Appeal Details
Counselvise Citation
[2016] 124 COUNSELVISE.COM (IT) 4572 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
4 month(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
24-06-2016
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
C
Assessment Year
2009-2010
Appeal Filed On
23-02-2016
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL,MUMBAI BENCH C, MUMBAI BEFORE SHRI R.C.SHARMA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER M.A. NO.48 /M/2016 IN ITA NO.1050/M/2013 ASSESSMENT YEAR: 2009-10 OBEROI REALITY LTD. (FORMERLY KNOWN AS KINGSTON PROPERTY PVT. LTD.) 3 RD FLOOR, COMMERZ, INTERNATIONAL BUSINESS PARK, OBEROI GARDEN CITY, OFF WESTERN EXPRESS HIGHWAY, GOREGAON (EAST),MUMBAI-400063. PAN: AAACO1805E VS. DCIT CENTRAL CIRCLE- 4(1), ROOM NO. 1916, AIR INDIA BUILDING, NARIMAN POINT, MUMBAI-400021. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI R. MURALIDHAR (AR) REVENUE BY : SMT. VINITA MENON (DR) DATE OF HEARING : 17.06.2016 DATE OF PRONOUNCEMENT : 24.06.2016 O R D E R PER PAWAN SINGH, JM: 1. THE PRESENT MISCELLANEOUS APPLICATION (MA) FILED BY THE ASSESSEE FOR RECTIFICATION OF ORDER DATED 04.11.2015. IN THE APP LICATION, THE ASSESSEE HAS PLEADED THAT PARA 13 OF PAGE 7 IS FACTUALLY ERRONEO US AND NEEDS TO BE RECTIFIED. IN THE APPLICATION THE ASSESSEE PLEADED THAT THE ORDER HAS BEEN PASSED BY THE BENCH ON THE GROUND THAT AR FOR ASSESSEE HAS NOT BROUGHT ANY MATERIAL BEFORE THE BENCH AS TO WHY DISALLOWANCE MADE UNDER SECTION 14 A READ WITH RULE 8D IS WRONG. IT IS FURTHER PLEADED IN THE APPLICATION THA T DURING THE COURSE OF HEARING AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE MADE THE SUBMISSION THAT ASSESSEE DOES NOT REQUIRE ANY SUBSTANTIAL MANPOWER OR COST TO MAKE INVESTMENT AND FOR EARNING SUCH INCOME. AS FAR AS INDIRECT E XPENSES RELATED TO THE EXEMPT INCOME IT WAS NEGLIGIBLE I.E. NOT EXCEEDING RS. 10, 000/-IN FULL YEAR. BROKER AND MUTUAL FUNDS HOUSING ARE SENDING THEIR MARKETING RE PRESENTATIVE FOR FILING OF THE 2 M.A. NO. 48/M/2016 OBEROI REALITY LTD FORMS. FURTHER THE ENCASEMENT IS ALSO CREDITED ELEC TRONICALLY. THE ASSESSEE DOESNT INCUR ANY EXPENDITURE FOR THE DEPOSIT OF DI VIDEND ETC. IT IS FURTHER PLEADED THAT THE DECISION CITED BY THE REPRESENTATIVE OF AS SESSEE WAS NOT CONSIDERED WHILE PASSING THE ORDER IN THE PRESENT MATTER. 2. WE HAVE HEARD LD AR FOR ASSESSEE AND LD DR FOR REVE NUE AND PERUSED THE CONTENTS OF THE ORDER AND THE MATERIAL AVAILABLE ON RECORD. AR OF ASSESSEE ARGUED THAT DURING THE COURSE OF HEARING, HE REFERRED A NU MBER OF DECISIONS WHICH IS NOT REFERRED WHILE PASSING THE ORDER DATED 4..11.2015. LD. AR OF THE ASSESSEE FURTHER ARGUED THAT HE HAD SUBMITTED ANALYSIS OF DISALLOWAN CE WORKED OUT U/S. 14A AS PER RULE 8D OF THE ACT. AND THE TOTAL DISALLOWANCE TO T HE TOTAL INDIRECT COST OF 73.12% OF THE TOTAL EXEMPT INCOME. AR FURTHER RELIE D UPON THE DECISION OF BOMBAY HIGH COURT AND THE JUDGMENT OF HONBLE APEX COURT IN DSP INVESTMENT PVT. LTD. VS. ACIT IN ITA NO. 2342/2013 DATED 08.03 .2016) AND HONDA SIEL POWER PRODUCTS LTD. VS. CIT IN CIVIL APPEAL NO. 541 2/2007 DATED 26.11.2007. LD AR FOR ASSESSEE ARGUED THAT THE ASSESSEE WOULD SUFFER PREJUDICE IF THE ORDER WITH REGARD TO THE FINDING OF DISALLOWANCE UNDER SE CTION 14A IS NOT RECTIFIED. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATIVE (DR ) FOR THE REVENUE SUPPORTED THE ORDER AND ARGUED THAT THERE IS NO APPARENT ERRO R ON THE FACE OF THE ORDER AND THE ORDER DOES NOT REQUIRE ANY FURTHER INTERFERENCE AT OUR END. 3. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE PART IES AND CONSIDERED VARIOUS CITATIONS REFERRED BY AR OF THE ASSESSEE. IN DSP I NVESTMENT PVT. LTD. (SUPRA), IT WAS HELD AS UNDER: IN FACT THE IMPUGNED ORDER OF THE TRIBUNAL IN PARA GRAPH 6 THEREOF DOES RECORD THE APPELLANTS RELIANCE UPON THE DECISION O F THE COURT OF ITS CO- ORDINATE BENCH IN J.K. INVESTORS (SUPRA). HOWEVER, THEREAFTER THE IMPUGNED ORDER DOES NOT DEAL WITH THE APPELLANTS RELIANCE U PON THE DECISION OF THE TRIBUNAL IN J.K. INVESTORS (SUPRA) WHILE DISMISSING THE APPELLANT-ASSESSEES APPEAL BEFORE IT. IN FACT THAT IMPUGNED ORDER OF TH E TRIBUNAL OUGHT TO HAVE DEALT WITH ITS DECISION IN J.K. INVESTORS (SUPRA) A ND CONSIDERED ITS APPLICABILITY TO THE PRESENT FACTS. FURTHER THE HONBLE APEX COURT IN HONDA SIEL POWER PRODUCTS LTD.(SUPRA) HELD AS UNDER: THE PURPOSE BEHIND ENACTMENT OF S. 254(2) IS BASED ON THE FUNDAMENTAL PRINCIPLE THAT NO PARTY APPEARING BEFORE THE TRIBUN AL, BE IT AN ASSESSEE OR THE DEPARTMENT, SHOULD SUFFER ON ACCOUNT OF ANY MIS TAKE COMMITTED BY THE TRIBUNAL. THIS FUNDAMENTAL PRINCIPLE HAS NOTHING TO DO WITH THE INHERENT POWERS OF THE TRIBUNAL. ONE OF THE IMPORTANT REASON S FOR GIVING THE POWER 3 M.A. NO. 48/M/2016 OBEROI REALITY LTD OF RECTIFICATION TO THE TRIBUNAL IS TO SEE THAT NO PREJUDICE IS CAUSED TO EITHER OF THE PARTIES APPEARING BEFORE IT BY ITS DECISION BASED ON A MISTAKE APPARENT FROM THE RECORD. 'RULE OF PRECEDENT' IS AN IMPORTANT ASPECT OF LEGAL CERTAINTY IN RULE OF LAW. THAT PRINCIPLE IS N OT OBLITERATED BY S. 254(2). WHEN PREJUDICE RESULTS FROM AN ORDER ATTRIBUTABLE T O THE TRIBUNAL'S MISTAKE, ERROR OR OMISSION, THEN IT IS THE DUTY OF THE TRIBUNAL TO SET IT RIGHT. ATONEMENT TO THE WRONGED PARTY BY THE COURT OR TRIB UNAL FOR THE WRONG COMMITTED BY IT HAS NOTHING TO DO WITH THE CONCEPT OF INHERENT POWER TO REVIEW. IN THE PRESENT CASE, THE TRIBUNAL WAS JUSTI FIED IN EXERCISING ITS POWERS UNDER S. 254(2) WHEN IT WAS POINTED OUT TO T HE TRIBUNAL THAT THE DECISION OF THE CO-ORDINATE BENCH WAS PLACED BEFORE THE TRIBUNAL WHEN THE ORIGINAL ORDER CAME TO BE PASSED BUT IT HAD COMMITT ED A MISTAKE IN NOT CONSIDERING THE MATERIAL WHICH WAS ALREADY ON RECOR D. THE TRIBUNAL HAS ACKNOWLEDGED ITS MISTAKE, IT HAS ACCORDINGLY RECTIF IED ITS ORDER. THE HIGH COURT WAS NOT JUSTIFIED IN INTERFERING WITH THE SAI D ORDER. FOR THE AFORESTATED REASONS, THE IMPUGNED JUDGMENT OF THE H IGH COURT IS SET ASIDE AND THE ORDER PASSED BY THE TRIBUNAL ALLOWING THE R ECTIFICATION APPLICATION FILED BY THE ASSESSEE IS RESTORED. CIT VS. HONDA SIEL POWER PRODUCTS LTD. (2006) 206 CTR (DEL) 328 SET ASIDE. THOUGH THE ORDER DATED 4 TH NOV 2015 WAS PASSED AFTER CONSIDERING THE SUBMISSI ON MADE DURING THE ARGUMENT, YET KEEPING IN VIEW THE P RINCIPLE OF NATURAL JUSTICE AND THE CONTENTION RAISED IN THE PRESENT APPLICATIO N BY THE ASSESSEE AND KEEPING IN VIEW THE FACTS OF THE PRESENT CASE, WE ARE INCLINED TO CALL THE FINDING WITH REGARD TO THE DISALLOWANCE OF SECTION 14A FROM THE ORDER D ATED 04.11.2015. THUS THE FINDINGS WITH REGARD TO SECTION 14 A IS REFERRED IN PARA 7 ORDER DATED 14 TH OF NOVEMBER 2015 ARE RECALLED. 4. WITH THESE OBSERVATIONS, M.A. IS DISPOSED OFF. SINC E THE ORDER IN PART IS RECALLED, HENCE, THE MATTER MAY BE LISTED FOR HEARING BY REGU LAR BENCH ONLY WITH REGARD TO THE GROUND U/S 14A OF THE ACT, RAISED IN THE APPEAL . 5. IN THE RESULT, M.A. FILED BY THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 24 TH JUNE, 2016. SD/- SD/- ( R.C.SHARMA ) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 24/06/2016 S.K.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 4 M.A. NO. 48/M/2016 OBEROI REALITY LTD / BY ORDER, / (ASSTT.REGISTRAR) , / ITAT, MUMBAI 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. !'# / GUARD FILE. $ //TRUE COPY/
