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TMI Blog2019 (4) TMI 1227X X X X Extracts X X X X X X X X Extracts X X X X ..... der passed. We do not think, we have right/power u/s 254(2) to review any of our order. Disallowance u/s 40(a)(ia) for non-deduction of tax on commission paid - HELD THAT:- Assessee came up on appeal objecting to the CIT(A) s order even though CIT(A) has given relief to the assessee but heavily relying on the decision of Merilyn Shipping [ 2012 (4) TMI 290 - ITAT VISAKHAPATNAM] . Ld. AR argued that the basic payment itself is not commission. Therefore, ITAT cannot take a view in line with AO. But, we notice that ld. CIT(A) has given relief to assessee relying on Merilyn Shipping decision and the Bench has adjudicated considering the recent development on the subject of paid/payable issue. Further, Bench has discussed at length before c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (P) Ltd. Vs. ITAT and others, [2015] 376 ITR 126 (Bom.) and the order of Mumbai ITAT, dated 08/07/2015 passed in MA Nos. 337 to 341/Mum/2014, in which, the said order of the Mumbai High Court was followed. 3.1 In the case of R.W. Promotions (P) ltd. (supra), the Hon ble Mumbai High Court has held as under: 9) After hearing both sides and perusing the two legal provisions, namely, under section 254 as reproduced above, and section 260A of the Income Tax Act, 1961 we are of the view that the Tribunal s order and impugned in the Writ Petition cannot be sustained. This Court also has clarified the legal position in an order passed copy of which is annexed at page 146 of the petition paper book. We have noted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eous. Merely because the assessee has challenged the order of the Tribunal in an Appeal under section 260A of the Income Tax Act, 1961 before the High Court does not mean that the power under section (2) of section 254 cannot be invoked either by the assessee or by the revenue/Assessing Officer. Such a power enables the Tribunal to rectify any mistake apparent from the record and make amendments. That in a given case would not only save precious judicial time of the Tribunal but even of the higher Court. Only when the assessee or the Assessing Officer calls upon the Tribunal to undertake an exercise which is not permissible within the meaning of section (2) of section 254 that the Tribunal can rely on the principle of judicial propriety or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merits of the rectification application are kept open. They can be raised before the Tribunal. Since the Hon ble High Court has observed that ITAT can adjudicate the issue which is admitted by the Hon ble High Court, when the mistake in the order is apparent on record, we proceed to hear the MA on merit. 4. Before us, ld. AR of the assessee filed written submissions. As regards addition amounting to ₹ 17,39,00,000/- on CSR, it was, inter-alia, stated that the ITAT has ignored the decision of coordinate bench in assessee s own case decided in assessee s favour, where the capital expenditure on account of CSR was allowed. 4.1 As regards disallowance u/s 40(a)(ia) for non-deduction of tax o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the income-tax Act. Whereas, the CIT(A) also verified the above expenditure and whether these are two kinds of expenditures. The CIT(A) has allowed the revenue expenditure and disallowed the capital expenditure. However, he submitted that CIT(A) has not verified the expenditure thoroughly except by relying on the earlier orders, the CIT(A) has given relief to the assessee. According to him, no tax authority has verified the above expenditure and that assessee has never submitted any detailed information before any of the authority. This fact was particularly brought out by the ITAT in its order and the ITAT has rightly discussed the facts at length. Therefore, it is not a proper case for adjudication u/s 254(2) of the Act. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ra). Ld. AR argued that the basic payment itself is not commission. Therefore, ITAT cannot take a view in line with AO. But, we notice that ld. CIT(A) has given relief to assessee relying on Merilyn Shipping decision and the Bench has adjudicated considering the recent development on the subject of paid/payable issue. Further, Bench has discussed at length before coming to the conclusion at variance with earlier years orders. Thus, the argument of the ld. AR suggest that we sit and review our own order. 6.2 From the above, it is clear that ld. AR argues before us to review our own order. In our view, we do not have any right/power u/s 254(2) to review our order and we have not noticed any mistake apparent from record to modif ..... X X X X Extracts X X X X X X X X Extracts X X X X
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