METMIN FINANCE AND HOLDINGS PVT. LTD., MUMBAI V. DCIT - 3(2), MUMBAI

MA 160/MUM/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 5011 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-10-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 08-07-2016
• Court: TRIBUNAL
• Department Lawyers: JEEVAN LAD
• Assessee Lawyers: JISHAN JAIN WITH HARESH G BUCH
• Keywords: Depreciation; Unabsorbed depreciation
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B , BENCH MUMBAI BEFORE: SHRI R.C.SHARMA, AM & SHRI MAHAVIR SINGH , JM M.A.NO.159 /MUM/2016 (ARISING OUT OF I.T.A.NO.6813/MUM/2012) M.A.NO. 160/MUM/2016 (ARISING OUT OF I.T.A.NO. 6811/MUM/201 2 ) ( ASSESSMENT YEA R : 200 7 - 200 8 ) METMIN FINANCE AND HOLDINGS PRIVATE LIMITED, 161/162, MITTAL COURT, WINGH, NARIMAN POINT, MUMBAI 400021 VS. DCIT - 3(2), MUMBAI PAN/GIR NO. : AAACM4026 D ( APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHR I JISHAN JAIN WITH HARESH G. BUCH REVENUE BY : SHRI JEEVAN LAD DATE OF HEARING : 14 / 10 /2016 DATE OF PRONOUNCEMENT : 14/10 /2016 / O R D E R PER R.C.SHARMA (A.M) : M.A.NO.159/MUM/2016 M.A 159/MUM /2016 AROSE OUT OF ORDER OF TRIBUNAL DATED 30/03/2016 IN ITA NO. 6813/MUM/2012 . 2. THROUGH THIS MA , IT WAS SUBMITTED BY LEARNED AR THAT GROUND NO.1,4 AND 6 WERE NOT PRESSED DURING THE COURSE OF HEARING ON MARCH 22, 2016. HOWEVER, ISSUES IN RESPECT OF DISALLOWANCE UNDER SECTION 14A OF THE ACT (GROUND NO.2 AND 3) AND DENIAL OF SET OFF OF CURRENT YEARS UNABSORBED DEPRECIATION AGAINST INCOME FROM OTHER SOURCES(GROUND NO.5) WERE ARGUED AND HEARD DURING THE COURSE OF 2 M.A.NO.159 & 160/2016 METMIN INVESTMENT AND TRADING PVT.LTD., HEARING. THE HONBLE TRIBUNAL HAS ALSO ADJUDICATED THESE GROUNDS FOR THE CAPTIONE D APPEAL (ITA NO.6813/M/2012) AT PAGE NO. 5 PARAGRAPH 13 OF THE ORDER DATED MARCH 30, 2016. 3. IT WAS FURTHER SUBMITTED THAT THE HONBLE TRIBUNAL IN PARAGRAPH 13 HAS GIVEN REFERENCE TO THE REASONING MENTIONED AT PARAGRAPH 12 WHICH PERTAINS TO THE ISSUE OF DENIAL OF SET OFF OF CURRENT YEARS UNABSORBED DEPRECIATION AGAINST INCOME FROM OTHER SOURCES AND INADVERTENTLY DID NOT MENTION PARAGRAPHS 7 AND 8 WHERE THE TRIBUNAL HAD GIVEN REASONING ON THE ISSUE OF DISALLOWANCE UNDER SECTION 14A OF THE ACT. 4. WE HAV E CONSIDERED RIVAL CONTENTIONS AND GONE THROUGH THE MISCELLANEOUS APPLICATION FILED BY ASSESSEE AND ALSO ORDER OF THE TRIBUNAL AND FOUND THAT THERE IS APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL IN SO FAR AS IN PARAGRAPH 13, IN ADDITION TO REFERENCE TO P ARAGRAPH 12, GIVE REFERENCE TO PARAGRAPHS 7 & 8, WHICH DIRECTS THE AO TO RESTRICT THE DISALLOWANCE TO THE EXTENT OF 5% OF THE EXEMPT DIVIDEND INCOME AND TO EXCLUDE SHARES HELD BY THE ASSESSEE AS STOCK IN TRADE FOR THE PURPOSE OF CALCULATING AVERAGE INVESTM ENTS WHILE WORKING ON DISALLOWANCE UNDER RULE 8D. ACCORDINGLY, WE RECTIFY THE APPARENT MISTAKE AND DIRECT THE AO TO READ IN PARA 13 REFERENCE OF NOT ONLY PARA 12 BUT ALSO PARA 7 & 8. WE DIRECT ACCORDINGLY. 5. IN THE RESULT, MA IS ALLOWED. M.A. NO.160/MUM/2 016 3 M.A.NO.159 & 160/2016 METMIN INVESTMENT AND TRADING PVT.LTD., M.A 160/M/2016 AROSE OUT OF ORDER OF TRIBUNAL DATED 30/03/2016 IN ITA NO. 6811/MUM/2012. 6 . THROUGH THIS MA, IT WAS SUBMITTED BY LEARNED AR THAT GROUND NO.1,3 AND 4 WERE NOT PRESSED DURING THE COURSE OF HEARING ON MARCH 22, 2016. HOWEVER, THE ISSUE OF DENIAL OF SET OFF OF CURRENT YEARS UNABSORBED DEPRECIATION AGAINST INCOME FROM OTHER SOURCES(GROUND NO.2) WAS ARGUED AND HEARD DURING THE COURSE OF HEARING. THE HONBLE TRIBUNAL HAS ALSO ADJUDICATED THIS GROUND FOR THE CAPTIONED APPEAL (ITA NO.6811/M/201 2) AT PAGE NO.4, PARAGRAPH 9 - 12 OF THE ORDER DATED MARCH 30,2016. 7. IT WAS FURTHER SUBMITTED THAT INADVERTENTLY AT PARAGRAPH 2, PARAGRAPH 14 AND PARAGRAPH 15 OF THE ORDER, IT IS MENTIONED THAT APPEAL IN ITA NO.6811/M/2012 IS NOT PRESSED AND CONSEQUENTLY D ISMISSED. 8. IN VIEW OF THE ABOVE, IT WAS PRAYED THAT PARAGRAPH 2,14 & 15 MAY KINDLY BE RECTIFIED SO THAT GROUND NO. 2 WITH REGARD TO ALLOWING SET OFF UNABSORBED DEPRECIATION AGAINST INCOME FROM OTHER SOURCES SHOULD BE DECIDED BY AO AFRESH IN TERMS OF TH E DIRECTION GIVEN BY TRIBUNAL IN PARA 9 OF IT S ORDER DATED 30/03/2016. 9. WE HAVE CAREFULLY GONE THROUGH THE MISCELLANEOUS APPLICATION AS WELL AS THE ORDER OF THE TRIBUNAL DATED 30/03/2016 AND FOUND THAT GROUND NO.1,3 & 4 WERE NOT PRESSED, HOWEVER, GROUND NO.2 WAS PRESSED AND THE SAME WAS ALSO DEALT BY THE TRIBUNAL AT PAGE NO.4 PARAGRAPH 9 & 12 AND AFTER CONSIDER ING IN DETAIL THE TRIBUNAL HAS RESTORED THE MATTER BACK TO THE FILE OF AO WITH A DIRECTION TO DECIDE 4 M.A.NO.159 & 160/2016 METMIN INVESTMENT AND TRADING PVT.LTD., THE ISSUE AFRESH IN LIGHT OF OBSERVATION MADE IN PARA 9,10,11 & 12 OF THE ORDER DATED 30/03/2016. THUS, THERE AROSE A MISTAKE APPARENT IN PARA 2, 14 & 15 WHEREIN IT IS INADVERTENTLY MENTIONED THAT 6811/MUM/2012 IS DISMISSED AS NOT PRESSED. ACCORDINGLY, WE RECTIFY THE SAID MISTAKE IN OUR ORDER AND DIRE CT AO TO CONSIDER GROUND NO.2 AS PER THE DIRECTION GIVEN BY TRIBUNAL AT PARA 9,10, 11 & 12 OF ITS ORDER. WE DIRECT ACCORDINGLY. 10 . IN THE RESULT MA FILED BY ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 14/10/2016 S D/ - ( MAHAVIR SINGH ) S D/ - (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 14/10/ 2016 KARUNA , SR. PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CI T 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//