AMBUJA CEMENTS LIMITED , Mumbai V. ADD.DCIT (LTU)-1, Mumbai

MA 222/MUM/2023

AI Insights

Ambuja Cements Limited filed a Miscellaneous Application under section 254(2) of the Income Tax Act, 1961, seeking recall and rectification of an earlier Tribunal order that dismissed ground no.8 of their appeal as not pressed. This ground pertained to the applicability of the tax rate under the India-Mauritius DTAA to dividends declared by the assessee for the assessment year 2010-11. The Tribunal acknowledged the oversight and recalled the earlier order to adjudicate this specific ground. Upon re-evaluation, and with reference to a recent decision by the Special Bench of the Tribunal, the ground was dismissed, affirming the tax treatment as per the Revenue's stance.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 299684 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-05-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: K
• Next Hearing Date: 25-05-2023
• Assessment Year: 2010-2011
• Appeal Filed On: 01-03-2023
• Other Referred Cases: DCIT v/s Total Oil India Private Ltd
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Double taxation relief
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “K” BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI SANDEEP SINGH KARHAIL, JUDICIAL MEMBER M.A. no.222/Mum./2023 (Arising out of ITA no.2384/Mum./2019) (Assessment Year : 2010–11) Ambuja Cements Limited (Formerly known as Gujarat Ambuja Cements Limited), Elegant Business Park MIDC Cross Road B, Andheri (East) Mumbai 400 059 PAN – AAACG0569P ................ Applicant (Original Appellant) v/s Addl. Commissioner of Income Tax Large Tax Unit, Centre–1, Mumbai ................ Respondent (Original Respondent) ITA no.2384/Mum./2019 (Assessment Year : 2010–11) Ambuja Cements Limited (Formerly known as Gujarat Ambuja Cements Limited), Elegant Business Park MIDC Cross Road B, Andheri (East) Mumbai 400 059 PAN – AAACG0569P ................ Appellant v/s Addl. Commissioner of Income Tax Large Tax Unit, Centre–1, Mumbai ................ Respondent Assessee by : Shri Yogesh Thar Revenue by : Dr. Samuel Pitta Date of Hearing – 26/05/2023 Date of Order – 29/05/2023 Ambuja Cements Limited M.A no.222/Mum./2023 ITA no.2384/Mum./2019 Page | 2 O R D E R PER SANDEEP SINGH KARHAIL, J.M. By way of this Miscellaneous Application, filed under section 254(2) of the Income Tax Act, 1961 (“the Act”), the assessee seeks recall / rectification of the order dated 07/11/2022, passed under section 254(1) of the Act by the coordinate bench of the Tribunal in assessee’s appeal being ITA no.2384/ Mum./2019, for the assessment year 2010–11 to the extent of adjudication of ground no.8 raised in assessee’s appeal. 2. During the hearing, the learned Authorised Representative (“learned AR”) submitted that the assessee vide ground no.8 raised an issue pertaining to the applicability of the rate of tax provided in India Mauritius Double Taxation Avoidance Agreement (“DTAA”) to the dividend declared by the assessee. However, the coordinate bench of the Tribunal dismissed the said ground as not pressed, even though similar grounds raised in appeals for assessment years 2011-12 and 2012-13, which were also decided vide the common order dated 07/11/2012, were remanded to the file of the Assessing Officer for adjudication on merits. The learned AR further submitted that this issue was raised by way of additional ground before the first appellate authority, however the same was dismissed, and accordingly the assessee raised grounds no.8 in its appeal for the assessment year 2010-11 before the Tribunal. It was further submitted that during the hearing ground-wise chart of submissions was also filed by the assessee. Ambuja Cements Limited M.A no.222/Mum./2023 ITA no.2384/Mum./2019 Page | 3 3. On the other hand, the learned Departmental Representative did not bring anything on record to controvert the submissions made on behalf of the assessee. 4. We have considered the submissions of both sides and perused the material available on record. The grievance of the assessee in the present miscellaneous application filed under section 254(2) of the Act is that while deciding assessee’s appeal for assessment year 2010-11, the coordinate bench dismissed ground no.8 raised by the assessee as not pressed. On a perusal of the common order dated 07/11/2022, passed in assessee’s appeal for assessment years 2010-11, 2011-12, and 2012-13, we find that the assessee also raised similar issue in its appeal for assessment years 2011-12 and 2012-13, which were remanded to the Assessing Officer for adjudication on merits. We also find from the perusal of the record that the issue of the applicability of the rate of tax provided in the DTAA on dividend declared by the assessee was also raised before the learned CIT(A) by way of an application seeking admission of additional ground. The learned CIT(A) though rejected the prayer of admission of additional ground, however, on a without prejudice basis decided this issue against the assessee on merits. Therefore, in view of the above, we find merits in the submissions of the assessee that this issue was specifically raised before the Tribunal and was also pressed in its appeal for the assessment year 2010-11. Accordingly, to this limited extent, we are of the considered view that there is a mistake apparent from the record, which constitutes a rectifiable mistake under section 254(2) of the Act. Accordingly, the order dated 07/11/2022, passed Ambuja Cements Limited M.A no.222/Mum./2023 ITA no.2384/Mum./2019 Page | 4 by the coordinate bench of the Tribunal in assessee’s appeal for assessment year 2010-11 is hereby recalled limited to the extent of adjudication of ground no.8 on merits. 5. With the consent of both parties, the corresponding appeal being ITA no. 2384/Mum./2019, was taken up for hearing limited to the extent of adjudication of ground no.8 raised by the assessee. During the hearing, the learned Representative appearing for the parties fairly agreed that the issue arising in ground no.8 is covered in favour of the Revenue by the recent decision of the Special Bench of the Tribunal in DCIT v/s Total Oil India Private Ltd, [2023] 149 taxmann.com 332 (Mumbai - Trib.) (SB). Accordingly, respectfully following the aforesaid decision of the Special Bench of the Tribunal, ground no.8 is dismissed. 6. In the result, Miscellaneous Application filed by the assessee is allowed, while ground no.8 raised in assessee’s appeal for the assessment year 2010- 11, is dismissed Order pronounced in the open Court on 29/05/2023 Sd/- B.R. BASKARAN ACCOUNTANT MEMBER Sd/- SANDEEP SINGH KARHAIL JUDICIAL MEMBER MUMBAI, DATED: 29/05/2023 Ambuja Cements Limited M.A no.222/Mum./2023 ITA no.2384/Mum./2019 Page | 5 Copy of the order forwarded to: (1) The Assessee; (2) The Revenue; (3) The PCIT / CIT (Judicial); (4) The DR, ITAT, Mumbai; and (5) Guard file. True Copy By Order Pradeep J. Chowdhury Sr. Private Secretary Assistant Registrar ITAT, Mumbai