OWENS CORNING (INDIA)LTD., MUMBAI V. ITO., WARD-7(1)(3), MUMBAI

MA 421/MUM/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0408 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-12-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 22-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAVITA KAUSHAL
• Assessee Lawyers: R I SHI KAPADIA
• Keywords: Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C MUMBAI BEFORE SHRI PAWAN SINGH (JUDICIAL MEMBER) AND SHRI N.K. PRADHAN (ACCOUNTANT MEMBER) M.A. NO. 421/MUM/2019 (ITA NO. 4988/MUM/2011) ASSESSMENT YEAR: 2006 - 07 OWENS - CORNING (INDIA) PVT. LTD. ALPHA BUILDING, 7 TH FLOOR, HIR A NANDANI GARDENS, POWAI, MUMBAI - 400076. VS. THE INCOME TAX OFFICER - 7(1)(3), MUMBAI, AAYAKARBHAVAN, MAHARSHI KARVE ROAD, MUMBAI - 400020. PAN NO. AAACD1739M APPELLANT RESPONDENT ASSESSEE BY : MR. R I SHI KAPADIA, AR REVENUE BY : MS. KAVITA KAUSHAL, DR DATE OF HEARING : 20/09/2019 DATE OF PRONOUNCEMENT : 16/12/2019 ORDER PER N.K. PRADHAN, A.M. BY MEANS OF THIS MISCELLANEOUS APPLICATION (MA), THE APPLICANT SEEKS RECTIFICATION OF THE ORDER DATED 08.05.2019 PASSED BY THE ITAT C BENCH MUMBAI (ITA NO. 4988/MUM/2011) FOR THE ASSESSMENT YEAR (AY) 2006 - 07. 2. THE LD. COUNSEL FOR THE ASSESSEE SUBMITS THAT ONE OF THE ISSUES UNDER CONSIDERATION IN THE APPEAL WAS REGARDING THE DISALLOWANCE OF AMORTIZATION OF THE PREMIUM PAID FOR ACQUIRING LEASEHOLD RIGHTS OVER A PLOT OF LAND BY THE APPLICANT. THE TRIBUNAL DISMISSED THE SAID GROUND BY FOLLOWING THE ORDER OF THE CO - ORDINATE BENCH FOR EARLIER YEAR I.E. 2004 - 05 IN APPLICANTS OWN CASE. IT OWENS - CORNING (INDIA) MA NO. 421/MUM/2019 2 IS STATED THAT THE APPLICANT HAS FILED AN APPEAL TO THE BOMBAY HIGH COURT FOR AY 2004 - 05. THE LD. COUNSEL EXPLAINS THAT SECTION 158 A IS A SPECIAL PROVISION FOR AVOIDING REPETITIVE APPEALS AND AS PER IT, WHEN AN IDENTICAL QUESTION OF LAW IS PENDING BEFORE THE HIGH COURT OR THE SUPREME COURT FOR ANY ASSESSMENT YEAR, THE DECISION OF THE SAID COURT WOULD APPLY TO THE ASSESSMENT YEAR FOR WH ICH THE APPLICATION U/S 158A IS MADE. IT IS STATED BY HIM THAT IN THE PRESENT CASE, THE APPLICANT HAS FILED AN APPLICATION DATED 12.09.2018 U/S 158A OF THE ACT ON THE AFORESAID GROUND FOR AY 2006 - 07, SINCE AN IDENTICAL QUESTION OF LAW WAS ALREADY PENDING B EFORE THE BOMBAY HIGH COURT FOR AY 2004 - 05. THUS IT IS ARGUED THAT IF THE APPLICATION IS ADMITTED, THE DECISION OF THE BOMBAY HIGH COURT WOULD APPLY FOR AY 2006 - 07. A COPY OF THE SAID APPLICATION U/S 158A(1) EARLIER FILED DURING THE COURSE OF HEARING FOR I TA NO. 4988/MUM/2011 FOR THE IMPUGNED ASSESSMENT YEAR WAS REFERRED TO. IT IS FURTHER EXPLAINED THAT AS PER SECTION 158BA(3) OF THE ACT, THE TRIBUNAL HAS TO ADMIT OR REJECT THE CLAIM OF THE APPLICANT BY AN ORDER IN WRITING. STATING FURTHER, IT IS EXPLAINED THAT WHILE THE TRIBUNAL IN ITS ORDER FOR THE IMPUGNED ASSESSMENT YEAR HAS ACKNOWLEDGED THE FACT THAT THE APPLICATION U/S 158A HAS BEEN MADE BY THE APPLICANT, THE SAME HAS NOT BEEN ADMITTED BY IT. THEREFORE, THE LD. COUNSEL SUBMITS THAT THE ORDER MAY BE RECTIFIED OR A SEPARATE ORDER BE PASSED ADMITTING THE CLAIM MADE BY THE APPLICANT U/S 158A OF THE ACT. 3. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) STATES THAT AN APPLICATION DATED 12.09.2018 U/S 158A(1) OF THE ACT HAS BEEN FILED BY THE APPELLANT FOR THE IM PUGNED ASSESSMENT YEAR. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIALS ON RECORD. WE FIND THAT A SIMILAR APPLICATION WAS MADE BY THE APPLICANT FOR AY OWENS - CORNING (INDIA) MA NO. 421/MUM/2019 3 2010 - 11 IN RESPECT OF THE SAME ISSUE AND WAS ADMITTED BY THE TRIBUNAL. WE ARE O F THE CONSIDERED VIEW THAT A MISTAKE APPARENT FROM RECORD HAS OCCURRED IN PARA 2.1 OF THE IMPUGNED ORDER AND THE SAME IS RECTIFIED BELOW, WHICH READS AS UNDER : FACTS BEING IDENTICAL, WE FOLLOW THE ABOVE ORDER OF THE CO - ORDINATE BENCH IN ASSESSEES OWN C ASE AND DISMISS THE 1 ST GROUND OF APPEAL RAISED BY THE ASSESSEE, WITH A DIRECTION TO THE AO THAT AS AND WHEN DECISION ON THE QUESTION OF LAW BEFORE THE HONBLE BOMBAY HIGH COURT BECOMES FINAL, THEN IT SHALL BE APPLIED FOR THE YEAR UNDER CONSIDERATION AND I F NECESSARY, THE AO SHALL AMEND THE ORDER ACCORDINGLY. WITH THESE DIRECTIONS, THIS GROUND RAISED BY THE ASSESSEE IS DISPOSED OF ACCORDINGLY. 5. IN THE RESULT, THE MA FILED BY THE APPLICANT IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/12/2019. SD/ - SD/ - ( PAWAN SINGH ) (N.K. PRADHAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED: 16/12/2019 RAHUL SHARMA, SR. P.S. 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 . BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI