M/S BLA POWER PVT LTD, MUMBAI V. DCIT CIRCLE-3(1)(1), MUMBAI

MA 102/MUM/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2669 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-09-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 11-08-2022
• Assessment Year: 2010-2011
• Appeal Filed On: 08-05-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: ADMITTING DETAILS WHICH
• Keywords: Set aside
• Section: 131; 68; 143(3); 254(2); 72

Judgement Text

M.A. No.102/Mum/2022 A.Y. 2010-11 BLA Power Pvt. Ltd. Vs. DCiT, Circle 3(1)(1) 1 IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, MUMBAI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER M.A. No.102/Mum/2022 (Arising out of ITA No.847/Mum/2019) (A.Y. 2010-11) BLA Power Pvt. Ltd. 84, Maker Chambers-III Nariman Point, Mumbai Vs. DCIT, Circle -3(1)(1) R. No. 628, 6 th Floor, Aaykar Bhavan, M.K. Road, Mumbai – 400 020 स्थायी लेखा सं./जीआइआर सं./PAN/GIR No: AACCB9792P Appellant .. Respondent Appellant by : Dharmesh Shah & Mitali Gopani Respondent by : Tejinder Pal Singh Anand Date of Hearing 12.08.2022 Date of Pronouncement 27.09.2022 आदेश / O R D E R Per Amarjit Singh (AM): The assessee’s miscellaneous application No. 102/Mum/2022 dated 02.05.2022 arising out of ITAT order vide ITA No. 847/Mum/2019, dated 10.03.2022. 2. Vide Miscellaneous application the assessee submitted that the ITAT in the order passed in the case of the assessee vide ITA No. 847/Mum/2019 in respect of addition of Rs.6.49 crores observed that the funds were received from M/s BLA Industries Ltd. has not been M.A. No.102/Mum/2022 A.Y. 2010-11 BLA Power Pvt. Ltd. Vs. DCiT, Circle 3(1)(1) 2 verified by the A.O and therefore, directed the A.O to allow the claim of the assessee after verification of the detail. The relevant para 7 of the order of the Tribunal as mentioned in the miscellaneous application of the assessee is reproduced as under: “7. The ld. CIT(A) has also mentioned at para 3.2.6 of his order that balance amount of Rs.6.49 crores was not invested by the holding company of the assessee but it was received from the M/s BLA Industries Ltd. The ld. CIT(A) stated that the assessee has submitted a copy of assessment order dated 10.10.2017 for assessment year 2010-11 passed u/s 143(3) r.w.s 147 of the Act assessing the total income of the BLA Industries Ltd. at Rs.21,09,40,360/-. The Id CIT(A) had also given the material fact that net worth of the BLA Industries ltd. was Rs.41.623 crores and assessing officer has not created any doubt in the genuineness of the transaction to the amount of Rs.6.49 crores received from BLA Industries Ltd. It is observed that in the assessment order and in the submission of the assessee dated 21.12.2017 the issue of money received from the holding company of the assessee, BLA Power Holding was discussed, however the amount of Rs.6.49 crores received from BLA Industries Put. Ltd. was not particularly discussed. It is observed that Id. CIT(A) has also not called any remand report from the assessing officer regarding explanation offered by the assessee pertaining to the amount of Rs.6.49 crores received from the BLA Industries Ltd., Therefore, we direct the A.O to allow the claim of the assessee subject to examination of relevant details and copies of documents t pertaining to the balance amount of Rs.6.49 crores received from M/s BLA Industries Ltd. as discussed at para 3.2.6 and 3.2.7 in the order of the ld. CIT(A). Therefore, the grounds of appeal are partly allowed for statistical purposes subject to the terms and conditions as discussed supra in this order.” The assessee contended that finding of the Tribunal with respect to addition of Rs.6.49 crores suffers from mistake apparent on record. The assessee was of the view that entire funds of Rs.24.49 crores was received from BLA Power Holding Pvt. Ltd. and same was entirely explained as genuine. The assessee submitted that directions of the ITAT for set aside the matter to A.O for verification of evidences with respect to Rs.6.49 crores from BLA Industries Pvt. Ltd. may be withdrawn. 3. Heard both the sides and perused the material on record. The revenue has filed the following ground of appeal: M.A. No.102/Mum/2022 A.Y. 2010-11 BLA Power Pvt. Ltd. Vs. DCiT, Circle 3(1)(1) 3 “1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in limiting and deleting the addition made by the AO on account of bogus share capital to the extent of Rs.18 crores claimed received from M/s BLA Power Holding Pvt Ltd by holding that similar addition to the extent made u/s 68 of the Act in other case viz. M/s. BLA Power Holding Pvt Ltd has been confirmed by the Ld. CIT(A) himself, without appreciating that instead of deleting it, the addition should have been upheld on protective basis as all enquiries were done in this by AO including by way of issue of commission u/s 131 of the LT Act 1961 which established that the share capital shown as received from M/s. BLA Power Holding Pvt Ltd was bogus? 2. Whether on the facts and in the circumstances of the case and in law, the order of the Ld. CIT(A) is not perverse in holding that amount of Rs.6.49 crores was received from M/s. BLA Industries Limited on the basis of submission filed by the assessee during appellate proceedings, when in fact the balance sheet and schedules of M/s. BLA Power Holding Pvt Ltd show that the assessee company had received Rs.24.49 crores as share capital from M/s. BLA Power Holding Pvt Ltd and this fact has been clearly established by the AO in his assessment order and assessee itself in its submission dated 21.12.2017? 3. Whether on the facts and in the circumstances of the case and in law, the order of the Ld. CIT(A) is not perverse in holding that amount of Rs.6.49 crores was received from M/s. BLA Industries Limited on the basis of submission filed by the assessee during appellate proceedings, when in fact copies of Form 2 submitted to ROC in pursuance of Section 75(1) of the Companies Act 1956, filed before the AO by letter dated OS.09.2OJ7 by assessee, show that M/s. BLA Power Holding Pvt Ltd had been issued a total number of 2.49 crores equity shares by assessee company amounting to Rs.24.49 crores? 4. Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) has erred in limiting and deleting the amount to Rs.18 crores only in respect of M/s. BLA Power Holding Pvt Ltd and in deleting the addition of Rs.6.49 crores both made u/s 68 of the Act and concluding that identity of the party, genuineness of the transaction and creditworthiness of the party are complied with by the assessee by admitting details which were additional evidence without calling for report Under Rule 46A of the I.T. Rules, 1962 from the AO, when these details were never filed before the AO in the assessment proceedings, thus violating the provisions of Rule 46A? 5. The appellant prays that the order of CIT(A) on the above grounds be set aside and that of Assessing Officer be restored 6. The appellant craves leave to amend, alter, delete or add grounds which may be necessary.” M.A. No.102/Mum/2022 A.Y. 2010-11 BLA Power Pvt. Ltd. Vs. DCiT, Circle 3(1)(1) 4 It is very clear that Revenue has filed ground no. 2 to 4 particularly on the genuineness of the amount of Rs.6.49 crores which was adjudicated by the ld. CIT(A) by admitting additional evidences without calling for report under Rule 46A of the I.T. Rules 1962 from the A.O. The ld. CIT(A) in his finding categorically held that the amount of Rs.18 crores already taxed and added in the hands of holding company M/s BLA Power Holding Pvt. Ltd. by the AO in assessment year 2010-11 while passing the assessment order dated 30.12.2017 u/s 143(3) r.w.s 147 of the Act and therefore, the same money cannot be taxed twice. The detail finding of the ld. CIT(A) reproduced as under: “3.2.2 This Ground of appeal challenges the addition of Rs 24.49 crores in respect of share application money received during the year taxed u/s 68. The appellant filed a return of income on 15.09.2010 declaring total income at Nil/-. During the year, the AO observed that assessee' holding company, namely, BLA Power Holdings Pvt Ltd, has invested Rs.24.49 crores as share capital in the assessee company during the F.Y.2009-10. However, it was observed that identities of the parties, genuineness of the transaction and creditworthiness of the parties who have given share capital monies to BLA Power Holding Pvt Ltd were extremely doubtful and accordingly, the AO made addition of 24.49 crores u/s 68 of the IT Act. 3.2.3 During the appellate proceedings, the appellant contended that It received share application money of Rs 18,00,00,000/-from its holding company, namely, M/s BLA Power holding Pvt Ltd and Rs.6.49 crores from a sister concern M/s BLA industries Pvt Ltd. The appellant has also submitted that share application money of Rs. 18 crores is the investment received by holding company M/s BLA power holding Pvt Ltd from six companies, i.e Rs.4,00,00,000/- from Masantoshi International Ltd., Rs 3,00,00,000/- from Sharadraj Tradefin Ltd.,Rs 2.00,00,000/- from Blue Print Securities Ltd.,Rs.4,00,00,OOO/- from Konark Commerce Industries Ltd., Rs.2,00,00,OOO/- from Impex Services Ltd and Rs.3,00,00,OOO/- from Lifetime Financial Services Ltd., totally aggregating to Rs 18,00,00,OOO/-, which has already been taxed and added in the hands of holding company M/s BLA Power holding Pvt Ltd by the AO in the A.Y.2010-11 while passing the assessment order dated 30-12-17 u/s 143(3) rws 147 of the Act and the same amount has now been added by the AO again in the assessment order dated 30-12-17 u/s 143(3) rws 147 of the Act in the case of present assessee namely M/s BLA Power Pvt Ltd for the same assessment year 2010-11. That, the same money cannot be taxed twice. The appellant has relied upon the decision of Hon'ble Supreme Court in the case of Mahaveer Kumar Jain Vs CIT, [2018] 92 taxmann.com M.A. No.102/Mum/2022 A.Y. 2010-11 BLA Power Pvt. Ltd. Vs. DCiT, Circle 3(1)(1) 5 340 (SC) .dated 19,04.2018, the relevant extract of the same is reproduced as below:- “8. The case of the assessee Is that irrespective of the place of residence, income accruing or arising in Sikkim, would not be taxable in India, as per clause (k) of Article 371F of the Constitution and is taxable only under the Sikkim State Income Tax Rules, 1948. The contention seems to be based on erroneous assumption and the simple answer to the said contention is that though the IT Act is not applicable to various other countries but still the income accruing and arising in foreign countries can be brought to tax provided the assessee is resident and ordinarily resident and further the income accrued or received in any territory which is considered to be a part of India is within the net of IT Act. 9. The appellant, being a resident of Rajasthan, received the income arising from winning of lotteries from Sikkim during the Assessment Year in question was liable to be included in the hands of the Assessee as resident of India within the State of Rajasthan where IT Act was in force notwithstanding that the same had accrued or arisen to him at a place where the IT Act was not in force even in respect of income accruing to him without taxable territory. In the above backdrop, it would be apposite to refer Section 5 of the IT Act which reads as under:- "5-Scope of total Income:-(1) Subject to the provisions of this Act, the total income of any previous year of a person who is a resident includes all income from whatever source derived which- (a) is received or deemed to be received in India in such a year by or on behalf of such person; or (b) accrues or arises or is deemed to accrue or arise to him in India during such year; or ******** The very wordings of Section 5 of the IT Act show that it casts a very wide net and all incomes accruing anywhere in the world would be brought within its ambit A combined reading of both the clauses makes it clear that any income accrued or received in India would be included in his total income for taxing purposes under the IT Act However, in the present case, we find that the amount has been earned by the appellant-assessee in the State of Sikkim and the amount of lottery prize was sent by the Government of Sikkim to Jaipur on the request made by the appellant. 10. The result, therefore, is that, while Section 5 of the IT Act would not be applicable, the existing Sikkim State Income Tax Rules, 1948 would be applicable. Thus, on the income, it would appear that Income-tax would be payable, under Sikkim State Income Tax Rules, 1948 and not under the IT Act. Since Sikkim is a part of India for the accounting year, there would appear to be, on the same income, two types of income-taxes cannot be applied. M.A. No.102/Mum/2022 A.Y. 2010-11 BLA Power Pvt. Ltd. Vs. DCiT, Circle 3(1)(1) 6 11. In the above backdrop, it would be appropriate to refer the decision of this Court in the case of Laxmipat Singhania v. CIT [1969] 72 ITR 231 wherein this Court has observed that "It is a fundamental rule of law of taxation that, unless otherwise expressly provided, income cannot be taxed twice". 12. Further, in a decision of this Court in Jain Brothers v. Union of India and Others [1970] 77 ITR 107 (SC), it has been held as under:- "6 It is not disputed that there can be double taxation if the legislature has distinctly enacted it is only when there are general words of taxation and they have to be interpreted, they cannot be so interpreted as to tax the subject twice over to the same tax..... If any double taxation is involved, the Legislature itself has, in express words, sanctioned it. It is not open to any one thereafter to invoke the general principles that the subject cannot be taxed twice over." 13. The above referred cases make it clear that there is no prohibition as such on double taxation provided that the legislature contains a special provision in this regard. Now, the only question remains to be decided is whether in fact there is a specific provision for including the income earned from the Sikkim lottery ticket prior to 01.04.1990 and after 1975, in the income-tax return or not. We have gone through the relevant provisions but there seems to be no such provision in the IT Act wherein a specific provision has been made by the legislature for including such an income by an assessee from lottery ticket. In the absence of any such provision, the assessee in the present case cannot be subjected to double taxation. Furthermore, a taxing Statute should not be interpreted in such a manner that its effect will be to cast a burden twice over for the payment of tax on the taxpayer unless the language of the Statute is so compelling that the court has no alternative than to accept it. In a case of reasonable doubt, the construction most beneficial to the taxpayer is to be adopted. So, it is clear enough that the income in the present case is taxable only under one law. By virtue of clause (k) to Article 371F of the Constitution which starts with a non-obstante clause, it would be clear that only the Sikkim Regulations on Income-tax would be applicable in the present case. Therefore, the income cannot be brought to tax any further by applying the rates of the IT Act. 14. In view of the aforementioned discussions, we are of the considered view that once the assessee has paid the income tax at source in the State of Sikkim as per the law applicable at the relevant time in Sikkim, the same income was not taxable under the IT Act, 1961. Having decided so, the other issue whether the income that is to be allowed deduction under section 80 TT of the IT Act is on 'Net Income' or 'Gross Income', becomes academic. 15. In view of the above, the appeal is allowed. M.A. No.102/Mum/2022 A.Y. 2010-11 BLA Power Pvt. Ltd. Vs. DCiT, Circle 3(1)(1) 7 3.2.4 Further, the appellant also relied upon the decision of Hon'ble Bombay High Court in the case of Commissioner of Income Tax vs Surat Cotton Spg. &Wvg. Mills (P.) Ltd. [1993] 71 TAXMAN 103 (BOM.) dated 07.04.1993. The relevant extract of the same is reproduced below:- 10. We are also not impressed by the submission of the learned counsel for the revenue that there is no bar in the Act on double taxation of the very same receipt under two different heads, viz., 'dividend 1 and 'capital gain'. This argument does not require any elaborate discussion whatsoever because it is well-settled that the very same income or the very same receipt cannot be assessed twice under two different heads of income. It should not be forgotten that what is chargeable to tax under the Act is the total income of the assessee. 'Dividend 1 which is income 'from other sources' and 'capital gains' are only two different heads under which the income falls to be charged. That being so, once a particular receipt has been treated as dividend, if cannot be treated as income under any other head. The duty of the ITO is only to find out the appropriate head under which the receipt in question can be assessed. Once he assesses a particular receipt under a particular head of income, that amount is no more available to him for assessment under another head. In view of this legal position, we do not find any merit also in the last submission of the learned counsel for the revenue. We, however, like to make it dear that in this case the admitted position is that the amount received by the assessee has been treated as a dividend under section 2(22). The learned counsel for the revenue submits that it was a mistake to do so. Such a contention cannot be raised by the revenue for the first time in the reference proceedings before this Court. The revenue itself has treated the amount as dividend and assessed it to income-tax. The entire controversy in this case has arisen on that account. We are not called upon to decide whether the amount should have been assessed as deemed dividend or not. The fact remains that this amount has been treated as dividend and this has been accepted by all the authorities right from the ITO to the Tribunal The only question before us is whether having assessed the amount as dividend, the revenue can refuse to take that fact into account while computing capital gain and decline to reduce We consideration received on transfer to that extent. 11. In view of the foregoing discussion, we answer question No. 2 referred to us in the affirmative and in favour of the assessee and against the revenue. No order as to costs. 3.2.5 Respectively following the above decision of Hon'ble Supreme Court and Hon'ble Bombay High Court, I too believe that the identical amount which is already taxed in the hands of the holding company cannot be taxed again in the hands of the subsidiary company .Usually, it is found that the AOs make additions on protective basis in one case and on substantive basis in the other. However, it is shocking and surprising to know that the AO has made the same addition on substantive basis only in both the cases in assessment orders passed on the same date in the same Range, namely, Range 3(1), Mumbai. It is found that the AO in this case has discussed the details of receipt of preference M.A. No.102/Mum/2022 A.Y. 2010-11 BLA Power Pvt. Ltd. Vs. DCiT, Circle 3(1)(1) 8 share capital by BLA Power Holding Pvt Ltd at pages 4, 5 and 6 of his assessment order. The names of the same companies with the same amount are mentioned clearly in a tabular form. These facts are again discussed in detail by the AO at pages 8 and 9 of the assessment order. Further, the written submissions of the assessee during assessment proceedings on two occasions have been reproduced by the AO. It is found that the appellant in its submissions on both the occasions have clearly mentioned that the impugned share capital from these six companies have nor been received by BLA Power Pvt Ltd , but by BLA Power Holding Pvt Ltd. So, there was no question of adding them here in the hands of BLA Power Pvt. Ltd. 3.2.6. Moving further on the same impugned addition of Rs.18 crores : it is found that was very well aware also of the assessment proceedings going on simultaneously in the case of the holding company, namely, BLA Power Holding P Ltd. In fact, he mentions it in his assessment order and that too, in bold letters in the last paragraph of the assessment order at page 20 that a parallel proceeding^ pending in the case of the holding company M/s BLA Power Holding P Ltd for the same issue. However, still, it was being held by him that the ultimate beneficiary of the unaccounted funds is assessee company .i.e. BLA Power Pvt. Ltd. Observing like this, he made addition of the amount of Rs 18 crores u/s 68 again in the hands of his assessee, knowing fully well that the impugned subscribers of the preference share capital were the shareholders of the holding company BLA Power Holding P Ltd and not of his company. It is found that the same share capital amount having been treated as unexplained, has been added u/s 68 by ITO 3(1 )(2), Mumbai by order passed u/s 143(3)rws 147 on the same date , i.e. 30-12-17 in the case of BLA Power Holding P Ltd ( which is being separately adjudicated simultaneously by an appellate order of even date ). Now, one is left speechless by such a misuse of powers by a responsible authority while in full knowledge of all the facts and circumstances of the cases. Action must be initiated against such a trigger-happy Assessing Officer whose kind are in fact responsible for creating infructuous demand and uncalled for paperwork. This is also a misuse of the process of Law. At a time when the entire departmental machinery is reeling under the pressure of huge non- collectible arrear demand, one can very well do away with such types of high- pitched assessments. So much so that a committee has also been formed in the department to monitor such types of high-pitched assessments. There are umpteen number of circulars and instructions issued by the Board from time to time prohibiting making such double and high-pitched assessments. Having noted the same, the entire double addition of Rs 18 crores made by the AO u/s 68 is hereby deleted with these remarks. 3.2.6 Again, moving further, a bare reading of section 68 suggests that if any sum is found credited in the books of account of the assessee maintained for any previous year, and the assessee offers no explanation about the nature and source of such credit found in the books or the explanation offered by the assessee, in the opinion of the Assessing Officer, is not satisfactory, it is only then the sum so credited may be charged to Income-tax as the income of the assessee of that previous year The expression " the assessee offers no explanation" means where the assessee offers no proper, reasonable and acceptable explanation as regards the sums found credited in the books maintained by the assessee. Accordingly, in order to discharge this burden, the assessee is required to prove the (a) identity of Shareholder (b) M.A. No.102/Mum/2022 A.Y. 2010-11 BLA Power Pvt. Ltd. Vs. DCiT, Circle 3(1)(1) 9 Genuineness of transaction and (c ) Credit worthiness of creditors. In respect of the balance Rs.6.49 crores received from M/s BLA industries Ltd and added by the AO u/s 68, I find that all the three conditions i.e identity of the party. Genuineness of the transaction and Creditworthiness of the party are complied with The appellant has submitted a copy of the assessment order passed u/s 143(3) r.w.s 147 dated 17 for AY 10-11, by ACIT, Circle 2(1), Kolkata in the case of BLA Industries in which the total income assessed by the AO is Rs 21,09,40,360/. The total returned was Rs20,76,18,667/-. The main activity of the said company is and sell washed coal from its "Dharmasthal Coal Project” at Gadarwara in the Madhya Pradesh Financials of M/s BLA industries Ltd are as follow:- F.Y. 2009-10 F.Y. 2008-09 Production(in MT) 2,97,401 2,32,327 Gross Turnover (in Rs. Crores) 63.40 42.78 Net Profit as per books 9.1 6.98 Fixed Assets(in Rs. Crores) 28.09 24.5 Expenditure(in Rs. Crores) 50 37.5 3.2.7 The net worth of the company is Rs 41.23 crores. It is also found that the AO has not said a word about the addition u/s 68 of this amount of Rs 6.49 crores received from BLA Industries Pvt. Ltd. There is no discussion at all. Not even preliminary facts have been mentioned. One would understand the incorrect appreciation of facts by any AO. But, no appreciation at all and not mentioning even the basic facts takes the cake. The AO has not even tried to make it a case of little evidence. His total silence actually makes it a case of no evidence in view of the above facts and circumstances, the addition of Rs.6.49 crores made u/s. 68 is also deleted. 3.2.8 As a result, the entire addition made u/s 68 of Rs.24.49 crores is deleted. This ground of appeal is allowed. After perusal of the above finding of CIT(A) it is clear from para 3.2.7 of his finding that A.O had not said a word above addition made u/s 68 of the Act to the amount of Rs.6.49 crores received from BLA Industries Ltd. The ld. CIT(A) further stated that there was no discussion at all and not even preliminary facts have been mentioned. In para 3.2.6 of his order the ld. CIT(A) stated that during the course of appellate M.A. No.102/Mum/2022 A.Y. 2010-11 BLA Power Pvt. Ltd. Vs. DCiT, Circle 3(1)(1) 10 proceedings before him the assessee had submitted copies of documents and information in respect of BLA Industries which had contributed Rs.6.49 crores to M/s BLA Power Housing Ltd because the A.O in para 3 of the assessment order categorically held that creditworthiness of the parties who had given share capital to M/s BLA Power Holding Pvt. Ltd. was extremely doubtful. The A.O had discussed only the transaction with the 5 parties as rightly pointed out by the ld. CIT(A) but not discussed at all for the amount of Rs.6.49 crores received from BLA Industries Ltd. After taking into consideration the specific ground of appeals as supra of the revenue, finding of the ld. CIT(A) the ITAT vide order dated 10.03.2022 rightly held that the ld. CIT(A) has not called any remand report from the A.O regarding explanation offered by the assessee pertaining to the amount of Rs.6.49 crores from the BLA Industries ltd. The finding of ITAT at para 7 of the order given is reproduced as under: “7. The Id. CIT(A) has also mentioned at para 3.2.6 of his order that balance amount of Rs.6.49 crores was not invested by the holding company of the assessee but it was received from the M/s BLA Industries Ltd. The Ld. CIT(A) stated that the assessee has submitted a copy of assessment order dated 10.10.2017 for assessment year 2010-11 passed u/s 143(3) r.w.s 147 of the Act assessing the total income of the BLA Industries Ltd. at Rs.21,09,40,360/-. The Ld CIT(A) had also given the material fact that net worth of the BLA Industries ltd. was Rs.41.623 crores and assessing officer has not created any doubt in the genuineness of the transaction to the amount of Rs.6.49 crores received from BLA Industries Ltd. It is observed that in the assessment order and in the submission of the assessee dated 21.12.2017 the issue of money received from the holding company of the assessee, BLA Power Holding was discussed, however the amount of Rs.6.49 crores received from BLA Industries Pvt Ltd was not particularly discussed It is observed that Id. CIT(A) has also not called any remand report from the assessing officer regarding explanation offered by the assessee pertaining to the amount of Rs.6 49 crores received from the BLA Industries Ltd. Therefore, wo direct the AO to allow the claim of the assessee subject to examination of relevant details and copies of documents pertaining to the balance amount of Rs.6.49 crores received from M/S BLA Industries Ltd. as discussed at para 3.2.6 and 3.2.7 in the order of the Id. CIT(A). Therefore, the grounds of appeal are partly allowed for statistical purposes subject to the terms and conditions as discussed supra in this order.” M.A. No.102/Mum/2022 A.Y. 2010-11 BLA Power Pvt. Ltd. Vs. DCiT, Circle 3(1)(1) 11 In view of the above facts and finding we don’t find any merit in the miscellaneous application of the assessee. The rectification u/s 254(2) of the Act can be exercised only the then mistake which is sought to be rectified is obvious, potent, mistake which is apparent from the record and not a mistake which is required to be established by arguments and process of reasoning of the points on which there may conceivably two opinions. Regarding contention of the assessee for invoking Rule 27 of the ITAT neither any written submission nor any discussion made by the assessee during the course of appellate proceedings before us on the issue of challenging reopening of assessment. However, it is needless to say that observation made by us will not ensure or empower the case of the A.O and will not cause any prejudice to the defense explanation of the assessee. The A.O is directed to afford reasonable opportunity to the assessee and verify the remanded issue on merit de novo after the verification and examination of the relevant supporting material to be furnished by the assessee at the time of set aside proceedings. Subject to the aforesaid terms and conditions the Miscellaneous Application filed by the assessee stand dismissed. 4. In the result, the Miscellaneous Application filed by the assessee stand dismissed. Order pronounced in the open court on 27.09.2022 Sd/- Sd/- (AMIT SHUKLA) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, Dated 27.09.2022 PS: Rohit M.A. No.102/Mum/2022 A.Y. 2010-11 BLA Power Pvt. Ltd. Vs. DCiT, Circle 3(1)(1) 12 आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपीलाथी / The Appellant 2. प्रत्यथी / The Respondent. 3. संबंधधत आयकर आयुक्त / The CIT(A) 4. आयकर आयुक्त(अपील) / Concerned CIT 5. धिभागीय प्रधतधनधध, आयकर अपीलीय अधधकरण, अहमदाबाद / DR, ITAT, Mumbai 6. गार्ड फाईल / Guard file. आदेशानुसार/BY ORDER, सत्याधपत प्रधत //True Copy// (Asst. Registrar) ITAT, Mumbai