Appeal details
Counselvise Citation
[2019] 117 COUNSELVISE.COM (IT) 5640 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
10 month(s) 5 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
14-05-2019
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
A
Assessment Year
2003-2004
Appeal Filed On
09-07-2018
Judgement Text
, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A , MUMBAI BEFORE SHRI C. N. PRASAD, JUDICIAL MEMBER, AND SHRI G. MANJUNATHA, ACCOUNTANT MEMBER M.A. NO.484/MUM/2018 (ARISING OUT OF ITA NOS.7539/MUM/2013) ASSESSMENT YEAR: 2003-04 M/S. ASIA INVESTMENTS PRIVATE LIMITED, 4 TH FLOOR, MAGNET HOUSE, N.M. MARG, BALLARD ESTATE, MUMBAI 400 038 / VS. ASSISTANT COMMISSIONER OF INCOME TAX, RANGE-2(1), AAYAKAR BHAVAN, CHURCHGATE, MUMBAI-400020 ( /ASSESSEE) ( / REVENUE) P.A. NO. AAACA4539K / DATE OF HEARING : 03/05/2019 / DATE OF ORDER: 14/05/2019 / O R D E R PER G. MANJUNATHA (ACCOUNTANT MEMBER) THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATI ON U/S 254(2) OF THE INCOME TAX ACT, 1961 AND REQUESTED TO RECALL ORDER PASSED BY THE ITAT, MUMBAI A BENCH IN ITA NOS.7539/MUM/2013 DATED 23/02/2018 FOR AYS 2003 -04. 2. THE ASSESSEE HAS NARRATED FACTS AND MISTAKES ST ATED TO BE APPARENT FROM THE ORDER OF THE ITAT, MUMBAI, DATED 23/02/201 8 IN ITA NO.7539/MUM/2013. THE / ASSESSEE BY SHRI H.P. MAHAJANI / REVENUE BY SHRI CHAITANYA ANJARIA 2 MA NO.484/MUM/2018 RELEVANT CONTENTS OF THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE FOR AY 2003- 04 ARE REPRODUCED HEREUNDER:- ITA NO7539/M/2013 (APPELLANT'S APPEAL IN RESPECT O F QUANTUM PROCEEDING), & 62/M/2014 (DEPARTMENT'S APPEAL IN RE SPECT OF QUANTUM PROCEEDING), 1) THE CAPTIONED APPEALS BY THE APPLICANT-ASSESSEE AND DEPARTMENT WERE DISPOSED OFF BY THE HONORABLE TRIBUNAL, BY ITS COMBINED ORDER DATED 231D FEBRUARY 2018 AND THE SAID ORDER WAS REC EIVED BY US ON 17TH MAY 2018. 2) INASMUCH AS IN THE OPINION OF THE APPLICANT-ASS ESSEE THE SAID ORDER SUFFERS FROM CERTAIN MISTAKES THAT ARE APPARENT FRO M THE RECORD THE APPLICANT-ASSESSEE HEREBY PRAYS FOR RECTIFICATION T HEREOF. 3) THE APPELLANT BEING AGGRIEVED BY THE ORDER OF T HE COMMISSIONER OF INCOME TAX (APPEALS)-4 HAD FILED AN APPEAL WITH THE HONORABLE TRIBUNAL (ITA 7539/M/2013) RAISING THE FOLLOWING GROUNDS: 1. THE LEARNED CIT(A) ERRED IN NOT DIRECTING THE AS SESSING OFFICER TO ALLOW DEDUCTION IN RESPECT OF FINANCIAL CHARGES OF LNR 4,89,55, 754 ENTIRELY UNDER SECTION 36(1)(III) OR SECT/ON 37(L) OF THE ACT. 2. THE LEARNED C/T(A) ERRED IN DIRECTING THE ASSESS ING OFFICER TO ALLOW DEDUCTION UNDER SECTION 57(1/I) OF THE ACT BY MAKIN G PRO-RATA DISALLOWANCE OF FINANCIAL CHARGES INCURRED ON THE I NVESTMENTS IN EQUITY SHARES ON WHICH NO DIVIDENDS WERE RECEIVED BY THE A PPELLANT DURING THE ASSESSMENT YEAR UNDER CONSIDERATION. 4) THUS THE BASIC ISSUE BEFORE YOUR HONORS WAS THE ALLOWABILITY OF FINANCIAL CHARGES U/S 36(1)(III) OF THE ACT, THE BU SINESS OF APPELLANT BEING THE BUSINESS OF INVESTMENT IN SHARES OF GROUP COMPA NIES FOR ACQUIRING CONTROLLING INTEREST AND ALSO MANAGING, FINANCING A ND REHABILITATING THOSE COMPANIES. 5) THE CASE OF THE AO (AS SUMMARIZED BY THE CIT(A) IN PARA 5.3) OF HIS ORDER WAS THAT, HAVING REGARD TO THE STATUTORY AUDI T REPORT OF THE CHARTERED ACCOUNTANTS READ WITH THE MEMORANDUM OF A SSOCIATION AND THE ARTICLE OF ASSOCIATION OF THE APPELLANT COMPANY , THE APPELLANT COMPANY WAS NOT ENGAGED IN ANY BUSINESS ACTIVITY AN D THAT THE ONLY ACTIVITY CARRIED OUT BY THE APPELLANT COMPANY WAS I NVESTMENT IN SHARES OF ANAND GROUP COMPANIES. 6) YOUR HONORS HAVE DECIDED THIS ISSUE IN PARA 13 OF THE ORDER WHICH READS AS UNDER: 'HAVING HEARD BOTH THE SIDES AND CONSIDERED MATERIA LS AVAILABLE ON RECORD, WE DO NOT FIND ANY MERITS IN THE ARGUMENTS OF THE ASSESSEE FOR THE REASON THAT THE ACTIVITY CARRIED OUT BY THE ASS ESSEE I.E. INVESTMENT IN 3 MA NO.484/MUM/2018 SHARES OF ANAND GROUP OF COMPANIES FOR HOLDING CONT ROLLING INTEREST CANNOT BE CONSIDERED AS MAIN BUSINESS ACTIVITY OF T HE ASSESSEE IN THE NATURE OF TRADE OR COMMERCE. THE ASSESSEE ITSELF HA S ADMITTED THAT IT IS IN THE ACTIVITY OF INVESTMENT IN GROUP COMPANIES FO R ACQUIRING CONTROLLING INTEREST AND SUCH INVESTMENT HAS BEEN TREATED AS LO NG TERM INVESTMENT IN ITS FINANCIAL STATEMENTS. IT IS ALSO AN ADMITTED FACT THAT THE STATUTORY AUDITORS OF THE COMPANY HAVE REPORTED THAT THE COMP ANY IS NOT ENGAGED IN CARRYING ON ANY BUSINESS OR AS PART OF ITS BUSIN ESS ACTIVITY OF ACQUISITION OF SHARES EXCEPT MAKING LONG TERM INVES TMENTS. WE FURTHER NOTICED THAT THE MAIN OBJECT CLAUSE IN MEMORANDUM O F ASSOCIATION DOES NOT ENCOMPASS ANY OF THE ACTIVATES CARRIED ON BY TH E ASSESSEE AND EVEN THE OBJECTS INCIDENTAL OR ANCILLARY FOR THE AT TAINMENT MAIN OBJECTS DO NOT SPECIFICALLY ENCOMPASS THE ACTIVITY OF THE A CQUISITION OF SHARES FOR CONTROLLING INTEREST. THEREFORE, WE ARE OF THE CONS IDERED VIEW THAT THE AO AND THE LD. CIT(A) WERE RIGHT IN TREATING THE ACTIV ITY CARRIED OUT BY THE ASSESSEE AS INVESTMENT ACTIVITY AND ACCORDINGLY FIN ANCE CHARGES IS NOT DEDUCTIBLE UNDER SECTION 36(1)(III) OF THE INCOME T AX ACT, 1961.' 7) FROM THE ABOVE IT WILL BE SEEN THAT THE MAIN REA SON ADDUCED BY YOUR HONORS WHILE ARRIVING AT THIS CONCLUSION IS AS FOLL OWS: 'WE FURTHER NOTICED THAT THE MAIN OBJECT CLAUSE IN MEMORANDUM OF ASSOCIATION DOES NOT ENCOMPASS ANY OF THE ACTIVITIE S CARRIED ON BY THE ASSESSEE AND EVEN THE OBJECTS INCIDENTAL OR ANCILLA RY FOR THE ATTAINMENT MAIN OBJECT DO NOT SPECIFICALLY ENCOMPASS THE ACTIV ITY OF THE ACQUISITION OF SHARES OR CONTROLLING INTEREST. 8) THE LOGBOOK OF YOUR HONOURS WOULD SHOW THAT DURI NG THE APPELLATE PROCEEDINGS, THE ASSESSEE HAD RELIED ON THE DECISION OF THE THIRD MEMBER OF THE DELHI TRIBUNAL IN THE CASE OF POYSHA OXYGEN (P) LTD. (ITA NO 3457 OF 2004) IN SUPPORT OF ITS CONTENTION THAT ACTIVITY CARRIED OUT BY ASSESSE E WHICH WAS BEYOND THE OBJECTS CLAUSE OF ITS MEMORANDUM OF ASSOCIATION CAN STILL AMOUNT TO BUSINESS WITHIN THE MEANING OF THE INCOME TAX ACT. IN PARTICULAR, YOUR HONORS ATTENTION WAS DRAWN TO THE RELEVANT PORTION ON PAGES 7 AND 8 OF THE SAID DECISION WHEREIN THE HONORABLE THIRD MEMBE R HAS RELIED UPON SEVERAL DECISIONS OF THE SUPREME COURT WHILE ARRIVI NG AT THIS CONCLUSION. 9) THE FIRST MISTAKE THAT IS THEREFORE APPARENT FROM T HE RECORD IS THAT YOUR HONORS HAVE NOT CONSIDERED AND THEREFORE NOT D ISTINGUISHED THIS DECISION OF THE THIRD MEMBER, THE VIEW TAKEN BY WHI CH ON THIS LEGAL ASPECT IS CONTRARY TO THE CONCLUSION ARRIVED AT BY YOUR HONORS. 10) IT IS RESPECTFULLY SUBMITTED THAT NON-CONSIDERATION OF A DECISION CITED DURING THE COURSE OF THE HEARING CON STITUTES A MISTAKE APPARENT FROM THE RECORD. 11) FURTHER, DURING THE COURSE OF THE HEARING ATTEN TION OF THE HON'BLE MEMBERS WAS ALSO DRAWN TO THE DECISION OF H ON'BLE MUMBAI TRIBUNAL IN CASE OF PISTABAI RIKHABCHAND KOTHARI (I TA NO 46491M12008). THE RELEVANT PORTION OF THE ORDER IS REPRODUCED BELOW 'WE FURTHER NOTED THAT IN CASE OF VODAFONE INTERNAT IONAL HOLDING B. V. THE HONBLE SUPREME COURT HAS OBSERVED AT PAGE NO 1 3 PARA (V) OF ITS 4 MA NO.484/MUM/2018 ORDER THAT CONTROLLING INTEREST FORMS AND INALIENAB LE PART OF THE SHARE ITSELF AND CANNOT BE TRADED SEPARATELY UNLESS OTHER WISE PROVIDED BY THE STATUTE. CONTROL IS AN INTEREST ARISING FROM HOLDIN G A PARTICULAR NUMBER OF SHARES AND CANNOT BE SEPARATELY ACQUIRED OR TRANSFE RRED. CONTROLLING INTEREST IS NOT AN IDENTIFIABLE OR DISTINCT CAPITAL ASSET INDEPENDENT OF HOLDING OF SHARES.' IT IS RESPECTFULLY SUBMITTED THAT NON-CONSIDERATION OF THE DECISION OF THE MUMBAI TRIBUNAL IN THE CASE OF PISTABAI RIKHABCHAND KOTHARI (ITA NO 4649/M/2008) AND BY IMPLICATION NON-CONSIDERATION O F THE DECISION OF THE SUPREME COURT IN THE CASE OF VODAFONE INTERNATIONAL HOLDING BV REFERRED TO THEREIN, CONSTITUTES A MISTAKE APPARENT FROM THE RECORD. 12) FURTHER, TO SHOW COMPLIANCE WITH THE RATIO OF T HE SAID DECISION OF THE SUPREME COURT - THAT CONTROLLING INTEREST FO RMS AND INALIENABLE PART OF THE SHARE ITSELF AND CANNOT BE TRADED SEPAR ATELY UNLESS OTHERWISE PROVIDED BY THE STATUTE. CONTROL IS AN INTEREST ARI SING FROM HOLDING A PARTICULAR NUMBER OF SHARES AND CANNOT BE SEPARATEL Y ACQUIRED OR TRANSFERRED. CONTROLLING INTEREST IS NOT AN IDENTIF IABLE OR DISTINCT CAPITAL ASSET INDEPENDENT OF HOLDING OF SHARES- DURING THE COURSE OF THE HEARING YOUR HONORS ATTENTION WAS DRAWN TO THE SCHEDULE OF INVESTMENTS SCHEDULE F ON PAGES 16 TO 18 OF THE PAPER BOOKS S HOWING THE SUBSTANTIAL NUMBER OF SHARES HELD BY THE APPELLANT BY WAY OF TRADE INVESTMENTS PARTICULARLY IN QUOTED SHARES OF GABRIE L INDIA LIMITED, PERFECT CIRCLE INDIA LIMITED AND VICTOR GASKET INDI A LIMITED; SUBSTANTIAL SHAREHOLDING IN UNQUOTED SHARES AND SUBSTANTIAL SHA REHOLDING IN SUBSIDIARY COMPANIES (PAGE 18 OF THE PAPERBOOK). 13) FURTHER DURING THE COURSE OF THE HEARING A CHAR T SHOWING INVESTMENTS MADE IN THE GROUP COMPANIES ALONG WITH PERCENTAGE OF HOLDING IN THE SHARES OF THE GROUP COMPANIES WAS AL SO SUBMITTED IN SUPPORT OF THE RATIO OF THE DECISION OF THE SUPREME COURT IN THE CASE OF VODAFONE WAS ALSO CITED. 14) THE MISTAKE THAT IS APPARENT FROM THE RECORD IS THA T THERE IS NO REFERENCE IN THE ORDER TO THESE SUBSTANTIAL INVE STMENTS, WHICH PER THE DECISIONS CITED ABOVE, ARE THE SOURCE OF THE CONTRO LLING INTEREST WHICH THE APPELLANT CLAIMED IT HAD IN ALL THESE COMPANIES. 15) WITHOUT REFERENCE TO THESE FACTS THE APPLICABILITY OF TWO DECISIONS CITED ABOVE REMAINED UNTESTED, WHICH ALSO CONSTITUTES A MISTAKE APPARENT FROM THE RECORD. 16) FURTHER DURING THE COURSE OF THE HEARING YOUR H ONOR'S ATTENTION WAS ALSO DRAWN TO THE DECISION OF THE MUM BAI ITAT IN THE CASE OF TATA INDUSTRIES LTD AND COPIES OF EXTRACTS FROM THE SAID DECISION WERE ALSO FURNISHED. 17) IN PARTICULAR ATTENTION WAS INVITED TO PARA 12 THEREOF IN WHICH THE DECISION OF THE JURISDICTIONAL HIGH COURT IN TH E CASE OF PHIL CORPORATION LIMITED HAS BEEN APPLIED, WHERE IN IT W AS HELD THAT, WHERE, INVESTMENT IN SHARES OF SISTER/SUBSIDIARY COMPANY I S MADE TO HAVE CONTROL OVER THAT COMPANY AND FURTHER THAT SUCH AN INVESTMENT WAS ACCORDINGLY PART OF THE BUSINESS OF THE ASSESSEE, T HE ASSESSEE WAS ENTITLED TO DEDUCTION OF INTEREST U/S 36(1)(III). 5 MA NO.484/MUM/2018 18) THE MISTAKE THAT IS APPARENT FROM THE RECORD IS THA T THE RATIO OF THE JURISDICTIONAL HIGH COURT IN THE CASE PHIL C ORPORATION (SUPRA) AND OF THE MUMBAL ITAT IN THE CASE OF TATA INDUSTRIES ( SUPRA) HAS NOT BEEN APPLIED AND WHICH SQUARELY APPLIES TO THE FACTS OF THE CASE AS DEMONSTRATED BEFORE YOUR HONORS. 19) THE OTHER MISTAKE THAT IS APPARENT FROM THE RECORD IS THAT THE HONORABLE TRIBUNAL INADVERTENTLY OVERLOOKED THE FAC T THAT THE ASSESSEE HAD FILED ITS RETURN DECLARING INCOME UNDER THE HEA D 'PROFITS AND GAINS OF BUSINESS' (PAGE 25 OF THE PAPER - COMPUTATION OF IN COME); FORM OF THE RETURN OF INCOME (FORM NO. 1) (SUBMITTED DURING THE COURSE OF THE HEARING) AND IN PARTICULAR ITEM 15 ON PAGE 1 OF THE RETURN AND ITEM 15 OF SCHEDULE H GENERAL INFORMATION OF THE RETURN. YOUR HONORS HAVE ALSO INADVERTENTLY OVERLOOKED THE FACT THAT THE AO HAS A SSESSED THE ASSESSEE UNDER THE SAME HEAD OF INCOME. 20) IN THE LIGHT OF THE MISTAKES APPARENT FROM THE RECORD AS POINTED OUT AT PARAS 9,10,11,14,15,18 AND19 HEREIN ABOVE (AND M ARKED IN BOLD FOR THE SAKE OF READY REFERENCE), THE ORDER OF THE HONO RABLE TRIBUNAL IN SO FAR AS ITS CONCLUSION IN PARA 13 OF THE ORDER ARE C ONCERNED, NEEDS TO BE RECALLED FOR FRESH ADJUDICATION AFTER TAKING INTO A CCOUNT THE MATERIAL AND DECISIONS REFERRED TO IN THE PRECEDING PARAS AND WH ICH HAVE A VITAL BEARING ON THE ISSUE BEFORE THE HONOR TRIBUNAL. IN THE ABOVE CIRCUMSTANCES, WE WOULD REQUEST YOUR H ONORS TO PLEASE CONSIDER THIS MISCELLANEOUS APPLICATION SYMPATHETIC ALLY AND PASS SUCH ORDER THEREON AS WOULD MEET THE ENDS OF JUSTICE AFT ER GIVING THE APPLICANT A REASONABLE OPPORTUNITY OF BEING HEARD I N THE MATTER. FOR THIS ACT OF KINDNESS WE SHALL EVER REMAIN GRATE FUL TO YOUR HONORS. 3. THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THERE ARE CERTAIN ERRORS IN THE ORDER OF THE TRIBUNAL IN AS MUCH AS, THE TRIBUNAL HAS REC ORDED ITS FINDING IN PARA 13 OF THE ORDER THAT THE ACTIVITIES CARRIED OUT BY THE ASSESS EE IS NOT IN NATURE OF BUSINESS AS PART OF ASSESSEES BUSINESS ACTIVITY OF ACQUISITION OF S HARES, CONSEQUENTLY, FINANCE CHARGES IS NOT DEDUCTIBLE U/S 36(1)(III) OF THE ACT. THE TR IBUNAL HAS RECORDED ITS FINDING ON THE BASIS OF FACTS BROUGHT OUT BY THE LOWER AUTHORITIES WITHOUT CONSIDERING CERTAIN JUDICIAL PRECEDENCE REFERRED TO BY THE LD. AR FOR THE ASSESS EE AT THE TIME OF HEARING, WHICH ARE FACTUALLY IDENTICAL TO THE CASE OF THE ASSESSEE WHERE COURTS SAID THAT INVESTMENT IN GROUP COMPANIES FOR ACQUIRING CONTROLLING INTEREST IS IN THE NATURE OF BUSINESS ACTIVITY. 6 MA NO.484/MUM/2018 THE LD. AR FURTHER SUBMITTED THAT THE ASSESSEE HAS RELIED UPON THE DECISION OF ITAT, MUMBAI, BENCH IN THE CASE OF TATA INDUSTRIES LTD., WHERE THE TRIBUNAL AFTER CONSIDERING THE RATIO OF HONBLE BOMBAY HIGH COURT IN THE CASE OF PHILL CORPORATION LTD. (2011) 202 TAXMAN 0368 (BOM.) HELD THAT WHERE INVESTMENT IN SHARES OF SISTER/SUBSIDIARY COMPANY IS MADE TO HAVE CONTROL OVER THAT COMPANY AND FURTHER THAT SUCH INVESTMENT WAS ACCORDINGLY PART OF BUSINESS OF THE ASSESSEE, ASSESSEE WAS ENTITLED TO DEDUCTION U/S 36(1)(III) OF THE ACT. TH E ASSESSEE HAS ALSO RELIED UPON THE DECISION OF ITAT, DELHI & MUMBAI, IN THE CASE OF PO YSHA OXYGEN (P) LTD. (ITA NO.3457/DEL./2004) (DEL. TRIB. (TM)) AND PISTABAI R IKHABCHAND KOTHARI (ITA NO.4649/MUM/2008)(BOM. TRIB.) WHERE SIMILAR ISSUE H AS BEEN DECIDED. ALTHOUGH, ALL THE ABOVE DECISION WERE REFERRED AT THE TIME OF HEA RING, THE TRIBUNAL HAS FAILED TO CONSIDER THE RATIO OF THE ABOVE JUDGMENTS BEFORE AR RIVE AT A CONCLUSION, THEREFORE, THE SAID OBSERVATION OF THE TRIBUNAL CONSTITUTES MISTAK E APPARENT ON RECORD WHICH COULD BE RECTIFIED U/S 254(2) OF THE ACT. IN THIS REGARD, HE RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF HONDA SEIL POWER PROJE CTS LTD. VS CIT (2007) 295 ITR 0466 (SC). 4. THE LD. DR, ON THE OTHER HAND, SUBMITTED THAT TH E ASSESSEE HAS FAILED TO MAKE OUT A CASE OF MISTAKES APPARENT ON RECORD IN THE OR DER OF THE TRIBUNAL AND WHAT THE ASSESSEES COUNSEL SEEKS IS REVIEW THE JUDGMENT OF THE TRIBUNAL, WHICH IS NOT PERMISSIBLE U/S 254(2) OF THE ACT. THEREFORE, THE M ISCELLANEOUS APPLICATION FILED BY THE ASSESSEE MAY BE DISMISSED. 7 MA NO.484/MUM/2018 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ALONG WITH ORDER OF THE TRIBU NAL IN ITA NO.7539/MUM/2013, DATED 23/02/2018, FOR AYS 2003-04. WE FIND THAT THE TRIBUNAL HAS DISCUSSED THE ISSUE THREADBARE IN LIGHT OF FACTS BROUGHT OUT BY THE LOW ER AUTHORITIES AND EVIDENCES FILED BY THE ASSESSEE IN PARA 10 TO 14 OF THE ORDER ON PAGES 7 TO 10, WHERE IT WAS HELD THAT THE ACTIVITY OF INVESTMENT IN GROUP COMPANY FOR ACQUIRI NG CONTROLLING INTEREST WHEN SUCH INVESTMENT HAS BEEN TREATED AS LONG TERM INVESTMENT IN THE FINANCIAL STATEMENT CANNOT BE CONSIDERED AS MAIN BUSINESS ACTIVITY OF THE ASSE SSEE, CONSEQUENTLY, THE ASSESSEE IS NOT LIABLE FOR DEDUCTION TOWARDS FINANCE CHARGES U/S 36(1)(III) OF THE ACT. WE FURTHER NOTED THAT THE TRIBUNAL HAS RECORDED ITS FINDING ON THE BASIS OF FACTS BROUGHT OUT BY THE PARTIES DURING THE COURSE OF HEARING. NO DOUBT, THE DECISION RELIED UPON BY THE LD. AR FOR THE ASSESSEE IN THE CASE OF PISTABAI RIKHABCHA ND KOTHARI (SUPRA) HAS NOT BEEN DISCUSSED IN THE ORDER OF THE TRIBUNAL, BUT FACT RE MAINS THAT WHETHER IT IS NECESSARY TO DISCUSS THE CASE LAWS REFERRED TO BY THE PARTIES IS DEPEND UPON THE FACTS OF EACH CASE. IF THE COURT /TRIBUNAL FINDS THAT THE FACTS OF THE PRESENT CASES IS DIFFERENT FROM THE CASE LAWS RELIED UPON BY THE PARTIES, THEN IT IS NOT NEC ESSARY FOR COURT/TRIBUNAL TO DISCUSS THE SAID CASE IN THE ORDER AS LONG THE LARGER RATIO RENDERED BY THE COURTS IS NOT IN CONFORMITY WITH THE FACTS OF THE PRESENT CASE. THE RATIO RENDERED BY ANY COURTS/TRIBUNAL IS NOT UNIVERSAL AND SUCH RATION IS SOLELY DEPENDS UPON FACTS OF EACH CASE. THE RATIO OR OBSERVATIONS OF THE COURT CANNOT BE PICKED TO SUIT THE PARTICULAR FACTS OF THE PRESENT CASE, UNLESS THE FACTS BROUGHT OUT IN THOSE CASES ARE IDENTICAL TO THE FACTS BROUGHT OUT BY THE LOWER AUTHORITIES IN T HE CASE ON HAND. IN THOSE CASES, WE 8 MA NO.484/MUM/2018 FIND THAT THE CASE RELIED UPON BY THE LD. AR FOR TH E ASSESSEE IS ALL TOGETHER DIFFERENT WHICH CANNOT BE APPLIED TO THE FACTS OF THE PRESENT CASE AND HENCE, THE TRIBUNAL HAS TAKEN CONSCIOUS DECISION NOT TO DISCUSS THE CASE LA WS REFERRED BY THE ASSESSEE IN ITS ORDER. THEREFORE, WE ARE OF THE CONSIDERED VIEW THA T THERE IS NO MERIT IN THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IN LIGHT OF DECISION OF HONBLE SUPREME COURT IN HONDA SIEL POWER PRODUCTS LTD. VS CIT (SUPRA), HENCE, WE ARE OF THE CONSIDERED VIEW THAT ASSESSEE HAS FAILED TO MAK E OUT A CASE OF MISTAKES APPARENT ON RECORD IN THE ORDER OF THE TRIBUNAL WHICH CAN BE RECTIFIED U/S 254(2) OF THE ACT. HENCE, MISCELLANEOUS APPLICATION FILED BY THE ASSES SEE IS DISMISSED. 6. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14/05/2019. SD/- SD/- ( C.N. PRASAD ) (G. MANJUNATHA) ! ' /JUDICIAL MEMBER # ' / ACCOUNTANT MEMBER MUMBAI; DATED : 14/05/2019 F{X~{T? F{X~{T? F{X~{T? F{X~{T? P.S P.S P.S P.S / /. /./. /. !.. %!&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ! / THE APPELLANT (RESPECTIVE ASSESSEE) 2. '#$ ! / THE RESPONDENT. 3. %$ %$ & ( ) / THE CIT, MUMBAI. 4. %$ %$ & / CIT(A)- , MUMBAI, 5. ()* $ ' + , %$ $ +- , / DR, ITAT, MUMBAI 6. *. / / GUARD FILE. / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI
