SHOPPERS STOP LTD, MUMBAI V. ACIT CEN CIR 29, MUMBAI

MA 622/MUM/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8176 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 09-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Principle of natural justice

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, E MUMBAI , , , BEFORE SHRI JOGINDER SINGH, VICE PRESIDENT, AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER MA NO.622/MUM/2018 (ARISING OUT OF ITA NO.2213/MUM/2013) ASSESSMENT YEAR: 2009-10 SHOPPERS STOP LTD. EUREKA TOWERS, B-WING, 9 TH FLOOR, MINDSPACE, LINK ROAD, MALAD (WEST), MUMBAI-400064 / VS. ACIT, CENTRAL CIRCLE-29, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI-400020 ( #$%& ' /ASSESSEE) ( / REVENUE) PAN. NO . AABCS4383A ( ) ' * / DATE OF HEARING : 28/12/2018 ) ' * / DATE OF ORDER: 28/12/2018 #$%& ' ! / ASSESSEE BY SHRI VIJAY MEHTA ! / REVENUE BY SHRI ABDUL HAKEEM-DR M.A. NO.622/MUM/2018 (ARISING OUT OF ITA NO.2213/MUM/2013) SHOPPERS STOP LTD. 2 / O R D E R PER JOGINDER SINGH(VICE PRESIDENT) BY WAY OF THIS MISCELLANEOUS APPLICATION UNDER SECT ION 254(2) OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT), THE ASSESSEE SEEKS RECTIFICATION /RECALLING OF THE ORDE R OF THE TRIBUNAL IN ITA NO.2213/MUM/2013, ORDER DATED 04/07/2018 ON THE REASONS STATED IN THE MISCELLANEO US APPLICATION. 2. DURING HEARING OF THIS MISCELLANEOUS APPLICATIO N, SHRI VIJAY MEHTA, LD. COUNSEL FOR THE ASSESSEE, REI TERATED THE CONTENTS OF THE APPLICATION BY EXPLAINING THAT THE PENALTY IN QUESTION WAS LEVIED BY THE LD. ASSESSING OFFICER ON THE DISALLOWANCE OF PROVISION OF EXPENSES CREATE D BY THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION AND THE EXPENDITURE WAS CLAIMED BY THE ASSESSEE IN ITS RETU RN OF INCOME ON THE BASIS OF REGULAR ACCOUNTING POLICY FO LLOWED BY THE ASSESSEE AND THE SAME WAS CLAIMED, SINCE THE SA ME WAS AN ASCERTAINED LIABILITY. IT WAS CLAIMED THAT SUBSE QUENTLY, BASED ON CIRCUMSTANCES, THE PROVISION WAS REVERSED IN THE NEXT FINANCIAL YEAR ITSELF AND WAS OFFERED TO TAX. THE LD. M.A. NO.622/MUM/2018 (ARISING OUT OF ITA NO.2213/MUM/2013) SHOPPERS STOP LTD. 3 COUNSEL SPECIFICALLY INVITED OUR ATTENTION TO VARIO US DATES MENTIONED IN THE TABLE CONTAINED IN PARA-7 OF THE MISCELLANEOUS APPLICATION. IT WAS PLEADED THAT ASSU MPTION OF WRONG FACTS HAS RESULTED INTO MISCARRIAGE OF JUS TICE AND THEREFORE THE ORDER DESERVED TO BE RECALLED. THE LD . COUNSEL OF THE ASSESSEE SUBMITTED THAT THE REVERSAL OF PROV ISION FOR SERVICE TAX WAS SUO-MOTO MADE BY THE ASSESSEE WHILE DRAWING FINANCIAL STATEMENTS FOR ASSESSMENT YEAR 20 10-11, THE COPY OF WHICH HAS BEEN PLACED ON RECORD ON PAGE S 72 TO 104 OF THE PAPER BOOK. IT WAS SUBMITTED THAT SUCH R EVERSAL WAS OFFER TO TAX IN THE RETURN OF INCOME FILED ON 2 7/09/2010 AND NOT AFTER THE ISSUE OF NOTICE DATED 26/12/2011 BY THE LD. ASSESSING OFFICER. THE NON-CONSIDERATION OF THE VITAL FACTS HAS MATERIAL BEARING ON THE ISSUE AND THEREFO RE, IT WAS PLEADED BEFORE US THAT THE ORDER MAY BE RECALLED. O N THE OTHER HAND, THE LD. DR, SHRI ABDUL HAKEEM, SUBMITTE D THAT THE ORDER COULD NOT BE REVIEWED AND IT COULD BE REC TIFIED ONLY IN THE CASE OF ANY MISTAKE APPARENT FROM RECORD. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. SO FAR AS , THE FACTS ARE CONCERNED, THESE ARE MATTER OF RECORD AND WE FI ND THAT M.A. NO.622/MUM/2018 (ARISING OUT OF ITA NO.2213/MUM/2013) SHOPPERS STOP LTD. 4 THE HON'BLE DELHI HIGH COURT VIDE ORDER DATED 18/04 /2009 HELD THAT ONLY RENTING OF AMENITIES WILL ATTRACT SE RVICE TAX. ON 29/04/2009, ON THE BASIS OF THE AFORESAID ORDER ,THE ASSESSEE CREATED A PROVISION FOR THE YEAR ENDING 31/03/2009 AND THE SAID FINANCIAL WERE SIGNED ON 29/04/2009. THE ASSESSEE FILED THE RETURN FOR ASSES SMENT YEAR 2009-10 ON 29/09/2009. ON 28/04/2010, THE ACCOUNTS FOR THE YEAR ENDING 31/03/2010 WERE SIGNED WHEREIN THE PROVISION CREATED IN PREVIOUS YEAR WAS REVERSED (PAGES 72 TO 104 OF THE PAPER BOOK ) AND 27/09/2010 , SUCH REVERSAL WAS OFFERED TO TAX. THESE FACTUAL MATRIX W AS NOT EXPLAINED DURING HEARING OF THE MAIN APPEAL. THEREF ORE, WITHOUT GOING INTO MUCH DELIBERATION, WE FIND FORCE IN THE EXPLANATION OF THE ASSESSEE AND THUS KEEPING IN VIE W, THE PRINCIPLE OF NATURAL JUSTICE, WE FIND APPARENT MIST AKE IN THE ORDER OF THE TRIBUNAL, RESULTANTLY, WE DEEM IT APPR OPRIATE TO RECALL THE AFORESAID ORDER OF THE TRIBUNAL DATED 04 /07/2018 AND DIRECT THE REGISTRY OF THIS TRIBUNAL TO FIX THE APPEAL OF THE ASSESSEE FOR FRESH HEARING BEFORE THE REGULAR B ENCH IN DUE COURSE. BOTH THE PARTIES MAY BE INTIMATED ACCOR DINGLY. M.A. NO.622/MUM/2018 (ARISING OUT OF ITA NO.2213/MUM/2013) SHOPPERS STOP LTD. 5 FINALLY, THE MISCELLANEOUS APPLICATION OF THE ASSES SEE IS ALLOWED. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF THE LEARNED REPRESENTATIVE FROM THE BOT H SIDES AT THE CONCLUSION OF HEARING ON 28/12/2018. SD/- SD/- ( MANOJ KUMAR AGGARWAL ) (JOGINDER SINGH) '!# / ACCOUNTANT MEMBER /VICE PRESIDENT ( MUMBAI; , DATED : 28/12/2018 F{X~{T? P.S/. #. . $%&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. ./ / THE APPELLANT (RESPECTIVE ASSESSEE) 2. 01./ / THE RESPONDENT. 3. 2 2 3' ( ) / THE CIT, MUMBAI. 4. 2 2 3' / CIT(A)- , MUMBAI, 5. 56 0#'#$ , 2 * $ 7 , ( / DR, ITAT, MUMBAI 6. 8% 9( / GUARD FILE. ! / BY ORDER, /! (DY./ASSTT. REGISTRAR) , ( / ITAT, MUMBAI