HARMONY INVESTMENT & PROPERTIES LTD, V. DCIT CEN CIR 13,

MA 42/MUM/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3775 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-12-2015
• Appeal Filed By: Assessee
• Bench Allotted: H
• Assessment Year: 2009-2010
• Appeal Filed On: 20-02-2015
• Court: TRIBUNAL
• Assessee Lawyers: DR K SHIVARAM

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNALH BENCH, MUMB AI , , . , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER M.A. NO.42/MUM/2015 (ARISING OUT OF ITA NO.6793/MUM/2012) ASSESSMENT YEARS-2009-10 M/S HARMONY INVESTMENT & PROPERTIES LIMITED, ESA-501, KOTIA NIRMAN, NEW LINK ROAD, ANDHERI(W), MUMBAI-400053 / VS. THE DCIT, CENT. CIR-13, ROOM NO.1006, 10 TH FLOOR, OLD CGO ANNEXE BLDG, MUMBAI-400020 ! ./ PAN :AAEFH5314E ( '#!$ / APPELLANT) ( &'!$ / RESPONDENT) '#!$ ( / ASSESSEE BY: SHRI DR. K.SHIVARAM &'!$ ( / RESPONDENT BY : SHRI B.S. BIST ( - . / DATE OF HEARING 16/10/2015 ( - . / DATE OF PRONOUNCEMENT : 09/12/2015 / O R D E R PER JOGINDER SINGH, JUDICIAL MEMBER THIS MISCELLANEOUS APPLICATION IS BY THE ASSESSEE S EEKING RECTIFICATION IN THE ORDER OF THE TRIBUNAL DATED 25 /11/2014. 2 M/S HARMONY INVESTMENT AND PROPERTIES M.A. NO.42/MUM/2015 2. DURING HEARING OF THIS MISCELLANEOUS APPLICATION , THE LD. COUNSEL FOR THE ASSESSEE, DR. K.SHIVARAM, POINTED O UT THAT THE NAME OF THE ASSESSEE HAS BEEN MENTIONED AS M/S HARM ONY INVESTMENT & PROPERTIES LTD., WHEREAS, THE CORRECT NAME SHOULD BE HARMONY INVESTMENT & PROPERTIES I.E. THE WORD LIMITED HAS BEEN WRONGLY TYPED. WE HAVE PERUSED THE RECORD AND FIND THAT IN FORM NO.36 (APPEAL FILED BY THE REVENUE) IN COLUMN NUMBER-11, THE ADDRESS OF THE PARTY HAS BEEN MENTIONED AS M/S HARMONY INVESTMENT & PROPERTIES LTD.. BROADLY, WE FIND NO MISTAKE IN THE ORDER OF THE TRIBUNAL STILL WE MAKE NECESSARY CORRE CTION, AS PRAYED BY THE ASSESSEE, AND THE NAME OF THE ASSESSE E SHOULD BE READ AS HARMONY INVESTMENT & PROPERTIES . THE LD. ASSESSING OFFICER IS DIRECTED ACCORDINGLY. TO THIS EXTENT NEC ESSARY CORRECTION IS ALLOWED. 3. THE NEXT GRIEVANCE OF THE ASSESSEE IS THAT THERE WAS NET CREDIT BALANCE IN THE PARTNERS CAPITAL ACCOUNT AND HENCE THE PENALTY LEVIED ON ADDITION OF ADDITIONAL INTEREST O N DEBIT BALANCE IN PARTNERS CAPITAL ACCOUNT IS UNSUSTAINABLE. IT W AS POINTED BY THE LD. COUNSEL IN PARA 6.2 OF THE ASSESSMENT ORDER , THE ISSUE OF NOTIONAL ADDITION OF RS.34,57,000/- ON ACCOUNT OF D EBIT BALANCE IN PARTNERS CAPITAL ACCOUNT IS DISCUSSED, HOWEVER, THE LD. ASSESSING OFFICER WRONGLY TREATED THE SAID CREDIT I NTEREST AS DEBIT INTEREST. THUS, THE TRIBUNAL DID NOT CONSIDER THE C ONTENTION OF THE ASSESSEE. WE NOTE THAT IN PARA 3 (PAGE-3 ONWARD S) OF THE ORDER OF THE TRIBUNAL, AN ELABORATE DISCUSSION HAS BEEN MADE 3 M/S HARMONY INVESTMENT AND PROPERTIES M.A. NO.42/MUM/2015 WITH RESPECT TO THE FACTS, CONCLUSION OF THE LD. AS SESSING OFFICER AS WELL AS OF THE LD. COMMISSIONER OF INCOME TAX (A PPEALS). AFTER ANALYZING THE FACTS AND THE ARGUMENTS ADVANCED BY T HE ASSESSEE, THE TRIBUNAL REACHED TO A PARTICULAR CONCLUSION, IN WHICH, WE FIND NO INFIRMITY. VARIOUS CASE LAWS FROM THE TRIBU NAL, HONBLE HIGH COURT AND ALSO FROM HONBLE APEX COURT WERE CO NSIDERED. THROUGH THIS APPLICATION U/S 254(2) OF THE ACT, THE ASSESSEE IS TRYING TO GET THE ORDER REVIEWED WHICH IS NOT PERMI SSIBLE AS ONLY ARITHMETICAL ERROR ARE OF LIKE NATURE CAN ONLY BE R ECTIFIED. IF WE WOULD HAVE BEEN SATISFIED, CERTAINLY WITH AN OPEN M IND, WE COULD HAVE RECALLED OUR ORDER, IF WE WOULD HAVE FOUND ANY MISTAKE. HOWEVER, NO SUCH MISTAKE IS FOUND IN THE ORDER OF T HE TRIBUNAL, THEREFORE, WE FIND NO MERIT IN THE CONTENTION OF TH E ASSESSEE. 3.1. WHILE DEALING WITH MISCELLANEOUS APPLICATION U/S 254(2) OF THE ACT, ONLY ARITHMETICAL, GRAMMATICAL O R MISTAKE OF LIKE NATURE, IF ANY, CAN ONLY BE RECTIFIED AND NOT WHICH CAN BE DRAWN BY A LONG PROCESS OF ARGUMENT/REASONING LEADI NG TO CONTRARY DECISION. EVEN OTHERWISE, BY SENDING THE M ATTER TO THE ASSESSING OFFICER WITH THE DIRECTION TO DECIDE IN A CCORDANCE WITH LAW BY FOLLOWING THE DECISION FROM HONBLE APEX COU RT/HIGH COURT, NO PREJUDICE IS CAUSED TO THE ASSESSEE. WE H AVE NO HESITATION TO RECALL THE ORDER, IF ANY PREJUDICE IS CAUSED TO EITHER SIDE. FROM VARIOUS DECISIONS FROM HONBLE APEX COU RT AND HONBLE HIGH COURTS, THE TRIBUNAL CANNOT REVIEW ITS EARLIER ORDER BUT ONLY CAN RECTIFY IF ANY MISTAKE IS APPARENT FRO M RECORD. THE 4 M/S HARMONY INVESTMENT AND PROPERTIES M.A. NO.42/MUM/2015 SCOPE AND AMBIT OF APPLICATION U/S 254(2) OF THE AC T IS VERY LIMITED AND MERITS OF THE CASE CANNOT BE GONE INTO, THEREFORE, WE FIND NO MISTAKE IN THE ORDER OF THE TRIBUNAL. THE R ATIO LAID DOWN IN CIT VS GOKULCHAND AGRAWAL, 202 ITR 14 (CAL.), CI T VS RAMESH ELECTRIC & TRADING COMPANY 203 ITR 497, 502 (BOM.), GAYWAYS PUBLICITY PVT. LTD. 211 ITR 506 (DEL.), CIT VS RAML AL RAJGARIA 104 CTR (CAL.) 403, CIT VS MODEL MANUFACTURING COMPANY PVT. LTD. 111 CTR (CAL.) 2016, JAIN DHARMSHALA CHARITABLE TRU ST VS CIT 121 CTR (DEL.) 86, CIT VS ITAT 206 ITR 126 (AP), CI T VS KABIRDAS INVESTMENT LTD. 210 ITR 898 (DEL.) FOLLOWED IN DIRE CTOR OF INCOME TAX (EXEMPTION) VS ITAT 232 ITR 688 (DEL.), MENTHA & ALLIED PRODUCTS COMPANY PVT. LTD. VS ITAT 244 ITR 470 (DEL .), CIT VS VARDHMAN SPINNING 226 ITR 296 (P & H), DEEKSHA SURI ETC. VS ITAT 232 ITR 395 (DEL.), CIT VS ITAT 196 ITR 564 (O RISSA) 196 ITR 590, LAXMI ELECTRONIC CORPORATION LTD. VS CIT 1 88 ITR 398 (ALL.), THUS, WE FIND NO ERROR IN THE ORDER OF THE TRIBUNAL AS HAS BEEN CANVASSED BY THE LD. COUNSEL FOR THE ASSESSEE. 4. THE NEXT PLEA RAISED BY THE ASSESSEE IS THAT THE DECISION IN THE CASE OF SHREEJI TRADERS VS DCIT (2012) 21 TAXMA N.COM 554 (MUM.) WAS NOT QUOTED. HOWEVER, AFTER GOING THROUG H THE RECORD AND ORDER OF THE TRIBUNAL, WE FIND NO MERIT IN THE CONTENTION OF THE ASSESSEE. FINALLY, THE ORDER OF THE TRIBUNAL IS ONLY RECTIFIE D TO THE EXTENT AS MENTIONED IN PARA-2 OF THIS ORDER ONLY. FOR REMAINI NG ARGUMENT, WE FIND NO ERROR IN THE ORDER AND THE SAME IS CONFI RMED. 5 M/S HARMONY INVESTMENT AND PROPERTIES M.A. NO.42/MUM/2015 FINALLY, THE MISCELLANEOUS APPLICATION IS DISPOSED OFF IN TERMS INDICATED HEREINABOVE. THIS ORDER WAS PRONOUNCED ON 09/12/2015 SD/- SD/- D. KARUNAKARA RAO JOGINDER SINGH ( / ACCOUNTANT MEMBER) ( / JUDICIAL MEMBER) MUMBAI; 4 DATED.- 09/12/2015 F{X~{T? P.S/. . . ' # $%& '&($ / COPY OF THE ORDER FORWARDED TO : 1. '#!$ / THE APPELLANT 2. &'!$ / THE RESPONDENT. 3. 5- ( '# ) / THE CIT(A)- CONCERNED, MUMBAI 4. 5- / CIT CONCERNED, MUMBAI 5. 67 &-8 , '#. '8 , / DR, ITAT, MUMBAI E BENCH 6. 9 / GUARD FILE. / BY ORDER, '6#- &- //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI.