KAMAT HOTEL (INDIA) LIMIED, MUMBAI V. ACIT 10(1)(2), MUMBAI

MA 601/MUM/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 2811 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-03-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Assessment Year: 2012-2013
• Appeal Filed On: 28-11-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V JUSTIN
• Keywords: Rectification of order; Revenue expenditure
• Section: 201; 254(2); 13

Judgement Text

T HE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA ( A M) & SHRI RAVISH SOOD (JM) M.A. NO. 601/MUM/2019 ARISING OUT OF I.T.A. NO. 2866/MUM/2018 (ASSESSMENT YEAR 2012 - 13) M.A. NO. 602/MUM/2019 ARISING OUT OF I.T.A. NO. 2867 /MU M/ 201 8 (ASSESSMENT YEAR 20 14 - 1 5 ) M/S. KAMAT HOTELS (INDIA) LIMITED 70 - C, NEHRU ROAD VILE PARLE (EAST) MUMBAI - 400 099. PAN : AAACK2912L V S . ACIT - 10(1)(2) ROOM NO. 209 AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY S HRI VIJAY SHAH DEPARTMENT BY SHRI V. JUSTIN DATE OF HEARING 06.03 . 20 20 DATE OF PRONOUNCEMENT 06 . 0 3 . 20 20 O R D E R PER SHAMIM YAHYA (AM) : - BY WAY OF THESE MISCELLANEOUS APPLICATIONS THE ASSESSEE SEEKS RECTIFICATION OF MISTAKE APPARENT FROM RE CORD UNDER SECTION 254(2) OF THE INCOM E TAX ACT IN THE ORDER OF THIS T RIBUNAL IN INCOME TAX APPEAL NO. 2867/MUM/2018 AND INCOME TAX APPEAL NO. 2866/MUM/2018 VIDE ORDER DATED 1/7/19 . 2. IN THE ABOVE INCOME TAX APPEALS THE ISSUE RELATED TO ASSESSEE'S CLAIM OF DISALLOWANCE OF PRIOR PERIOD EXPENSES. THE ITAT HAS ADJUDICATED THIS GROUND AS UNDER : - 9. ANOTHER COMMON ISSUE RAISED PERTAINS TO DISALLOWANCE OF PRIOR PERIOD EXPENSES. 10. BY WAY OF THIS GROUND IT HAS BEEN SUBMITTED THAT THE ASSESSEE IS ENTITLED T O DEDUCTION OF RS. 15,72,773/ - FOR A.Y. 2012 - 13 AND RS. 13,58,578/ - FOR A.Y. 2014 - 15 BEING PRIOR PERIOD EXPENSES. IT HAS BEEN CLAIMED THAT THESE EXPENSES PERTAIN TO PREVIOUS YEAR WERE BOOKED IN NEXT M/S. KAMAT HOTELS (INDIA) LIMITED 2 YEAR AS PRIOR PERIOD EXPENSES AND WERE NEITHER CLAIMED NO R ALLOWED IN CONCERNED ASSESSMENT YEARS. THAT MOST OF THESE EXPENSES WERE REVENUE EXPENDITURE FOR WHICH LIABILITY WAS INCURRED IN THE CONCERNED ASSESSMENT YEAR BUT COULD NOT BE ACCOUNTED FOR IN THE ABSENCE OF BILLS, HENCE ACCOUNTED FOR SUBSEQUENT YEAR. THE ASSESSEE HAS FURTHER URGED THAT THE ASSESSEE ENTITLED TO MAKE A CLAIM FOR THESE EXPENSES FOR THE FIRST TIME BEFORE THE APPELLATE AUTHORITY IN VIEW OF VARIOUS DECISIONS INCLUDING NATIONAL THERMAL POWER COMPANY LTD. (229 ITR 383) AND M/S. PRUTHVI BROKERS & SHAREHOLDERS (SUPRA) . FURTHER IT HAS BEEN SUBMITTED THAT THE MATTER MAY BE SENT BACK TO THE ASSESSING OFFICER FOR VERIFICATION AND ALLOWANCE OF THE SAME. 11. WE HAVE HEARD BOTH THE COUNSEL AND PERUSED THE RECORDS. WE FIND THAT THE ISSUE RAISED BY THE AS SESSEE IN THIS GROUND IS NEITHER ARISING OUT THE ORDER OF LEARNED CIT(A) NOR THERE IS ANY DISALLOWANCE IN THIS REGARD BY THE ASSESSING OFFICER. HENCE IN OUR CONSIDERED OPINION THIS GROUND RAISED BY THE ASSESSEE IS BEREFT OF ANY COGENCY WHATSOEVER, WHEN THE MATTER HAS NEITHER BEEN DEALT WITH BY THE ASSESSING OFFICER NOR BY LEARNED CIT(A), IN OUR CONSIDERED OPINION THERE IS NO OCCASION FOR THE ASSESSEE TO RAISE THIS ISSUE BEFORE THE ITAT. FURTHERMORE, AS ADMITTED BY LEARNED COUNSEL HIMSELF THAT IT IS A FACTUA L ISSUE AND HE WANTS THE ISSUE TO BE REMITTED TO THE FILE OF THE ASSESSING OFFICER. IN OUR CONSIDERED OPINION DEHORSE ANY FINDINGS BY THE AUTHORITIES BELOW, THIS ISSUE CANNOT BE ADJUDICATED BY US, HENCE THIS GROUND RAISED BY THE ASSESSEE STANDS DISMISSED. 3. N OW THE ASSESSEE STATES THAT IT AT SHOULD HAVE ADJUDICATED THIS ISSUE. THE ASSESSEE STATES THAT T HE ITAT HAS MADE AN ERROR BY DISMISSING THE ISSUE AND THE ADDITION GROUND RAISED BEFORE ITAT. THE ASSESSEE SUBMITS THAT ITAT IS WRONG IN STATING THAT THE ISSUE IS NOT ARISING OUT OF THE ORDER OF THE AUTHORITIES BELOW. THE LEARNED COUNSEL OF THE ASSESSEE FURTHER STATES THAT THE DECISION OF H ONOURABLE SUPREME COURT IN THE CASE OF HONDA SIEL CARS INDIA LTD VS. COMMISSIONER O F INCOME TAX (CIVIL APPEAL NO. 4918 OF 2017 AND OTHERS) PERMITS THE ITAT REVIEW ITS ORDER. 4. ON THE CONTRARY LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT ASSESSEE IS SEEKING REVIEW OF THE ORDER OF THE ITAT WHICH IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE INCOME TAX ACT 5. U PON C AREFUL CONSIDERATION WE NOTE THAT ASSESSEE IS SEEKING REVIEW OF THE ORDER OF THE ITAT IN THE S E MISCELLANEOUS APPLICATION S . IT IS SETTLED LAW THAT REVIEW OF ORDER IS NOT PERMISSIBLE IN AN ORDER UNDER MISCELLANEOUS APPLICATION S UNDER SECTION 254(2) ON THE IN COME TAX ACT. THE REFERENCE BY THE ASSESSEE TO M/S. KAMAT HOTELS (INDIA) LIMITED 3 THE DECISION OF HONOURABLE BOMBAY HIGH COURT IN THE CASE OF AHMADABAD E LECTRICITY LTD . VERSUS ACIT 199 ITR 351 DOSE N OT MANDATE THAT IN A MISCELLANEOUS APPLICATION THE ITAT SHOULD REVIEW ITS ORDER. SIMILARLY T HE REFERENCE TO THE DECISION OF HONOURABLE SUPREME COURT IN THE CASE OF HONDA SIEL CARS INDIA LTD. (SUPRA) IS ALSO IRRELEVANT AS THE SAID DECISION ALSO DOES NOT MANDATE A REVIEW OF ORDER BY THE ITAT . 6. I N THE BACKGROUND OF AFORESAID DISCUSSION THIS MISC ELLANEOUS APPLICATION BY THE ASSESSEE STAND DISMISSED . ORDER HAS BE EN PRONOUNCED IN THE COURT ON 6 . 3 . 20 20 . SD/ - SD/ - ( RAVISH SOOD ) (SH A MIM YAHYA ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 06 / 0 3 / 20 20 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