ACIT, CIRCLE 3(1)(2), Mumbai V. M/S EUROFINANCE TRAININF & PUBLISHING PVT. LTD., Mumbai

MA 316/MUM/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4159 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-05-2022
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2013-2014
• Appeal Filed On: 27-12-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 154; 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “E" BENCH, MUMBAI BEFORE SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER AND SHRI RAHUL CHAUDHARY, HON'BLE JUDICIAL MEMBER MA.No. 316/MUM/2021 [ARISING OUT OF ITA.No. 835/MUM/2019 (A.Y. 2013-14)] Income Tax Officer – 3(1)(3) Room No. 666, 6 th Floor Aayakar Bhavan, M.K. Road Mumbai - 400020 v. M/s. Eurofinance Training & Publishing Pvt. Ltd., 506 Dalamal Tower, 211 Nariman Point, Mumbai -400021 PAN: AAACE3332Q (Appellant) (Respondent) Assessee by : None Department by : Shri S.N. Kabra Date of Hearing : 04.03.2022 Date of Pronouncement : 27.05.2022 O R D E R PER S. RIFAUR RAHMAN (AM) 1. Through this Miscellaneous Application revenue is seeking for recall of the order passed by the Tribunal in ITA.No. 835/Mum/2019 dated 17.03.2021 and submitted as under: - . “2.1 The assessee company filed its original return of income on 31.03.2015 declaring total income of Rs.3,05,60,320/- and assessment u/s.143(3) of the Income Tax Act was completed on 26.03.2016 assessing total income at Rs.5,45,09,960/- interalia MA.No. 316/MUM/2021 M/s. Eurofinance Training & Publishing Pvt. Ltd., 2 treating the capital gain on sale of depreciable assets as short term capital gain in place of long term capital gain for calculating tax on the same and made disallowance of Rs.90,050/- u/s 14A r.w.Rule 8D. 3. Aggrieved by the order of the AO, the assessee filed an appeal before the Ld.CIT(A), Mumbai. The Ld.CIT(A), Mumbai vide its order dated : 14.12.2018 had disposed off the assessee’s appeal by allowing ground no.1 wherein the AO was directed to tax the capital gain on the sale of property shown as a depreciable asset @ 20% instead of 30% while ground no.2 of the assessee’s appeal was dismissed. 4. Aggrieved by the order of the Ld.CIT(A), the revenue filed an appeal before the Hon’ble ITAT on 14.02.2019. The Hon’ble ITAT vide order No.I.T.A.No.835/Mum/2019 dated 17.03.2021 held that there is no necessity of keeping this matter alive since the assessee has already applied for settlement of dispute under the Vivad Se Vishwas Tax Scheme, 2020 and dismissed the appeal filed by the revenue. 4.1. On perusal of the said order it is observed that during the course of appellate proceedings a letter dt.09.10.2020 was filed by the assessee along with a copy of declaration filed under the Vivad Se Vishwas Tax Scheme, 2020 informing the Hon’ble ITAT about the assessee’s application for settlement of dispute under the said scheme. An adjournment was sought for the same which was not objected by the Ld.DR. 4.2. The Hon’ble ITAT after considering the submission of the Ld.Counsel of the assessee and perusal of the material on record held that there is no necessity of keeping this matter alive since the assessee has already applied for settlement of dispute under the scheme and dismissed the appeal filed by the revenue. However, the revenue was granted liberty to seek restoration of this appeal in the event of rejection of assessee’s application filed under Vivad Se Vishwas Tax Scheme. It was further made clear that in such eventuality if the revenue seeks restoration of the present appeal by filing miscellaneous application, the delay, if any, should be condoned without insisting upon filing any application for condonation of delay. 5. In this regard, it is hereby brought to your kind notice that the letter dt.09.10.2020 filed by the assessee along with a copy of declaration filed under Vivad Se Vishwas Tax Scheme, 2020 was pertaining to appeal filed by the assessee before the Ld.CIT(A)-8, Mumbai for A.Y. 2013-14 on 24.08.2019 vide Reference No./Acknowledgment no.875703191240819. The assessee’s said appeal was in relation to rejection of rectification order passed by MA.No. 316/MUM/2021 M/s. Eurofinance Training & Publishing Pvt. Ltd., 3 the A.O. u/s 154 of the I.T. Act dated 25.07.2019 wherein the contention of the assessee was that while computing the tax consequent to order giving effect dated: 12.03.2019 of the Ld.CIT(A)-8, interest charged u/s 234A & 234 B of the I.T. Act has not been correctly charged. Thus, the application filed by the assessee under Vivad Se Vishwas Tax Scheme, 2020 was not against the appeal filed by the revenue with respect to the order passed by the Ld.CIT(A)-8, Mumbai dated: 14.12.2018. 5.1 In view of the above, it is reiterated that for the concerned year i.e. A.Y.2013-14 both revenue and assessee have filed appeals. However, assessee has opted to file application under Vivad Se Vishwas Tax Scheme against the appeal filed by itself before the Ld.CIT(A)-8, Mumbai and not against the appeal filed by the revenue which is under discussion. 6. Therefore, it is respectfully submitted that there is a mistake apparent from record within the meaning of Sec.254(2) of the Income-tax Act, 1961 and request the Hon’ble Bench of the ITAT to recall the impugned order and repost the same for fresh hearing. 7. Under the said premises, applicant most humbly prays that the Hon’ble Bench may graciously pass necessary orders allowing the Miscellaneous Application and oblige.” 2. Since none appeared on behalf of assessee to file any objection on this issue, we dispose of this Miscellaneous Application by considering the details submitted by the Ld.DR and after going through the Form-2 filed by the assessee under Vivad Se Vishwas Scheme, 2020. 3. Heard Ld. DR, on a perusal of the Tribunal order dated 17.03.2021 we observe that we have dismissed the appeal filed by the Revenue by considering the Form-2 filed by the assessee informing us that assessee has preferred and filed application under Vivad Se Vishwas Scheme, 2020. Since the issue involved in A.Y. 2013-14 are relating to various MA.No. 316/MUM/2021 M/s. Eurofinance Training & Publishing Pvt. Ltd., 4 issues raised by the assessee which was filed and the appeal was pending before the Learned Commissioner of Income Tax (Appeals)– 8, Mumbai. 4. It is brought to our notice that the issue involved in the pending appeal before the Ld.CIT(A)-8 is completely different than the issue involved in the appeal filed by the Revenue before ITAT and the application filed by the assessee under Vivad Se Vishwas Scheme are not covered in the issue raised by the revenue. Considering the overall facts on record, we deem it fit and proper to recall the order in ITA.No. 835/Mum/2019 dated 17.03.2021. The Registry is directed to post the appeal for hearing in due course after issuing notice to both parties. 5. In the result, Miscellaneous Application filed by the revenue is allowed. Order pronounced in the open court on 27 th May, 2022 Sd/- Sd/- (RAHUL CHAUDHARY) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 27.05.2022 Giridhar, Sr.PS MA.No. 316/MUM/2021 M/s. Eurofinance Training & Publishing Pvt. Ltd., 5 Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER, (Asstt. Registrar) ITAT, Mum