DEPUTY COMMISSIOER OF INCOME TAX 5(2) (2), MUMBAI V. MOBILE 2 WIN INDIA PRIVATE LIMITED, MUMBAI

MA 164/MUM/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 9535 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-06-2019
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 22-03-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI BEFORE S/SHRI G S PANNU, VP, & RAVISH SOOD, JM MA NO. 164/MUM/2017 (ARISING OUT OF ITA NO.4827/MUM/2012 FOR A.Y.2008-1 9) DY. CIT 5(2)(2), MUMBAI VS. M/S. MOBILE 2 WIN INDIA PVT. LIMITED., 601, 6 TH FLOOR, SPRING TOWER, ISLAND CITY CENTRE, G D AMBEDKAR MARG, DADAR, MUMBAI 400 014. PAN AADCM6165C (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI V K CHATURVEDI RESPONDENT BY : SHRI GAURAV DARDA DATE OF HEARING : 28.06.2019 DATE OF PRONOUNC EMENT : 28.06.2019 O R D E R PER G S PANNU,VICE-PRESIDENT: BY THIS MISCELLANEOUS APPLICATION REVENUE SEEKS TO RECALL THE ORDER OF THE TRIBUNAL DATED 13.07.2016 IN ITA NO. 4827/MUM/2 012 FOR A.Y. 2008-09. 2. THE CAPTIONED MISCELLANEOUS APPLICATION U/S. 254 (2) OF THE ACT HAS BEEN PREFERRED BY THE REVENUE IN THE CONTEXT OF GRO UND OF APPEAL NOS. 4 TO 6 DISPOSED OF BY THE TRIBUNAL RELATING TO DISALLOWA NCE OF RS. 1,05,47,651/-. IT IS POINTED OUT BY THE LEARNED DR THAT IN PARA 7. 2 OF THE ORDER OF THE 2 MA 164/MUM/2017 MOBILE 2 WIN INDIA PVT. LIMITED TRIBUNAL, DATED 13.07.2016 (SUPRA), THE DISALLOWANC E MADE BY THE ASSESSING OFFICER OF RS.1,05,47,651/- HAS BEEN DELE TED PRIMARILY ON THE AVERMENT OF THE ASSESSEE THAT SUCH DISALLOWANCE WAS PART OF THE SUO MOTU DISALLOWANCE MADE BY THE ASSESSEE IN THE RETURN OF INCOME ITSELF. 3. BY WAY OF PRESENT APPLICATION, IT IS CANVASSED T HAT THE COMPUTATION OF INCOME FILED WITH THE RETURN OF INCOME DOES NOT REF LECT THE EXACT AMOUNT OF RS 1,05,47,651/- HAVING BEEN DISALLOWED SPECIFICALL Y. THUS, THERE IS APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL DATED 13.07.2016(SUPRA). 4. ON THE CONTRARY, THE LEARNED REPRESENTATIVE FOR THE ASSESSEE HAS ASSERTED THAT THE STATEMENT MADE BEFORE THE BENCH A T THE TIME OF HEARING OF APPEAL WAS BASED ON THE FACTUAL POSITION AND, TH EREFORE, THERE IS NO WRONG. 5. HAVING HEARD THE RIVAL SUBMISSIONS WE FIND THE S AY OF THE ASSESSEE THAT THE IMPUGNED AMOUNT OF RS 1,05,47,651/- HAS AL READY SUFFERED DISALLOWANCE AT THE TIME OF FILING OF RETURN BY WAY OF SUO MOTU ACTION, IS REQUIRED TO BE CORROBORATED ON THE BASIS OF MATERIA L ON RECORD. SINCE AT THIS STAGE, IN TERMS OF THE LIMITED JURISDICTION AV AILABLE WITH US IN TERMS OF SECTION 254(2) OF THE ACT, ONLY APPARENT MISTAKES C AN BE CORRECTED, WE DEEM IT FIT AND PROPER TO DIRECT THE ASSESSING OFFI CER TO VERIFY THIS ASPECT OF THE MATTER. THE ASSESSEE IS REQUIRED TO SATISFY TH E ASSESSING OFFICER THAT 3 MA 164/MUM/2017 MOBILE 2 WIN INDIA PVT. LIMITED THE IMPUGNED SUM OF RS. 1,05,47,651/- WAS DISALLOWE D SUO MOTU IN THE RETURN OF INCOME. IN CASE THE ASSESSEE IS ABLE TO SATISFY THE ASSESSING OFFICER, NO FURTHER DISALLOWANCE WOULD BE WARRANTED . SO, HOWEVER, IF THE ASSESSING OFFICER IS OF THE CONTRARY VIEW, HE SHALL BE FREE TO PASS AN ORDER ON THIS LIMITED ASPECT AFRESH AS PER LAW. 6. IN THIS VIEW OF THE MATTER, THE CAPTIONED MISCEL LANEOUS APPLICATION HAS BEEN DISPOSED OF AS PARTLY ALLOWED. ORDER DICTATED AND PRONOUNCED IN COURT ON 28 TH JUNE, 2019 IN THE PRESENCE OF BOTH THE PARTIES. SD/- SD/- (RAVISH SOOD) (G S PANNU) JUDICIAL MEMBER VICE-PRESIDENT MUMBAI, DATED : 28 TH JUNE, 2019 SA COPY OF THE ORDER FORWARDED TO : 1. THE APPLICANT. 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. THE CIT 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// (ASSISTANT REGISTRAR/ SR. PS) INCOME TAX APPELLATE TRIBUNAL, MUMBAI