GARDEN VIEW REALTORS, V. ITO WD 3(1),

MA 269/MUM/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3855 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-07-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2003-2004
• Appeal Filed On: 23-04-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R M TIWARI
• Assessee Lawyers: NARAYAN ATAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G,MUMBAI BEFORE SHRI D. MANMOHAN (VICE PRESIDENT) & SHRI R.K. PANDA (ACCOUNTANT MEMBER) M.A.NO.269/MUM/2010 (ARISING OUT OF I.T.A.NO.153/MUM/2008) (ARISING OUT OF M.A. NO. 741/MUM/2009) (A.Y. 2003-04) M/S. GARDEN VIEW REALTORS P.LTD., 161-C, MITTAL TOWERS, NARIMAN POINT, MUMBAI-400 021. PAN: AAACG1917F VS. INCOME-TAX OFFICER, WARD 3(1)(4), R.NO. 666, AAYKAR BHAVAN, M.K. ROAD, MUMBAI-400 020. APPELLANT RESPONDENT APPLICANT BY MR. NARAYAN ATAL. RESPONDENT BY MR. R. M. TIWARI. O R D E R PER R.K. PANDA, AM : THE ASSESSEE THROUGH THIS MISC. APPLICATION REQUEST S THE TRIBUNAL TO RECALL THE ORDER PASSED BY IT AND HEAR THE MATTER AFRESH A S THERE IS A MISTAKE APPARENT FROM RECORD IN THE ORDER PASSED BY THE TRIBUNAL. 2. THIS IS THE 2 ND MA FILED BY THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL. THE EARLIER MISC. APPLICATION FILED BY THE ASSESSEE AGAINST THE ORDER OF THE TRIBUNAL WAS DISMISSED BY THE TRIBUNAL VIDE ORDER D ATED 20-01-2010. ALTHOUGH THE MISC. APPLICATION WAS HEARD EX PARTE, THE TRIBU NAL HAS DECIDED THE ISSUE ON MERIT AND HAS DISMISSED THE MISC. APPLICATION FILED BY THE ASSESSEE. 3. THE ASSESSEE IN THIS MISC. APPLICATION HAS STATE D THAT WHILE DECIDING THE ISSUE IN APPEAL IN RESPECT OF TAXABILITY OF INCOME BY WAY OF LICENCE FEE DERIVED FROM PROVIDING/SUB-LEASING OF SPACE FOR DATA PROCES SING, WHICH ACTIVITY IS ALSO ONE OF THE OBJECTS OF CARRYING ON THE BUSINESS, THE TRIBUNAL MERELY FOLLOWED THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.YS. 1999-2000 TO 2001-02. MA 269/M/10 GARDEN VIEW REALTORS 2 HOWEVER, THE TRIBUNAL DID NOT CONSIDER CERTAIN DECI SIONS OF THE APEX COURT PARTICULARLY IN THE CASE OF S.G. MERCANTILE (83 ITR 700) AND KARANPURA DEVELOPMENT CO .LTD. (44 ITR 362). THEREFORE, THE O RDER PASSED BY THE TRIBUNAL CONSTITUTES A MISTAKE APPARENT FROM RECORD. ACCORDI NGLY, IT HAS BEEN SUBMITTED IN THE MA THAT THE TRIBUNAL MAY SUITABLY AMEND THE ORD ER EITHER TO RECTIFY THE MISTAKE OR THE ORDER MAY BE RECALLED FOR FRESH HEAR ING. 4. THE LD. COUNSEL FOR THE ASSESSEE, REFERRING TO T HE MISC. APPLICATION, REITERATED THE SUBMISSIONS AS MENTIONED IN THE MA F ILED BY THE ASSESSEE. HE SUBMITTED THAT SINCE THE DECISIONS CITED BY THE ASS ESSEE WERE NOT CONSIDERED BY THE TRIBUNAL, THEREFORE, IT CONSTITUTES A MISTAKE A PPARENT FROM RECORD AND, THEREFORE, THE ORDER OF THE TRIBUNAL BE RECALLED AN D HEARD AFRESH. 5. THE LD. D.R., ON THE OTHER HAND, REFERRING TO TH E ORDER OF THE TRIBUNAL, SUBMITTED THAT THE TRIBUNAL HAS FOLLOWED THE DECISI ON OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE PRECEDING A.Y. I.E. 199 9-2000 TO 2001-02. THE TRIBUNAL, IN THE PRECEDING ASST. YEARS, HAS PASSED A VERY ELABORATE ORDER CONSIDERING VARIOUS DECISIONS. THEREFORE, THERE IS NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL. FURTHER, THE DECISIONS AS CI TED BY THE ASSESSEES COUNSEL ARE ALREADY CONSIDERED BY THE AO IN THE BODY OF THE ASSESSMENT ORDER. REFERRING TO THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. RAMESH ELECTRIC & TRADING CO. REPORTED IN 203 ITR 497 (BOM ), HE SUBMITTED THAT FAILURE OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY IS NOT A MISTAKE APPARENT FROM RECORD AND IS ONLY AN ERROR O F JUDGEMENT. HE ACCORDINGLY SUBMITTED THAT THE MA FILED BY THE ASSESSEE SHOULD BE DISMISSED. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF BOTH SIDES AND PERUSED THE DECISIONS CITED BEFORE US. WE FIND THE AO IN PARA-2 OF THE ASSESSMENT ORDER HAS STATED THE VARIOUS DECISIONS CITED BY THE ASSESSEE BEFORE HIM WHICH INCLUDE THE MA 269/M/10 GARDEN VIEW REALTORS 3 DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F S.G. MERCANTILE CORPORATION P. LTD. VS. CIT REPORTED IN 83 ITR 700. WE FIND IN PAGE-3 OF THE ASSESSMENT ORDER THE AO HAS DISTINGUISHED AS TO WHY THE DECISION IN THE CASE OF S.G. MERCANTILE CORPORATION (SUPRA) IS NOT APPLICABLE TO THE FACTS OF THE CASE. WE FIND THE HONBLE SUPREME COURT IN THE CASE OF S.G. MERCANTILE CORPOR ATION (SUPRA) HAS RELIED ON THE DECISION IN THE CASE OF KARANPURA DEVELOPMENT C O. LTD. VS. CIT REPORTED IN 44 ITR 362. SINCE THE AO HAS ALREADY CONSIDERED THE DECISIONS CITED BY THE ASSESSEE AND THE TRIBUNAL, FOLLOWING THE EARLIER OR DERS OF THE TRIBUNAL IN ASSESSEES OWN CASE, HAS DISMISSED THE APPEAL FILED BY THE ASSESSEE ON MERIT, THEREFORE, WE DO NOT FIND ANY MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL. THE ARGUMENT ADVANCED BY THE LD. COUNSEL FOR THE ASSESSEE THAT THE TRIBUNAL HAS NOT CONSIDERED THE DECISIONS CITED BEF ORE US IS WITHOUT ANY MERIT SINCE THE LOWER AUTHORITIES HAVE ALREADY CONSIDERED AND DISTINGUISHED THE SAME. SINCE THE LD. COUNSEL FOR THE ASSESSEE COULD NOT PO INT OUT ANY OTHER MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL, THEREFORE, THE PRESENT MISC. APPLICATION FILED BY THE ASSESSEE, IN OUR OPINION, IS NOTHING BUT A REQUEST TO THE TRIBUNAL TO REVIEW ITS OWN ORDER WHICH IS NOT PERMI SSIBLE IN LAW. WE, THEREFORE, DO NOT FIND ANY MERIT IN THE MISC. APPLICATION FILE D BY THE ASSESSEE. THE SAME IS ACCORDINGLY DISMISSED. 7. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THE 09TH DAY OF JULY, 2010 . SD/- SD/- (D. MANMOHAN) (R.K. PANDA) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI: 09TH JULY, 2010. NG: MA 269/M/10 GARDEN VIEW REALTORS 4 COPY TO : 1. ASSESSEE. 2.DEPARTMENT. 3 CIT(A)-III,,MUMBAI. 4 CIT, CITY-III,MUMBAI. 5.DR,G BENCH,MUMBAI. 6. MASTER FILE. (TRUE COPY) BY ORDER, ASST.REGISTRAR, ITAT, MUMBAI. MA 269/M/10 GARDEN VIEW REALTORS 5 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 2-7-10 SR.PS/ 2 DRAFT PLACED BEFORE AUTHOR 2-7-10 SR.PS/ 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/ 6. KEPT FOR PRONOUNCEMENT ON SR.PS/ 7. FILE SENT TO THE BENCH CLERK SR.PS/ 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER