on a wrong appreciation of facts. In support of this, the learned AR of the assessee referred to the consolidated order dt.2.1.2008 in ITA Nos.275,276,750/CTK/2004 and ITA No.97/CTK/2006 for the AYs 1999-2000, 2000-01, 2001-02 and 2002-03, wherein while deciding such similar issue, the Tribunal has followed its earlier consolidated dt.30.11.2005 in ITA Nos.84-88/CTK/2002 pertaining to the AYs 1993-94 to 1998-99, wherein the Tribunal while deciding similar issue had held as under : 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accounts has not claimed any write off and also has not claimed any depreciation either in the original return or in the revised return. Any item which is specifically allowable under the Act, even if the treatment in different under the accounts, can only be claimed as a deduction. The 5% write off claimed by the appellant is not specifically allowable under the Act and therefore, there cannot be a different treatment under the Income-tax law sep arate from the accounting treatment of land where no depreciation or write off of 5% has been claimed by the appellant. In any case, the amount paid as lease money for acquiring leasehold land is towards acquiring a right to exploit land which is a capital expenditure and not allowable for computation for taxable income. The claim of the appellant, therefore, for various years are found to be not sustainable. The disallowance made by the AO for various years as under are, accordingly, maintained." The learned AR of the assessee contended before us that the aforesaid finding seems to be self contradictory in as much as in the first line it is stated that "I am inclined to agree with the orders of the AO that the appellant has acquired a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the consolidated order dt.30.11.2005 in ITA Nos.84-88/CTK/2002 pertaining to the AYs 1993-94 to 1998-99, which has been followed in subsequent AYs 1999-00, 2000-01, 2001-02 and 2002-03 in ITA Nos.275,276,750/CTK/2004 and ITA No.97/CTK/2004 and also in subsequent AYs 2003-04 to 2007-08 in ITA Nos.226,227,456, 457 and 458/CTK/2010. 3.3. We may observe here that the Misc.Application Nos.48 to 56/CTK/2011 seeking re-adjudication of the issue in question by recalling the consolidated order dt.30.11.2005 in ITA Nos. 84 to 88/CTK/2001 & 386/CTK/2002 for the AYs 1993-94 to 1998-99 have been dismissed being barred by limitation. Therefore, the prayer made in the present Misc.application Nos. 48 to 56/CTK/2011 to recall and rectify the earlier order dt.30.11.2005 for the AYs 1993-04 to 1998-99 cannot be sustained. 3.4. Further, we may observe that in the AYs 2003-04 to 2007-08 in ITA Nos.226, 227, 456, 457 and 458/CTK/2010 vide consolidated order dt.12.9.2011, while deciding the issue in question has not only relied on the earlier order of the Tribunal but also considered various judicial pronouncements. The relevant observation in paragraph 20 of the said order is reproduced as under : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal accepted the claim of the assessee and on further appeal by the Department, Hon'ble High Court upheld the order of the Tribunal observing that the Tribunal has held that the land in question was not acquired by the assessee. That merely because the deed was registered the transaction in question would not assume a different character. The lease rent was very nominal. By obtaining the land on lease the capital structure of the assessee did not undergo any change. The assessee only acquired a facility to carry on business profitably by paying nominal lease rent. In light of the aforesaid findings of fact there is no warrant for interference. Even the AO has recorded that the payment was for use of land. There is no legal infirmity committed by the Tribunal. It is necessary to note that the Revenue was not even aggrieved by the aforesaid findings recorded by the Tribunal and had not even proposed a question on this issue when the tax appeal was filed as the memorandum of tax appeal reveals. Tribunal was therefore justified in holding that the lease rent paid by the assessee to GIDC was allowable as revenue expenditure. But in the instant case the assessee has taken lease hold l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... section 254(2) of the Income-tax Act, 1961, the Appellate Tribunal may, "with a view to rectifying any mistake apparent from the record", amend any order passed by it under sub-section (1) within the time prescribed therein. It is an accepted position that the Appellate Tribunal does not have any power to review its own orders under the provisions of the Income-tax Act, 1961. The only power which the Tribunal possesses is to rectify any mistake in its own order which is apparent from the record. This is merely a power of amending its order [see.-. 203 ITR 497 (Bom) CIT v Ramesh Electric and Trading CO]. The extent of this power of rectification was considered by the Supreme Court as far back as in 1971 in the case of T. S. Balaram, ITO v. Volkart Brothers [1971] 82 ITR 50. The Supreme Court said (headnote) : ---"A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on point". This view of the Supreme Court has held the field for a long time, and has been followed by other High Courts. In the case of V. P. Minocha, ITO v. ITAT [1977] 106 ITR 691, Hon'ble Gujarat High Court, relying upon ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
