VINAY UNIQUE CONSTRUCTION CO., MUMBAI V. PR. CIT 32, MUMBAI

MA 107/MUM/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2851 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-09-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Next Hearing Date: 16-06-2022
• Assessment Year: 2014-2015
• Appeal Filed On: 18-04-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 263; 143(3); 254(2)

Judgement Text

1 M.A. 107/Mum/2021 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “F”, MUMBAI BEFORE SHRI PRASHANT MAHARSHI (ACCOUNTANT MEMBER) AND SMT. KAVITHA RAJAGOPAL (JUDICIAL MEMBER) M.A. No.107/Mum/2021 (Arising out of ITA No.4257/Mum/2019) (Assessment Year : 2014-15) Vinay Unique Construction Co A-8, Om Maheshwar Niketan Harsha Park, Chandavarkar Road Borivali (West) Mumbai-400 092 PAN : AAFFV6659M vs Principal Commissioner of Income- tax-32, C-11, 2 nd Floor, Prttakshakar Bhavan, Bandra Kurla Complex Bandra (East) Mumbai-400 051 APPLICANT RESPONDENT Assessee represented by Shri Subodh Ratnaparkhi Department represented by Shri C.T. Mathews – SR.A.R. Date of hearing 17-06-2022 Date of pronouncement 12-09-2022 O R D E R Per : Kavitha Rajagopal (JM): This miscellaneous application filed by the assessee emanates from the appellate order in ITA No.4257/Mum/2019 dated 29/10/2020 pertaining to assessment year 2014-15. 2. The brief facts of the case are that the assessee had filed appeal before the Tribunal challenging the order of the Principal Commissioner of Income-tax (PCIT) 2 M.A. 107/Mum/2021 passed under section 263 of the I.T. Act, 1961 holding that the assessment order passed under section 143(3) of the I.T. Act dated 07/1/2016 was erroneous and prejudicial to the interest of the revenue. The assessee has challenged the 263 proceedings on the ground that the action of the Assessing Officer in not bringing to tax in deemed annual letting value income was supported by the prevalent provisions of law and also by the decisions of the jurisdictional Tribunal cited by the assessee and that there was nothing erroneous insofar as it was prejudicial to the interest of the revenue as alleged by the Ld.PCIT. The assessee further stated that there was no method for determination of annual letting value of property held by the assessee as its closing stock by the provisions of law and further stated that sub section (5) to section 23 of the Act mandates determination of annual letting value of the property held by an assessee as stock in trade has been made available on the statute by the Finance Act, 2017 with effect from 01/04/2018 and the same was not applicable to the impugned year. The assessee also relied on the following decisions of the co-ordinate benches of the Tribunal :- 1. M/s C.R. Development Pvt Ltd vs JCIT (ITA No.4277/Mum/2022 order dated 13.05.2015) 2. M/s Runwal Constructions vs ACIT (ITA No.5408/Mum?2016, order dated 22/02/2018)(Mum) 3. ACIT vs Haware Constructions Pvt Ltd (ITA No.3321/Mum/2016 nd 31/72/Mum/2016 dated 31.08.2018) 4. Progressive Homes vs ACIT (ITA No.5082/Mum/2016 dated 16.05.21018)(Mum) 5. Haware Engineers and Builders Pvt Ltd vs DCIT (ITA No.7155/Mum/2016 dated 10.10.2018) 3 M.A. 107/Mum/2021 The abovesaid case laws support the claim of the assessee that annual letting value of unsold flats held by the assessee as stock in trade of its business and that of the builder and developer could not be brought to tax under the head “Income from house property”. The co-ordinate bench had decided the appeal against the assessee and the contention of the assessee is that the Tribunal has decided the issue only on ground 2 that the Ld.Assessing Officer has taken into consideration the annual letting value method of the unsold flat held as closing stock held by the assessee firm to derive house property income on which the order under section 143(3) dated 07/12/2016 was erroneous insofar as it is prejudicial to the interest of the revenue. The contention of the assessee that ground 1 challenging the assumption of jurisdiction by Ld.PCIT under section 263 of the Act to be not valid and unjustified, was not considered by the Tribunal while deciding the appeal. Aggrieved by the decision of the Tribunal in ITA No.4257/Mum/2019, the assessee has preferred the present miscellaneous application before us on the ground that the Tribunal has failed to deal with the arguments raised by the assessee in respect of ground which are as below:- (i) That, there was no provision under the I.T. Act, 1961, to bring to tax such ALV prior to insertion of sub-section (5) to section 23 w.e.f. 01/04/2018 and (ii) That, the Hon.jurisdictional tribunal has concurred with this view under various cases cited at para no.6 of the Hon.Tribunal order.” 3. The assessee has contended that not considering the above argument is mistake apparent on record and prays for rectification under section 254(2) of the I.T. Act. The assessee relies on the decision of jurisdictional Bombay High Court in the case of PCIT vs Coastal Gujarat Power Ltd 103 taxmann.com 418 (2019)(Bombay). 4 M.A. 107/Mum/2021 4. The Ld.AR for the assessee argued that the action of the Assessing Officer in not making an addition does not itself mandate the PCIT to invoke jurisdiction under section 263 of the I.T. Act. The Ld.AR further stated that the Assessing Officer has gone through all the details furnished by the assessee and only on perusal of this, the Assessing Officer had passed the assessment order. The Ld.AR further stated that the Tribunal has not dealt with the issue whether there was error committed by the Assessing Officer in not making an addition and on this ground, the Ld.AR prayed that the order of the Tribunal dated 20/10/2020 be recalled and that ground 1 raised by the assessee has to be considered on merits. 5. The Ld.DR, on the other hand, stated that the decision of the Tribunal has dealt with all the issues that was raised by the assessee and vehemently opposed the contention of the Ld.AR in recalling the order of the Tribunal. 6. We have heard the rival submissions and perused the materials on record. The contention of the assessee that the decision of the Tribunal has not dealt with the arguments of the Ld.AR pertaining to ground 1 does not hold good to us. Para 6 of the Tribunal’s order has dealt with the issues raised by the assessee in detail and the subsequent paragraphs have given sufficient reasoning to the decision arrived at by the Tribunal. We find that co-ordinate bench has given a detailed finding that Ld. Assessing Officer has not made any enquiry with respect to taxability of annual letting value of unsold stock which made the order of Ld.Assessing Officer erroneous sofar as prejudicial to the interest of the revenue and hence, jurisdiction exercised by Ld.PCIT was upheld. The miscellaneous application of assessee is an attempt to review of order of ITAT which is not permitted under section 254(2) of the I.T. Act, 1961. We also find that all contentions raised by assessee were already recorded by ITAT. So nothing was 5 M.A. 107/Mum/2021 left as ‘not considered’. In our considered opinion, we do not find any mistake apparent from the records and thereby conclude that no rectification under section 254(2) of the I.T. Act is warranted. 7. For the above reasons, we dismiss miscellaneous application filed by the assessee. 8. In the result, the miscellaneous application filed by the assessee is dismissed. Order pronounced in the open court on 12/09/2022. Sd/- sd/- (PRASHANT MAHARSHI) (KAVITHA RAJAGOPAL) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dt : 12/09/2022 Pavanan Copy to : 1. The Applicant 2. The Respondent 3. The CIT(A) 4. The CIT 5. The DR, B-Bench (True copy) By order Asst.Registrar / Sr.PS, ITAT, Mumbai Benches