AMBUJA CEMENTS LTD, MUMBAI V. ADDL CIT LTU, MUMBAI

MA 381/MUM/2022

AI Insights

Ambuja Cements Ltd. filed miscellaneous applications against the orders of the Income Tax Appellate Tribunal, which had not addressed an additional ground concerning the applicability of the India-Mauritius Double Taxation Avoidance Agreement (DTAA) to dividends declared by the company. The additional ground argued that the dividend distribution tax should be applied at a rate of 5% as per Article 10 of the DTAA. The Tribunal acknowledged the oversight and decided to recall the previous orders to adjudicate on this specific issue.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 299685 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-02-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: K
• Next Hearing Date: 02-02-2023
• Assessment Year: 2007-2008
• Appeal Filed On: 08-12-2022
• Laws Referred To: Income Tax Act
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Double taxation relief
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “K” BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI SANDEEP SINGH KARHAIL, JUDICIAL MEMBER M.A. no.381/Mum./2022 Arising out of ITA no.6375/Mum./2013 (Assessment Year : 2007–08) M.A. no.382/Mum./2022 Arising out of ITA no.2968/Mum./2015 (Assessment Year : 2008–09) Ambuja Cements Ltd. Former known as Gujarat Ambuja Cement Ltd. Elegant Business Park, MIDC Cross Road–B Andheri (East), Mumbai 400 059 PAN – AAACG0569P ................ Appellant v/s Addl. Commissioner of Income Tax Large Tax Unit, Mumbai ................Respondent Assessee by : Shri Yogesh Thar a/w Shri Chaitanya Joshi Revenue by : Shri Chetan M. Kacha Date of Hearing – 03/02/2022 Date of Order – 20/02/2023 O R D E R PER SANDEEP SINGH KARHAIL, J.M. The present miscellaneous applications have been filed by the assessee against the separate orders of even date 07/11/2022, passed by the coordinate bench of the Tribunal in assessee’s appeals being ITA No. 6735/ Mum./2013 and ITA no.2968/Mum./2015, for the assessment years 2007-08 and 2008-09 respectively. By way of present miscellaneous applications, the assessee has sought rectification of the aforesaid orders on the ground that Ambuja Cements Ltd. M.A no.381 & 382/Mum./2022 Page | 2 while deciding assessee’s appeals, additional ground raised vide separate applications dated 05/01/2018, was not adjudicated by the Tribunal. 2. During the hearing, the learned Authorised Representative (“learned AR”) submitted that the assessee vide separate applications dated 05/01/2018, sought admission of additional ground of appeal pertaining to the applicability of the rate of tax provided in India Mauritius Double Taxation Avoidance Agreement (“DTAA”) to the dividend declared by the assessee. However, the coordinate bench of the Tribunal while deciding assessee’s appeals for assessment years 2007-08 and 2008-09 did not adjudicate the additional ground raised by the assessee. 3. On the other hand, the learned Departmental Representative did not bring anything on record to controvert the submissions made on behalf of the assessee. 4. We have considered the rival submissions and perused the material available on record. In its appeal for the assessment year 2007-08, being ITA No. 6735/Mum./2013, the assessee filed an application dated 05/01/2018 seeking admission of the following additional ground of appeal:- “The following ground is independent of, and without prejudice to previous grounds: 1. On the facts and circumstances of the case, and in law, the Appellant ought to be granted the benefit of Article 10 of the India Mauritius Double Tax Avoidance Agreement, that the dividend declared by the Appellant to Holderind Investments Ltd., Mauritius is liable to dividend distribution tax at the rate of 5 percent. The Appellant craves leave to add, amend, alter or withdraw all or any of the grounds of appeal at or before the time of hearing. Ambuja Cements Ltd. M.A no.381 & 382/Mum./2022 Page | 3 5. Similarly, in its appeal for the assessment year 2008-09, being ITA No. 2968/Mum./2015, the assessee filed an application dated 05/01/2018 seeking admission of the following additional ground of appeal:- “The following ground is independent of, and without prejudice to previous grounds: 1. On the facts and circumstances of the case, and in law, the Appellant ought to be granted the benefit of Article 10 of the India Mauritius Double Tax Avoidance Agreement, that the dividend declared by the Appellant to Holderind Investments Ltd., Mauritius is liable to dividend distribution tax at the rate of 5 percent. The Appellant craves leave to add, amend, alter or withdraw all or any of the grounds of appeal at or before the time of hearing. 6. The grievance of the assessee in the present miscellaneous applications filed under section 254(2) of the Act is that while deciding assessee’s appeals for assessment years 2007-08 and 2008-09, the coordinate bench did not adjudicate additional ground raised by the assessee vide aforesaid separate applications dated 05/01/2018. On a perusal of the separate orders of even date 07/11/2022, we find that the coordinate bench though adjudicated all the grounds raised by the assessee in its appeals for assessment years 2007-08 and 2008-09, however, rendered no finding in respect of additional ground raised by the assessee pertaining to the applicability of rate of tax provided in the DTAA on dividend declared by the assessee. 7. Thus, as additional ground raised by the assessee in both appeals was not adjudicated, to this limited extent, we are of the considered view that there is a mistake apparent on the face of record, which constitutes a rectifiable mistake under section 254(2) of the Act. Accordingly, the separate orders of even date 07/11/2022, passed by the coordinate bench of the Ambuja Cements Ltd. M.A no.381 & 382/Mum./2022 Page | 4 Tribunal for assessment years 2007-08 and 2008-09 are hereby recalled limited to the extent of admission and adjudication of additional ground, raised vide aforesaid applications dated 05/01/2018, on merits. The Registry is directed to fix the appeals for assessment years 2007-08 and 2008-09 for hearing in regular course limited to the above aspect and issue notice to the parties intimating the date of hearing. 8. In the result, miscellaneous applications by the assessee are allowed. Order pronounced in the open Court on 20/02/2023 Sd/- B.R. BASKARAN ACCOUNTANT MEMBER Sd/- SANDEEP SINGH KARHAIL JUDICIAL MEMBER MUMBAI, DATED: 20/02/2023 Copy of the order forwarded to: (1) The Assessee; (2) The Revenue; (3) The CIT(A); (4) The CIT, Mumbai City concerned; (5) The DR, ITAT, Mumbai; (6) Guard file. True Copy By Order Pradeep J. Chowdhury Sr. Private Secretary Assistant Registrar ITAT, Mumbai