TMI Blog2012 (7) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant: Shri S.S.Poddar/N.Kedia, ARs For the respondent Smt. Paramita Tripathy, CIT-DR ORDER Shri K.K.Gupta, AM : All these Misc.Applications have been filed by the assessee raising a common issue and were heard together and are being disposed of by this common order for the sake of convenience andbrevity. 2. Misc.Application Nos.42 to 47/CTK/2010 have been filed by the assessee on 30.12.2011. Registry has pointed out that the consolidated order of the Tribunal in which the assessee has filed these Misc. Applications, was received by the assessee on 28.12.2005. Thus, it is seen that the Misc. application has been filed beyond the limitation period of four years. Section 254(2) of the I.T.Act,1961 provides that the Tribunal, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial assets exits. There is no provision under the Income Tax Act during the years under appeal that such payments can be allowed as fully revenue expenditure or it can be treated as a depreciable asset. It has been widely held that where minerals are part of the land and have to be won, extracted and brought to the surface, expenditure for acquiring the right over or in the land to win the minerals would be of capital nature. Where amount is paid for lease of land with a right to exploit the mineral resources as in the case of the appellant, the expenditure incurred has been held to be capital expenditure. The contention of the appellant that it is holding the land as a commercial asset is not found to be acceptable as whether it is leasehold land or freehold land, the character of land does not change and there is no provision under the Act to allow any depreciation or part write off The appellant itself in its 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the revised return, is also factually not correct as the assessee is claiming the write off in its accounts and its related accounting policy is clearly stated in the schedule of Significant Accounting policies. In view of the aforesaid, the learned AR of the assessee prayed to recall the order and pass a fresh order rectifying mistakes apparent from record and allowing relief to the assessee in this regard after appreciating the facts in its correct perspective. 3.1. The learned DR, on the other hand, contended that there being no mistake apparent on the face of record and since the assessee has prayed to reconsider the issue afresh amounts to review of own order which is beyond the scope of Section 254, the Misc. applications filed by the assessee deserve to be dismissed. 3.2. Having heard both the parties and perusing the impugned orders of the Tribunal, we find that the assessee sought for rectification of 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 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of Hon ble Gujarat High Court in the case of DCIT Vs. Sun Pharmaceuticals Inds. Ltd. [(2009) 227 CTR (Guj.)], wherein advance lease rent paid for acquiring land and paying nominal monthly rent was held allowable as revenue expenditure. We find that the facts of this case is completely different from that of the assessee Company before us. In that case, the assessee, a company, claimed deduction of a sum of Rs. 48,02,616, being payment to Gujarat Industrial Development Corporation (GIDC). It was contended by the assessee that the lease rent in respect of the land allotted to the assessee company being very nominal, i.e., @ Rs. 40 per year, the said payment was nothing else but advance rent and hence, allowable as revenue expenditure. The AO disallowed the claim holding that the assessee had acquired a benefit of enduring nature in the form of use of land for a period of 99 years. Matter went upto the Tribunal and the Tribunal 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 3 years. The Assessing Officer has also relied on the decisions in the cases of Alianza Co. Ltd., v. Bell (1904) 2 KB 666,673, CIT v. Chengalvaroya Mudaliar (2 ITR 395)(Mad), Chengalvaroya Chettiar v. CIT, (5 ITR 70), CIT v. Siddareddy Venkatasubba Reddy Bros (17 ITR 15 (Mad), N Peer Sahib v. CIT (54 ITR 681)(Mys), Stow Bardolph Gravel Co. Ltd. V. Poole (1 W.L.R. 1058). Further, as already observed earlier, the ITAT, Cuttack Bench has already decided identical issue against the assessee in assessee s own case for the Assessment 1999-2000 to 2002-03. Therefore, considering the facts and circumstances of the case in the light of various judicial authorities and also the decision of the Tribunal ITAT referred to above in assessee s own case and being consistent with the view taken therein, we uphold the impugned order of the learned CIT(A) on this issue and dismiss the ground raised by the assessee. 3.5. Further under 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 Appe ..... 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