RAVI REAL ESTATE DEVELOPERS P.LTD, MUMBAI V. ITO 9(3)(4), MUMBAI

MA 455/MUM/2019

AI Insights

M/s. Ravi Real Estate Developers Pvt. Ltd. filed a miscellaneous application seeking rectification of a mistake in the Tribunal's earlier order concerning the assessment year 2011-12. The application argued that the Tribunal had not considered specific grounds and arguments raised during the original appeal. The Tribunal reviewed the application, the original order, and the arguments presented by both parties. It concluded that the original order was detailed and addressed all arguments and evidence presented by the assessee. The Tribunal also noted that the principles of consistency and adherence to previous judgments were maintained, and no mistake apparent on record was found.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 301179 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 10 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-06-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 04-08-2022
• Assessment Year: 2011-2012
• Appeal Filed On: 07-08-2019
• Other Referred Cases: Mafatlal Industries Ltd. 2019(6) TMI 533-ITAT
• Laws Referred To: Income Tax Act, 1961, Income Tax Appellate Tribunal Rules, 1962
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 143(3); 254(2); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH “D”, MUMBAI BEFORE SHRI BASKARAN BR, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER MA No.455/M/2019 (Arising out of ITA No.3168/M/2016) Assessment Year: 2011-12 M/s. Ravi Real Estate Developers Pvt. Ltd., 76, Laxmi Palace, Mathuradas Road, Kandivali (West), Mumbai – 400 067 PAN: AACCR3768D Vs. Income Tax Officer-9(3)(4), Mumbai (Appellant) (Respondent) Present for: Assessee by : Shri Mahavir Jain, A.R. Revenue by : Ms. Mahita Nair, D.R. Date of Hearing : 05 . 08 . 2022 Date of Pronouncement : 20 . 06 . 2023 O R D E R Per : Kuldip Singh, Judicial Member: Heard : The applicant M/s. Ravi Real Estate Developers Pvt. Ltd. (hereinafter referred to as the assessee) by moving an application under section 254(2) of the Income Tax Act, 1961 (for short ‘the Act’) read with rule 24 of the Income Tax Appellate Tribunal Rules, 1962 (for short ‘ITAT Rules’) sought to rectify the mistake apparent on record in the order dated 14.05.2019 passed by the Tribunal in ITA No.3168/M/2016 for A.Y 2011-12 on the grounds inter-alia that the Bench while passing MA No.455/M/2019 (Arising out of ITA No.3168/M/2016) M/s. Ravi Real Estate Developers Pvt. Ltd. 2 order (supra) summarized the argument addressed by the Ld. A.R. for the assessee in para 8 and para 13 of the order (supra) but in the operative part the Bench proceeded to rely on the order of this Tribunal passed in assessee’s own case for the assessment year 2003-04 and gave a similar direction to the respondent; that in the face of the non consideration of the argument made and non adjudication of the specific grounds raised in the appeal present application is moved and relied upon the order passed by the Tribunal in case of Mafatlal Industries Ltd. 2019(6) TMI 533-ITAT. 2. The Ld. D.R. for the Revenue opposed the present application filed by the assessee under section 254(2) on the ground that there is no mistake apparent on record and every ground and argument raised by the assessee has been considered and decided accordingly and prayed for dismissal of the application. 3. We have heard the Ld. Authorised Representatives of the parties to the appeal, perused the orders passed by the Ld. Lower Revenue Authorities and documents available on record in the light of the facts and circumstances of the case and law applicable thereto. 4. Applicant-assessee has moved an application under section 254(2) of the Act running into 9 pages. We have perused the order passed by the Tribunal which is a detailed order and every argument and the evidence relied upon by the assessee have been duly thrashed and replied with. For ready perusal operative part of the order is extracted as under: “12. As is discernible from the aforesaid observations of the Tribunal while disposing off the appeal of the assessee for A.Y 2003-04, the A.O was directed to reduce the gross receipts of Rs. 7,41,61,053/- by two amounts viz. (i) the receipts that had already suffered tax @ 9% in the earlier assessment years in the hands of the assessee; and (ii). the receipts which had been MA No.455/M/2019 (Arising out of ITA No.3168/M/2016) M/s. Ravi Real Estate Developers Pvt. Ltd. 3 refunded to the flat buyers for one reason or the other. Apart there from, the Tribunal concluded that the A.O was justified in estimating the profits on the total receipts of the completed projects and as per the percentage completion method in case of the incomplete projects. Further, the A.O was directed to restrict the estimation of profits based on the completion of the work of the project that was regularly followed by the assessee, instead of total advances received in this regard. Accordingly, the A.O giving effect to the said directions of the Tribunal had vide his order passed u/s 143(3) r.w.s 254, dated 13.12.2011 for A.Y 2003-04 worked out the sale receipts at Rs. 4,25,83,906/- and after applying the profit rate of 12%, worked out the income of the assessee. 13. In the course of the hearing of the appeal, the ld. A.R had placed on record the assessment orders passed u/s 143(3) in the case of the assessee for the preceding years viz. A.Y 2004-05 and A.Y 2005-06. We find that the A.O while framing the assessment for A.Y 2005-06, had observed that insofar the work-in-progress in respect of the building/project viz. “Gaurav Garden” was concerned, as the assessee company had failed to comply with the bye- laws of BMC, therefore, the latter had issued stop work notice for the said building in June, 2002, and the position as regards the same remained as such as on date. The ld. A.R drawing support from the aforesaid factual position had submitted, that as during the year under consideration viz. A.Y 2011- 12 the fact situation remained the same, therefore, no addition was called for in the hands of the assessee. 14. We have given a thoughtful consideration to the facts of the case, and finding ourselves to be in agreement with the view taken by the Tribunal while disposing off the appeal of the assessee for A.Y 2003- 04, respectfully follow the same. Accordingly, on similar lines we direct the A.O to compute the gross receipts in the hands of the assessee by reducing the same by two amounts viz. (i). the receipts that had already suffered tax @9%/@12% in the earlier assessment years in the hands of the assessee; and (ii). the receipts which have been refunded to the flat buyers. The A.O shall estimate the profits @ 12% on the total receipts of the completed projects, and as per the percentage completion method in case of the incomplete projects. Also, the A.O is directed to restrict the estimation of profits based on the completion of the work of the project, as had regularly been followed by the assessee in the past, instead of total advances received in this regard. We thus in terms of our aforesaid observations restore the matter to the file of the A.O for giving effect to our aforesaid directions. 15. The appeal of the assessee is partly allowed.” 5. So far as first contention raised by the applicant-assessee that the “Bench while passing the order(supra) summarized the argument addressed by the Ld. A.R. for the assessee in para 8 and para 13 of the MA No.455/M/2019 (Arising out of ITA No.3168/M/2016) M/s. Ravi Real Estate Developers Pvt. Ltd. 4 order (supra) but in the operative part the Bench proceeded to rely on the order of this Tribunal in assessee’s own case for the assessment year 2003-04 and gave a similar direction to the respondent” is concerned, we have perused para 8 of the impugned order wherein contention of the assessee has been duly recorded and thereafter in para 10 of the argument addressed by the assessee has been dealt with, however we could not trace out if any mistake apparent on record is there. There may be wrong findings given by the Tribunal but these findings do not amount to mistake apparent on record to be interfered with under section 254 of the Act. Each and every fact and argument addressed by the assessee has been brought on record, discussed with and decided as per wisdom of the Bench. 6. Even during the course of argument before the Bench in the present miscellaneous application the Ld. A.R. for the assessee has failed to point out as to why the order passed by the Tribunal in its own case in A.Y. 2003-04 should not be followed by the Bench while passing the order (supra) which is in accordance with settled principle of law that in the identical facts consistency must be maintained. 7. So far as question of not adjudicating the ground No.2 raised by the assessee as averred in the miscellaneous application is concerned this ground is that “Ld. CIT(A) erred in not appreciating the fact when amount received is in dispute same cannot be brought to tax.” 8. Perusal of the order (supra) passed by the Bench shows that argument addressed on ground No.2 has been duly recorded in para 8 of the order (supra) and findings have been returned in para 10 & 11 of the order (supra). It appears that under the garb of present miscellaneous MA No.455/M/2019 (Arising out of ITA No.3168/M/2016) M/s. Ravi Real Estate Developers Pvt. Ltd. 5 application assessee sought review of the order (supra) passed by the Bench which is not permissible under law. So without entering into the merits of the findings returned by the co-ordinate Bench of the Tribunal in order (supra) we fail to notice any mistake apparent on record so as to attract the provisions contained under section 254(2) read with rule 24 of the ITAT Rules. 9. Resultantly, miscellaneous application moved by the applicant- assessee is hereby dismissed. Order pronounced in the open court on 20.06.2023. Sd/- Sd/- (BASKARAN BR) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated: 20.06.2023. * Kishore, Sr. P.S. Copy to: The Appellant The Respondent The CIT, Concerned, Mumbai The DR Concerned Bench //True Copy// By Order Dy/Asstt. Registrar, ITAT, Mumbai.