RAYMOND LTD., MUMBAI V. M/s. ACIT 2(3), MUMBAI

MA 438/MUM/2023

• Counselvise Citation: [2023] 102 COUNSELVISE.COM (IT) 0562 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-10-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 19-10-2023
• Assessment Year: 2002-2003
• Appeal Filed On: 15-06-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rectification of order

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “J”, MUMBAI BEFORE SHRI VIKAS AWASTHY, HON'BLE JUDICIAL MEMBER & SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER MA.No. 438/MUM/2023 [ARISING OUT OF ITA NO. 2519/MUM/2008 (A.Y: 2002-03)] M/s. Raymond Limited New Hind House Narottam Morarjee Marg Ballard Estate, Mumbai - 400001 PAN: AAACR4896A v. The Addl.CIT–2(3) Room No. 555 Aayakar Bhavan, M.K. Road Mumbai (Appellant) (Respondent) Assessee Represented by : Shri Nitesh Joshi Department Represented by : Shri Ashok Kumar Ambastha Date of conclusion of Hearing : 20.10.2023 Date of Pronouncement : 25.10.2023 O R D E R PER S. RIFAUR RAHMAN (AM) 1. Through this Miscellaneous Application assessee is seeking for rectification in the order passed by the Tribunal in ITA.No.2519/Mum/2008 dated 14.11.2022 for the A.Y. 2002-03. MA.No. 438/MUM/2023 M/s. Raymond Limited Page No. 2 2. In the Miscellaneous Application assessee submitted as under: -: - “1. The present Miscellaneous Application is being filled seeking rectification of apparent mistake in the order of the Income Tax Appellate Tribunal, Bench 'J', Mumbai (ITAT) dated November 14, 2022 in ITA No. 2519/Mum/2008 being the cross appeal filed by the department. The copy of the order of the Tribunal is enclosed herewith as Annexure "I". 2. The first ground raised by the department in the said cross appeal was as under: "The CIT(A) erred in directing the AO to recompute the annual value of the property without appreciating the fact that the AO has correctly arrived at the fair market value of the property at Rs.3,50,21,280/-." 3. The Honorable ITAT dealt with the said ground in the para 46 of the aforesaid ITAT order. The same is reproduced hereunder: "Ground No. 1 of grounds of appeal which is in respect of determining the standard rent of the property. This ground is similar to Ground No. 2 of grounds of appeal raised by the assessee in ITA.No. 2660/Mum/2008 for the A.Y. 2002-03 and the decision taken therein shall apply mutatis-mutandis to the ground also. Accordingly, the ground raised by the revenue is allowed." 4. The Honorable ITAT held that the ground being similar to Ground number 2 of grounds of appeal raised by the assessee (ITA No. 2660/Mum/2008), the decision taken therein shall apply Mutatis Mutandis to the ground raised by the department and that the ground raised by the revenue is "allowed". 5. Briefly the facts for the year under consideration, the assessee filed return of the income declaring income from house property based on Actual Rent received amounting to Rs.2,89,000/-. During the course of assessment proceedings, the learned Assessing Officer recomputed the income from house property on the basis of Fair Rental Value amounting to Rs. 3,50,21,280/-. 6. Upto the assessment year 1993-94, the annual value as offered by the Appellant based on the actual rent received has been accepted by the Department. The said annual value has been disputed by the Assessing Officer from the assessment year 1994- 95. In its appeal before the Tribunal for assessment year 1994-95, the Appellant inter alia urged that the annual value of the said premises for the purposes of section 23(1)(a) of the Act should be computed based on the municipal rateable value or the standard rent MA.No. 438/MUM/2023 M/s. Raymond Limited Page No. 3 of the said premises. However, the Tribunal has concluded that such annual value should be estimated at 12% of the value of land and investment towards cost of construction. Since the determination of the annual value by the Applicant for assessment years 1995-96 to 2001-02 and 2003- 04 to 2006-07 was also disputed by the Appellant, the Tribunal for those years has also followed its conclusion for assessment year 1994-95. The Commissioner of Income-tax (Appeals) vide his appellate order dated December 18, 2007 partly allowed the appeal with respect to determination of annual value for the purposes of computation of income in respect of the said premises under the head "Income from House Property. Following the Orders for the earlier years and the Tribunal's Orders for assessment years 1997-98 to 2001-02, the Commissioner of Income-tax (Appeals) directed the Applicant to compute the annual value of the said premises at 12% of the cost of land and the cost of construction of the building. Similar direction was given by the CIT(A) for the year under consideration. 7. Aggrieved by the same, the department preferred an appeal against the order passed by CIT(A) with the honourable ITAT. 8. The Honourable ITAT while dealing with Assessee's appeal in ITA No 2660/Mum/2008 on same issue relying on the order of ITAT in assessee's own case in AY2004-05 in ITA No 1973/Mum/2009 directed the AO to follow the said judgement passed by the co- ordinate bench of the Tribunal. The relevant portion of the order is as under:- "Since the issue is exactly similar and grounds as well as the facts are also identical, respectfully following the above decision in assessee's own case for the AY. 2004-05, we direct the AO to follow the coordinate bench decision in the assessee's own case as stated above. Accordingly, ground raised by the assessee is dismissed" 9. In ITA No 1973/Mum/2009 for AY 2004-05, the ITAT had upheld the order of the CIT(A) confirming that Annual Value to be computed at the rate of 12% of the cost of land and building in line with the provisions of the Rent Act. 10. Accordingly, the Honourable ITAT while passing the order under consideration followed the aforementioned order of the co- ordinate Bench of the Tribunal. In view of the same. the Honourable ITAT has effectively not allowed the Ground I of the department in ITA No 2519/Mum/2008 in so far as the ground in the appeal has been partly allowed by reducing the annual value of the rent to the extent of 12% of the cost of land and building in the assessee appeal. Accordingly, having accepted that the annual rent value should be: MA.No. 438/MUM/2023 M/s. Raymond Limited Page No. 4 12% of cost of Land and Building, the ground of the department on the similar issue in the cross appeal should stand dismissed. 11. However, in para 46 of the order the Honourable Bench has inadvertently stated that the ground is "allowed". 12. The Applicant therefore submits that an apparent mistake has crept in the order and therefore seeks rectification of the apparent mistake in the para 46 of the order of the Tribunal in respect of Ground No. 1 raised by the Department where the last line of the said para should state "Accordingly, the ground raised by the revenue is dismissed". 13. The applicant submits that it had received the order dated November 14, 2022 on December 23, 2022 and therefore the present application is within time provided under the Statute. 14. The Applicant therefore prays that:- (a) The Tribunal be pleased to pass necessary rectification order for the appeal under consideration stating the Ground No. 1 as dismissed. (b) For such further and other reliefs as the nature and circumstances of the case may require.” 3. Ld. AR of the assessee relied on the submissions mentioned in the Miscellaneous Application and prayed to pass necessary rectification order by rectifying the inadvertent mistake apparent in Para No. 46 of the Tribunal order in ITA.No. 2519/Mum/2008 dated 14.11.2022. 4. On the other hand, Ld. DR fairly accepted the submissions of the assessee and not made any specific objections. 5. Considered the rival submissions and material placed on record, after considering the submissions of the assessee we observe that there MA.No. 438/MUM/2023 M/s. Raymond Limited Page No. 5 is inadvertent typographical mistake apparent in Para No. 46 at Page No. 33 of the order. We have gone through the order of the Tribunal and found that the mistake pointed out by the assessee needs correction. Therefore, we modify Para No. 46 of the Tribunal order dated 14.11.2022 as under:- “46. Ground No.1 of grounds of appeal which is in respect of determining the standard rent of the property. This ground is similar to Ground No. 2 of grounds of appeal raised by the assessee in ITA.No. 2660/Mum/2008 for the A.Y. 2002-03 and the decision taken therein shall apply mutatis-mutandis to the ground also. Accordingly, the ground raised by the revenue is dismissed”. 6. In the result, Miscellaneous Application filed by the assessee is allowed as indicated above. Order pronounced in the open court on 25 th October, 2023. Sd/- Sd/- (VIKAS AWASTHY) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 25/10/2023 Giridhar, Sr.PS MA.No. 438/MUM/2023 M/s. Raymond Limited Page No. 6 Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. //True Copy// BY ORDER (Asstt. Registrar) ITAT, Mum