DCIT 1(1)(4), MUMBAI V. GURUVASTU PROPERTIES P.LTD, MUMBAI

MA 174/MUM/2022

AI Insights

The case involves the Deputy Commissioner of Income Tax (Applicant) and Guruvastu Properties Pvt. Ltd. (Respondent) concerning a dispute over the computation of book profits under section 115JB of the Income Tax Act, 1961, for the assessment year 2011-12. The Revenue filed a Miscellaneous Application (MA) seeking rectification of mistakes in the ITAT order dated 12.09.2019, which initially allowed the assessee's appeal. The mistakes included incorrect assessment year references and misidentified appellate orders. Although some typographical errors were corrected in a subsequent order, the core issue regarding the disallowance of exemption claimed under section 54EC while computing book profits remained unaddressed. The Tribunal acknowledged the oversight and recalled the order to adjudicate this specific issue.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 302568 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-12-2022
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 13-10-2022
• Assessment Year: 2011-2012
• Appeal Filed On: 23-06-2022
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 14A; 115JB; 54EC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, “C”BENCH MUMBAI BEFORE:SHRI BASKARAN BR, ACCOUNTANT MEMBER SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER M.A. No. 174/MUM/2022 (Arising out of ITA No. 5850/MUM/2015, A.Y.2011-12) Deputy Commissioner of Income Tax 1 (1) (4) 5 th Flr., Aayakar Bhavan, M.K. Road Mumbai-400 020 Vs. Guruvastu Properties Pvt. Ltd. 47, 7 th Flr. Tardeo AC Market Mumbai-400 034 लेख सं./ज आइआर सं.PAN/GIR No.AACCG4501H ( ल /Applicant) ( /Respondent) Applicant by Mr.Chetan Kacha.AR Respondent by None स ु नव ई र ख/Date of Hearing 14.10.2022 घोषण र ख/Date of Pronouncement 14.12.2022 ORDER PER PAVAN KUMAR GADALE, JM: The Revenue has filed the miscellaneous application (MA) in ITA No.5850/MUM/2015 for the A.Y.2011-12 seeking rectification of mistake crept in the Hon’ble Tribunal order. 2. At the time of hearing, it was brought to the knowledge of the bench, that the registry has issued the 2 M.A. No. 174/MUM/2022 (A.Y.: 2011-12) (Guruvastu Properties Pvt. Ltd.) notices of hearing on the assessee and the said notices were returned un served by the postal authorities. 3. Whereas the Ld.DR submitted that the Revenue has filed the miscellaneous application for the adjudication of ground of appeal read as under: 3. In the above mentioned case, The Hon'ble ITAT passed the order allowing the assessee’s appeals vide ITA No. 5850/Mum/2015 dated 12.09.2019. In the said ITAT order it was observed that there were numerous typographical errors, which are summarized as under: 1. Assessment year mentioned in the ITAT order was 2010- 11 instead of 2011-12. 2. Appeal filed was mentioned as against the order of CIT(A)- 52 Mumbai on it. 06.06.2017 for A.Y. 2013-14 instead of order of CIT(A)-2.Mumbai on dated 30.10.2015 for AY 2011 12. 3. Ground of appeal in paras 1. 1.1 & 1.2 were correct in the said 1TAT order However the decision was given on the issue of disallowance u/s 14A of the Act whereas the issue in this appeal was computation of book profit at Rs.71.10,711/ u/s 115JB of the IT Act after disallowance of claim of exemption of Rs.50,00,000-/ u/s 54EC of the Act as against the book profit computed by the assessee at Rs.21,10,711/ in the ROI filed. Considering the errors appearing in the order of the ITAT in ITA No. 5850/Mum/2015 dated 05.11.2019, a Miscellaneous Application was filed before the Hon'ble ITAT on 18.03.2020 vide. 3 M.A. No. 174/MUM/2022 (A.Y.: 2011-12) (Guruvastu Properties Pvt. Ltd.) MA No.158/M/2020 wherein the Hon'ble ITAT was requested to rectify the typographical mistakes as appearing above in 1" and 2" point and decide the issue afresh on 3 point, Further, concise Miscellaneous Application was again submitted before the Hon’ble ITAT 'C' bench, requesting to recall the order passed vide ITA No. 5850/M/2015 dated 12.09.2019 and decide the issue afresh on the merits of the case In between, a corrigendum order was passed by ITAT on 06.01. 2020 in the ITA No 5850/Mum/2015 wherein, the typographical errors appearing at point no 1 and2 were rectified in the said ITAT order However, except these typographical errors, there was no change in the tribunal order on the core issue of computation of book profit u/s 115JB of the Act and accordingly 3 point still remained non- rectified by the Hon'ble ITAT The Hon'ble ITAT vide its order dated 08.10.2021 passed in the MA No No.158/Mum/2020 (In ITA No 5850/Mum/2015) (Assessment year 2011 12) has dismissed the Miscellaneous application filed by the Department on the point no 3 above. The order passed is with the corrected typographical errors but has again not decided the issue on the merit of the case i.c. on the issue of disallowance of exemption claimed u/s 54EC of the Act while computing the book profit u/s 115JB of the Act. It is pertinent to mentioned here that the issue in the original appeal as well as in the M.A filed was disallowance of exemption claimed u/s 54EC of the Act while computing the book profit u/s 115JB of the Act and not the disallowance u/s 14A of the Act as mentioned by the Hon'ble ITAT in the para No.-4 of the said order dated 08.10.2021, which is the main crunch of the rectification in the M.A filed. Accordingly, the actual ground of appeal has not been considered/discussed by the Hon'ble ITAT. 4 M.A. No. 174/MUM/2022 (A.Y.: 2011-12) (Guruvastu Properties Pvt. Ltd.) 4. While going through the contents of the above order of the Hon'ble ITAT C bench Mumbai, dated 08.10.2021 it is seen that the said order contains the following error: The typographical error of AY and wrong mentioning in the order of the Hon’ble ITAT as the CIT(A)-52 instead of CIT(A)-2 were corrected vide the order dated 08.10.2021 However, again) the decision was given on the issue of disallowance u/s 14A of the Act whereas the issue in this appeal was computation of book profit at Rs.71,10,711/- u/s 115JB of the IT Act after disallowance of claim of exemption of Rs.50,00,000/- u/s 54EC of the Act as against the book profit computed by the assessee at Rs.21,10,711/- in the ROI filed. In view of the above, it is submitted that no decision can be made regarding this order which contains issue related errors wherein assessee's actual ground of appeal not considered/discussed. It is respectfully prayed that, considering the latest legal position as mentioned in aforesaid paras, the order of the ITAT passed in MA No 158/Mum/2020 (in ITA No. 5850/Mum/2015) (AY 2011-12) dated 08.10.2021 may be recalled and decided afresh on the merit. 4. We heard the Ld.DR submissions and perused the material on record. The Ld.DR contentions are that the ground of appeal in respect of disallowance of exemption under section 54EC of the Act on capital gains in computation of Book Profits U/sec115JB of the Act was not adjudicated. We considering the facts, circumstances and submissions in the miscellaneous application find that there is a mistake apparent on record, accordingly we recall the order for 5 M.A. No. 174/MUM/2022 (A.Y.: 2011-12) (Guruvastu Properties Pvt. Ltd.) limited purpose to adjudicate ground of appeal no1.2 and direct the registry to post the appeal for hearing in the regular course and inform both the parties and we allow the Miscellaneous Application . Order pronounced in the open court on 14.12.2022. Sd/- Sd/- (BASKARAN BR) (PAVAN KUMAR GADALE) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated: 14/12/2022 M.R. Sonavane Copy of the Order forwarded to: 1. The Appellant, 2. The Respondent 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER, (Dy./Asstt.Registrar)ITAT, Mumbai