IINCOME- TAX OFFICER WARD12(1), MUMBAI V. MINNOW TRADING CO. P. LTD., MUMBAI

MA 168/MUM/2011

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0046 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-03-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 1999-2000
• Appeal Filed On: 16-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINHA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B BEFORE SHRI P.M. JAGTAP, AM AND SHRI VIJAY PAL RAO, JM MA NO. 168/MUM/2011 ARISING OUT OF ITA NO. 6640/MUM/2008 ASSESSMENT YEAR 1999-2000 INCOME-TAX OFFICER, WARD 12(1), BANGALORE. VS. M/S MINNOW TRADING CO. LTD., C/O RAFFLES SOLUTION PVT. LTD., 8 TH FLOOR, THE ESTATE, 121, DICKENSON ROAD, BANGALORE 560 042. PAN AABCM 0207B APPLICANT RESPONDENT APPLICANT BY SHRI D.K. SINHA RESPONDENT BY SHRI NIRAJ SHETH DATE OF HEARING : 01-03-2013 DATE OF PRONOUNCEMENT : 01-03-2013 ORDER PER P.M. JAGTAP, A.M. BY THIS MISC. APPLICATION, THE REVENUE IS SEEKING R ECTIFICATION OF THE MISTAKES ALLEGED TO HAVE CREPT IN THE ORDER OF THE TRIBUNAL DTD. 18-06-2010 PASSED IN ITA NO. 6640/MUM/2008 FOR A.Y 1999-2000. 2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE RELEVANT MATERIAL ON RECORD. AS SUBMITTED IN THE PRESENT MIS C. APPLICATION AND FURTHER REITERATED BY THE LD. D.R. AT THE TIME OF HEARING B EFORE US THE ISSUE RAISED IN THE APPEAL OF THE REVENUE RELATING TO ADDITION MADE ON ACCOUNT OF INTEREST INCOME ACCRUED TO THE ASSESSEE ON THE AMOUNT OF CAPITAL CO NTRIBUTED TO THE MA NO. 168/MUM/ 2011 2 PARTNERSHIP FIRM HAS BEEN DECIDED BY THE TRIBUNAL I N FAVOUR OF THE ASSESSEE VIDE ORDER DTD. 18-6-2010 (SUPRA) WITHOUT PROPER CO NSIDERATION OF THE RELEVANT CLAUSES OF THE PARTNERSHIP DEED I.E. CLAUSE NO. 7 & 8 WHICH HAS GIVEN RISE TO A MISTAKE APPARENT FROM RECORD. IT IS, HOWEVER, OBSE RVED FROM THE ORDER OF THE TRIBUNAL DTD. 18-6-2010 (SUPRA) THAT THE SAID ISSUE RAISED BY THE REVENUE IN ITS APPEAL FOR A.Y. 1999-2000 WAS DECIDED BY THE TRIBUN AL IN FAVOUR OF THE ASSESSEE FOLLOWING THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.Y. 2003-04 RENDERED VIDE ORDER DTD. 12-6-2008 PASSED I N ITA NO. 5261/MUM/2006 WHEREIN A SIMILAR ISSUE WAS DECIDED B Y THE TRIBUNAL IN FAVOUR OF THE ASSESSEE. AS SUBMITTED BY THE LD. CO UNSEL FOR THE ASSESSEE, A SIMILAR MISC. APPLICATION WAS FILED BY THE REVENUE SEEKING RECTIFICATION OF THE SAID ORDER PASSED BY THE TRIBUNAL FOR A.Y. 2003-04 ON THE SIMILAR GROUND AND THE SAME HAS BEEN DISMISSED BY THE TRIBUNAL VIDE IT S ORDER DTD. 8-6-2012 PASSED IN M.A. NO. 167/MUM/2011 AFTER RECORDING THE SUBMISSIONS OF BOTH THE SIDES AND THE DECISION THEREON IN PARAS 2 TO 5 WHIC H READ AS UNDER:- 2. IN THE APPLICATION, THE DEPARTMENT HAS STATED THAT AS PER CLAUSE 7 & 8 OF THE PARTNERSHIP DEED, INTEREST TO THE PARTNERS PAYA BLE @ 18% PER ANNUM ON THE CAPITAL/LOAN SUM STANDING TO THE CREDIT OF THE PART NERS SHALL BE PROVIDED AND THE PROFITS SHALL BE ASCERTAINED AFTER GIVING EFFEC T TO INTEREST, IF ANY, PAYABLE AND PROFITS OR LOSSES SO ASCERTAINED SHALL BE APPORTION ED AMONG THE PARTIES AS PER CLAUSE 8 OF THE PARTNERSHIP DEED. 3. AT THE TIME OF HEARING THE LD. D.R. SUBMITTED TH AT THE TRIBUNAL WHILE DECIDING THE ISSUE HAS NOT PROPERLY CONSIDERED THE PARTNERSHIP DEED AND HAS DECIDED THE ISSUE ON THE BASIS OF PROVISIONS OF IND IAN PARTNERSHIP ACT 1932. THEREFORE, THE SAID ORDER BE RECALLED AND DECIDE TH E ISSUE AFRESH. 4. IN REPLY TO A QUERY FROM THE BENCH AS TO WHETHER THERE IS ANY MISTAKE APPARENT ON RECORD PASSED BY THE TRIBUNAL DTD. 12.6 .2008, LD. D.R. FAIRLY CONCEDED THAT THE ONLY MISTAKE IS THAT THE ISSUE HA S NOT BEEN CONSIDERED IN PROPER PERSPECTIVE BY THE TRIBUNAL. LD. A.R. SUBMIT TED THAT THERE IS NO PRIMA FACIE MISTAKE IN THE ORDER OF THE TRIBUNAL AND THE TRIBUNAL HAS GIVEN A MA NO. 168/MUM/ 2011 3 CATEGORICAL FINDING IN PARAS 7 & 8 OF ITS ORDER THA T INTEREST INCOME HAS ACCRUED AS CLAUSE 7 OF PARTNERSHIP DEED NOWHERE PROVIDES TH AT INTEREST ON CAPITAL CONTRIBUTED BY THE PARTNERS SHALL BE PAYABLE TO THE PARTNERS REGARDLESS OF PROFITS TO THE PARTNERSHIP FIRM IN QUESTION. HE SU BMITTED THAT DEPARTMENT BY THIS APPLICATION SEEKS REVIEW OF THE ORDER OF THE T RIBUNAL WHICH IS OUTSIDE THE PURVIEW OF SECTION 254(2) OF THE ACT. 5. ON CONSIDERATION OF THE ORDER OF THE TRIBUNAL AN D THE ISSUE RAISED BY THE DEPARTMENT IN THE IMPUGNED APPLICATION, WE AGREE WI TH LD. A.R. THAT THERE IS NO PRIMA FACIE MISTAKE IN THE ORDER OF THE TRIBUNAL AN D THE DEPARTMENT BY THIS APPLICATION WANTS TO REVIEW THE ORDER. SINCE THERE IS NO APPARENT MISTAKE POINTED OUT BY LD. D.R & LD. D.R. ONLY WANTS TO DE CIDE THE ISSUE AFRESH, IT AMOUNTS TO PRAYER TO REVIEW OF ORDER PASSED BY THE TRIBUNAL, WHICH IS OUTSIDE THE PURVIEW OF PROVISIONS CONTAINED IN SECTION 254( 2) OF THE INCOME TAX ACT, 1961. HENCE WE REJECT THE PRAYER OF THE DEPARTMENT . ACCORDINGLY, MISCELLANEOUS APPLICATION FILED BY THE DEPARTMENT IS DISMISSED. 3. AS THE MISTAKE ALLEGEDLY POINTED OUT BY THE REVE NUE IN THE PRESENT MISC. APPLICATION SEEKING RECTIFICATION OF THE ORDER OF T HE TRIBUNAL FOR A.Y. 1999-2000 (SUPRA) IS SIMILAR TO THE ONE POINTED OUT FOR A.Y. 2003-04 (SUPRA) FOR WHICH THE SIMILAR MISC. APPLICATION FILED BY THE REVENUE HAS ALREADY BEEN DISMISSED BY THE TRIBUNAL, WE FOLLOW THE ORDER OF THE TRIBUNAL D TD. 8-6-2012 (SUPRA) DISMISSING THE SIMILAR MISC. APPLICATION FILED BY T HE REVENUE AND DISMISS THE PRESENT MISC. APPLICATION FILED BY THE REVENUE HOLD ING THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL D TD. 18-6-2010 (SUPRA) AS ALLEGED BY THE REVENUE IN ITS MISC. APPLICATION. 4. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 0 1-03-2013. SD/- SD/- (VIJAY PAL RAO) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 01-03-2013. MA NO. 168/MUM/ 2011 4 RK COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) CONCERNED - MUMBAI 4. THE CIT- CONCERNED, MUMBAI 5. THE DR BENCH, B 6. MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI