DY CIT-41(2)(1), MUMBAI V. HCC SAMSUNG JOINT VENTURE, MUMBAI

MA 399/MUM/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 5419 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-11-2023
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 19-10-2023
• Assessment Year: 2014-2015
• Appeal Filed On: 28-05-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Period of limitation; Additional evidence; Time period of passing order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “E” MUMBAI BEFORE SHRI ABY T VARKEY (JUDICIAL MEMBER) AND SHRI OM PRAKASH KANT (ACCOUNTANT MEMBER) M.A. No. 399/MUM/2023 (Arising out of ITA No. 7372/MUM/2019) Assessment Year: 2014-15 DCIT-41(2)(1), Room No. 623, 6 th floor, G-Block Kautilya Bhavan, Bandra Kurla Complex, Bandra (East), Mumbai- 400051. Vs. M/s HCC Samsung Joint Venture, Hincon House, LBS Marg, 11 th floor, 247 Park Vikhroli (W), Mumbai-400083 PAN No. AAAAH 8586 P Appellant Respondent Assessee by : Mr. H.P. Mahajani Revenue by : Mr. P.D. Chougule, Sr. DR Date of He aring : 20/10/2023 Date of p ronounceme nt : 09/11/2023 ORDER PER OM PRAKASH KANT, AM By way of this Miscellaneous Application, the Revenue is seeking recall/rectification in the order of the Tribunal dated 27.07.2022 passed in ITA Nos. 7372 and 7365/Mum/2019 for assessment year 2014-15 and 2015-16 which were filed by the assessee. HCC Samsung Joint Venture 2 M.A No. 399/Mum/2023 2. The Ld. Departmental Representative (DR) addressing the Miscellaneous Application submitted that there is a mistake apparent from record on three grounds, firstly, the Tribunal has wrongly relied on the decision of the Hon’ble High Court of Rajasthan in the case of CIT v. Laxmi Engineer Industries (2019) 308 ITR 279, secondly, the additional evidence has been admitted without following due procedure provided under ITAT Rules, thirdly, no opportunity was provided to the Assessing Officer on the additional evidence. 3. On the contrary, the Ld. Counsel for the assessee submitted that the Miscellaneous Application had been filed on 29.05.2023 whereas the order of the Tribunal was passed on 27.07.2022, thus, being beyond the period of six months from the date of order, it is barred by the limitation. The Ld. Counsel also submitted that there is no mistake apparent from the record of the Tribunal as the additional evidence has been admitted after due recording of reason which has also been referred in para 7 of the impugned order. He further submitted that copy of the said evidence i.e. reconciliation certificate issued by the Auditor, was duly provided to the Ld. DR for his objection if any, therefore, there is no violation of principle of natural justice and thus, there is no mistake apparent from the record. 4. We have heard rival submission of the parties on the issue in dispute and perused the relevant material on record. Before us, the HCC Samsung Joint Venture 3 M.A No. 399/Mum/2023 Ld. DR submitted that order of the Tribunal was received by the concerned PCIT on 23.02.2022 and therefore the Miscellaneous Application filed is within six month from the date on which order of the Tribunal came to the knowledge of the PCIT. The Hon’ble Bombay High Court in the case of Daryapur Shetkari Sahakari Ginning and Pressing Factory v. ACIT (2021) 277 Taxman 155 / 200 DTR 417 / 320 CTR 456 (Bom.)(HC) held that period of limitation would commence from date when affected party got knowledge of decision in question and it would not commence from date when order was passed-. Accordingly, the present MA is held to be within limitation period and admitted for adjudication. 4.1 As far as the contention of the Ld. DR regarding non- applicability of the decision in the case of Laxmi Engineer Industries (supra) is concerned, we find that in the case of Laxmi Engineer Industries (supra), the issue was of two valuations of stock, one for the purpose of Bank and another for the purpose of Income-tax, though quantity of goods was same in both valuation reports, hence difference was of rate per unit of goods only. In the case of assessee, Tribunal (supra) in para 9.1 has mentioned that difference in 2 sets of the accounts was due to higher valuation of inventory for the purpose of consolidated account of venture partner and therefore, ratio in the case of Laxmi Engineer Industries (supra) have been correctly applied in the facts of the case. Regarding admission of the additional evidence in the form of HCC Samsung Joint Venture 4 M.A No. 399/Mum/2023 reconciliation of two sets of the account by the auditor is concerned, we find that the Tribunal (supra) for disposal of the issue in dispute, by way of specific order dated 09.06.2022 as mentioned in para 7 of the impugned order, called for reconciliation of two accounts by the Auditor who signed set of those accounts and after providing a copy of the same to the Ld. DR and after taking into consideration arguments of the both parties on the said reconciliation, Tribunal has adjudicated the issue in dispute in para 9 to 9.1 of the impugned order. The Ld DR is authorised on behalf of the Assessing Officer to argue the matter before the ITAT and copy of the reconciliation statement was duly provided to him for objections if any. Thus, in our opinion there is no violation of principles of natural justice. 5. In view of the above, we do not find any mistake apparent from the record and accordingly the Miscellaneous Application filed by the Revenue is dismissed. Order pronounced in the open Court on 09/11/2023. Sd/- Sd/- (ABY T VARKEY) (OM PRAKASH KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai; Dated: 09/11/2023 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. CIT HCC Samsung Joint Venture 5 M.A No. 399/Mum/2023 4. DR, ITAT, Mumbai 5. Guard file. BY ORDER, //True Copy// (Assistant Registrar) ITAT, Mumbai