ITO 2(2), THANE V. SPAN REALTORS, MUMBAI

MA 29/MUM/2021

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 4460 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-04-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2014-2015
• Appeal Filed On: 05-02-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 22

Judgement Text

M.A NO. 29/MUM/2021 A.Y. 2014 - 15 (ARISING OUT OF ITA NO. 6399/MUM/2019) ITO, WARD - 2(1) VS. M/S SPAN REALTORS 1 IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, M UMBAI BEFORE SHRI M. BALAGANESH, AM AND SHRI RAVISH SOOD, JM M.A. NO. 29/MUM/2021 (ARISING OUT OF ITA NO.6399 /MUM/2019) ( / ASSESSMENT YEAR: 2014 - 15 ) INCOME TAX OFFICER, WARD - 2(1), ROOM NO. 25, 6 TH FLOOR, ASHAR IT PARK, WAGLE INDL. ESTATE, AMBIKA NAGAR, ROAD NO. 16Z, THANE WEST 400604 / VS. M/S SPAN REALTORS B 001 - 002, GOPAL DARSHAN , INDRALOK PHASE - II, BHAYANDER (EAST), THANE 401105 ./ ./ PAN NO. ABRFS7795J ( / APPLICANT) : ( / RESPONDENT ) / APPLICANT BY : NONE / RESPONDENT BY : SHRI SUSHIL KUMAR MISHRA , SR. D.R / DATE OF HEARING : 26.03 .2021 / DATE OF PRONOUNCEMENT : 22 .04 .2021 / O R D E R PER RAVISH SOOD, JM: THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE REVENUE ARISES OUT OF THE ORDER PASSED BY THE TRIBUNAL IN ITA NO. 6399/MUM/2019, DATED 09.06.2020 FOR A.Y. 2014 - 15. 2. IT IS THE CLAIM OF THE REVENUE THAT THE TRIBUNAL WHILE DISPOSING OFF THE CAPTIONED APPEAL HAD ERRE D IN LAW BY WRONGLY APPRECIATING THE SCOPE AND GAMUT OF THE EXPLANATION TO SEC. 35(1)(II) OF THE ACT. IT IS STATED BY THE REVENUE THAT THE SUPPORT DRAWN BY THE TRIBUNAL FROM EXPLANATION TO SEC. 35(1)(II) AT PARA 6 OF ITS ORDER IS MISCONCEIVED, FOR THE REASON , THAT THE SAID EXPLANATION DOES NOT CATER TO SEC. 35(1)(II) OF THE ACT. ON THE BASIS OF THE AFORESAID CLAIM, IT IS STATED BY THE REVENUE THAT THE ORDER PASSED BY THE TRIBUNAL WHILE DISPOSING OFF THE AFOREMENTIONED APPEAL I.E ITA NO. 6399/MUM/2019, VIDE M.A NO. 29/MUM/2021 A.Y. 2014 - 15 (ARISING OUT OF ITA NO. 6399/MUM/2019) ITO, WARD - 2(1) VS. M/S SPAN REALTORS 2 ITS ORDER DATED 09.06.2020 SUFFERS FROM A MISTAKE, WHICH THEREIN RENDERS ITS ORDER AMENABLE FOR BEING RECALLED IN ENTIRETY FOR AFRESH RE - ADJUDICATI ON OF THE ISSUE THEREIN INVOLVED. 3. BEFORE ADVERTING ANY FURTHER, FOR THE SAKE OF CLARITY WE HEREIN CULL OUT THE CLAIM OF THE REVENUE ON THE BASIS OF WHICH THE ORDER PASSED BY THE TRIBUNAL WHILE DISPOSING OFF THE ASSESSEES APPEAL IN ITA NO. 6399/MUM/2019, VIDE ITS ORDER DATED 09.06.2020 HAS BEEN ALLEGED TO BE SUFFERING FRO M A MISTAKE APPARENT FROM RECORD, AS UNDER HON'BLE BENCH WILL APPRECIATE THAT IT HAS ERRED IN LAW BY WAY OF INCORRECT APPRECIATION OF EXPLANATION TO SECTION 35(1 )(II). IT IS WORTHWHILE TO MENTION THAT THERE IS NO SUCH EXPLANATION TO THIS SECTION WHICH HA S BEEN REPRODUCED BY THE HON'BLE ITAT IN PARA NO. 6 OF ITS ORDER. HENCE, THE ACT OF ALLOWING THE APPEAL ON THE BASIS OF SUCH EXPLANATION AS DISCUSSED ABOVE IS FOUND TO BE MISPLACED. THEREFORE, IT IS HUMBLY REQUESTED TO RECONSIDER THE FACT AND LAW IN THIS C ASE AND PASS NECESSARY ORDER U/S 254 OF THE IT ACT. COPY OF AUTHORIZATION MEMO FOR FILING MISCELLANEOUS APPLICATION IS ALSO ENCLOSED FOR KIND REFERENCE AND NECESSARY ACTION. IN VIEW OF THE ABOVE, THE UNDERSIGNED HEREIN PR AY S THAT HON'BLE ITAT MAY KINDLY R ECALL ITS ORDER IN NO.6399/MUM/20149 FOR A.Y. 2014 - 15 DATED 09.06.2020 FOR A.Y. 2014 - 15 IN ITS ENTIRETY IN VIEW OF THE ABOVE APPARENT MISTAKES AND CONSIDER MATTER AFRESH, AS THERE WAS A MISTAKE APPARENT IN THE ORDER OF THE HON'BLE ITAT. IT IS ALSO PRAYED THAT OUT OF TURN HEARING MAY KINDLY BE GRANTED IN THE AFORESAID APPEAL. 3. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE AFORESAID CLAIM OF THE REVENUE AND FIND THE SAME TO BE ABSOLUTELY MISCONCEIVED AND MISPLACED. AS OBSERVED BY US HEREINABOVE, IT IS THE CLAIM OF THE REVENUE THAT THE EXPLANA TION RELIED UPON BY THE TRIBUNAL WHILE DISPOSING OFF THE AFORESAID APPEAL DOES NOT CATER TO SEC. 35(1)(II) OF THE ACT. BEFORE PROCEEDING ANY FURTHER, WE DEEM IT FIT TO CULL OUT THE EXPLANATION IN QUE STION WHICH READS AS UNDER: [EXPLANATION. THE DEDUCTION, TO WHICH THE ASSESSEE IS ENTITLED IN RESPECT OF ANY SUM PAID TO A '[RESEARCH ASSOCIATION], UNIVERSITY, COLLEGE OR OTHER INSTITUTION TO WHICH CLAUSE (II) OR CLAUSE (III) APPLIES, SHALL NOT BE DENIED MERELY ON THE GROUND THAT, SUBSEQUENT TO THE PAYMENT OF SUCH SUM BY THE ASSESSEE, THE APPROVAL GRANTED TO THE ASSOCIATION, UNIVERSITY, COLLEGE OR OTHER INSTITUTION REFERRED TO IN CLAUSE (II) OR CLAUSE III) ' HAS BEEN WITHDRAWN;] ON A PERUSAL OF THE AFOR ESAID, WE FIND THAT THE EXPLANATION IN QUESTION IN UNEQUIVOCAL TERMS STATES THAT THE DEDUCTION TO WHICH THE ASSESSEES ENTITLEMENT IN RESPECT OF ANY SUM PAID TO A RESEARCH ASSOCIATION, UNIVERSITY, COLLEGE OR OTHER INSTITUTION TO WHICH CLAUSE (II) OR CLAU SE (III) APPLIES, SHALL NOT BE DENIED MERELY ON THE GROUND THAT, SUBSEQUENT TO THE PAYMENT OF SUCH SUM BY THE ASSESSEE APPROVAL GRANTED TO THE ASSOCIATION, UNIVERSITY, COLLEGE OR OTHER INSTITUTIONS REFERRED TO ANY CLAUSE (II) OR CLAUSE (III) HAS BEEN WITHD RAWN. NOW , WHEN THE AFORESAID EXPLANATION IN CLEAR TERMS INTER ALIA REFERS TO CLAUSE (II) TO SEC. 35(1) OF THE ACT, WE ARE UNABLE TO COMPREHEND THAT AS TO ON WHAT BASIS IT IS BEING CLAIMED BY THE REVENUE THAT THERE IS NO SUCH EXPLANA TION TO SEC. 35(1)( II) OF THE ACT. ALTHOUGH, THE AFORESAID EXPLANATION IS PLACED AFTER CLAUSE (III) TO SEC. 35(1) OF THE ACT, HOWEVER, IT IS FOR THE REASON THAT THE SAID EXPLANATION CATERS TO BOTH CLAUSE (II) AND (III) TO SEC. 35(1) OF THE ACT. IN THE BACKDROP OF OUR M.A NO. 29/MUM/2021 A.Y. 2014 - 15 (ARISING OUT OF ITA NO. 6399/MUM/2019) ITO, WARD - 2(1) VS. M/S SPAN REALTORS 3 AFO RESAID DELIBERATIONS, WE ARE OF THE CONSIDERED VIEW THAT AS THE PRESENT APPLICATION FILED BY THE REVENUE IS MISCONCEIVED AND DEVOID OF ANY MERIT, THE SAME, THUS, IS LIABLE TO BE REJECTED. 4. RESULTANTLY, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE I S DISMISSED. ORDER PRO NOUNCED IN THE OPEN COURT ON 22. 04.2021 SD/ - SD/ - (M. BALAGANESH) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 22 .04.2021 PS: ROHIT COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A) - 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE . BY ORDER, //TRUE COPY// (SR. PRIVATE SECRETARY) ITAT, MUMBAI