RAPHAEL SEQUIERA, V. ADDL CIT 23(1),

MA 262/MUM/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1142 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-11-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2006-2007
• Appeal Filed On: 15-07-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: HARSHAVARDHANA DATAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D , BENCH MUMBAI BEFORE SHRI D.KARUNAKARA RAO , A M & SHRI AMIT SHUKLA, J M MA NO. 262 /MUM/20 1 3 (ARISING OUT OF ITA NO. 1796 /M/200 9 ) ( ASSESSMENT YEAR :200 6 - 200 7 ) MR. RA PH AEL SEQUEIRA, C/O JAYESH SANGHRAJKA & C O., CHARTERED ACCOUNTANTS, UNIT NO.405, HIND RAJASTHAN CENTRE, D.S.PHALKE ROAD, DADAR (E), MUMBAI - 400 014 VS. ADCIT 23(1), MUMBAI PAN NO. : A ADPS 4268 B ( APP LICANT ) .. ( RESPONDENT ) ASSESSEE BY : MR. HARSHAVARDHANA DATAR REVENUE BY : MR. RAVI PRAKASH DATE OF HEARING : 29 TH NOV, 2013 DATE OF PRONOUNCEMENT : 29 TH NOV, 2013 O R D E R PER D.KARUNAKARA RAO , A M : THIS MISCELLANEOUS APPLICATION HAS BEEN PREFERRED BY THE ASSESSEE ARISING OUT OF THE ORDER DATED 30 - 12 - 2009 , PASSED IN ITA NO. 1796 /M/200 9 FOR THE ASSESSMENT YEAR 200 6 - 0 7 . 2 . AT THE OUTSET, BRINGING TO OUR ATTENTION TO THE MISCELLANEOUS APPLICATION, WHICH CONTAINS 10 PARAGRAPHS, LEARNED COUNSEL FOR THE ASSESSEE MENTIONED THAT THE TRIBUNAL REMITTED THE MATTER RELATING TO ESTIMATED DISALLOWANCE OF INTEREST BY ADOPTING FLAT RATE OF 10% ON INTEREST FREE LOANS ADVANCES . THE CONTENTS OF PARA 4 OF THE ORDER OF THE TRIBUNAL DATED 30 - 12 - 2009 IS RELEVANT . IT IS THE SUBMISSION OF THE ASSESSEES COUNSEL THAT SUCH DISALLOWANCE WAS NOT JUSTIFIABLE AND IT IS SO HELD BY THE TRIBUNAL IN ASSESSEES OWN CASE IN THE EARLIER M.ANO. 262 /201 3 2 ASSESSMENT YEAR 2002 - 03 VIDE TRIBUNALS ORDER DATED 12 - 12 - 2012 (ITA NO.5974/M/2006). IN THIS ORDER, THE TRIBUNAL DID NOT APPRECIATE THE AOS MANNER OF DISALLOWANCE OF N OTIONAL INTEREST VIDE PARA 7 TO 9 OF THE ORDER DATED 12 - 12 - 2012. R ELYING ON THE SAID ORDER OF THE TRIBUNAL, DATED 12 - 12 - 2012, LEARNED COUNSEL SUBMITTED THAT SINCE THE ASSESSEE IS ENTITLED FOR SUCH RELIEF FOR THE AY.2006 - 07 ALSO . THEREFORE, THE DECISION OF THE TRIBUNAL IN REMITTING THE MATTER TO THE AO IS NOT APPROPRIATE, AND, HENCE , IT CONSTITUTES A MISTAKE APPARENT FROM THE RECORDS AS PER THE PROVISIONS OF SECTION 254(2) OF THE ACT. FURTHER, HE HAS ALSO MENTIONED THAT THE TRIBUNAL ALLOWED THE MISCELLANEOUS APPLICATION NOS.64,65&66/M/2013 FOR A.Y 2003 - 04 TO 2005 - 06, VIDE COMMON ORDER OF THE TRIBUNAL DATED 7 - 6 - 2013. ACCORDINGLY, RELYING ON THE SAID ORDERS, LEARNED AR HAS SOUGHT MODIFICATION OF THE IMPUGNED ORDER OF THE TRIBUNAL DATED 30 - 12 - 2009. 3 . ON CONTR ARY, LEARNED DR FOR THE REVENUE STATED THAT CONSIDERING THE SCOPE OF RECTIFICATION PROVIDED UNDER SECTION 254(2) OF THE ACT, THERE IS NO MISTAKE APPARENT FROM THE RECORDS. REFERRING TO THE ORDER OF THE TRIBUNAL DATED 12 - 12 - 2012 FOR THE AY 2002 - 03, LEARNED DR MENTIONED THAT THE SAID ORDER WAS PASSED SUBSEQUENT TO THE IMPUGNED ORDER OF THE TRIBUNAL DATED 13 - 9 - 2009. THEREFORE, THERE IS NO MISTAKE OR FAILURE OF THE TRIBUNAL FOR NOT CONSIDERING THE SAID DECISION. FURTHER REFERRING TO THE COMPOSITE ORDER OF THE T RIBUNAL IN MA NOS. 64 TO 66/M/2013 FOR AYS 2003 - 04 TO 2005 - 06 (SUPRA) , LEARNED DR MENTIONED M.ANO. 262 /201 3 3 THAT THE SAID ORDER WAS DECIDED ON THE BASIS OF CONCESSION GIVEN BY THE DR . T HEREFORE, THE SAID ORDERS DO NOT CONSTITUTE GOOD PRODUCTS . HENCE, THE PRESENT MISCELLAN EOUS APPLICATION SHOULD BE DISMISSED. 4 . WE HEARD BOTH THE PARTIES ON THE LIMITED ISSUES AS TO WHETHER THE SCOPE OF THE PROVISIONS OF SECTION 254(2) OF THE ACT PERMITS ALLOWING OF THE PRESENT MISCELLANEOUS APPLICATION. THE PRAYER OF THE ASSESSEE IS THAT T HE TRIBUNALS DIRECTION TO THE AO BY REMANDING THE IMPUGNED ISSUE IS UN CALLED FOR WHEN T HE ASSESSEE ACTUALLY ENTITLED FOR RELIEF AS GIVEN BY THE TRIBUNAL IN THE EARLIER ASSESSMENT YEAR 2002 - 03. BUT THE FACT IS THAT THE SAID ORDER FOR AY 2002 - 03 WAS PASSED LATER IN TIME. THEREFORE, THERE IS NO ORDER OF THE TRIBUNAL AS ON 30 - 12 - 20 09 GRANTING RELIEF TO THE ASSESSEE. FROM THIS POINT OF VIEW, THE MISCELLANEOUS APPLICATION IS NOT SUSTAINABLE. REGARDING THE ANOTHER ORDER OF THE TRIBUNAL FOR THE AYS. 2003 - 04 TO 200 5 - 06, THE SAME WAS DECIDED ON THE BASIS OF THE CONCESSION GIVEN BY THE LEARNED DR, WHICH CAN BE SEEN FROM THE PARAGRAPH 2 OF THE ORDER OF THE TRIBUNAL. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THIS IS NOT A FIT CASE FOR RECTIFICATION CONSIDERING TH E PROVISIONS OF SECTION 254(2) OF THE ACT. ACCORDINGLY, THE ISSUES RAISED BY THE ASSESSEE IN THE PRESENT MISCELLANEOUS APPLICATION ARE DISMISSED. 5 . RESULTANTLY , MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED . M.ANO. 262 /201 3 4 ORDER PRONOUNCED IN THE OPEN C OURT ON THIS 29 TH D AY OF NOV . , 201 3 . SD/ - SD/ - ( AMIT SHUKLA ) ( D.KARUNAKARA RAO ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 29/11/2013 . /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - X, MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI