WELSPUN INDIA LTD, MUMBAI V. DCIT CEN CIR 3(3) , MUMBAI

MA 646/MUM/2019

• Counselvise Citation: [NaN] 107 COUNSELVISE.COM (IT) 1865 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 6 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-01-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2008-2009
• Appeal Filed On: 28-06-2021
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 143(3); 92; 115JB

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL “G” Bench, Mumbai Shri Shamim Yahya (AM) & Shri Vikas Awasthy (JM) M.A. No. 646/Mum/2019 in I.T.A. No. 5725/Mum/2015 (Assessment Year 2008-09) Welspun India Limited 9 th Floor, B-Wing Trade World, Kamala Mills Compound, Senapati Bapat Marg, Lower Parel Mumbai-400 013. PAN : AAACW1259N Vs. DCIT, CC-22 Room No. 465 4 th Floor Aayakar Bhavan M.K. Road Mumbai-400020. (Appellant) (Respondent) Assessee by Shri Akash Kumar Department by Shri S.N. Kabra Date of Hearing 10.12.2021 Date of Pronouncement 4.1.2022 O R D E R Per Shamim Yahya (AM) : This Miscellaneous application is filed by the assessee against the ITAT order in ITA No.5725/Mum/2015 vide order dated 11.1.2019. Following submission had been made by the assessee in the Miscellaneous Application:- “I. The above appeal of the Revenue for income-tax assessment year 2008-09 came up for hearing together with the appeals of the Applicants for income- tax assessment years 2008-09 to 2011-12 and the appeals of the Department for income-tax assessment years 2009-10 to 2011-12 before the Honourable Tribunal, 'G' Bench, Mumbai on 18 th October, 2018 and has been disposed of by the Honourable Tribunal by order dated 11.01.2019. The Applicants beg to present this application to bring before the Honourable Tribunal certain matters and relevant facts which, it is submitted, show that the order of the Honourable Tribunal contains certain mistakes apparent from record. 2. The apparent mistake that has crept in in the order of the Honourable Tribunal is in para 9 on page nos 44 and 45 of the said order which deals with ground of appeal no 5 of the Revenue. The said ground of appeal of the Revenue is reproduced below for ready reference - "On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition made on account of book profit Welspun India Limited 2 without appreciating that there is no brought forward book loss available to the assessee." 3. The Honourable Tribunal while, v discussing the issues arising out of the aforesaid ground of appeal on page no 44 of the impugned order has after referring to the claim of set-off of unabsorbed depreciation and business loss of Rs 152.49 crores and after observing that "The learned CIT(A) restored the matter to the file of the AO for re-adjudicating the issue after considering the claim of the assessee after noting that there were unabsorbed loss of the merged entity.", the Honourable Tribunal disposed of the aforesaid ground of appeal on page no 45 of the impugned order, holding that, "Be as it may be, this issue requires investigation of facts as to scheme of merger and accumulated losses of this said merged entity and application of law to those facts for which we at this stage of the considered view that the matter need to be restored to the file of the AO for verification of facts surrounding brought forward losses/unabsorbed depreciation and their set off to compute book profits u/s 115JB, on merits in accordance with law" 4. It is now imperative to point out the ground of appeal nos 6 and 7 raised by the Applicants before the CIT(A) and their disposal by him - (i) Ground of appeal no 6 before the CIT(A) relates to computation of book profit under section 115JB which has been disposed of by the CIT(A) in para 10.1 to 10.5 (page nos 37 to 39 of the order of the CIT(A)) - the CIT(A) has partly allowed this ground of appeal by also giving the calculation of book profits and the Revenue is in appeal before the Honourable Tribunal on this issue - refer para 2 above.. (ii) Ground of appeal no 7 before the CIT(A) relates to carry forward of unabsorbed losses/depreciation which has been disposed of by the CIT(A) in para 11.1 to 11.2 (page no 39 of the order of the CIT(A)) - the CIT(A) has set aside this ground of appeal to the Assessing Officer for verification and the Revenue is not in appeal before the Honourable Tribunal on this issue. 5. In view of the above, the Applicants submit that the Honourable Tribunal, inadvertently, fused two completely distinct, specific and separate issues dealt with by the CIT(A) while disposing of the aforesaid ground of appeal of the Revenue and further, discussed an issue (as mentioned in para 3 above) which has not taken up before the Honourable Tribunal either by the Revenue or by the Applicants and hence, a mistake/mistakes apparent from record. 6. In view of the above, the Applicants pray that - (a) the Order of the Tribunal dated 1 1.01 .2019 be suitably amended, (b) the ground of appeal no 5 of the Revenue may be recalled, (c) the Tribunal may grant such further and/or other reliefs as it deems fit.” Welspun India Limited 3 7. At the time of hearing ld. counsel of the assessee sought to withdraw the miscellaneous application. Following submissions have been made vide letter dated 2.12.2021 :- “With reference to the above, we submit as under for your kind and sympathetic consideration. 1. Your applicant had preferred a miscellaneous application against the appeal of me Revenue (ITA No.5725/Mum/2015) passed by Hon'ble Tribunal, 'G" Bench vide order dated 11-1-2019. 2. Before the above application could be heard/disposed. The Assessing Officer DCIT, Central Circle-3(3), Mumbai has passed an order u/s. 143(3) r.w.s. 254 of Income Tax Act, 1961 dated 18-9-2021. 3. The applicant submits that as the order u/s. 143(3) r.w.s. 254 of Income Tax Act, 1961 is passed by A.O. The current appeal before your honour is infructuous and therefore your applicant prays for withdrawal of miscellaneous application. We hope your honour will find the above said information in order. We shall furnish any further information as may be required by your honour.” 8. Ld. Departmental Representative did not have any objection to the request of withdrawal by the assessee. Accordingly we permit the assessee to withdraw this miscellaneous application. Hence, this Miscellaneous Application is dismissed as withdrawn. Pronounced in the open court on 4.1.2022. Sd/- Sd/- (VIKAS AWASTHY) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai; Dated : 04/01/2022 Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. The CIT(A) 4. CIT 5. DR, ITAT, Mumbai Welspun India Limited 4 6. Guard File. BY ORDER, //True Copy// (Assistant Registrar) PS ITAT, Mumbai