MAFATLAL INDUSTRIES LTD, MUMBAI V. ITO 6(3)(2), MUMBAI

MA 142/MUM/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5634 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2002-2003
• Appeal Filed On: 05-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SACHIDANAD DUBE

Judgement Text

1 MA 142/MUM/2019 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D, MUMBAI BEFORE SHRI PAWAN SINGH(JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) M.A. 142/MUM/2019 (ARISING OUT OF ITA NO. 5288/MUM/2011 (ASSESSMENT YEAR : 2002-03) MAFATLAL INDUSTRIES LTD, 3 RD FLOOR, MAFATLAL HOUSE, BACKBAY RECLAMATION, MUMBAI PAN : AAACM2813L VS THE ITO, CIR.6(3)(2) MUMBAI APPLICANT RESPONDEDNT APPELLANT BY SHRI KETAN VED RESPONDENT BY SHRI SACHIDANAD DUBE DATE OF HEARING 03-05-2019 DATE OF PRONOUNCEMENT 14-05-2019 O R D E R PER G MANJUNATHA, AM : THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICAT ION AND REQUESTED TO RECTIFY THE ORDER PASSED BY THE TRIBUNAL IN ITA NO. 5288/MUM/2011 FOR AY 2002-03, VIDE ITS ORDER DATED 17-10-2018. THE ASSE SSEE HAS NARRATED FACTS AND MISTAKES STATED TO BE BORNE ON RECORD FROM THE ORDE R OF THE TRIBUNAL DATED 17- 2 MA 142/MUM/2019 10-2018. THE CONTENTS OF MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ARE REPRODUCED BELOW:- THE APPLICANT STATES AS FOLLOWS: - 1. THE ORDER DATED 17 OCTOBER 2018 (COPY ENCLOSED - REFER 'APPENDIX - A') (REFER PAGE NOS. 1 TO 18 OF THE COMPILATION) PASSED BY THE HON'BLE BENCH T OF THE INCOME-TAX APPELLATE TRIBUNAL ['TRIBUNAL'], PARTLY ALLOWING THE ASSESSEE'S APPEAL (BEARING ITA NO. 5288/M/2011) FOR THE ASSESSMENT YEAR 2002-03, WAS DOWNLOADED BY THE APPLICANT FROM THE WEBSITE OF THE TRIBUNAL. THE HARD COPY OF THE SAME WAS RECEIVED BY THE APPLICANT ON 12 FEBRUA RY 2019. 2. IN THE SAID APPEAL, THE APPLICANT HAD RAISED V ARIOUS GROUNDS OF APPEAL. 3. THE PRESENT APPLICATION, RELATES TO GROUND NO. 20 OF THE SAID APPEAL VIZ. NON EXCLUSION OF CFC GRANT FROM THE TOTAL INCOME. 4. THE SAID GROUND OF APPEAL HAS BEEN EXTRACTED B Y THE HON'BLE BENCH IN ITS ORDER DATED 17 OCTOBER 2018 ON PAGE NO. 03 - THE RELEVANT EXTRACTS OF THE AFORESAID ORDER IS GIV EN HEREUNDER FOR READY REFERENCE: NON EXCLUSION OF CFC GRANT FROM TOTAL INCOME 20. THE LEARNED COMMISSIONER (APPEALS) ERRED IN CONFIRMING THE ACTION OF ASSESSI NG OFFICER IN NOT EXCLUDING FROM (HE TOTAL INCOME OF THE APPELLANT, THE CFC GRANT OF RS. 8.57.75.798 RECEIVED PURSUANT TO THE MONTREAL PROTOCOL FOR PHASING OUT P RODUCTION OF REFRIGERANT GASES. 5. IN SUPPORT OF THE ARGUMENTS MADE/SOUGHT TO BE MADE, THE APPLICANT HAD FILED A PAPERBOOK OF 456 PAGES UNDER COVER OF ITS LETTER DATED 08 NOVEMBER 2 016. 6. DURING THE COURSE OF HEARING, THE APPLICANT HA D INTER-ALIA ARGUED THE GROUND NO. 20 IN THE CAPTIONED APPEAL, AND ALSO HANDED OVER A CHART CAPT URING THE APPLICANT'S ARGUMENTS ON EACH OF THE GROUNDS OF APPEAL - A PHOTOCOPY OF THE SAID CHART H ANDED OVER TO THE BENCH ON 11 JULY 2018 IS FORWARDED HEREWITH - REFER 'APPENDIX - B' (REFER PAGE NOS. 19 TO 28 OF THE COMPILATION). 7. THE HON'BLE TRIBUNAL VIDE ITS ORDER DATED 17 O CTOBER 2018 HAS NOT DECIDED THE GROUND OF APPEAL NO. 20 CHALLENGING NON EXCLUSION OF CFC GRANT 8. DURING THE COURSE OF THE HEARING, IT WAS SPECIFICALLY POINTED OUT BEFORE THE BENCH THAT THE ISSUE VIS-A-VIS NON EXCLUSION OF CFC GRANT FROM THE TOTAL INCOME, IS SQUARELY COVERED IN THE APPLICANT' S FAVOUR BY THE DECISION OF THE HON'BLE TRIBUNAL IN THE APPLICANT'S OWN CASE FOR THE ASSESSMENT YEAR 20 01-02 - A PHOTOCOPY OF THE ORDER DATED 29 JUNE 2018 PASSED BY THE HON'BLE TRIBUNAL FOR THE SAID YE AR WAS ALSO HANDED OVER DURING THE COURSE OF THE HEARING. A FURTHER COPY OF THE SAME IS FORWARDED HE REWITH - REFER 'APPENDIX - C' (REFER PAGE NOS. 29 TO 52 OF THE COMPILATION). 9. IN VIEW OF THE FOREGOING IT IS SUBMITTED AND W ILL BE APPRECIATED THAT THE ORDER OF THE TRIBUNAL, TO THE EXTENT, IT FAILS TO DECIDE THE GROUND OF APPEAL NO. 20 RAISED CHALLENGING THE ACTION OF ASSESSING OFFI CER IN NOT EXCLUDING CFC GRANT OF RS. 8,57,75,798/-, RE CEIVED PURSUANT TO THE MONTREAL PROTOCOL FOR PHASING OUT PRODUCTION OF REFRIGERANT GASES, FROM T HE TOTAL INCOME OF THE APPLICANT AND FURTHER CONFIRMED BY THE CIT(A), IS ERRONEOUS AND HENCE NEE DS TO BE RECTIFIED. 10. THE APPLICANT THEREFORE PRAYS THAT - A. THE TRIBUNAL MAY BE PLEASED TO AMEND ITS ORDER DATED 17 OCTOBER 2018 BY GIVING APPROPRIATE DIRECTIONS/ DECIDE THE ISSUE VIS-A-VIS GROUND OF AP PEALNO. 20 RAISED IN THE CAPTIONED APPEAL FILED FOR THE ASSESSMENT YEAR 2002-03; AND B. THE TRIBUNAL MAY BE PLEASED TO GRANT SUCH FURT HER AND OTHER RELIEF AS THE NATURE AND CIRCUMSTANCES SO REQUIRE. 2. THE LD.AR FOR THE ASSESSEE, AT THE TIME OF HEARI NG, SUBMITTED THAT THERE IS A MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL DATED 17-10-2018 INASMUCH 3 MA 142/MUM/2019 AS GROUND 20 TAKEN TO CHALLENGE NON EXCLUSION OF CF C GRANT FROM TOTAL INCOME IS NOT ADJUDICATED UPON BY THE TRIBUNAL. THEREFORE , THE SAID MISTAKE IS A MISTAKE APPARENT FROM RECORD WHICH NEEDS TO BE RECT IFIED U/S 254(2) OF THE I.T. ACT, 1961. 3. THE LD.DR, ON THE OTHER HAND, FAIRLY ACCEPTED TH AT THERE IS NO FINDING ON GROUND 20 IN THE ORDER OF THE TRIBUNAL, THEREFORE, THE ORDER MAY BE RECTIFIED U/S 254(2) OF THE ACT. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED MISCE LLANEOUS APPLICATION FILED BY THE ASSESSEE ALONGWITH ORDER OF THE ITAT D ATED 17-10-2018. WE FIND THAT THE TRIBUNAL INADVERTENTLY FAILED TO ADJUDICAT E GROUND 20 TAKEN BY THE ASSESSEE CHALLENGING ORDER OF LD.CIT(A) IN CONFIRMI NG NON EXCLUSION OF CFC GRANT FROM TOTAL INCOME. WE FURTHER NOTE THAT NON ADJUDICATION OF SPECIFIC GROUND TAKEN BY THE ASSESSEE IN ITS MEMORANDUM OF A PPEAL CONSTITUTES A MISTAKE APPARENT FROM RECORD WHICH CAN BE RECTIFIED U/S 254(2) OF THE ACT. HENCE, WE RECALL OUR ORDER PASSED IN ITA NO.5288/MU M/2011 DATED 17-10- 2018 FOR AY 2002-03 FOR THE LIMITED PURPOSE OF ADJU DICATION OF GROUND 20. THE OTHER PART OF THE ORDER WOULD STAND, AS IT IS. 5. THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR H EARING ON 02-07-2019 ON THE LIMITED ISSUE OF GROUND NO.20 AND NO NOTICE OF HEARING SHALL BE GIVEN TO EITHER PARTY, AS THE DATE OF HEARING HAS BEEN ANNOU NCED IN THE OPEN COURT. 4 MA 142/MUM/2019 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 14-05-2019. SD/- SD/- (PAWAN SINGH) (G MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 14 TH MAY, 2019 PK/- COPY TO : 1. APPLICANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI