ALPEX INTERNATIONAL P.LTD, MUMBAI V. ASST CIT CIR 6(1), MUMBAI

MA 252/MUM/2020

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 5190 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-09-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 28-09-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMA
• Assessee Lawyers: J D MISTRI
• Keywords: Rectification of order; Earning of tax free income
• Section: 14A; 2

Judgement Text

1 MA 252/MUM/2020 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI M. BALAGANESH (ACCOUNTANT MEMBER) M.A. 252/MUM/2020 (ARISING OUT OF I.T.A. NO.779/MUM/2014) (ASSESSMENT YEAR 2009-10) M/S PIRAMAL ESTATES PVT LTD (FORMERLY KNOWN AS ALPEX INTERNATIONAL LIMITED), PIRAMAL TOWER ANNEXE, PENINSULA PARK, GANPATRAO KADAM MARG, LOWER PAREL MUMBAI-400 013 PAN : AACCA7777K VS ACIT 7(3)(2), MUMBAI APPLICANT RESPONDENT APPLICANT BY SHRI J. D. MISTRI AND RONAK DOSHI RESPONDENT BY SMT. SMITA VERMA DATE OF HEARING 03-09-2021 DATE OF PRONOUNCEMENT 27-09-2021 O R D E R PER SAKTIJIT DEY (JM) CAPTIONED APPLICATION HAS BEEN FILED BY THE ASSESS EE SEEKING RECTIFICATION OF ORDER DATED 23-09-2019 PASSED IN ITA NO.779 /MUM/20 14. 2. IT IS THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT IN THE MODIFIED GROUND II, THE ASSESSEE HAS RAISED A SPECI FIC GROUND THAT IN ABSENCE OF ANY EXEMPT INCOME EARNED BY THE ASSESSEE, NO DISALL OWANCE UNDER SECTION 14A, 2 MA 252/MUM/2020 INCLUDING, SUO MOTU DISALLOWANCE MADE BY THE ASSESS EE CAN BE MADE. IT IS THE SUBMISSION OF LEARNED COUNSEL THAT THOUGH IN PRINCI PLE, THE TRIBUNAL HAS ACCEPTED THAT IN ABSENCE OF EXEMPT INCOME EARNED DURING THE YEAR, NO DISALLOWANCE UNDER SECTION 14A CAN BE MADE; HOWEVER, NO SPECIFIC DIREC TION/ORDER HAS BEEN PASSED IN RESPECT OF THE GROUND RAISED SEEKING DELETION OF SU O MOTU DISALLOWANCE MADE BY THE ASSESSEE UNDER SECTION 14A OF THE ACT. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE OPPOSE D THE CONTENTIONS OF THE ASSESSEE. 4. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD. ON PERUSAL OF THE APPELLATE ORDER, WE FIND THAT WHILE DECIDING THE APPEAL, THE TRIBUNAL HAS DISPOSED OF MAIN GROUNDS I AND II, WHI CH ARE AS UNDER:- GROUND I: DISALLOWANCE OF INTEREST U/S. 36(L)(III) OF THE ACT: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE COMMISSIONER OF INCOME TAX (APPEALS)-14, MUMBAI ['T HE CIT(A)'] ERRED IN UPHOLDING THE ACTION OF THE ASSISTANT COMMISSIONER OF INCOME TAX-6(L), MUMBAI ['THE AO'] IN DISALLOWING INTEREST AMOUNTING TO RS. 36,27,7967- U/S. 36(L)(III) OF THE ACT. 2. THE APPELLANT PRAYS THAT THE AFORESAID DISALLO WANCE OF INTEREST EXPENSES BE DELETED. GROUND 11: DISALLOWANCE U/S. 14A OF THE ACT R.W.R. 8D OF THE RULES: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE CIT(A) ERRED IN PARTLY UPHOLDING THE ACTION OF THE AO BY M AKING A DISALLOWANCE U/S. 14A OF THE ACT. 2. THE CIT(A) FURTHER ERRED IN UPHOLDING THE ACTION OF THE AO DESPITE THE FACT THAT NO EXEMPT INCOME WAS EARNED BY THE APPELLANT D URING THE YEAR UNDER CONSIDERATION. 3.FURTHER, THE CIT(A) ERRED IN MAKING AN OBSERVATIO N THAT NO SUO-MOTO DISALLOWANCE HAS BEEN MADE BY THE APPELLANT WHICH I S CONTRARY TO THE FACTS ON RECORD. THE APPELLANT, THEREFORE, PRAYS THAT THE DISALLOWAN CE MADE BY THE AO AND TO THE EXTENT SUSTAINED BY THE CIT(A) BE DELETED OR SU BSTANTIALLY REDUCED. 5. WHEREAS, INADVERTENTLY, THE TRIBUNAL HAS NOT DEC IDED SUBGROUND 3 OF ADDITIONAL/MODIFIED GROUND II FILED ON 06-07-2018, WHICH READS AS UNDER:- 3 MA 252/MUM/2020 3. THE APPELLANT HUMBLY PRAYS THAT IN ABSENCE OF A NY EXEMPT INCOME EARNED BY THE APPELLANT, NO DISALLOWANCE UNDER SECTION. 14 A OF THE ACT (IRRESPECTIVE OF WHETHER MADE BY THE APPELLANT SUO MOTO OR BY THE ASSESSING OFFICER) BE MADE. 5. THUS, THERE IS A MISTAKE APPARENT ON THE FACE OF RECORD DUE TO NON DISPOSAL OF THE AFORESAID GROUND RAISED BY THE ASSESSEE. IN VIEW OF THE AFORESAID, WE RECALL THE ORDER DATED 23-09-2019 PASSED IN ITA NO.779 /MU M/2014 FOR THE LIMITED PURPOSE OF DECIDING SUBGROUND 3 OF ADDITIONAL/MODI FIED GROUND II AS REPRODUCED ABOVE. 6. REGISTRY IS DIRECTED TO FIX THE APPEAL IN ITA NO .779 /MUM/2014 FOR HEARING, IN DUE COURSE. 7. IN THE RESULT, MISCELLANEOUS APPLICATION IS ALLO WED. ORDER PRONOUNCED ON 27 /09/2021. SD/- SD/- (M. BALAGANESH) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DT : 27/09/2021 PAVANAN COPY TO : 1. APPELLANT 2. RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) 5. THE DR, ITAT, MUMBAI 6. GUARD FILE /TRUE COPY/ BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI