ACIT CC 1 (3 ), MUMBAI V. MORARJEE REALITIES LTD (NOW M/S. PENINSULA LAND LTD), MUMBAI

MA 138/MUM/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5471 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-09-2021
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2004-2005
• Appeal Filed On: 22-06-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Period of limitation; Time period of passing order
• Section: 260A; 254(2); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI S. RIFAUR RAHMAN , ACCOUNTANT MEMBER AND SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER M.A. NO. 138 /MUM./2021 ( ARISING OUT OF M. A NO. 635 /MUM./20 19 ) ( ARISING OUT OF ITA NO. 2343/ MUM . / 20 09 ) ( ASSESSMENT YEAR : 20 04 05 ) ASSTT. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 1(3), MUMBAI . APPLICANT (ORIGINAL RESPONDENT) V/S MORARJEE REALITIES LTD. (NOW PENINSULA LAND LIMITED), 503, PENINSULA TOWER PENINSULA CORPORATE PARK GANPATRAO KADAM MARG, LOWER PAREL MUMBAI 400013 PAN AAACT5173A . RESPONDEN T (ORIGINAL APPELLANT) ASSESSEE BY : SHRI VIJAY MEHTA REVENUE BY : SMT. USHA GAIKWAD DATE OF HEARING 13 . 0 8 .20 21 DATE OF ORDER 13.9.21 O R D E R PER S. RIFAUR RAHMAN , A.M. THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE REVENUE WHICH IS AGAINST THE ORDER DATED 16 TH MARCH 2020, PASSED IN M.A. NO.635/MUM./2019, WHICH IS ARISING OUT OF ORIGINAL ORDER DATED 30 TH AUGUST 2019, PASSED BY THE CO ORDINATE BENCH OF THE TRIBUNAL IN AN APPEAL BEING ITA NO.2135/MUM./2009, FOR THE ASSESSMENT YEAR 2004 05. THAT MEANS, THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILED AGAINST PREVIOUS MISCELLANEOUS APPLICATION. 2 M/S. UZURI JEWELS PVT. LTD. 2. THE CONTENTS OF THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE REVENUE ARE REPRODUCED BELOW FOR BETTER APPRECIATION OF FACTS: THE PRESENT MISCELLANEOUS APPLICATION IS BEING FILED ON PERUSAL OF MA ORDER (MA NO.635/MUM/2019) ARISING OUT OF ITA NO 2343/MUM/2009 IN THE CASE OF M/S MORARJEE REALITIES LTD( NOW KNOWN AS PENINSULA LAND LTD.) FOR A.Y. 2004 - 05. THE FACTS OF THIS CASE ARE THAT THE HON'BLE ITAT HAS PASSED MA ORDER ON 16.03.2020 (MA NO. 635/MUM/2019) ARISING OUT OF ITS ORDER DATED 30.08.2019 (IN ITA NO 2343/MUM/2009) FOR A.Y. 2004 - 0 5. IT IS PERTINENT TO NOTE HERE THAT APPEAL U/S 260A OF THE INCOME TAX ACT, 1961 HAS ALREADY BEEN FILED BY THE DEPARTMENT AGAINST HON'BLE ITAT, MUMBAI, ORDER ITA NO 2343/MUM/2009 DATED 30.08.2019. A PERUSAL OF THE ORDERS PASSED BY THE HON'BLE ITAT I.E. OR IGINAL ORDER (IN ITA NO 2343/MUM/2009) & MA ORDER (MA NO. 635/MUM/2019), SHOWS THAT PASSING OF MA ORDER IS BEYOND THE PERIOD OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH ORIGINAL ORDER DATED 30.08.20 19 (IN ITA NO. 2343/MUM/2009) WAS PASSED. 