Kohinoor City 'A' ACHS Ltd., MUMBAI V. ITO, Ward26 (2)(1), MUMBAI

MA 171/MUM/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 5108 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-02-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 05-08-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Rectification of order
• Section: 43

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER M. A . N o. 17 1/ Mu m / 20 21 ( A r is in g ou t of I T A N o .5 08 7 / M u m /2 01 9) ( A s se ss m e nt Y e a r : 20 12- 1 3 ) Kohinoor City ‘A’ co-op Hsg. Society Ltd. Kirol road, Off L.B.S Marg Kurla(W), Mumbai-400 070 Vs . ITO,Ward-26(2)(1) Mumbai PA N / GI R N o . A A B A K 43 6 8 B (Appellant) : (Respondent) Appellant by : None Respondent by : Shri C. T.Mathew D at e o f H e a ri n g : 10.12.2021 Da t e o f P r o no un c e me nt : 25. 02.2022 Per Shamim Yahya, A. M.: This is a miscellaneous application, arising out of order of the ITAT in ITA No. 5087/Mum/2019 for AY 2012-13 vide order dated 23.11.2020. 2. The assessee in the miscellaneous application has submitted as under:- (1) The above appeal was disposed-off by the Hon'ble Tribunal by its order dated 23/11/2020. A copy of the order is enclosed herewith. Copy of the said order was received by the Applicant in February 2021. (2) We beg to present this application for amendment of findings as it was not sought during the course of the appellate proceedings. (3) The main issue involved in the appeal was that the Ld. CIT(A) did not admit the Assessee's claim of non-taxability of Rs.20,45,000/- received from the members on account of principle of mutuality. The Ld CIT(A) did not admit the Assessee's claim on the ground that it was not raised before the Assessing Officer. (4) During the course of appellate proceedings before the Hon'ble Tribunal it was, therefore, requested that the Assessee's claim of non-taxability of Rs.20,45,000/- may be admitted by sending the matter back to the Assessing Officer for verification and examination and allow the same on merits of the case. Since no further question was raised from the Hon'ble Tribunal, it was understood that the matter may go back to the Assessing Officer. 2 M A N o s . 1 7 1 / M / 2 1 (5) However, on receipt of the order, it was noticed that in para 10, the Hon'ble Tribunal has restored the issue back to the file of the Ld CIT(A) instead of the Assessing Officer. (6) The Applicant submits that the CIT(A) may refer the Assessee's claim again to the Assessing Officer as the Assessing Officer has not decided the issue on merits during the course of assessment. Therefore, ultimately the issue will be decided by the findings of the Assessing Officer. (7) The Applicant submits that the issue send to the Ld CIT(A) will remain unresolved for a long time as the CIT(A) is now a faceless regime with dynamic jurisdiction since August 2020. The appeal relegated to the file of the Ld CIT(A) will remain unattended due to lack of clarity with respect to the jurisdiction. Hence, the applicant, in the interest of justice, prays that the Hon'ble Tribunal may please restore the issue back to the Assessing Officer instead of the Ld CIT(A). 3. I have heard the Ld. DR and perused the records. I note that ITAT in the said order after noting the facts has held as under:- “8. Against the above order, assessee is in appeal before the ITAT. I have heard both the parties and perused the records. I find that the solitary reason given by the learned CIT(A) in confirming the disallowance is that the same was not claimed properly by way of return of income. The merits have not been decided by the learned CIT(A). 9. I find that in the Hon'ble Supreme Court decision in the case of Goetze India (supra), which the learned CIT(A) has relied upon, it was clearly mentioned by the Hon'ble Supreme Court that their decision would not impinge upon the jurisdiction of ITAT to entertain claims other than that filed to revise return of income. 10. Accordingly, in the interest of substantial justice, the ground raised by the assessee is duly admitted. The learned CIT(A) is directed to consider the merits of the assessee's ground and thereafter pass a speaking order on the merits of assessee's claim. Needless to add, assessee should be granted adequate opportunity of being heard.” 4. From the above, it is apparent that ITAT has remanded the matter to the file of the ld.CIT(A) on examination of the facts and case laws. Nowhere, ITAT mentions that it has done anything on a concession of the assessee. In this view of the matter, the submissions of the ld. Counsel of the assessee are not at all acceptable. As a matter of fact, the 3 M A N o s . 1 7 1 / M / 2 1 submissions of the assessee’s are wholly wrong. Be as it may, on the facts and circumstances of the case, ITAT has restored the matter of the file of ld.CIT(A). Now, the assessees contends that “ld.CIT(A) may refer the assessees claim again to the AO” and ultimately the issue will be decided by the finding of the AO. Hence, it is prayed that ITAT may change its order and remand the matter to the file of AO. In my considered opinion, assessees request amounts to seeking review of the order of the ITAT u/s. 254(2). It is settled law that in the garb of rectification of order, review of the same is not permissible. Accordingly, this miscellaneous application by the assessee stands dismissed. Sd/- (Shamim Yahya) Accountant Member Mumbai; Dated : 25.02.2022 Thirumalesh , Sr. PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. The CIT(A) 4. CIT - concerned 5. DR, ITAT, Mumbai 6. Guard File BY ORDER, (Dy./Asstt. Registrar) ITAT, Mumbai