SURESH K. JAJOO, V. DCIT CIR 4(2),

MA 182/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6695 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-06-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 10-06-2011
• Assessment Year: 2000-2001
• Appeal Filed On: 23-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: INDRA G ANAND
• Section: 14A

Judgement Text

1 MA NO.182/MUM/2011 ARISING OUT OF ITA NO. 1494/MUM/2009 (ASST YEAR 2000-01) IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI E BENCH MUMBAI BENCHES, MUMBAI BEFORE SHRI J SUDHAKAR REDDY, AM & SHRI VIJAY PAL RAO, JM MISCELLANEOUS APPLICATION NO.182/MUM/2011 ARISING OUT OF ITA NO. 1494/MUM/2009 (ASST YEAR 2000-01) SHRI S U RESH K JAJOO 7/10 BOTAWALA BLDG 1 ST FL HORNIMAN CIRCLE MUMBAI 400 001 VS THE DY COMMR OF INCOME TAX CIR 4(2), MUMBAI ( A PPLICANT) (RESPONDENT) PAN NO.AAFPJ0070J A SSESSEE BY MS INDRA G ANAND REVENUE BY SHRI G P TRIDEVI PER VIJAY PAL RAO, JM THIS MISCELLANEOUS APPLICATION BY THE ASSESSEE HAS BEEN FILED AGAINST THE ORDER OF THE TRIBUNAL DATED 18.2.2011 WHEREBY THE APPEAL OF THE REVENUE IN ITA NO.1494/MUM/2009 FOR ASSESSMENT YEAR 2001-01 WAS DISPOSED OFF. 2 BEFORE US, THE LD AR OF THE ASSESSEE HAS SUBMITTE D THAT IN THE DEPARTMENTS APPEAL, THERE IS ONLY ONE ISSUE REGARDING DISALLOWANCE OF L OSS U/S 94(7) OF THE I T ACT. SHE HAS POINTED OUT THAT THE DEPARTMENT DID NOT CHALLENGE T HE ORDER OF THE CIT(A) REGARDING THE ISSUE OF DISALLOWANCE OF EXPENDITURE U/ 14A OF THE I T ACT. THE CIT(A) DIRECTED THE ASSESSING OFFICER TO COMPUTE THE DISALLOWANCE U/S 1 4A OF THE I T ACT AS PER RULES 8D OF THE I T RULES. SHE HAS FURTHER SUBMITTED THAT THE ISS UE OF DISALLOWANCE U/S 14A WAS ACTUALLY PART OF THE ASSESSEE APPEAL IN ITA 474/MUM/2009, W HICH WAS DECIDED BY THE E BENCH OF THE TRIBUNAL VIDE ORDER DATED 31.3.2010. THUS, TH E LD AR OF THE ASSESSEE HAS SUBMITTED 2 MA NO.182/MUM/2011 ARISING OUT OF ITA NO. 1494/MUM/2009 (ASST YEAR 2000-01) THAT WHEN NO ISSUE WAS RAISED BY THE DEPARTMENT WI TH RESPECT TO THE DISALLOWANCE U/S 14A THEN THE ADJUDICATION OF THE SAME WAS NOT REQUIRE D AND HENCE, THERE IS AN APPARENT ERROR IN THE ORDER OF THE TRIBUNAL, WHICH REQUIRED TO BE RECTIFIED. 2.1 THE LD DR ON THE OTHER HAND, HAS NOT DISPUTED T HE FACTUAL POSITION THAT THE ISSUE OF DISALLOWANCE U/S 14A WAS IN THE ASSESSEES APPEAL A ND NOT IN THE REVENUES APPEAL. 3 AFTER CONSIDERING THE RIVAL CONTENTIONS AND CAREF UL PERUSAL OF THE RELEVANT MATERIAL ON RECORD, AND PARTICULARLY THE GROUNDS RAISED BY THE REVENUE AND IMPUGNED ORDER DATED 18.2.2011, WE FIND THAT NO SUCH ISSUE OF DISALLOWAN CE U/S 14A IS INVOLVED IN REVENUES APPEAL.. WE FURTHER NOTED THAT THE ISSUE OF DISALL OWANCE U/S 14A WAS CONSIDERED AND DECIDED BY THE TRIBUNAL IN THE CASE OF THE ASSESSEE REPORTED IN 39 SOT 514 (MUM). THUS, IT IS CLEAR THAT THERE IS AN APPARENT AND MANIFEST ERROR IN THE IMPUGNED ORDER DATED 18.2.2011 OF THE TRIBUNAL SO FAR AS THE ADJUDICATIN G THE ISSUE OF DISALLOWANCE U/S 14A, WHICH HAS NOT BEEN RAISED IN THE REVENUES APPEAL. ACCO RDINGLY, WE MODIFY THE ORDER DATED 18.2.2011 AND THE ISSUE NOS.2 AS WELL AS PARAS 4 TO 4.2 OF THE IMPUGNED ORDER DATED 18.2.2011 OF THE TRIBUNAL STANDS DELETED AND TO BE TREATED AS NON-EST. PARA 5 OF THE IMPUGNED ORDER MAY BE READ AS UNDER: 5. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. 4 IN THE RESULT, THE MISCELLANEOUS APPLICATION FILE D BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THE 29 TH DAY OF JUNE 2011. SD/- SD/- ( J SUDHAKAR REDDY ) ACCOUNTANT MEMBER ( VIJAY PAL R AO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 29 TH , JUNE 2011 RAJ* 3 MA NO.182/MUM/2011 ARISING OUT OF ITA NO. 1494/MUM/2009 (ASST YEAR 2000-01) COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI