ROCKLINE DEVELOPERS P. LTD, MUMBAI V. ITO 9(3)(4), MUMBAI

MA 644/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 2514 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 26-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MAHAVIR JAIN LD
• Keywords: Set aside
• Section: 115JB; 254(2)

Judgement Text

1 MA NO.644/MUM/2018 ARISING OUT OF ITA NO.6595/MUM/2014 M/S. ROCKLINE DEVELOPERS PRIVATE LIMITED ASSESSMENT YEAR-2011-12 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM MISCELLANEOUS APPLICATION NO.644/MUM/2018 [ARISING OUT OF I.T.A. NO.6595/MUM/2014] ( / ASSESSMENT YEAR: 2011-12) M/S. ROCKLINE DEVELOPERS P RIVATE LTD. 801, HUBTOWN SOLARIS N.S. PHADKE MARG, OFF TELI GALI ANDHERI (E), MUMBAI-400 069. / VS. INCOME TAX OFFICER - 9 - (3)(2) MUMBAI. ./ ./PAN/GIR NO. AAACR-4467-P ( /APPELLANT ) : ( / RESPONDENT ) !' / APPELLANT BY : SHRI MAHAVIR JAIN- LD.AR ! ' / RESPONDENT BY : MRS. JOTHI LAKSHMI NAYAK-LD. DR # $ !%& / DATE OF HEARING : 21/06/2019 '( !%& / DATE OF PRONOUNCEMENT : 21/06/2019 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER):- 1. BY WAY OF THIS MISCELLANEOUS APPLICATION FOR ASS ESSMENT YEAR [AY] 2011-12, THE ASSESSEE SEEKS CERTAIN RECTIFICATION I N THE ORDER OF THE TRIBUNAL ITA NO.6595/MUM/2014 PASSED ON 01/01/2016. 2 MA NO.644/MUM/2018 ARISING OUT OF ITA NO.6595/MUM/2014 M/S. ROCKLINE DEVELOPERS PRIVATE LIMITED ASSESSMENT YEAR-2011-12 2. THE REGISTRY HAS NOTED THAT THE APPLICATION IS T IME BARRED U/S 254(2) SINCE IT HAS BEEN FILED ON 26/10/2018 WHICH IS BEYO ND 6 MONTHS FROM THE DATE OF ORDER. HOWEVER, WE FIND THAT THE ORDER OF T HE TRIBUNAL HAS BEEN PASSED ON 01/01/2016 AND AT THAT POINT OF TIME, THE PRESCRIBED TIME LIMIT TO PREFER THE RECTIFICATION APPLICATION WAS 4 YEARS. T HE PERIOD OF 4 YEARS HAS BEEN CURTAILED TO 6 MONTHS BY FINANCE ACT, 2016 ONL Y W.E.F. 01/06/2016. THEREFORE, THE ASSESSEE HAD RIGHT TO SEEK RECTIFICA TION WITHIN 4 YEARS AS PER EXTANT PROVISIONS AND THE APPLICATION IS WELL WITHI N THAT TIME LIMIT. FINDING THE APPLICATION IN ORDER, WE PROCEED TO DEAL WITH T HE SAME. 3. DRAWING OUR ATTENTION TO THE APPLICATION, LD. AU THORISED REPRESENTATIVE FOR THE ASSESSEE [AR] SUBMITTED THAT GROUND NO. A (CONSISTING OF GROUND NOS. 1 TO 4) OF THE APPEAL WA S DISMISSED IN THE TRIBUNAL ORDER TREATING THE SAME TO BE MERELY ACADE MIC IN NATURE. THESE GROUNDS PERTAINED TO REDUCTION OF THE AMOUNT OF PRO FIT ELIGIBLE FOR DEDUCTION U/S 80-IB(10) WHILST COMPUTING BOOK PROFITS U/S 115JB OF THE ACT. IT HAS BEEN SUBMITTED THAT NO FURTHER APPEAL HAS BEEN PREF ERRED BY THE ASSESSEE AGAINST THE SAID ORDER. THE LD. AR DREW OUR ATTENTI ON TO THE FACT THAT SIMILAR