RAJMUDRA REAL ESTAE, PRIVATE LIMITED , MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX 14(3)(1), MUMBAI

MA 171/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6324 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 2010-2011
• Appeal Filed On: 30-03-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V JENARDHANANDR
• Assessee Lawyers: K GOPALAR

Judgement Text

, , , , INCOME-TAX APPELLATE TRIBUNAL JBENCH M UMBAI , , BEFORE S/SH. RAJENDRA,ACCOUNTANT MEMBER & PAWAN SINGH, JUDICIAL MEMBER MA NO.171/MUM/2017 ARISING OUT OF ./ITA/2788/MUM/2015 , /ASSESSMENT YEAR:2010-11 RAJMUDRA REAL ESTATE PVT. LTD. 1858-34, KHERNAGAR, NEAR P.F. OFFICE BANDRA (E) , MUBAI-400 051 PAN:AABCR 6712 Q VS. ACIT, 14-(3)(1) 455, AAYAKAR BHAVAN, 4TH FLOOR, M.K. MARG MUMBAI-400 020. ( /APPELLANT ) ( / RESPONDENT ) REVENUE BY: SHRI V. JENARDHANAN-DR ASSESSEE BY: SHRI K. GOPAL-AR / DATE OF HEARING: 02.02.2018 / DATE OF PRONOUNCEMENT: 28.02.2018 ORDER/ , / PER RAJENDRA, AM - VIDE ITS APPLICATION DATED 30/3/2017 THE ASSESSEE H AS STATED THAT THERE WERE CERTAIN MISTAKES IN THE ORDER OF THE TRIBUNAL DATED 25/1/17, THAT T HE MISTAKES WERE TO BE RECTIFIED AS PER THE PROVISIONS OF 254(2) OF THE ACT., THAT WHILE DECIDI NG THE APPEAL THE TRIBUNAL HAD RECORDED ITS OBSERVATION IN PARA 5.1 5.3, THAT THE TRIBUNAL HA D DISCUSSED THE SCOPE OF APPLICABILITY OF SECTION 79 OF THE ACT,THAT THE DEPARTMENTAL REPRESE NTATIVE (DR) HAD NOT ARGUED THE SCOPE OF SAID SECTION,THAT THE ASSESSEE DID NOT GET ANY OPPO RTUNITY TO COUNTER THE SAME,THAT THE TRIBUNAL HAD RESTORED BACK THE MATTER TO THE FIRST APPELLATE AUTHORITY (FAA). 2. DURING THE COURSE OF HEARING BEFORE US,THE AUTHORIS ED REPRESENTATIVE (AR) REITERATED THE ARGUMENTS THAT ARE PART OF THE MISCELLANEOUS APPLIC ATION. THE DR STATED THAT THERE WERE NO MISTAKES IN THE ORDER OF THE TRIBUNAL,THAT THE TRIB UNAL HAS SENT BACK THE ISSUE TO THE FILE OF THE FAA,THAT NO PREJUDICE WAS CAUSED TO THE ASSESSEE. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS WE FIND THAT PA RA NO.5 TO 5.2 DEAL WITH THE BASIC PRINCIPLES GOVERNING THE CARRY-FORWARD AND SET OFF OF LOSSES IN CASE OF CERTAIN COMPANIES, ALONGWITH THE SECTION,THAT THE TRIBUNAL HAD NEVER S TATED THAT THE DR HAD MADE THESE SUBMISSIONS,THAT THE TRIBUNAL SPECIFICALLY OBSERVED THAT DR HAD SUPPORTED THE ORDER OF THE AO.WE FIND THAT PRINCIPLES DELIBERATED UPON IN PARA NO.5.1 AND 5.2 ARE OF GENERAL NATURE. THE OPERATIVE PART OF THE ORDER OF THE TRIBUNAL IS AT P ARA 5.3. WE ARE REPRODUCING THE SAID PARA AND IT READS AS UNDER :- MA/171/M/17 RAJMUDRA REAL ESTATE PVT. LTD. 2 5.3. IT CAN BE SAFELY SAID THAT THE SECTION WAS ENACTED WITH THE OBJECT OF PREVENTING WHAT MAY BE SHORTLY DESCRIBED AS BUYING OF LOSSES BY TAKING OVER CONTROLLING INTEREST IN THE SHAREHOLDING OF A COMPANY WHICH HAD CARRIED FORWARD LOSSES.WE FI ND THAT THE FAA HAS NOT PASSED A SPEAKING ORDER.FROM HIS ORDER,IT IS NOT CLEAR AS WH AT WAS THE SHAREHOLDING FOR THE INITIAL YEAR AND WHAT CHANGES TOOK PLACE DURING THE YEAR UNDER C ONSIDERATION.HE HAS LISTED NAMES OF SEVERAL COMPANIES AND THEIR SHAREHOLDING PATTERN.BU T,NOTHING IS COMING OUT AS TO HOW THE PROVISIONS OF SECTION 79 ARE APPLICABLE OR NOT.HE H AS NOT COMMENTED UPON THE CLAUSE (A)AND (B)OF THE SECTION AND THEIR APPLICABILITY TO THE FA CTS OF THE CASE.THEREFORE,WE ARE OF THE OPINION THAT,IN THE INTEREST OF JUSTICE,MATTER SHOULD BE RE STORED BACK TO HIS FILE FOR FRESH ADJUDICATION.HE WILL DECIDE THE MATTER AFTER AFFORD ING A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE.EFFECTIVE GROUND OF APPEAL IS DECIDED IN FAVOUR OF THE AO,IN PART. IT IS CLEAR FROM THE ORDER OF THE TRIBUNAL THAT TH E ORDER OF THE FAA WAS NOT A REASONED AND SPEAKING ORDER AND THEREFORE,THE SAME HAD BEEN SET ASIDE FOR FRESH ADJUDICATION. THEREFORE, WE ARE OF THE OPINION THAT THERE IS NO MISTAKE IN T HE ORDER OF THE TRIBUNAL AND, HENCE, WE REJECT THE APPLICATION MADE BY THE ASSESSEE . AS A RESULT MISCELLANEOUS APPLICATION OF THE ASSESS EE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH FEBRUARY, 2018. ! ' 28 , 2018 SD/- SD/- ( ( ( ( #$% /PAWAN SINGH) ( & ' / RAJENDRA) %'( / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; /DATED : 28 .02.2018. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR J BENCH, ITAT, MUMBAI / , , . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.