DCIT -42(1)(1), MUMBAI V. PARMAR BUILT TECH, MUMBAI

MA 266/MUM/2023

AI Insights

The case involves two miscellaneous applications (MAs) filed by the Deputy Commissioner of Income Tax-42(1)(1), Mumbai, concerning ITA No. 4124/Mum/2012 for the Assessment year 2007-08 and ITA No. 4122/Mum/2012 for the Assessment year 2009-10. The applications addressed issues arising from a consolidated order dated 12.09.2022, which had disposed of the appeals. The main contention in MA No. 266/Mum/2023 was the alleged omission of a specific disallowance amount in the original order. In contrast, MA No. 267/Mum/2023 sought to correct an error in the mentioned amount in the grounds of appeal for the 2009-10 assessment year. The Tribunal found that the original assessment orders had been quashed due to jurisdictional errors, rendering the MAs infructuous or only partially relevant for correction of clerical errors.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 113088 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-09-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 15-06-2023
• Assessment Year: 2007-2008
• Appeal Filed On: 28-03-2023
• Other Referred Cases: Mr. Peter Vaz v. Ashok Devichand Jain
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S A M U L E P I T T A
• Section: 43

Judgement Text

I N T H E INCOME TAX APPELLATE TRIBUNAL “C” BENCH, MUMBAI BEFORE SHRI PRASHANT MAHARISHI, AM AND SHRI KAVITHA RAJAGOPAL, JM MA No. 2 6 6 / M u m/ 2 0 2 3 A r i s i n g o u t o f I T A N o . 4 1 2 4 / M u m/ 2 0 1 2 ( A s s e s s m e n t Y e a r 2 0 0 7-08) & M A N o . 2 6 7 / M u m/ 2 0 2 3 A r i s i n g o u t o f I T A N o . 4 1 2 2 / M u m/ 2 0 1 2 ( A s s e s s m e n t Y e a r 2 0 0 9-1 0 ) D C IT-4 2 ( 1 ) ( 1 ) 7 0 2 , K a u t i l ya Bh a v a n , B K C , B a n d r a ( E ) M u m b a i-4 0 0 0 5 1 V s . M / s P a r m a r Bu i l t T e c h P a r m a r V i v e k a n a n d S c h o o l , K a n d i v a l i ( W ) , M u m b a i-4 0 0 0 6 7 (Appellant) (Respondent) PAN No. AAJFP2574P Assessee by : S h r i . M a h a v e e r J a i n Revenue by : S h r i . S a m u l e P i t t a D a t e o f h e a r i n g : 1 6 . 0 6 . 2 0 2 3 Date of pronouncement : 1 3 . 0 9 .2 0 2 3 O R D E R PER PRASHANT MAHARISHI, AM: 1) These are two miscellaneous applications filed by the Deputy Commissioner of Income Tax-42(1)(1), Mumbai,[ The AO ] in ITA No. 4124/Mum/2012 for Assessment year 2007-08 and ITA No. 4122/Mum/2012 for Assessment year 2009-10 wherein by consolidated order these appeals were disposed-off by consolidated order dated 12.09.2022. Page | 2 MA No.266 & 267/Mum/2023 A.Y. 2007-08 & 2009-10 M/s Parmar Built Tech 2) The miscellaneous application no 266 / M/2023 stated that ITA No. 4124/Mum/2012 for 2007-08 suffers from the mistake apparent from record stating that the Coordinate Bench has not adjudicated on issue of deletion of disallowance of Rs. 1,39,20,875/- while adjudicating ground no.1 of that appeal of the Ld. AO. Therefore, in absence of any finding with respect to the issue of deletion of disallowance of Rs. 1,39,20,875/- is not given, there is mistake in the order. 3) The Ld. Departmental Representative reiterated the content of the MA. 4) The Ld. Authorized Representative submitted that appeal for assessment year 2007-08 was disposed-off by the Coordinate Bench vide para no. 44 and para no. 51 of the order. As per para no. 51, it says that the ITAT while admitting the argument of the assessee under rule 27 of the ITAT rules following decision of the Hon’ble Bombay High Court in the case of Mr. Peter vaze [ tax Appeal no 19 of 2107 dated 5/4/2021] and Ashok Devichand Jain has quashed the assessment order therefore the above miscellaneous application on the quantum become infructuous. 5) We have carefully considered the rival contention and perused the content of miscellaneous application in MA number 266/M/2023. We find that the appeal as been decided quashing the assessment order itself for the reason that notices been issued by the AO, who had no jurisdiction over the assessee following the decision of the honourable Bombay High Court in case of Ashok Devichand Jain [2023] 452 ITR 43 (Bom) and Peter vaz [2021] 436 ITR 616 (Bom) . Therefore, as the assessment order itself has been quashed, the other grounds of appeal become infructuous. Therefore, this miscellaneous application of the learned assessing officer is infructuous. Hence, dismissed. 6) Accordingly, MA number 266/M/2023 in ITA number 4124/M/2012 is dismissed. 7) In MA No. 267/Mum/2023 in ITA No. 4122/Mum/2012 for AY 2009-10, the Ld. AO stated that there is error in mentioning the amount in the grounds of appeal. The Ld. Departmental Representative submitted that instead of Rs. Page | 3 MA No.266 & 267/Mum/2023 A.Y. 2007-08 & 2009-10 M/s Parmar Built Tech 4,88,67,850/-, the correct amount is Rs 32478230/-. Therefore, the wrong amount is mentioned in ground number (i) at page number six in paragraph number 15 requires to be corrected. 8) The learned departmental representative and the learned authorized representative agreed to the above correction. However, the learned authorized representative submitted that for assessment year 2009 – 10 also the coordinate bench has decided the issue on the applicability of rule 27 of ITAT rules and therefore there is no impact on the decision. 9) We have carefully considered the rival contention and perused the order of the coordinate bench. We find that while recording the grounds in ITA number 4122/M/2012, in ground number (i) the correct amount of ₹ 32,478,230 is substituted against the amount wrongly mentioned of ₹ 48,867,850/–. However, it does not have any impact on the order quashing the assessment order. 10) Accordingly MA number 267/M/2023 is allowed to that extent. Order pronounced in the open court on 13.09.2023. S d /- S d /- (K A V IT H A R A J A G O P A L) ( P R A S H A N T M A H A R IS H I) ( J U D IC IA L M E M BE R ) ( A C C O U N T A N T M E M B E R ) Mumbai, Dated: 13.09.2023 Shubham Lohar/Dragon Copy of the Order forwarded to : BY ORDER, 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Mumbai