SUNRISE INDUSTRIAL TRADERS LTD, MUMBAI V. ACIT CIR 2(3), MUMBAI

MA 581/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6502 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-07-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 04-11-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIJAYKUMAR G SUBRAMANIAM
• Assessee Lawyers: JAYESH DESAI
• Section: 254(2)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E, MUMBAI , , ' # BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER ... 581 //20 19 .... 1621 //201 3 (. .2009-10 ) M.A. NO.581/MUM/2021 IN ITA NO. 1621/MUM/2013 (A.Y. 2009-10) SUNRISE INDUSTRIAL TRADERS LTD. 503, COMMERCE HOUSE, 140, NAGINDAS MASTER ROAD, FORT, MUMBAI-400023. PAN: AAACS8256R ...... -./ APPLICANT VS. ACIT, CIRCLE-2(3), MUMBAI. . .... -0/ RESPONDENT -. 1/ APPLICANT BY : SHRI JAYESH DESAI -0 1/ RESPONDENT BY : SH. VIJAYKUMAR G. SUBRAM ANIAM 2 / DATE OF HEARING : 09/07/2021 2 / DATE OF PRONOUNCEMENT : 23/07/2021 / ORDER PER VIKAS AWASTHY, J.M: THIS MISCELLANEOUS APPLICATION (MA) SEEKING RECTIFI CATION IN THE ORDER OF TRIBUNAL DATED 19.03.2018 PASSED IN ITA NO. 1621/MU M/2013 HAS BEEN FILED BY ASSESSEE-APPLICANT/APPELLANT. 2. SHRI JAYESH DESAI APPEARING ON BEHALF OF ASSESSE E SUBMITTED THAT THE TRIBUNAL WHILE ADJUDICATING GROUND NO.3 OF THE APPE AL IN RESPECT OF ASSESSEES CLAIM OF SET OFF OF LONG TERM CAPITAL LOSS (LTCL) A GAINST LONG TERM CAPITAL GAIN (LTCG) HAS ERRED IN PLACING RELIANCE ON THE DECISIO N OF KOLKATA BENCH IN THE 2 ... 581 //20 19 ( . .2009-10 ) M.A. NO.NO.581/MUM/2019 (A.Y.2009-10) CASE OF ITO V/S LGW LTD. [83 TAXMANN.COM 68]. THE L D. AUTHORIZED REPRESENTATIVE (AR) SUBMITTED THAT THE ASSESSEE HAD PLACED RELIANCE ON THE DECISION OF CO-ORDINATE BENCH OF TRIBUNAL IN THE CA SE OF RAPTAKOS BRETT & CO. V/S DCIT IN ITA NO. 3317/MUM/2019 DECIDED ON 10.06. 2015. THE DECISION IN THE CASE OF ITO VS. LGW LTD. (SUPRA) WAS NEVER CITE D DURING THE COURSE OF HEARING OF THE APPEAL. THE LD. AR SUBMITTED THAT TH E CASE OF THE ASSESSEE IS SQUARELY COVERED BY THE DECISION RENDERED IN THE CA SE OF RAPTAKOS BRETT & CO. (SUPRA) 3. PER CONTRA, SHRI VIJAYKUMAR G. SUBRAMANIAM REPRE SENTING THE DEPARTMENT VEHEMENTLY DEFENDED THE ORDER OF TRIBUNA L DATED 19.03.2018. THE LD. DR PRAYED FOR DISMISSING THE M.A. FILED BY ASSE SSEE. 3. BOTH SIDES HEARD. THE ASSESSEE HAS FILED THIS MI SCELLANEOUS APPLICATION SEEKING RECTIFICATION/RECALLING OF THE TRIBUNAL ORD ER DATED 19.03.2018, ON THE GROUND THAT THE TRIBUNAL HAS ERRED IN DISMISSING GR OUND NO.3 OF APPEAL OF THE ASSESSEE BY PLACING RELIANCE ON THE DECISION RENDER ED IN THE CASE OF LGW LTD. (SUPRA). THE CONTENTION OF THE ASSESSEE IS THAT THE SAID DECISION WAS NEVER CITED BEFORE THE BENCH, YET THE BENCH DISMISSED GRO UND NO.3 OF APPEAL BY PLACING RELIANCE ON THE AFORESAID DECISION. 4. WE OBSERVE THAT THE TRIBUNAL IN ORDER DATED 19.0 3.2018, PARA-3 HAS CATEGORICALLY STATED THAT THE DR HAS PLACED RELIANC E ON THE DECISION OF TRIBUNAL IN THE CASE OF LGW LTD. (SUPRA). FOR READY REFERENC E, THE RELEVANT EXTRACT OF PARA-3 FROM TRIBUNAL ORDER SOUGHT TO BE RECTIFIED I S REPRODUCED HERE IN BELOW: ................ON THE OTHER HAND, THE LEARNED D. R. CONTENDED THAT THE ISSUE IN HAND IS COVERED AGAINST THE ASSESSEE BY THE LATE R DECISION OF THE 3 ... 581 //20 19 ( . .2009-10 ) M.A. NO.NO.581/MUM/2019 (A.Y.2009-10) TRIBUNAL IN THE CASE OF INCOME TAX OFFICER V/S LGW LTD. (2017) 83 TAXMANN.COM 68 (KOL.) (TRIB.) ORDER DATED 07.10.201 5. THE ASSESSEE HAS MERELY MADE BALD ASSERTIONS IN THE M.A. REGARDING NON- CITATION OF THE DECISION OF LGW LTD. (SUPRA). THE M ISCELLANEOUS APPLICATION IS NEITHER SUPPORTED BY AN AFFIDAVIT OF THE ASSESSEE N OR THE AR OF THE ASSESSEE WHO HAD APPEARED BEFORE THE TRIBUNAL TO REPRESENT T HE ASSESSEE AT THE TIME OF HEARING OF THE APPEAL. IT IS RELEVANT TO MENTION HE RE THAT THE ASSESSEE WAS REPRESENTED BY SHRI C.J. AHUJA, CHARTERED ACCOUNTAN T IN THE APPEAL. THE PRESENT AR OF THE ASSESSEE WAS NOT PRIVY TO THE PRO CEEDINGS ON THE DATE OF HEARING OF APPEAL I.E. 16.03.2018. THEREFORE, ARGUM ENT RAISED BY HIM THAT THE DECISION WAS NOT CITED BY EITHER OF THE PARTIES IS WITHOUT ANY BASIS, HENCE, CANNOT BE ACCEPTED. THE FACTS/PROCEEDINGS RECORDED BY THE TRIBUNAL IN THE ORDER CANNOT BE AMENDED ON UNSUBSTANTIATED AVERMENT S. UNLESS PROVED TO THE CONTRARY FACTS RECORDED IN THE ORDER ARE DEEMED TO BE CORRECT. 5. BE THAT AS IT MAY, THE TRIBUNAL WHILE DECIDING T HE ISSUE HAS CONSIDERED THE DECISION CITED BY AR OF THE ASSESSEE IN THE CAS E OF RAPTAKOS BRETT & CO. (SUPRA). AFTER HAVING CONSIDERED BOTH THE DECISION, THE CO-ORDINATE BENCH OF THE TRIBUNAL PREFERRED TO FOLLOW THE DECISION RENDE RED IN THE CASE OF LGW LTD. (SUPRA). IT WOULD BE IMPERATIVE TO REFER TO THE CON CLUDING PARA OF THE ORDER WHERE REASONING IS GIVEN BY THE CO-ORDINATE BENCH F OR PLACING RELIANCE ON THE DECISION OF LGW LTD. (SUPRA). THE RELEVANT EXTRACT OF THE TRIBUNAL ORDER READS AS UNDER: WE NOTE THAT, THOUGH, BOTH THE DECISIONS ARE CON TRARY TO EACH OTHER AND CARRY EQUAL WEIGHT, HOWEVER, THE KOLKATA BENCH OF THE TRIBUNAL HAS FOLLOWED THE DECISION OF THE HONBLE APEX COURT REN DERED IN CIT V/S HARPRASAD & CO. PVT. LTD. (1975) 99 ITR 118 (SC). M OREOVER, THE DECISION 4 ... 581 //20 19 ( . .2009-10 ) M.A. NO.NO.581/MUM/2019 (A.Y.2009-10) OF THE TRIBUNAL, KOLKATA BENCH, IS OF A LATER DATE. THE HONBLE APEX COURT HELD THAT THE MANNER OF COMPUTATION LAID DOWN IN TH E ACT WHICH FORMS AN INTEGRAL PART OF THE DEFINITION OF TOTAL INCOM E WAS NOT SATISFIED. THE LAW LAID DOWN BY THE HONBLE SUPREME COURT CLEA RLY SUPPORTS THE STAND OF THE REVENUE. RESPECTFULLY FOLLOWING THE LA TER DECISION OF THE TRIBUNAL WHEREIN THE DECISION FROM THE HONBLE APEX COURT WAS RELIED UPON, WE DISMISS THE GROUND RAISED BY THE ASSESSEE . 6. AFTER CAREFUL EXAMINATION OF ASSESSEES MISCELLA NEOUS APPLICATION, WE ARE OF CONSIDERED VIEW THAT THE ASSESSEE HAS FAILED TO SHOW ANY MISTAKE OR ERROR IN THE ORDER OF TRIBUNAL DATED 19.03.2018 MUC H LESS ANY MISTAKE APPARENT FROM RECORD. THE ASSESSEE IS SEEKING REVIE W OF THE TRIBUNAL ORDER IN THE GARB OF RECTIFICATION. IT IS A WELL SETTLED LAW THAT THE TRIBUNAL HAS NO JURISDICTION TO REVIEW ITS ORDERS. THE PROVISIONS O F SECTION 254(2) OF THE INCOME TAX ACT, 1961 HAS LIMITED SCOPE AND IS OPERATIVE ON LY FOR RECTIFICATION OF THE MISTAKE APPARENT FROM RECORDS . AS WE HAVE OBSERVED EARLIER, THE ASSESSEE HAS FAILED TO POINT OUT ANY APPARENT MISTAKE IN THE TRI BUNAL ORDER DATED 19.03.2018, THEREFORE, THE MISCELLANEOUS APPLICATIO N FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON FRIDAY , THE 23 RD DAY OF JULY, 2021. SD/- SD/- (SHAMIM YAHYA) (VIKAS AWASTHY) /ACCOUNTANT MEMBER ' / JUDICIAL MEMBER / MUMBAI, 6/ DATED: 23/07/2021 SK, PS - 7 - 7 - 7 - 7 COPY OF THE ORDER FORWARDED TO : 1. 8 / THE APPELLANT , 2. -0 / THE RESPONDENT. 3. 9 ( )/ THE CIT(A)- 5 ... 581 //20 19 (. .2009-10 ) M.A. NO.NO.581/MUM/2019 (A.Y.2009-10) 4. 9 CIT 5. - , . . . , / DR, ITAT, MUMBAI 6. . / GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT. REGISTRAR) ITAT, MUMBAI