THE BOMBAY PRESIDENCY GOLF CLUB LTD, MUMBAI V. ITO (E) 1(1), MUMBAI

MA 212/MUM/2019

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 5651 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 22-03-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE S/SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER AND S/SHRI AMARJIT SINGH, JUDICIAL MEMBER M.A. N O . 212 / M/201 9 (ARISING OUT OF ITA NO. 1361 /MUM/201 5 ) ( / ASSESSMENT YEAR : 20 07 - 08 ) THE BOMBAY PRESIDENCY GOLF CLUB LTD. DR. SHOITARAM GIDWANI ROAD, CHEMBUR, MUMBAI - 400074 . / VS. ITO (EXEMPTION) - 1(1) ROOM NO.505, 5 TH FLOOR, PIRAMAL CHAMBERS, LALBAUG, PAREL, MUMBAI - 400012. / . / . PAN/GIR NO. : AAATT5024B ( / APPELLANT ) / APPLICANT .. ( / RESPONDENT ) / DATE OF HEARING: 17 .0 5 .201 9 /DATE OF PRONOUNCEMENT: 24. 05 . 2019 ORDER PER AMARJIT SINGH, J M THIS ORDER SHALL DISPOSE OF THE MISCELLA N EOUS APPLICATION BEARING NO. 212 /M/2019 MOVED BY APP LICANT ARISING OUT OF ITA. NO . 1361 /MUM/201 5 RELEVANT TO THE A .Y. 2007 - 08 DECIDED ON DATED 24.09.2018 . 2. THE BRIEF FACTS OF THE CASE ARE THAT THE HONBLE ITAT HAS DECIDED THE ITA. NO.1361/M/2015 BY VIR TUE OF ORDER DATED 24.09.2018. T HE HONBLE TRIBUNAL HAS GIVEN THE FINDING IN PARA NO. 10 WHICH IS HEREBY REPRODUCED AS UNDER.: - 10. ISSUE WITH REGARD TO ALLOWABILITY OF CAPITAL EXPENDITURE IS COVERED BY THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF INSTITUTE OF BANKING 264 ITR 110. WE FOUND THAT ASSESSEE HAS ADDED THE AMOUNT OF RS.88,94,038/ - TO THE GROSS BLOCK WHICH IS AS PER THE SCHEDULE OF FIXED ASSETS PLACED ON RECORD, ACCORDINGLY, THERE IS NO REASON TO ALLOW THE CAPITAL EXPENDITURE SO INCURRED BY THE ASSESSEE. ASSESSEE BY: SHRI SHEKHAR GUPTA REVENUE BY: MS. JYOTI L. NAYAK (SR. AR) M.A. N O. 212 / M/201 9 3. IN THE END, IT IS MENTIONED THAT THE ASSESSEE APPEAL IS ALLOWED . THE FINDING IS THUS AMBIGUITY . IN VIE W OF THE SAID SITUATION THE ORDER DATED 24.09.2016 IS LIABLE TO BE RECTIFIED/ RECALLED IN THE INTEREST OF JUSTICE. 4 . NOTICE GIVEN. 5 . WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. COPY OF ORDER DATED 24.09.2016 IS ON THE RECORD IN WHICH THE PARA NO 10 SPEAKS AS UNDER.: - 10. ISSUE WITH REGARD TO ALLOWABILITY OF CAPITAL EXPENDITURE IS COVERED BY THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF INSTITUTE OF BANKING 264 ITR 110. WE FOUND THAT ASSE SSEE HAS ADDED THE AMOUNT OF RS.88,94,038/ - TO THE GROSS BLOCK WHICH IS AS PER THE SCHEDULE OF FIXED ASSETS PLACED ON RECORD, ACCORDINGLY, THERE IS NO REASON TO ALLOW THE CAPITAL EXPENDITURE SO INCURRED BY THE ASSESSEE. IN THE END, IT IS MENTIONED THAT T HE ASSESSEE APPEAL IS ALLOWED. 6. ON APPRAISAL OF THE ABOVE MENTIONED PARA NO. 10, WE FOUND THAT THERE IS A AMBIGUITY IN THE ORDER WHICH NOWHERE SPECIFY ANY CLEAR CUT DIRECTION ON BEHALF OF THE BENCH. IT IS NOT APPARENT ON RECORD WHETHER THE CAPITAL EXPENDITURE INCURRED BY ASSESSEE IS LIABLE TO BE ALLOWED OR NOT. SINCE THE ISSUE IS REMAIN UNANSWERED, T HEREFORE, WE ARE OF THE VIEW THAT THERE IS A MISTAKE APPARENT ON RECORD, THEREFORE, IN T HE SAID CIRCUMSTANCES, WE RECALL THE ISS UE IN THE ORDER DATED 24.09.2018 I N VIEW OF THE PROVISIONS U/S 254(2) OF THE ACT. ACCORDINGLY, THE PRESENT MISCELLANEOUS APPLICATION IS HEREBY ALLOWED . IN THE RESULT , THE MISCELLANEOUS APPLICATION FILED BY THE ASSESS EE IS HEREBY ORDERED TO BE ALLOWED . ORDER WAS PRON OUNCED IN TH E OPEN COURT ON 24 /05 / 2019 SD/ - SD/ - ( SHAMIM YAHYA ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI, DT: 24 /05 / 2019 V IJAY M.A. N O. 212 / M/201 9 COPY TO : 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) 4 . THE CIT 5 . THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE, B , BENCH (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, MUMBAI BENCHES