PENINSULA LAND LTD, MUMBAI V. ASST CIT 7(1), MUMBAI

ITA 1635/MUM/2012

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 8472 (ITAT-MUMBAI)
• Duration Of Justice: 10 year(s) 8 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-11-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: F
• Next Hearing Date: 21-08-2022
• Assessment Year: misc
• Appeal Filed On: 06-03-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: TDS
• Section: 244A

Judgement Text

आयकर अपील य अ धकरण म ु ंबई पीठ “एफ़ ”, म ु ंबई ी वकास अव थी, या यक सद य एवं ी एस. रफौर रहमान, लेखा सद य के सम IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “ F ”, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER & SHRI S.RIFAUR RAHMAN , ACCOUNTANT MEMBER आअसं.1635/म ु ं/20 12 ( न.व. 2006-07) ITA NO.1635/MUM/2012(A.Y.2006-07) M/s. Peninsula Land Limited, Peninsula Spenta, 2 nd Floor, Mathuradas Mills, Senapati Bapat Marg, Lower Parel, Mumbai 400 013. PAN: AAACT-5173-A ...... अपीलाथ /Appellant बनाम Vs. The Assistant Commissioner of Income Tax 7(1), Mumbai. ..... तवाद /Respondent अपीलाथ वारा/ Appellant by : Shri Vijay Mehta तवाद वारा/Respondent by : Ms. Vranda U Matkarni स ु नवाई क त थ/ Date of hearing : 22/08/2022 घोषणा क त थ/ Date of pronouncement : 15/11/2022 आदेश/ ORDER PER VIKAS AWASTHY, JM: This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals) -20, Mumbai [ in short ‘the CIT(A)’] dated 01/12/2011 for the Assessment Year 2006-07. 2. Shri Vijay Mehta appearing on behalf of the assessee submitted at the outset that the CIT(A) has erred in not admitting ground No.IV, V and VI raised 2 ITA NO.1635/MUM/2012(A.Y.2006-07) in the grounds of appeal (Form-35) before the First Appellate Authority. The ld. Authorized Representative for the assessee fairly admitted that the claim made in ground No.IV was raised for the first time before the CIT(A). 3. Per contra Ms. Vranda U. Matkarni representing the Department vehemently defended the impugned order and prayed for dismissing the appeal of assessee. The ld. Departmental Representative submits that the appeal by assessee is against the order of appeal effect passed by the Assessing Officer. The assessee cannot raise fresh claim in an appeal arising out of order giving appeal effect. 4. Both sides heard, orders of authorities below examined. The short prayer of the assessee is that the grounds raised in the appeal were not adjudicated by the CIT(A). For the sake of clarity the grounds raised by the assessee before CIT(A), which purportedly were not admitted by the CIT(A) for adjudication are as under:- GROUND IV: 1. On the facts and in the circumstances of the case and in law, the AO erred in setting off unabsorbed business loss of A.Y. 2005-06 instead of setting off unabsorbed business losses pertaining to earlier years i.e. A.Y. 1997-98 to A.Y. 2004- 05 before setting off that of A.Y. 2005-06 as claimed by the Appellant in the return of income. 2. The Appellant prays that the AO be directed to allow the claim for set-off of business losses of earlier years. GROUND V: 1. On the facts and in the circumstances of the case and in law, the A.O. erred in restricting the Appellant's claim for TDS at Rs. 5,65,43,656/- as against Rs. 5,75,22,870/- claimed by the Appellant. 2. The Appellant prays that the AO be directed to allow the claim for TDS at Rs. . 5,75,22,870/-. 3 ITA NO.1635/MUM/2012(A.Y.2006-07) GROUND VI: 1. On the facts and In the circumstances of the case and in law, the A.O. erred in granting interest u/s 244A at Rs. 90,862/- as against Rs. 42,49,724/- due to the appellant, 2. The Appellant prays that the AO be directed to grant interest u/s 244A at Rs. 42,49,724/-. 5. The present appeal is arising from the order giving effect to the order of CIT(A) dated 22/05/2009. We find that in so far as ground No. IV raised before CIT(A), there is no discussion in the impugned order. As regards ground No.V & VI the CIT(A) has observed that these issue were not before the CIT(A) ( in First Appellate proceedings arising out of assessment order) hence, the same do not figure in the order passed by CIT(A). The Assessing Officer has merely given effect to the order of CIT(A) dated 22/05/2009. If these issues were never raised in the First Appellate proceedings obviously the Assessing Officer would not have given effect to such issue. 6. In the facts of the case we deem it appropriate to restore ground No.I to the CIT(A) for adjudication. 7. The ld. Authorized Representative for the assessee has not brought on record any evidence to show that the issues raised in ground No.V & VI emanates from the original assessment order or the order of CIT(A) dated 22/05/2009. We find no merit in ground of appeal No.II to III, hence, dismissed. 4 ITA NO.1635/MUM/2012(A.Y.2006-07) 8. In the result, appeal by the assessee is partly allowed for statistical purpose. Order pronounced in the open court on Tuesday the 15 th day of November, 2022. Sd/- Sd/- (SHRI S.RIFAUR RAHMAN) (VIKAS AWASTHY) लेखा सद य/ACCOUNTANT MEMBER या यक सद य/JUDICIAL MEMBER म ु ंबई/ Mumbai, दनांक/Dated 15/11/2022 Vm, Sr. PS(O/S) त ल प अ े षतCopy of the Order forwarded to : 1. अपीलाथ /The Appellant , 2. तवाद / The Respondent. 3. आयकर आय ु त(अ)/ The CIT(A)- 4. आयकर आय ु त CIT 5. वभागीय त न ध, आय.अपी.अ ध., म ु बंई/DR, ITAT, Mumbai 6. गाड फाइल/Guard file. BY ORDER, //True Copy// (Dy./Asstt. Registrar)/Sr. Private Secretary ITAT, Mumbai