ISSUE AROSE IN AY 2010-11 WHICH WAS CONTESTED BEFOR E THIS TRIBUNAL. HOWEVER, THE TRIBUNAL DID NOT ADJUDICATE THE SAME A ND DISMISSED THE GROUNDS TREATING THE SAME TO BE MERELY ACADEMIC IN NATURE. THE ASSESSEE AS WELL AS REVENUE CONTESTED THE ORDER OF TRIBUNAL FOR AY 2010-11 BEFORE HON'BLE BOMBAY HIGH COURT WHEREIN THE HONBLE COURT , VIDE ORDER DATED 14/06/2017 REMITTED THE MATTER BACK TO THE TRIBUNAL FOR ADJUDICATION IN VIEW 3 MA NO.644/MUM/2018 ARISING OUT OF ITA NO.6595/MUM/2014 M/S. ROCKLINE DEVELOPERS PRIVATE LIMITED ASSESSMENT YEAR-2011-12 OF THE FACT THAT THE GROUNDS WERE NOT ADJUDICATED. THE COPY OF THE ORDER HAS BEEN PLACED ON RECORD. IN THE ABOVE BACKGROUND, IT HAS BEEN SUBMITTED THAT THE NON-ADJUDICATION OF GROUND IN IMPUGNED AY WOULD CONSTITUTE MISTAKE APPARENT FROM RECORD AND THEREFORE, SUITABLE DIRECT IONS MAY BE GIVEN TO RECTIFY THE SAME. THE LD. DR FAIRLY CONCEDED THE SA ME. 4. UPON CAREFUL CONSIDERATION, THE UNDISPUTED POSIT ION THAT EMERGES IS THE FACT THAT SIMILAR ISSUE AS STATED IN GROUND A, AROSE IN ASSESSEES CASE FOR AY 2010-11 WHICH WAS DISMISSED AS ACADEMIC IN N ATURE BY THE ORDER OF TRIBUNAL VIDE ITA NO. 6382/MUM/2013 ORDER DATED 21/ 02/2014. UPON FURTHER APPEAL BY THE ASSESSEE AS WELL AS DEPARTMEN T, THE ORDER OF THE TRIBUNAL WAS QUASHED BY HONBLE BOMBAY HIGH COURT A ND SET ASIDE FOR RE- ADJUDICATION VIDE ITA NOS. 1825 & 1241 OF 2014 ORDE R DATED 14/06/2017. 5. THE CONTROVERSY BEING PARI-MATERIA THE SAME AND IN VIEW OF THE FACT THAT THE ASSESSEE IS NOT IN FURTHER APPEAL WITH RES PECT TO GROUND NO. A, RESPECTFULLY FOLLOWING THE DIRECTIONS OF JURISDICTI ONAL HIGH COURT IN AY 2010- 11, WE ARE OF THE CONSIDERED OPINION THAT GROUND NO . A OF THE APPEAL WOULD REQUIRE ADJUDICATION. THEREFORE, WE RECALL THE OBSE RVATIONS OF TRIBUNAL IN ITA NO. 6595/MUM/2014 ORDER DATED 01/01/2016 WITH R ESPECT TO GROUND NO. A. THE SAME WOULD BE TAKEN UP FOR RE-ADJUDICATI ON IN REGULAR COURSE. 6. THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR ADJUDICATION OF GROUND NO. A, BEFORE REGULAR BENCH IN REGULAR COURSE AFTER DUE INTIMATION OF NEW DATE OF HEARING TO RESPECTIVE SIDES. 4 MA NO.644/MUM/2018 ARISING OUT OF ITA NO.6595/MUM/2014 M/S. ROCKLINE DEVELOPERS PRIVATE LIMITED ASSESSMENT YEAR-2011-12 ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST JUNE, 2019. SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 21/06/2019 SR.PS:-JAISY VARGHESE / COPY OF THE ORDER FORWARDED TO : 1. !' / THE APPELLANT 2. #$!' / THE RESPONDENT 3. %% ( ) / THE CIT(A) 4. %% / CIT CONCERNED 5. & '# ( , % ( , / DR, ITAT, MUMBAI 6. ' *+, / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.