JANUS INVESTMENTS P. LTD, V. ITO 5(2)(2),

MA 359/MUM/2014

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3883 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 08-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: JAVED AKAHTARDR
• Assessee Lawyers: R C JAIN

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI- F,BENCH BEFORE S/SH. RAJENDRA,ACCOUNTANT MEMBER & SAKTIJIT DEY,JUDICIAL MEMBER MA NO.359/MUM/2014(ARISING OUT OF ITA/2218/MUM/2014 )-ASSESSMENT YEAR: 2006-07 M/S. JANUS INVESTMENTS P. LTD. MADGAONKAR ROAD 17, MATHEW ROAD, OPERA HOUSE MUMBAI-400 004. PAN:ASSESSEEACJ 1252 E VS THE INCOME TAX OFFICER-5(2)(2) ROOM NO.567, AAYAKAR BHAVAN M.K. ROAD MUMBAI-20. ( / ASSESSEE) ( / RESPONDENT) /ASSESSEE BY : SHRI R.C. JAIN / REVENUE BY : SHRI JAVED AKAHTAR-DR / DATE OF HEARING : 06.11. 2015 / DATE OF PRONOUNCEMENT : 06.01.2016 / O R D E R PER RAJENDRA, A.M. : VIDE ITS APPLICATION DATED 08.08.2014,THE ASSESSEE COMPANY HAS STATED THAT MISTAKES WERE APPARENT IN THE ORDER OF THE TRIBUNAL DATED 27.6.20 14,THAT SAME WERE TO BE RECTIFIED AS PER THE PROVISIONS OF SECTION 254(2) OF THE ACT. 2. IN ITS APPLICATION THE ASSESSEE HAS FURTHER MENTION ED THAT THETRIBUNAL HAD WRONGLY NOT FOLLOWED THE DECISION OF THE DIVISION BENCH DELIVER ED IN ASSESSEES OWN CASE FOR THE AY 2007-08,THAT THE ORDER OF THE FIRST APPELLATE AUTHO RITY (FAA) AGAINST THE REASSESSMENT ORDER WAS PASSED ON 17.1.14, THAT THE FAA HAD CALLED FOR A REMAND REPORT FROM AO, THAT THE FAA HELD THAT ASSESSEE WAS ENTITLED TO DEDUCTION OF 1/5 TH OF INTEREST EXPENDITURE UNDER EXPLANATION TO SECTION 24(V) OF THE ACT, THAT THE DIVISION BENC H HAD SET ASIDE THE MATTER FOR VERIFICATION OF THE MATTER AS TO WHETHER THE DEDUCTION FOR INTEREST WAS NOT CLAIMED UNDER ANY OTHER SECTION OF THE ACT,THAT THE CRUCIAL DATE FOR CONSIDERATION WAS 08.04.2014 WHEN THE REGISTRY FORWARDED THE MEMO OF APPEAL IN FORM NO.36, THAT THERE WAS NO MIS-REPRESENTATION BEFORE THE DIVISION BENCH ON 09.04.14 WHEN THE APPEAL FOR THE AY.07-08 WAS HEARD,THAT THE ISSUE WAS NOT PUT BY THE BENCH TO THE AUTHORISED REPRESENTATIVE(AR) OF T HE ASSESSEE, THAT THE OBSERVATION OF THE BENCH IN PARA-8 OF THE ORDER ABOUT THE EXPLANATION OFFERED BY THE AR WAS FACTUALLY INCORRECT, THAT THE OBSERVATION MADE BY THE BENCH IN PARA-3 WI TH REGARD TO INCORRECT STATEMENT MADE BY AR IN THE APPEAL FOR THE AY.2007-08 WERE NOT CORREC T AND SAME AMOUNTED TO MISTAKE APPARENT FROM RECORD, THAT THE ORDER FOR AY.07-08 W AS NOT PASSED ON MIS-REPRESENTATION OF FACT,THAT NO OPPORTUNITY WAS OFFERED TO THE AR OF T HE ASSESSEE TO EXPLAIN THE STAND TAKEN BY THE ASSESSEE WHEN THE APPEAL FOR THE AY.06-07 WAS H EARD.THE ASSESSEE FURTHER STATED THAT THE TRIBUNAL HAD WRONGLY REFERRED TO THE SUBMISSION OF THE DEPARTMENTAL REPRESENTATIVE (DR), THAT IN PARA -6 OF THE ORDER THE TRIBUNAL HAD DISCU SSED THE SUBMISSIONS MADE BY THE DR.THE APPLICATION IS ACCOMPANIED BY THE AFFIDAVITS OF RAM ESH CHANDAR C JAIN AND SANDIP MAHESHWARI.IN THEIR AFFIDAVITS BOTH OF THEM HAVE RE ITERATED THE SUBMISSIONS THAT ARE PART OF THE APPLICATION FILED BY THE ASSESSEE. 3. DURING THE COURSE OF HEARING BEFORE US,THE AUTHORIS ED REPRENSENTATIVE(AR)CONTENDED THAT NO MISREPRESENTATION WAS MADE BEFORE THE DIVISION B ENCH,THAT WHATEVER WAS STATED BEFORE THE BENCH WAS BASED ON THE FACTS AVAILABLE ON THAT DAY,THAT THE ASSESSEE WAS NOT GIVEN ANY OPPORTUNITY OF HEARING WHEN THE APPEAL FOR THE YEAR UNDER CONSIDERATION WAS HEARD WITH MA:359/M/13-JANUS 2 REGARD TO ALLOWANCE OF INTEREST EXPENSE,THAT THE TR IBUNAL HAD SET ASIDE THE MATTER FOR FURTHER VERIFICATION.THE DR LEFT THE MATTER TO THE DISCRETI ON OF THE BENCH. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE PERUSE D THE MATERIAL BEFORE US.WE FIND THAT THE AO HAD ALLOWED THE CLAIM MADE BY THE ASSESSEE W ITH REGARD TO THE INTEREST U/S.24(B)OF THE ACT,WHILE COMPLETING THE ASSESSMENT FOR THE AY.2006 -07,THAT HE DISALLOWED THE IDENTICAL CLAIM FOR THE AY.2007-08,THE ASSESSEE PREFERRED AN APPEAL BEFORE THE FAA FOR THE AY.2007- 08,THAT THE FAA ALLOWED THE APPEAL AND THE AO FILED AN APPEAL BEFORE THE TRIBUNAL (ITA/ 5057/MUM/2010),THAT THE ASSESSMENT FOR THE AY.2006- 07 WAS RE-OPENED BY THE AO AND DURING THE RE-ASSESSMENT PROCEEDINGS,HE DISALLOWED THE CLAIM MADE BY THE ASSESSEE WITH REGARD TO INTEREST,THAT IN THE APPELLATE PROCEEDING S THE FAA SOUGHT CLARIFICATION FROM THE AO AND ALLOWED THE APPEAL FILED BY THE ASSESSEE FOR TH E AY.2006-07 AGAINST THE ORDER PASSED U/S.133(3)R.W.S.147 OF THE ACT,THAT THE ASSESSEE RE CEIVED INFORMATION ABOUT FILING OF APPEAL BY THE AO FOR THE AY.2006-07 ON 08.04.2014,THAT ON 09. 04.2014 THE TRIBUNAL DECIDED THE APPEAL FOR THE AY.2007-08,THAT THE TRIBUNAL WHILE D ECIDING THE APPEAL FOR THE AY.2007-08 HAD RESTORED BACK THE ISSUE IN DISPUTE TO THE FILE OF THE AO,THAT IT WAS NOT BROUGHT TO THE NOTICE OF THE BENCH BY THE DR THAT THE AO HAD FILED AN APPEAL FOR THE IDENTICAL ISSUE FOR THE EARLIER YEAR WHEN THE APPEAL FOR THE AY. 2007 08 WA S HEARD BY THE TRIBUNAL,THAT THE AR HAD FILED AN AFFIDAVIT AND STATED THAT HE HAD NO KNOWLE DGE OF FILING OF APPEAL BY THE AO FOR THE AY.2006-07 WHEN HE HAD ARGUED THE APPEAL FOR THE SU BSEQUENT YEAR.CONSIDERING THE ABOVE PECULIAR FACTS AND CIRCUMSTANCE OF THE CASE WE ARE OF THE OPINION THAT IN THE INTEREST OF JUSTICE ORDER OF THE TRIBUNAL 27.06.2014 SHOULD BE RECALLED .IN OUR OPINION,THERE WAS NO MISREPRESENT -TATION BY THE AR OF THE ASSESSEE WHILE ARGUING THE MATTER FOR THE AY.2007-08.THEREFORE,AS STATED EARLIER,CONSIDERING THE PECULIAR FACTS OF TH E CASE WE DIRECT THE REGISTRY TO RE-FIX THE MATTER SO THAT IT COULD BE HEARD AFRESH BY THE REGU LAR BENCH. AS A RESULT,MA F ILED BY THE ASSESSEE STANDS ALLOWED. . ORDER PRONOUNCED IN THE OPEN COURT ON 6 TH JANUARY, 2016. 6 , 201 6 SD/- SD/- ( / SAKTIJIT DEY ) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER / MUMBAI, /DATE: .11.2015 . . . JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR A BENCH, ITAT, MUMBAI / , B , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.