ACIT- 17(3), MUMBAI V. TRISTAR FASHIONS, MUMBAI

MA 223/MUM/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4971 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-03-2022
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2015-2016
• Appeal Filed On: 30-09-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI “E” BENCH, MUMBAI BEFORE SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER AND SHRI SANDEEP SINGH KARHAIL, JUDICIAL MEMBER MA No. 223/Mum./2021 IN ITA No. 3521/Mum./2019 (Assessment Year : 2015–16) Asstt. Commissioner of Income Tax Circle–17(3), Mumbai ................ Applicant v/s Tristar Fashions C/o Shankarlal Jain & Associates 12, Engineering Building, 265, Princess Street, Mumbai 400 013 PAN – AAAFT0077E ................ Respondent Assessee by : Shri Satish Jain Revenue by : Shri Mehul Jain, Sr.AR Date of Hearing – 11.02.2022 Date of Order – 16/03/2022 O R D E R PER SANDEEP SINGH KARHAIL, J.M. 1. This Miscellaneous Application has been filed by the Revenue against the order passed by the Tribunal on 07.10.2020 in ITA No. 3521/Mum./2019. The Revenue has sought rectification of the order on the ground that the Tribunal, after setting aside the order passed by the Tristar Fashions MA No. 223/Mum./2021 Page | 2 CIT(A), has restored the issue to the file of the assessing officer to entertain the fresh claim of the assessee. 2. During the course of hearing, learned Departmental Representative submitted that the Tribunal has failed to appreciate the fact that the assessing officer is not an appellate authority. 3. We have considered the rival submissions and perused the relevant material on record. The Bench while dealing with the merits of the case noted that both assessing officer and CIT(A) rejected the claim of the assessee on the ground that the assessee has not made the claim either in the original return of income or through a revised return of income as provided under section 139(5) of the Act. Accordingly, the Bench, vide order dated 07.10.2020, in exercise of its power and jurisdiction entertained the fresh claim of the assessee being an appellate authority, in conformity with decision of the Hon'ble Supreme Court in Goetz India Ltd. v/s CIT, [2006] 284 ITR 323 and the decision of the Hon'ble Jurisdictional High Court in CIT v/s Pruthvi Brokers and Shareholders Pvt. Ltd., [2012] 349 ITR 336 (Bom.). The Bench has restored the matter to the assessing officer only to determine the extent of claim eligible to the assessee in accordance with law. It is not remitted to the assessing officer to exercise his power and jurisdiction on this issue, it is needless to say that the Bench being aware of the fact that the assessing officer Tristar Fashions MA No. 223/Mum./2021 Page | 3 has no power to entertain any fresh claim. Thus, we do not find any merits in the miscellaneous application filed by the Revenue. 4. In the result, the miscellaneous application filed by the Revenue is dismissed. Order pronounced in the open court on 16/03/2022 Sd/- S. RIFAUR RAHMAN ACCOUNTANT MEMBER Sd/- SANDEEP SINGH KARHAIL JUDICIAL MEMBER MUMBAI, DATED: 16/03/2022 Copy of the order forwarded to: (1) The Assessee; (2) The Revenue; (3) The CIT(A); (4) The CIT, Mumbai City concerned; (5) The DR, ITAT, Mumbai; (6) Guard file. True Copy By Order Pradeep J. Chowdhury Sr. Private Secretary Assistant Registrar ITAT, Mumbai