SWIWAR OFFSHORE PRIVATE LIMITED , MUMBAI V. ADDITIONAL DIRECTOR OF INCOME TAX (IT) RANGE 2, MUMBAI

MA 402/MUM/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4756 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: L
• Assessment Year: 2009-2010
• Appeal Filed On: 31-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANISH KR SINGH

Judgement Text

P A G E | 1 M.A. NO . 402 / MUM/2018 A.YS. 2009 - 10 (ARISING OUT OF IT A NO.4884/MUM/2018 ) SWIWAR OFFSHORE PTE. LTD. VS. ADDL. DIT (IT) IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE SHRI M.BALAGANESH, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER M.A. NO. 402 /MUM/2018 (ARISING OUT OF ITA NO. 4884/MUM/2018 ) (ASSESSMENT YEARS: 2009 - 10 ) SWIWAR OFFSHORE PTE. LTD. C/O., DEVESH K. SHAH & CO., 106, BANAJI HOUSE 1 ST FLOOR, 361 DR. D.N. ROAD, FLORA FOUNTAIN, MUMBAI - 400 001 VS. ADD. DIT (INTERNATIONAL TAXATION) RANGE - 2, SCINDIA HOUSE MUMBAI PAN AALCS3672G (APPLICANT) (RESPONDENT) APPLICANT BY: SHRI FENIL BHATT, A .R RESPONDENT BY: SHRI MANISH KR. SINGH, D .R DATE OF HEARING: 15 .03.2019 DATE OF PRONOUNCEMENT: 15 .03 .2019 O R D E R PER RAVISH SOOD, JM: THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ON 31.03.2018 ARISES FROM THE ORDER PASSED BY THE TRIBUNAL IN THE CASE OF SWIWAR OFFSHORE PTE. LTD. VS. ADDL. DIT (INTERNATIONAL TAXATION), MUMBAI IN ITA NO. 4884/MUM/2018 FO R A.Y. 2009 - 10, DATED 30.11.2017 . 2. IN THE COURSE OF HEARING OF THE APPLICATION THE LD. A.R TOOK US THROUGH THE FACTS OF THE CASE AND SUBMITTED THAT THE TRIBUNAL WHILE DISPOSING OFF THE APPEAL HAD FAILED TO ADJUDICATE THE GROUND OF APPEAL P A G E | 2 M.A. NO . 402 / MUM/2018 A.YS. 2009 - 10 (ARISING OUT OF IT A NO.4884/MUM/2018 ) SWIWAR OFFSHORE PTE. LTD. VS. ADDL. DIT (IT) NO. 2 THAT WAS RAISED BY THE ASSESSEE BEFORE IT. IN SUPPORT OF HI S AFORESAID CONTENTION THE LD. A.R TOOK US THROUGH THE GROUND OF APPEAL NO. 2 AS WAS RAISED BY THE ASSESSEE BEFORE THE TRIBUNAL. IN THE BACKDROP OF THE AFORESAID FACTS IT WAS AVERRED BY THE LD. A.R THAT THE FAILURE ON THE PART O F THE TRIBUNAL TO DISPOSE OFF A SPECIFIC GROUND OF APPEAL RAISED BY THE ASSESSEE HAD THUS RENDERED THE ORDER PASSED BY IT AS SUFFERING FROM A MISTAKE THAT WAS AMENABLE FOR RECTIFICATION UNDER SEC.254(2) OF THE I.T ACT. 3 . PER CONTRA, THE LD. DEPA RTMENTAL REPRESENTATIVE (FOR SHORT D.R) OBJECTED TO THE APPLICATION FILED BY THE ASSESSEE COMPANY. IT WAS SUBMITTED BY THE LD. D.R THAT THE GROUND OF APPEAL NO. 2 WAS NOT ADDRESSED BY THE ASSESSEE AT THE TIME OF HEARING OF THE APPEAL. 4 . WE HAVE HEARD TH E AUTHORIZED REPRE SENTATIVES FOR BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ADMITTEDLY , THE ASSESSEE IN ITS APPEAL HAD RAISED A SPECIFIC GROUND VIZ. GROUND OF APPE AL NO.2 WHICH READ S AS UNDER: GROUND 2. THE LD. CIT(A) GROSSLY ERRED IN UPHOLDING THE ADDITION OF RS,2,60,020/ - IN TOTAL INCOME BY TREATING RE - IMBURSEMENT OF EXPENSES AS INCOME OF THE APPELLANT AND TAXING THE SAME U/S 44BB. WE HAVE PERUSED THE ORDER DATED 30.11.2017 PASSED BY THE TRIBUNAL WHILE DIS POSING OFF THE CAPTIONED APPEAL OF THE ASSESSEE AND ARE PERSUADED TO SUBSCRIBE TO THE CLAIM OF THE LD. A.R THAT THE SPECIFIC GROUND OF APPEAL NO. 2 RAISED BY THE ASSESSEE WHEREIN IT HAD ASSAILED THE ADDITION OF RS.2,6 0,020/ - BY TREATING REIMBURSEMENT OF EXPENSES AS THE INCOME OF THE ASSESSEE AND TAXING THE SAME UNDER SEC.44BB HAD INADVERTENTLY REMAINED OMITTED TO BE ADJUDICATED BY THE TRIBUNAL WHILE DISPOSING OFF THE APPEAL OF THE ASSESSEE. WE THUS ARE OF THE CONSIDERED VIEW THAT THE ORDER PASSED BY THE TRIBUNAL SUFFERS FROM A MISTAKE APPARENT FROM RECORD, WHICH THEREIN RENDERS THE SAME P A G E | 3 M.A. NO . 402 / MUM/2018 A.YS. 2009 - 10 (ARISING OUT OF IT A NO.4884/MUM/2018 ) SWIWAR OFFSHORE PTE. LTD. VS. ADDL. DIT (IT) AMENABLE FOR RECTIFICATION UNDER SEC.254(2) OF THE I.T ACT. IN TERMS OF OUR AFORESAID OBSERVATIONS THE ORDER PASSED BY THE TRIBUNAL IN ITA NO. 4884/MUM/2012 FOR A.Y. 2009 - 10 IS RECALLED FOR THE LIMITED PURPOSE OF DISPOSING OFF THE GROUND OF APPEAL NO. 2 , WHICH AS OBSERVED BY US HEREINABOVE HAD INADVERTENTLY REMAINED OMITTED TO BE ADJUDICATED BY THE TRIBUNAL WHILE DISPOSING OFF THE APPEAL. 5 . T HE REGISTRY IS DIRECTED TO FIX THE MATTER FOR THE LIMITED PUR P OSE OF ADJUDICATION OF GROUND OF APPEAL NO. 2 ON 23.04.2019. AS THE DATE FIXED FOR HEARING OF THE APPEAL ON THE AFORESAID LIMITED ISSUE IS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE R EPRESENTATIVES FOR BOTH THE PARTIES, THEREFORE, THE INTIMATION OF THE SAME BY WAY OF A SEPARATE NOTICE IS BEING DISPENSED WITH. 6 . THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED IN TERMS OF OUR AFORESAID OBSERVATIONS. ORDER PRONOUNCED IN TH E OPEN COURT ON 1 5 . 03 .2019 S D / - S D / - ( M.BALAGANESH ) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 1 5 .03 .2019 PS. ROHIT P A G E | 4 M.A. NO . 402 / MUM/2018 A.YS. 2009 - 10 (ARISING OUT OF IT A NO.4884/MUM/2018 ) SWIWAR OFFSHORE PTE. LTD. VS. ADDL. DIT (IT) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI