BOMBAY STOCK EXCHANGE LTD, MUMBAI V. DCIT 2(1) ( 1) , MUMBAI

MA 588/MUM/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3984 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-06-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 13-11-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Principle of natural justice; Rule 8D
• Section: 14A; 260A; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL "B" BENCH, MUMBAI SHRI OM PRAKASH KANT, ACCOUNTANT MEMBER SHRI RAHUL CHAUDHARY, JUDICIAL MEMBER MA No. 588/MUM/2019 (Arising out of ITA No. 152/Mum/2016) (Assessment Year: 2010-11) M/s Bombay Stock Exchange Limited, 25 th Floor, Phiroze Jeejeebhoy Towers, Dalal Street, Fort, Mumbai - 400001 [PAN: AACCB6672L] Deputy Commissioner of Income Tax, 2(1)(1), Mumbai, Room No. 561, 5 th Floor, Aayakar Bhavan, M.K. Road, Mumbai - 400020 .................. Vs .................. Appellant Respondent Appearances For the Applicant/Assessee For the Respondent/ Department : : Shri Niraj Seth Shri C T Mathew Date of conclusion of hearing Date of pronouncement of order : : 11.03.2022 10.06.2022 O R D E R Per Rahul Chaudhary, Judicial Member: 1. The present Miscellaneous Application for rectification of order, dated 31.05.2019, passed in ITA No. 152/Mum/2016 for the Assessment Year 2010-11 has been filed by the Appellant/Applicant. 2. The Ld. Authorised Representative for the Applicant appearing before us submitted that when the appeal was heard it was submitted on behalf of the Applicant that the Assessing Officer MA No. 588/Mum/2019 Assessment Year: 2010-11 2 had not recorded dissatisfaction in the assessment order as regards the correctness of disallowance offered by the Applicant under Section 14A in the return of income. It was also pointed out that in appeals for the Assessment Years 2007-08 to 2009- 10 and 2013-14 the Tribunal had, in the case of Applicant, held that in absence of dissatisfaction recorded by the Assessing Officer invocation of Rule 8D of the Income Tax Rules, 1962 (hereinafter referred to as ‘the Rules’) was invalid. The Ld. Departmental Representative did not dispute the aforementioned position. The Ld. Authorised Representative for the Applicant submitted that according to him the issue was concluded in favour of the Applicant. However, the Tribunal had in order dated 31.05.2019 sought to be rectified by way of present application, dismissed the appeal holding that the Applicant itself had submitted a suo motu without prejudice working of the disallowance before the Assessing Officer and therefore, the Assessing Officer had no occasion to record the satisfaction. The Hon'ble Bench has departed from the view taken in the earlier years by holding that in the peculiar facts of the case contention of the Applicant that the Assessing Officer had not recorded any satisfaction has no relevance. The Applicant was not given any opportunity to make any specific submissions on this issue. The Ld. Authorised Representative for the Applicant, therefore, submitted that this has resulted in violation of the principles of natural justice, thereby giving rise to a mistake apparent from the record. 3. When the Ld. Authorised Representative for the Applicant was asked to highlight the specific ground taken in the appeal relating to absence of dissatisfaction recorded by the Assessing Officer invocation of Rule 8D of the Rules, the Ld. Authorised MA No. 588/Mum/2019 Assessment Year: 2010-11 3 Representative for the Applicant referred to Ground No. 1 of the appeal and submitted that though specific ground has not been raised before the Tribunal, Ground No. 1 raised in the appeal covers the ground relating to satisfaction. He further submitted that though specific ground was raised before the Commissioner of Income Tax (Appeals) [hereinafter referred to as ‘the CIT(A)] , the same was not adjudicated upon. 4. On perusal of ground of appeal raised before CIT(A) and the Tribunal, it is clear that specific ground relating to dissatisfaction of Assessing Officer was raised before CIT(A) and not before the Tribunal. In our view, the Tribunal has adjudicated upon all the grounds raised by the Applicant. We have perused the order dated 31.05.2019 passed by the Tribunal and the material on record, including the order sheets. The same do not reflect that the Tribunal had concluded the issue in favour of the Applicant as has been canvassed by the Ld. Authorised Representative for the Applicant. The Tribunal has in paragraph 5 to 10 of the order dealt with the ground relating to disallowance under Section 14A of the Act read with Rule 8D of the Rules. In the paragraph No. 8 the Tribunal has recorded the submissions of the Ld. Authorised Representative for the Applicant that no satisfaction was recorded by the Assessing Officer while applying Rule 8D of the Rules. Thereafter, in paragraph 10 of the order, the Tribunal has by way of reasoned order rejected the aforesaid contention raised by the Applicant. We do not find any merit in the contention of the Ld. Authorised Representative for the Applicant that there was violation of principle of natural justice. The power available to the Tribunal under Section 254(2) of the Act is not in the nature of a review and is limited to correction of mistakes apparent from the record. It does not extend to MA No. 588/Mum/2019 Assessment Year: 2010-11 4 correcting the errors of law or re-appreciating the factual findings which would generally fall within the ambit of appellate review by the Hon’ble High Court under Section 260A of the Act. The Applicant has challenged the order, dated 31.05.2019, passed by the Tribunal before the Hon’ble High Court in appeal under section 260A of the Act. We are of the considered view that there is no mistake apparent on record and therefore, we reject the present application under Section 254 of the Act seeking rectification of order, dated 31.05.2019, passed by the Tribunal. 5. In result, the present application is dismissed. Order pronounced on 10.06.2022. Sd/- Sd/- (Om Prakash Kant) Accountant Member (Rahul Chaudhary) Judicial Member म ुंबई Mumbai; दिन ुंक Dated : 10.06.2022 Alindra, PS आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपील र्थी / The Applicant 2. प्रत्यर्थी / The Respondent. 3. आयकर आय क्त(अपील) / The CIT(A)- 4. आयकर आय क्त / CIT 5. दिभ गीय प्रदिदनदि, आयकर अपीलीय अदिकरण, म ुंबई / DR, ITAT, Mumbai 6. ग र्ड फ ईल / Guard file. आिेश न स र/ BY ORDER, सत्य दपि प्रदि //True Copy// उप/सह यक पुंजीक र /(Dy./Asstt. Registrar) आयकर अपीलीय अदिकरण, म ुंबई / ITAT, Mumbai