4. IN VIEW OF THE ABOVE, MA ORDER PASSED BY THE HON'BLE ITAT APPEARS TO BE TIME - BARRED. THUS, IT IS HUMBLY SUBMITTED BY THE UNDERSIGNED THAT THE MA ORDER OF THE HON'BLE ITAT IS APPEARS TO BE ERRONEOUS. 3. IN SHORT, THE MAIN CONTENTION OF THE REVENUE IN THE PRESENT MI SCELLANEOUS APPLICATION IS, THE ORDER DATED 16 TH MARCH 2020, PASSED IN M.A. NO.635/MUM./2019, (WHICH IS ARISING OUT OF ASSESSEES APPEAL BEING ITA NO.2135/MUM./2009, VIDE ORDER DATED 30 TH AUGUST 2019), IS TIME BARRED, WHICH ACCORDING TO THE REVENUE IS ERRO NEOUS. 4. THE LEARNED COUNSEL FOR THE ASSESSEE O N THE OTHER HAND SUBMITTED THAT THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS M.A. ON M.A. . HE SUBMITTED THAT THE ORDER SOUGHT TO BE RECTIFIED 3 M/S. UZURI JEWELS PVT. LTD. MUST BE APPARENT ON THE FACE OF RECORD AND HENCE THE PRESENT MISCELLANEOUS APPLICATION IS NOT MAINTAINABLE. THE LEARNED COUNSEL FURTHER SUBMITTED THAT THE DELAY, IF ANY, WHILE DISPOSING OFF THE APPEAL BY THE TRIBUNAL IS NOT A MISTAKE ON THE PART OF THE ASS ESSEE. IN SUPPORT OF HIS ARGUMENTS, THE LEARNED COUNSEL RELIED UPON THE FOLLOWING CASE LAW: I) CIT V/S PRESIDENT, INCOME TAX APPELLATE TRIBUNAL, [1992] 63 TAXMAN 338 (ORI.); II) PCIT V/S ITAT, [2020] 116 TAXMANN.COM 451 (BOM.); III) SREE AYYANAR SPINNING & WEAVING MILLS LTD. V/S CIT, [2008] 171 TAXMAN 498 (SC). 5. CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD IN THE LIGHT OF THE DECISIONS RELIED UPON. THE ASSESSEE HAD FILED THE MISCELLANEOUS APPLICATION BEARING M.A. NO.635/MUM./2019, (WHICH AROS E OUT OF ASSESSEES APPEAL BEING ITA NO.2135/MUM./2009, VIDE ORDER DATED 30 TH AUGUST 2019), WHICH WAS WELL WITHIN THE LIMITATION PERIOD PRESCRIBED UNDER THE ACT, WHEREAS THE TRIBUNAL HAS DISPOSED OFF THE SAID MISCELLANEOUS APPLICATION ON 16 TH MARCH 2020. N OW, BEFORE US, THE CLAIM OF THE REVENUE IS, THE ORDER DATED 16 TH MARCH 2020, PASSED IN M.A. NO.635/MUM./2019, IS TIME BARRED WHICH IS ISSUED BEYOND THE PERIOD OF SIX MONTHS FROM THE END OF THE MONTH IN WHICH THE ORIGINAL ORDER DATED 30 TH AUGUST 2019, PASSED IN ASSESSEES APPEAL BEING ITA NO.2135/MUM.2009 . IT IS PERTINENT TO MENTION HERE THAT THE LIMITATION 4 M/S. UZURI JEWELS PVT. LTD. PERIOD, AS SPECIFIED UNDER SECTION 254(2) OF THE ACT IS ONLY FOR FILING OF MISCELLANEOUS APPLICATION WITHIN THE SPECIFIED PERIOD AND N OT FOR DISPOSING OFF THE MISCELLANE OUS APPLICATION BY THE TRIBUNAL AND HENCE THE PLEA OF THE REVENUE IN THIS REGARD HAS NO LEGS TO STAND. WITH THESE OBSERVATIONS, WE ARE OF THE CONSIDERED VIEW THAT THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS NOT MAINTAINABLE AND HENCE, LIABLE TO BE DISMISSED. 6. IN THE RESULT, REVENUES MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13.9.21 SD/ - PAVAN KUMAR GADALE JUDICIAL MEMBER SD/ - S. RIFAUR RAHMAN ACCOUNTANT MEMBER MUMBAI, DATED: 13.9.21 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI