TMI Blog2015 (1) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... in a manner that produces an anomaly or otherwise produces irrational or illogical result. The ld. DR even though vehemently argued, but could not bring to our knowledge that this Tribunal failed to consider the case law as cited before the Tribunal or the Tribunal has not considered the contentions, pleas and arguments raised before the Tribunal by both the sides. The power u/s 254(2) does not contemplate re-hearing which would have the effect of re-writing the order affecting the merit of the case. If the power given u/s 254(2) is read in that manner, then, in our opinion, there will not be any difference between the power to review and the power to rectify the mistake. The legislature has not deliberately conferred the power of review on the Tribunal and the Tribunal cannot review its order under the garb of power given u/s 254(2). Thus we are of the view that the decision of the Tribunal is based on the appreciation of the facts and the case laws. Therefore, the Miscellaneous Application filed by the Revenue, does not relate to mistake apparent on the record rectifiable u/s 254(2) of the Act. - Decided against revenue. - MA No. 30/PNJ/2014 - - - Dated:- 7-1-2015 - Shri P. K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e existing two dry plants for beneficiation and the limit of 20% old machinery used in new unit is not applicable to the reconstructed unit u/s 10B. She also contended that this Tribunal in ITA No. 44/PNJ/2009 for A.Y 2005-06 in the case of V.S. Dempo Co. Pvt. Ltd. took the view that processing of ore without extraction does not amount to production or manufacture for the purpose of Sec. 10B claim relying on the decision of the Hon'ble Supreme Court in the case of Chowgule Co. Pvt. Ltd. vs. Union of India, AIR 1981. The Assessee was processing crude ore and therefore there was no manufacturing in the case of the Assessee. Operation of mining cannot be termed as manufacture. When a query was raised by the Bench whether any appeal has been filed before the Hon'ble High Court, the ld. DR was fair enough to concede that the Revenue has filed an appeal before the Hon'ble High Court. Even the Revenue has filed miscellaneous application on the issue of consideration of decision of Chowgule Co. Pvt. Ltd. as well as the issue whether the Assessee is engaged in manufacturing or not before this Tribunal earlier being M.A. No. 10/PNJ/2013. When inquired about the fate of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not admitted. The ld. AR also pointed out that the Revenue has given effect to the order of this Tribunal only on 17.10.2014, that also on the direction of this Tribunal vide interim order dt. 21.8.2014 in ITA No. 187/PNJ/2014. Even the Revenue was not ready to give appeal effect. The Tribunal is bound to consider the material and evidences which are before it at the time of the hearing. For this, our attention was drawn to Rule 18(6) of Appellate Tribunal Rules, 1963. Revenue has moved miscellaneous application on the basis of survey conducted on 20.3.2014 i.e. much after the order has been passed by this Tribunal. Since the Revenue failed at every stage, therefore they conducted survey dt. 20.3.2014 and no new/fresh evidence have been found in the survey. Whatever evidences are there, they were available even at the time of assessment also. By filing the miscellaneous application the Revenue is trying to compel the Tribunal to re-consider and review its judgement which the Tribunal cannot do. Reliance was placed on the decision of the Hon'ble Supreme Court in the case of Union of India vs. Kamakshi Finance Corporation Ltd., (1991) 53 ELT 433 in which the Hon'ble Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appellant on 20.3.2014, and the post-survey investigations, are that, the Amona EOU was an amalgamated/reconstructed Unit from the existing two dry plants and one wet plant, which fact, according to A.O. was suppressed by the Assessee before the Assessing Authority and Appellate Authorities and the basis of such contention is the above book impounded. The implication is that the Assessee‟s Units did not fulfill the conditions laid down under clause (ii) of section 10B(2) of the Act, and consequently the Assessee was not entitled for deduction u/s. 10B of the Act in respect of the said Unit, and that the Assessee had claimed the said deductions by suppressing the aforesaid facts. 7. In this regard, the Assessee stated that the operations of the said three processing facilities which were neither synchronised nor independent on their own and had become obsolete and had finished or nearly finished its economic life were dismantled outdone so as to allow construction / setting up of altogether new undertaking with upgraded and substantially increased capacity - which was thus loosely nomenclature as Amalgamation of Amona Plants by the technical administrative staff pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectors. The ld. AR stated that the Tribunal has also taken note of the Minutes of the meetings of the Board of Directors approving capital expenditure at Amona at page nos 696 of the paper book No. 3 and at para 45.10 of its order. The AO has not brought on record how the said page in a document which is containing around 50 pages can be a piece of evidence when there is a detailed estimated break up of capital expenditure to set up the new unit. The said estimates has no whisper about repairs as exaggerated by the AO, thus totally trying to mislead the Tribunal and with the unscrupulous intent to rattle the establish facts. Just because the word Amalgamation of Amona Plants was used for the project, it cannot be detrimental to the otherwise eligibility of the limit for the purpose of section 10B as contemplated by the AC. The relevant extract of the said capital proposal along with Assesses‟s detailed explanation as enclosed in the compilation submitted on 17.10.2014 as Annexure B at pg. nos. 50-52. 9. The ld. AR submitted that the findings of the Tribunal in coming to the conclusion that new units has actually been established by the assessee in the FY 2002-03 at Am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... object or article or thing by the processing plants (the EOUs) whether ITAT was correct in interpreting the new section 2(29BA) that the processing of ROM amounts to manufacture‟ of iron ore? C. Whether ITAT is correct in applying the definition of manufacture‟ given in SEZ Act 2005 which is applicable for the purpose of only section 10AA of the IT Act which imposes various conditions for the utilization of profits? D. Whether ITAT is right in not following the decision of the coordinate bench in the case of Chowgule Co Ltd vs. ACIT (ITA No.162/PNJ/2006) where it has been held that the processing of iron ore without extraction in the processing plant does not give rise to any new product and therefore, the process is not even production particularly where the processing has been specifically omitted from the definition of manufacturing w.e.f. 01.04.2001 for the purpose of section 10B? E. Whether the ITAT is correct in accepting renovated units as new EOUs when there was only additions/replacements and depreciation has also been claimed on the Plant Machinery of the existing unit ? Whether 1TAT is also correct in accepting new evidence, about the sal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allurgical coke division when the activities carried out do not amount to manufacture or production? N. Whether the finding of Income Tax Appellate Tribunal is perverse of account of the fact that the findings are not based on the documents available on record during the assessment and before the Commissioner of Income Tax(A) and as such the AO ought to have been granted an opportunity to verify the new documents filed by the assessee before the ITAT? O. Whether the Income Tax Appellate Tribunal was right in admitting fresh evidence without giving an opportunity to the AO to verify the document placed on record by the assesse before the Income Tax Appellate Tribunal thereby violating principle of natural justice and causing grave prejudice to the revenue on account of such lack of opportunity? P. Such and other grounds to be taken at the time of hearing. The Hon'ble Bombay High Court in TA No. 13 of 2013 has admitted the following questions of law vide order dt. 23.9.2013 : i. Whether ITAT is correct in applying the definition of manufacture‟ given in SEZ Act 2005 which is applicable for the purpose of only section 10AA of the IT Act which imposes various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns that only the documents that are referred to and relied upon by the parties during the course of the argument shall alone be treated to be part of the record of the Tribunal. 12. The Hon'ble Supreme Court in the case of Udhavdas Kewalram vs Commissioner of Income-Tax, 66 ITR 462 held that the Tribunal must, in deciding the appeal, consider with due care all the material facts and record its finding and all the contentions raised by the Assessee and Revenue in the light of the evidence and relevant law. The decision has to be made only on the basis of the facts involved therein. The word record‟, in our opinion, means the entire record consisting of not only grounds of appeal and the case laws relied on and referred to before the Tribunal, but also the contentions, pleas and arguments raised by the parties before the Tribunal. 13. Sec. 254(2) empowers the Tribunal to rectify mistake which is apparent on record within 4 years from the date of the order suo moto or on application by the Assessee or Revenue. The provisions of Sec. 254(2) can not be construed in a manner that produces an anomaly or otherwise produces irrational or illogical result. The ld. DR even th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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