CRIMSON PROPERTIES PVT. LTD., MUMBAI V. ITO 5(1)(3), MUMBAI

MA 191/MUM/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7541 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-10-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 11-03-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: B N RAO
• Keywords: Search and seizure
• Section: 254(2)

Judgement Text

P A G E | 1 M.A. NO. 191/MUM/2019 AY. 2010 - 11 (ARISING OUT OF ITA NO. 2234/MUM/2016) CRIMSON PROPERTY PVT. LTD. VS. THE INCOME TAX OFFICER, WARD - 5(1)(3) IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, MUMBAI BEFORE SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER M.A. NO. 191/MUM/2019 (ARISING OUT OF ITA NO.2234 /MUM/2016) (ASSESSMENT YEARS: 2010 - 11 ) CRIMSON PROPERTY PVT. LTD. 3 RD FLOOR, SUNAMA HOUSE, KEMPS CORNER, OPP. SHALIMAR HOTEL MUMBAI 400036 VS. THE INCOME TAX OFFICER, WARD 5(1)(3), ROOM NO. 569, 5 TH FLOOR, AAYAKAR BHAVAN, MUMBAI - 20 PAN AAACC2206 R (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI B.N. RAO, A.R RESPONDENT BY: SHRI. SUHAS KULKARNI , D.R DATE OF HEARING: 23 .0 8 .2019 DATE OF PRONOUNCEMENT: 1 6 . 10 .2019 O R D E R PER RAVISH SOOD, JM: THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ARISES FROM THE ORDER PASSED BY THE TRIBUNAL WHILE DISPOSING THE APPEAL OF THE REVENUE VIZ. ITO, WARD - 5(1)(3), MUMBAI VS. CRIMSON PROPERTIES PVT. LTD. (ITA NO. 2234/MUM/2016, DATED 26.10.2018) FOR A.Y. 2010 - 11. AS IS DISCERNIBLE FROM THE APPLICATION, THE ASSESSEE HA S SOUGHT A C LARIFICATION AS REGARDS THE OBSERVATIONS OF THE TRIBUNAL RECORDED AT PARA 7 OF ITS ORDER. 2. THE LD. AUTHORIZED REPRESENTATIVE (FOR SHORT A.R) FOR THE ASSESSEE APPLICANT TOOK US THROUGH THE APPLICATION AND SUBMITTED THAT A CLARIFICATION WAS SOUGHT AS REG ARDS THE OBSERVATIONS RECORDED AT PARA 7 OF THE ORDER OF THE TRIBUNAL , WHICH READ S AS UNDER: WE THUS IN TERMS OF OUR AFORESAID OBSERVATIONS ARE PERSUADED TO SUBSCRIBE TO THE VIEW TAKEN BY THE CIT(A), WHO IN OUR CONSIDERED VIEW HAD RIGHTLY CONCLUDED THAT THE SHARE OF P A G E | 2 M.A. NO. 191/MUM/2019 AY. 2010 - 11 (ARISING OUT OF ITA NO. 2234/MUM/2016) CRIMSON PROPERTY PVT. LTD. VS. THE INCOME TAX OFFICER, WARD - 5(1)(3) PROFIT IN THE FORM OF RENT RECEIVED BY THE ASSESSEE WAS LIABLE TO BE TAXED UNDER T HE HEAD INCOME FROM HOUSE PROPERTY, AND THE ASSESSEE WOULD BE ELIGIBLE TO CLAIM DEDUCTION OF THE INTEREST EXPENDITURE AGAINST THE SAID INCOME, THOUGH WITH A RIDER THAT SUCH DEDUCTION WAS NOT TO EXCEED THE SHARE OF INCOME OF THE ASSESSEE AS A MEMBER OF TH E AO P . 3. THE LD. AUTHORISED REPRESENTATIVE (FOR SHORT A.R) FOR THE ASSESSEE SUBMITTED , THAT THE CIT(A) WHILE DISPOSING OFF THE APPEAL , HAD OBSERVED , THAT THE INCOME RECEIVED BY THE ASSESSEE FROM AOP WAS TO BE ASSESSED AS ITS INCOME FROM HOUSE PROPERT Y, WHICH W OULD BE ELIGIBLE FOR CLAIM OF DEDUCTION OF THE INTEREST EXPENDITURE UNDER SEC. 24(B) OF THE ACT. IT WAS THE CLAIM OF THE LD. A.R, THAT THE CIT(A) HAD FURTHER OBSERVED THAT THE ENTITLEMENT OF THE ASSESSEE TOWARDS CLAIM OF THE AFORESAID INTEREST E XPENDITURE WAS TO BE RESTRICTED TO THE SHARE OF AOP RECEIVED BY THE ASSESSEE COMPANY. IT WAS SUBMITTED BY THE LD. A.R , THAT THE TRIBUNAL WHILE DISMISSING THE APPEAL OF THE REVENUE HAD APPROVED THE OBSERVATIONS OF THE CIT(A) THAT THE SHARE OF PROFIT IN THE FORM OF RENT RECEIVED BY THE ASSESSEE FROM THE AOP WAS TO BE ASSESSED UNDER THE HEAD INCOME F ROM HOUSE PROPERTY , AND IT WOULD BE ELIGIBLE TO CLAIM DEDUCTION OF THE INTEREST EXPENDITURE AGAINST THE SAID INCOME . IN SUM AND SUBSTANCE, IT IS THE CONTENTION OF THE LD. A.R , THAT WHILE FOR THE CIT(A) HAD RESTRICTED THE CLAIM OF DEDUCTION OF THE ASSESSEE UNDER SEC. 24(B) UP TO ITS SHARE OF INCOME IN THE AOP , HOWEVER, THE TRIBUNAL HAD RESTRICTED SUCH CLAIM OF INTEREST EX PENDITURE ONLY TO THE EXTENT OF THE SHARE OF PROFIT IN THE FORM OF RENT RECEIVED BY THE ASSESSEE , WHICH THEREAFTER WAS TO BE APPORTIONED IN ITS HANDS UNDER THE HEAD INCOME F ROM HOUSE PROPERTY . IT IS SUBMITTED BY THE LD. A.R , THAT THE AFORESAID OBSERVATIONS OF THE TRIBUNAL SUFFERS FROM A MISTAKE WHICH IS APPARENT FROM RECORD AND HAD THUS RESULTANTLY RENDERED IT AMENABLE FOR RECTIFICATION UNDER SUB - SECTION (2) OF SEC. 254 OF THE ACT. I T WAS FURTHER SUBMITTED BY THE LD. A.R, THA T AS THE PROPERTY UNDER CONSIDERATION WAS OWNED BY THE ASSESSEE , THEREFORE, THE ASSESSES ENTITLEMENT TOWARDS CLAIM OF DEDUCTION UNDER SEC. 24(B) WOULD NOT BE REGULATED BY THE RESTRICTIONS CONTEMPLATED IN SEC. 67A OF THE ACT. 4. PER CONTRA, THE LD. DEPART MENTAL REPRESENTATIVE (FOR SHORT D.R) SUBMITTED, THAT NO INFIRMITY DID EMERGE FROM THE ORDER OF THE TRIBUNAL, MUCH THE LESS A MISTAKE WHICH WOULD RENDER THE SAME AMENABLE FOR RECTIFICATION U/S 254(2) OF THE ACT. APART THER E FROM, IT WAS SUBMITTED BY THE LD. D .R, THAT THE TRIBUNAL HAD RIGHTLY RESTRICTED THE CLAIM OF DEDUCTION OF THE INTEREST EXPENDITURE UNDER SEC.24(B) TO THE EXTENT OF THE SHARE OF PROFIT RECEIVED BY THE ASSESSEE AS A MEMBER OF THE AOP IN THE FORM OF RENT , WHICH THEREAFTERWAS TO BE APPOR TIONED IN ITS P A G E | 3 M.A. NO. 191/MUM/2019 AY. 2010 - 11 (ARISING OUT OF ITA NO. 2234/MUM/2016) CRIMSON PROPERTY PVT. LTD. VS. THE INCOME TAX OFFICER, WARD - 5(1)(3) HANDS UNDER THE HEAD INCOME F ROM HOUSE PROPERTY. ACCORDINGLY, IT WAS SUBMITTED BY THE LD. D .R, THAT THE APPLICATION FILED BY THE ASSESSEE U/S 254(2) WAS DEVOID AND BEREFT OF ANY MERIT AND WAS LIABLE TO BE DISMISSED. 5. WE HAVE HEARD THE AUTHORISED REPRESENTATIVES FOR BOTH THE PARTIES AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. AS OBSERVED BY US HEREINABOVE, THE ASSESSEE BY FILING THE PRESENT APPLICATION HAS SOUGHT A CLARIFICATION AS REGARDS THE OBSERVATIONS RECORD ED BY THE TRIBUNAL AT PARA 7 OF ITS ORDER. IN FACT, IT IS THE CLAIM OF THE ASSESSEE THAT THE OBSERVATIONS RECORDED BY THE TRIBUNAL AT PARA 7 HEREINABOVE, SUFFERS FROM A MISTAKE APPARENT FROM RECORD, WHICH THEREIN HAD RENDERED THE SAME AMENABLE FOR RECTIFIC ATION UNDER SEC. 254(2) OF THE ACT. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE CLAIM OF THE ASSESSEE AND ARE UNABLE TO PERSUADE OURSELVES TO SUBSCRIBE TO THE SAME. AS OBSERVED BY THE CIT(A), THE SHARE OF PROFIT RECEIVED BY THE ASSESSEE AS A MEMBER OF AOP WAS TO BE ASSESSED AS INCOME FROM HOUSE PROPERTY , AND ALL THE ELIGIBLE BENEFITS AVAILABLE UNDER THE HEAD HOUSE PROPERTY WERE TO BE ALLOWED TO THE ASSESSEE. IT WAS IN THE BACKDROP OF HIS AFORESAID OBSERVATIONS, THAT THE CIT(A) HAD AS A WORD OF CAUTION , STATED THAT CARE SHOULD BE TAKEN TO RESTRICT THE BENEFITS OF HOUSE PROPERTY OF DHANWATAY HOUSE ONLY TO THE SHARE OF AOP RECEIVED BY THE ASSESSEE COMPANY. ACCORDINGLY, THE CIT(A) HAD RESTRICTED THE ENTITLEMENT OF THE ASSESSEE TOWARDS BENEFITS OF HOUSE P ROPERTY OF DHANWATAY HOUSE TO THE EXTENT OF ITS SHARE OF INCOME FROM THE AOP, I.E SHARE OF PROFIT RECEIVED BY THE ASSESSEE AS A MEMBER OF THE AOP IN THE FORM OF RENT PERTAINING TO THE AFORESAID PROPERTY VIZ. DHANWATAY HOUSE. 6. AS THE AFORESAID VIEW TAKEN BY THE CIT(A) WAS FOUND TO BE IN CONFORMITY WITH THE MANDATE OF SEC. 67A, THEREFORE, THE APPEAL OF THE REVENUE WAS DISMISSED BY THE TRIBUNAL , VIDE ITS ORDER DATED 26.10.2018, IN ITA NO. 2234/MUM/2016. 7 . ON THE BASIS OF OUR AFORESAID DELIBERATIONS, WE ARE OF THE CONSIDERED VIEWTHAT THE ORDER PASSED BY THE TRIBUNAL DOES NOT SUFFER FROM ANY SUCH MISTAKE WHICH WOULD RENDER IT AMENABLE FOR RECTIFICATION U/S 254(2) OF THE ACT. RATHER , IN OUR CONSIDERED VIEW, TH E ASSESSEE BY FILING THE PRESENT APPLICATION IS IN FACT SEEKING A REVIEW OF THE ORDER, WHICH WE ARE AFRAID FALLS BEYOND THE REALM OF THE LIMITED POWERS VESTED WITH THE TRIBUNAL U/S 254(2) OF THE ACT. BE THAT AS IT MAY, AS THE ASSESSEE HAD FAILED TO POINT OU T ANY MISTAKE IN THE ORDER OF THETRIBUNAL, MUCH THE LESS A P A G E | 4 M.A. NO. 191/MUM/2019 AY. 2010 - 11 (ARISING OUT OF ITA NO. 2234/MUM/2016) CRIMSON PROPERTY PVT. LTD. VS. THE INCOME TAX OFFICER, WARD - 5(1)(3) MISTAKE WHICH COULD BE HELD TO BE GLARING, PATENT, APPARENT AND OBVIOUS FROM RECORD, THEREFORE, THE S AID FACT WOULD SUFFICE FOR REJECTING THE PRESENT APPLICATION. ACCORDINGLY, IN THE BACKDROP OF OU R AFORESAID OBSERVATIONS, WE ARE OF THE CONSIDERED VIEW THAT THE APPLICATION FILED BY THE ASSESSEE SEEKING MODIFICATION OF THE ORDER PASSED BY THE TRIBUNAL WHILE DISPOSING OFF THE APPEAL , DOES NOT MERIT ACCEPTANCE. WE THUS IN TERMS OF OUR AFORESAID OBSERVA TIONS DISMISS THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. 8 . THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER P RONOUNCED IN THE OPEN COURT ON 1 6 . 10 .2019 . S D / - S D / - ( MANOJ KUMAR AGGARWAL ) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 16 . 10 .2019 PS. ROHIT / 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 .