BHUPATI INVESTMENT AND FINANCE P.LTD, V. ITO 5(1)(2),

MA 388/MUM/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2615 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-12-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 2005-2006
• Appeal Filed On: 26-09-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN
• Section: 143(3); 14A

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL J BENCH, MUMBAI BEFORE HONBLE S/SHRI JOGINDER SINGH (JM) , AND B.R.BASKARAN (AM) , ' # $ . . , MISCELLANEOUS APPLICATION NO.388/MUM/2014 (ARISING OUT OF ./I.T.A. NO.1145/MUM/2010) ( !'# $%' / ASSESSMENT YEAR:2005-06) M/S BHUPATI INVESTMENTS & FINANCE PVT.LTD., B-34/35, 3 RD FLOOR, PARAGON CONDOMINIUM, P B MARG, WORLI, MUMBAI-400018 % / VS. I NCOME TAX OFFICER - 5(1)(2), ROOM NO.525/570, AAYAKAR BHAVAN, M K ROAD, MUMBAI-400020 ( &' / APPELLANT) .. ( ()&' / RESPONDENT) & ./ * ./PAN/GIR NO. : AAACB0441P &' + / APPELLANT BY : MS. AARTI VISANJI ( )&' , + /RESPONDENT BY : SHRI ASGHAR ZAIN - $. , /0 / DATE OF HEARING : 12.12.2014 12%# , /0 /DATE OF PRONOUNCEMENT : 12.12.2014 &' / O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATI ON SEEKING MODIFICATION OF THE ORDER DATED 4.7.2012 PASSED BY THE CO-ORDINATE BENCH OF THE TRIBUNAL IN ITA NO.1145/MUM/2010 RELATING THE ASSES SMENT YEAR 2005-06. 2. THE LD. COUNSEL APPEARING ON BEHALF OF THE ASSES SEE SUBMITTED THAT THE ASSESSEE IS A NON-BANKING FINANCE COMPANY AND IT HA S EARNED INTEREST FROM LENDING OF MONEY. THE AO ASSESSED THE INTEREST IN COME AS INCOME FROM OTHER SOURCES REJECTING THE CLAIM OF THE ASSESSEE THAT TH E SAME SHOULD BE ASSESSED AS INCOME FROM BUSINESS. WHEN MATER REACHED THE ITAT , THE TRIBUNAL NOTICED THE ASSESSEE HAS BEEN DECLARING INTEREST INCOME UNDER THE HEAD BUSINESS FROM THE ASSESSMENT YEARS 2001-02 ONWARDS AND THE SAME H AS BEEN ACCEPTED BY THE ASSESSING OFFICER EITHER U/S 143(1) OR UNDER SECTIO N 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT) UPTO THE ASSESSMENT YEAR 2004-05. H OWEVER, THE TRIBUNAL CHOSE MA NO.388/MUM/2014 2 TO RESTORE THE MATTER TO THE FILE OF THE AO ON THE REASONING THAT THE TRIBUNAL HAD IN AN EARLIER YEAR, I.E., IN THE ASSESSMENT YEAR 20 01-02 RESTORED THE MATTER TO THE FILE OF THE AO. 3. THE LD. COUNSEL SUBMITTED THAT THE TRIBUNAL HAD ONLY RESTORED THE MATTER RELATING TO DISALLOWANCE MADE U/S 14A OF THE ACT TO THE FILE OF THE ASSESSING OFFICER IN AY 2001-02, I.E., THE MATTER RELATING TO THE ASSESSMENT OF INTEREST INCOME WAS NOT RESTORED TO THE FILE OF THE ASSESSIN G OFFICER. ACCORDINGLY, THE LD. AR SUBMITTED THAT THERE IS A MISTAKE APPARENT FROM RECORD IN NOTING DOWN THE FACTS AND HENCE THE VIEW TAKE BY THE TRIBUNAL NEED S TO BE RECTIFIED. 4. ON THE CONTRARY, THE LD. DR SUBMITTED THAT THE T RIBUNAL HAS TAKEN A PARTICULAR VIEW IN THE FACTS AND CIRCUMSTANCES OF T HE CASE AND THE PRESENT PETITION OF THE ASSESSEE, IF ACCEPTED, WOULD AMOUNT TO REVIEW OF THE DECISION. 5. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD . WE NOTICE THAT THE TRIBUNAL HAD RESTORED THE MATTER RELATING TO THE HE AD UNDER WHICH THE INTEREST INCOME IS ASSESSABLE TO THE FILE OF THE AO AFTER NO TING DOWN THE FACTS PREVAILING IN THE INSTANT CASE. THOUGH THE LD. AR POINTED OUT TH AT THERE IS A MISTAKE IN NOTING THE DOWN THE FACTS, YET WE ARE OF THE VIEW THAT THE TRIBUNAL HAS TAKEN A VIEW CONSIDERING OVER ALL FACTS PREVAILING THE CASE. AC CORDINGLY, WE ARE OF THE VIEW THAT THE PRESENT APPLICATION MADE BY THE ASSESSEE W OULD LEAD TO REVIEW OF THE MATTER, WHICH THE TRIBUNAL IS NOT EMPOWERED TO DO U NDER THE PROVISIONS OF SECTION 254(2) OF THE ACT. ACCORDINGLY, WE DO NOT FIND ANY MERIT IN THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE. 6. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E ASSESSEE IS DISMISSED.. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 12 TH DEC , 2014. 12%# - 3 45 6 7 12 TH DEC, 2014 2 , 8. 9 SD SD ( 2;83 <=/ JOGINDER SINGH ) ( . . ,/ B.R. BASKARAN ) 3 / JUDICIAL MEMBER / ACCOUNTANT MEMBER 4 - . MUMBAI: 12TH DEC,2014. $ . . ./ SRL , SR. PS MA NO.388/MUM/2014 3 &' ( )'*+ ,&+-* / COPY OF THE ORDER FORWARDED TO : 1. &' / THE APPELLANT 2. ()&' / THE RESPONDENT. 3. - ?/ ( ) / THE CIT(A)- CONCERNED 4. - ?/ / CIT CONCERNED 5. 6. @$A8 ( / ;! , 0 ;!# , 4 - . / DR, ITAT, MUMBAI CONCERNED 8B' C. / GUARD FILE. D - / BY ORDER, TRUE COPY = (ASSTT. REGISTRAR) 0 ;!# , 4 - . /ITAT, MUMBAI