NHAVA SHEVA INTERNATIONAL CONTIANER TERMINAL P.LTD, MUMBAI V. DCIT (OSD) 2(2), MUMBAI

MA 210/MUM/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5299 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 22-03-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: CHOUDHARY ARUNKUMAR
• Keywords: Rectification of order; Set aside
• Section: 80IA; 201; 254(2)

Judgement Text

T HE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) & SHRI PAWAN SINGH (JM) M.A.NO. 210/MUM/2019 ARISING OUT OF I.T.A. NO. 3093 /MUM/ 201 2 (ASSESSMENT YEAR 20 0 8 - 0 9 ) NHAVA SHEVA INTERNATIONAL CONTAINER TERMINAL PVT. LTD. LEVEL 1, DARABSHAW HOUSE N.M. MARG, BALLARD ESTATE MUMBAI - 400 038. PAN : AABCN0185H V S . DCIT RANGE(OSD) - 2(2) AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI GIRISH DAVE DEPARTMENT BY SHRI CH OUDHARY ARUN KU MAR DATE OF HEARING 12 .7 . 201 9 DATE OF PRONOUNCEMENT 16 . 7 . 201 9 O R D E R PER SHAMIM YAHYA (AM) : BY WAY OF THIS MISCELLANEOUS APPLICATION ASSESSEE SEEKS ORDER U/S. 254(2) OF THE ACT FOR RECTIFICATION OF MISTAKE APPARENT FROM RECORD. 2. WE H AVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. FIRST SUBMISSION OF THE ASSESSEES COUNSEL IS THAT DISALLOWANCE OF DEDUCTION U/S. 80IA IN RESPECT OF RENT RECOVERY OF RS. 4,95,000/ - AND SUNDRY REVENUE OF RS. 44,11,000/ - WAS NOT ARGUED BY LEARNED COUNSEL DURING THE HEARING BEFORE THE ITAT. THAT CONSIDERING THE QUANTUM INVOLVED, ONLY THE GROUND PERTAINING SECTION 80IA DEDUCTION IN RESPECT OF INTEREST INCOME OF RS. 5,81,54,000/ - WAS MAINLY PRESSED AND ARGUED DURING THE COURSE OF HEARING. IT HAS FURTHER BEEN SUBMITTED THAT GROUND PERTAINING TO DISALLOWANCE U/S. 80IA IN RESPECT OF RENT RECOVERY AND SUNDRY REVENUE HAS BEEN DISMISSED AS NOT PRESSED. IT HAS FURTHER BEEN SUBMITTED THAT THE AFORESAID ISSUES ARE ALSO IN APPEAL BEFORE THE ITAT IN SUBSEQUENT YEARS IS MATERIAL FOR THE APPLICANT. IT HAS FURTHER SUBMITTED THAT REFERENCE TO ITAT ORDER FOR CAPTIONED ASSESSMENT YEAR 2008 - 09MAY RESULT IN DISMISSAL OF THE RESPECTIVE GROUNDS RAISED BY THE ASSESSEE IN THOSE SUBSEQUENT NHAVA SHEVA INTERNATIONAL CONTAINER TERMINAL PVT. LTD. 2 YEARS AS WELL. HENCE, IT HAS BEEN SUBMITTED THAT THE ASSESSEE WISHES TO PURSUE THE AFOREMENTIONED GROUNDS RELATING TO SECTION 80IA DISALLOWANCE FOR RECOVERY OF SUNDRY REVENUE FOR A.Y. 2008 - 09. HENCE, IT HAS BEEN SUBMITTED THAT THE ITAT ORDER IN THIS REGARD MAY BE SUITABLY RECTIFIED. 3. UPON HEARIN G BOTH THE COUNSEL AND PERUSING RECORDS, WE ARE OF THE CONSIDERED OPINION THAT THERE IS NO MISTAKE APPARENT FROM RECORD LIABLE FOR RECTIFICATION U/S. 254(2) ON THIS ISSUE. WE NOT E THAT LEARNED COUNSEL CLEARLY SUBMITS THAT CONSIDERING THE QUANTUM INVOLVED, HE HAD NOT PRESSED THIS GROUND. JUST BECAUSE IN SUBSEQUENT YEAR THIS GROUND INVOLVED LARGER AMOUNTS , HE NOW WANTS TO PURSUE THEM. IN OUR CONSIDERED OPINION SUCH CHANGE OF MIND CANNOT RENDER ANY MISTAKE IN THE ORDER OF THE ITAT IN THE PRESENT ASSESSMENT YE AR. HENCE, THIS ASPECT OF MISCELLANEOUS APPLICATION STANDS DISMISSED. 4. ANOTHER ISSUE RAISED IN MISCELLANEOUS APPLICATION IS THAT WHILE ITAT IN THE BODY OF ORDER HAD AGREED THAT INTEREST INCOME OF RS. 5,81,54,000/ - SHOULD BE CONSIDERED FOR COMPUTING DED UCTION U/S. 80IA OF THE ACT. IT HAS BEEN SO HELD BY THE ITAT WHILE ADJUDICATING THE ISSUE ALSO EVEN WHILE CONCLUDING THE AFORESAID ISSUE BUT THE ITAT HAS ERRONEOUSLY HELD THAT WE UP HOLD THE ORDER OF THE LD . CIT(A). HENCE, IT HAS BEEN PRAYED THAT THIS MIS TAKE MAY KINDLY BE RECTIFIED. 5. UPON CAREFULLY CONSIDERATION, WE FIND THAT THIS MISTAKE POINTED OUT BY LEARNED COUNSEL IS CORRECT. THE ITAT IN THE BODY OF THE ORDER HAS DECIDED THIS ISSUE IN FAVOUR OF THE ASSESSEE, WHEREIN THE ORDER OF LEARNED CIT(A) WAS SET ASIDE BUT WHILE CONCLUDING IN PARA 28, ITAT HAS CONCLUDED AS UNDER : - 28. UPON CAREFUL CONSIDERATION, WE FIND THAT SINCE IN THE RECENT DECISION, THE HON'BLE JURISDICTIONAL HIGH COURT HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE FOLLOWING THE JUDICI AL PRECEDENT, WE UPHOLD THE ORDER OF THE LD. CIT(A) . NHAVA SHEVA INTERNATIONAL CONTAINER TERMINAL PVT. LTD. 3 6. THUS, WE CORRECT THAT IN ABOVE SAID PARA 28 LAST LINE WE UPHOLD THE ORDER OF LEARNED CIT(A) SHOULD BE SUBSTITUTED BY WE SET ASIDE THE ORDER OF LEARNED CIT(A) . 7. IN THE RESULT, MISCEL LANEOUS APPLICATION STANDS PARTLY ALLOWED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 16 . 7 . 201 9 . SD/ - SD/ - (PAWAN SINGH) (SH A MIM YAHYA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 16 / 7 / 20 1 9 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. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR ) PS ITAT, MUMBAI