MUKUND LIMITED, MUMBAI V. ITO 3(2)(2), MUMBAI

MA 104/MUM/2019

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9635 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 15-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITNYA ANJARIA

Judgement Text

P A G E | 1 M.A. NO. 104/MUM/2019 A.Y. 2004 - 05 (ARISING OUT OF ITA NO.679/MUM/2011) MUKUND LIMITED VS. THE INCOME TAX OFFICER - 3(2)(2) IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER M.A. NO. 104/MUM/2019 (ARISING OUT OF ITA NO. 679/MUM/2011 ) (ASSESSMENT YEARS: 2004 - 05 ) MUKUND LIMITED, BAJAJ BHAVAN, 3 RD FLOOR, 226, NARIMAN POINT, MUMBAI 400021 VS. THE INCOME TAX OFFICER - 3(2)(2) AAYAKAR BHAVAN, MAHARSHI KARVE ROAD, MUMBAI - 400020 PAN AAACM5008R (APPLICANT) (RESPONDENT) APPLICANT BY: MS. V A S A N T I PATEL, A.R RESPONDENT BY: SHRI CHAITNYA ANJARIA, D.R DATE OF HEARING: 0 5 .04 .2019 DAT E OF PRONOUNCEMENT: 0 3 .0 7 .2019 O R D E R PER RAVISH SOOD, JM: THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ARISES FROM THE ORDER PASSED BY THE TRIBUNAL WHILE DISPOSING OFF ITS APPEAL VIZ. MUKUND LTD. VS. ITO - 3(2)(2), (ITA NO. 679/MUM/2011, DATED 05.12.2018) FOR A.Y.2004 - 05. 2. THE LD. AUTHORIZED REPRES ENTATIVE (FOR SHORT A.R) FOR THE ASSESSEE SUBMITTED THAT THE ORDER PASSED BY THE TRIBUNAL SUFFERED FROM A MISTAKE APPARENT FROM RECORD , WHICH HAD THUS RENDERED THE SAME AMENABLE FOR RECTIFICATION UNDER SUB - SECTION (2) OF SEC. 254 OF THE INCOME - TAX ACT ,19 61 (FOR SHORT ACT) . THE LD. A.R TAKING US THROUGH THE APPLICATION FILED BY THE ASSESSEE SUBMITTED, THAT THE TRIBUNAL P A G E | 2 M.A. NO. 104/MUM/2019 A.Y. 2004 - 05 (ARISING OUT OF ITA NO.679/MUM/2011) MUKUND LIMITED VS. THE INCOME TAX OFFICER - 3(2)(2) WHILE DISPOSING OFF THE GROUND OF APPEAL NO. 3 HAD FAILED TO TAKE COGNIZANCE OF CERTAIN JUDICIAL PRONOUNCEMENT S ON WHICH RELIANCE WAS PLACED IN THE COURSE OF THE APPELLATE PROCEEDINGS VIZ. (I) THE CIT VS. M/S BAJAJ HINDUSTAN LTD. (ITA NO. 198 OF 2009, DATED 15.04.2009) (BOM); (II) GULF OIL CORPORATION LTD VS. ACIT (2008) 111 ITD 124 (HYD); (III) CIT VS. KH AITAN CHE MICALS FERTILI Z ERS LTD. (2019) 221 CTR (DEL) 501; AND (IV) TAMIL N ADU CEMENTS CORPORATION LTD. VS. JCIT (2012) 349 ITR 58 (MAD); AND (V) DCIT (ASSESSMENT) VS. FARMSON PHARMACEUTICALS GUJ. LTD. (2012) 347 ITR 394 (GUJ). IT WAS SUBMITTED BY THE LD. A.R THAT THE COPIES OF THE AFORESAID JUDICIAL PRONOUNCEMENT S FORMED PART OF THE ASSESSEE PAPER BOOK (FOR SHORT APB) AT PAGE NO. 241 - 271 . IT WAS FURTHER SUBMITTED BY THE LD. A.R , THAT IN THE COURSE OF THE HEARING OF THE APPEAL SPECIFIC RELI ANCE WAS PLACED UPON TW O OF THE AFORESAID JUDICIAL PRONOUNCEMENT S VIZ. (I) THE CIT VS. M/S BAJAJ HINDUSTAN LTD. (ITA NO. 198 OF 2009, DATED 15.04.2009) (BOM); AND (II) GULF OIL CORPORATION LTD VS. ACIT (2008) 111 ITD 124 (HYD). IT WAS SUBMITTED BY THE LD. A.R THAT THE FAILURE ON THE PART OF THE TRIBUNAL TO CONSIDER THE AFORESAID JUDICIAL PRONOUNCEMENTS CONSTITUTED A MISTAKE APPARENT FROM RECORD, WHICH HAD THUS RENDERED THE ORDER AMENABLE FOR RECTIFICATION UNDER SUB - SECTION (2) OF SEC. 254 OF THE ACT. 3. PER CONTRA, THE LD. DEPAR TMENTAL REPRESENTATIVE (FOR SHORT D.R) SUBMITTED , THAT AS THE APPEAL HAD BEEN DISPOSED OFF BY THE TRIBUNAL AFTER CONSIDERING ALL THE ASPECTS ON MERITS, THEREFORE, NO MISTAKE DID EMERGE FROM ITS ORDER. 4. WE HAVE HEARD THE AUTHORIZED REPRESENTATIVES FOR BOTH THE PARTIES AND ALSO PERUSED THE RECORD S . ON A PERUSAL OF THE RECORDS, WE FIND , THAT THOUGH THE LD. A.R IN THE COURSE OF HEARING OF THE APPEAL HAD RELIED ON THE JUDGMENT OF THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF THE CIT VS. M/S BAJAJ HINDUSTAN LTD. (ITA NO. 198 OF 2009, P A G E | 3 M.A. NO. 104/MUM/2019 A.Y. 2004 - 05 (ARISING OUT OF ITA NO.679/MUM/2011) MUKUND LIMITED VS. THE INCOME TAX OFFICER - 3(2)(2) DATED 15.04.2009) (BOM) AND THE ORDER OF A CO - ORDINATE BENCH OF THE TRIBUNAL VIZ. GULF OIL CORPORATION LTD VS . ACIT (2008) 111 ITD 124 (HYD) BY REFERRING TO THE SAID RESPECTIVE ORDERS, HOWEVER, THE SAME HAD INADVERTENTL Y REMAINED OMITTED TO BE CONSIDERED ON OUR PART WHILE DISPOSING OFF THE APPEAL. WE ARE OF THE CONSIDERED VIEW THAT THE NON - CONSIDERATION OF THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT AND THAT OF A CO - ORDINATE BENCH OF THE TRIBUNAL, WHICH WERE SP ECIFICALLY RELIED UPON BY THE COUNSEL FOR THE ASSESSEE DURING THE COURSE OF THE HEARING OF THE APPEAL , THEREIN CONSTITUTE S A MISTAKE APPARENT FROM RECORD, WHICH RENDERS THE ORDER PASSED WHILE DISPOSING OFF THE APPEAL IN CONTEXT OF THE ISSUE UNDER CONSIDERA TION AMENABLE FOR RECTIFICATION UNDER SUB - SECTION (2) OF SEC. 254 OF THE ACT . ACCORDINGLY, WE RECALL THE ORDER FOR THE LIMITED PURPOSE OF RE - ADJUDICATING THE GROUND OF APPEAL NO. 3 THAT WAS RAISED BY THE ASSESSEE BEFORE US, AS UNDER: 3. ON THE FACTS AN D IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT GRANTING DEDUCTION OF AN AMOUNT OF RS.111,810,595/ - IN RESPECT OF PRIOR PERIOD ADJUSTMENTS (NET) WHILE COMPUTING THE BOOK PROFITS UNDER SEC.115JB OF THE ACT. 5. AS REGARDS THE CLAIM OF THE LD. A.R THAT RELIANCE WAS ALSO PLACED ON THE AFOREMENTIONED REMAINING JUDICIAL PRONOUNCEMENT S VIZ. (I) CIT VS. KH AITAN CHEMICALS FERTILI Z ERS LTD. (2019) 221 CTR (DEL) 501; (II) TAMILNADU CEMENTS CORPORATION LTD. VS. JC IT (2012) 349 ITR 58 (MAD); AND (V) DCIT (ASSESSMENT) VS. FARMSON PHARMACEUTICALS GUJ. LTD. (2012) (347 ITR 394) (GUJ) , WE FIND THAT THOUGH THE COPIES O THE SAID RESPECTIVE ORDERS WERE FILED BY THE ASSESSEE IN ITS APB AT PAGE NO S . 249 - 271 , HOWEVER, NO R ELIANCE WAS PLACED ON THE SAID JUDICIAL PRONOUNCEMENT S AT THE TIME OF HEARING OF THE APPEAL. ACCORDINGLY, IN TERMS OF OUR AFORESAID OBSERVATIONS, THE ORDER PASSED BY THE TRIBUNAL VIZ. MUKUND LTD. VS. ITO - 3(2)(2), MUMBAI (ITA NO. 679/MUM/2011, P A G E | 4 M.A. NO. 104/MUM/2019 A.Y. 2004 - 05 (ARISING OUT OF ITA NO.679/MUM/2011) MUKUND LIMITED VS. THE INCOME TAX OFFICER - 3(2)(2) DATED 05.12.2 018) FOR A.Y. 2004 - 05 IS RECALLED FOR THE LIMITED PURPOSE OF RE ADJUDICATING THE GROUND OF APPEAL NO. 3 AFTER CONSIDERING THE AFORESAID TWO JUDICIAL PRONOUNCEMENT S VIZ. (I) THE CIT VS. M/S BAJAJ INDIA LTD. (ITA NO. 198 OF 2009, DATED 15.04.2009) (BOM) ; AND (II) GULF OIL CORPORATION LTD VS. ACIT (2008) 111 ITD 124 (HYD). 5. THE ORDER PASSED BY THE TRIBUNAL IS RECALLED FOR THE LIMITED PURPOSE FOR RE ADJUDICATING GROUND OF APPEAL NO. 3 . 6. THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED AND , THE RE GISTRY IS DIRECTED TO RE - FIX THE MATTER IN TERMS OF OUR AFORESAID OBSERVATIONS. ORDER PR ONOUNCED IN THE OPEN COURT ON 0 3 .0 7 .2019 S D / - S D / - ( SHAMIM YAHYA ) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 03 .0 7 .2019 PS. ROHIT / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI P A G E | 5 M.A. NO. 104/MUM/2019 A.Y. 2004 - 05 (ARISING OUT OF ITA NO.679/MUM/2011) MUKUND LIMITED VS. THE INCOME TAX OFFICER - 3(2)(2)