SHANAY JHAVERI , Mumbai V. ITO-IT-3(1)(1), Mumbai

MA 556/MUM/2023

• Counselvise Citation: [2023] 102 COUNSELVISE.COM (IT) 0018 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-11-2023
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 09-11-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 20-09-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 143(1); 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL Mumbai “SMC” Bench, Mumbai. Before Shri B.R. Baskaran (AM) & Shri Pavan Kumar Gadale (JM) M.A. No. 556/Mum/2023 in I.T.A. No. 429/Mum/2023 (A.Y. 2017-18) Shanay Jhaveri 6 th Floor, Nanavati Mahalaya, 18 Homi Modi Street Mumbai-400 001. PAN : AEMPJ5278H Vs. ITO-IT-(3)(1)(1) 1630,16 th Floor Air India Building, Nariman Point Mumbai- 400021. (Appellant) (Respondent) Assessee by Shri Fenil Bhatt Department by Shri Anil Sant Date of Hearing 10.11.2023 Date of Pronouncement 10.11.2023 O R D E R Per B.R.Baskaran (AM) :- The assessee has filed this Miscellaneous application submitting that the Tribunal did not adjudicate ground no.1 and 3 and hence the order needs to be recalled for adjudicating those grounds. 2. We heard the parties and perused the record. The grounds of appeal urged by the assessee in his appeal reads as under:- Ground No. 1. The Commissioner of Income Tax (Appeals)-56, Mumbai [hereinafter referred to as the CIT(A)] erred in disallowing claim of expenditure of Rs 20,16,642 incurred towards lease rental. The Appellants submit that disallowance of expenditure is bad in law. The Appellants therefore pray that the disallowance made by CIT(A) be deleted. Ground No 2; Without Prejudice, the CIT(A) erred in treating the expenditure incurred toward lease as not allowable on the ground that the invoices are in the 2 name of Shri Ratilal Manilal Nanavati and 3 others and Sarla Ratilal Nanavati & 2 others. The Appellant submits that he has inherited the lease rights in the said property from Shri Ratilal Manilal Nanavati and 3 others and Sarla Ratilal Nanavati & 2 others and therefore the payment of lease rental has a direct nexus with the earning of lease income, which is offered to tax by him. The Appellants therefore pray that the Assessing Officer be directed to allow the deduction. Ground No 3. Without Prejudice to the above, if the stand of CIT(A) that the Appellants is not owner of the leased property is accepted, then the Appellants pray that the Income offered by him from this property in computing his total income should be excluded. The Appellants prays that the AO be given suitable directions in this matter. 3. At the time of hearing of appeal, the assessee had argued on the merits of the case, i.e., on disallowance of expenditure of Rs.20,16,642/- claimed by the assessee against rental income. Accordingly, the Tribunal disposed of the appeal of the assessee, vide its order dated 19-05-2023, by remitting the issue to the file of AO for examining certain factual aspects. 4. The assessee has filed this miscellaneous application submitting that he had raised a legal issue in the ground no.1 and 3, extracted above, and they have not been disposed of by the Tribunal. According to Ld A.R, the legal ground is that the Ld CIT(A) does not have power to enquire into allowability of expenses while adjudicating the appeal filed against the intimation issued u/s 143(1) of the Act. 5. First of all, on verification of log book, we notice that the Ld A.R has not argued on the above said legal issue before the bench at the time of hearing of appeal. Secondly, on a careful perusal of ground no.1 and 3 extracted above, we do not find that the assessee has raised any such legal ground as contended in the miscellaneous application. 6. The powers given u/s 254(2) of the Act are to rectify the mistakes apparent from record. We notice that the assessee is trying to argue a legal point now in this miscellaneous application, which were never raised before 3 the tribunal and never argued also at the time of hearing of appeal, which is not permitted u/s 254(2) of the Act. Hence this miscellaneous application, in our view, is beyond the scope of provisions of sec.254(2) of the Act. Accordingly, we dismiss the same. 7. In the result, the miscellaneous application is dismissed. Order pronounced in on 10.11.2023. Sd/- Sd/- (Pavan Kumar Gadale) (B.R. Baskaran) Judicial Member Accountant Member Mumbai.; Dated : 10/11/2023 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// (Assistant Registrar) PS ITAT, Mumbai