FAZLANI EXPORTS P. LTD, MUMBAI V. DCIT CEN CIR 44, MUMBAI

MA 694/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7981 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-04-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 29-11-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: EDAGIRI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBER AND SHRI N.K. PRADHAN , ACCOUNTANT MEMBER M.A. NO. 694 /MUM./2018 ( ARISING OUT OF ITA NO. 4090 / MUM . /201 6 ) ( ASSESSMENT YEAR : 20 10 11 ) M/S. FAZLANI EXPORTS PVT. LTD. 21 ST FLOOR, NIRMAL, NARIMAN POINT MUMBAI 400 021 PAN AABCV8120E . APPELLANT V/S DY . COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 44 , MUMBAI . RESPONDENT ASSESSEE BY : DR. K. SHIVRAM A/W SHRI RAHUL HAKANI REVENUE BY : SHRI B. YEDAGIRI DATE OF HEARING 25 . 0 1 .201 9 DATE OF ORDER 18.04.2019 O R D E R PER SAKTIJIT DEY, J.M. BY THE AFORESAID APPLICATION FILED BY THE ASSESSEE PURPORTED 254(2) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT ) THE ASSESSEE SEEKS RECALL/ RECTIFICATION OF THE ORDER DATED 4 TH MAY 2018 , PASSED IN ITA NO. 4090 /MUM./2016. 2 . DR. K. SHIVRAM, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED , THE ORDER PASSED BY THE TRIBUNAL SUFFER S FROM MISTAKE APPARENT ON THE 2 M/S. FAZLANI EXPORTS PVT. LTD. FACE OF RECORD, AS IT FAILED TO DEAL WITH THE DECISION OF THE HON'BLE SUPREME COURT IN MANEKLAL AGARWAL V/S DCIT, [2017] 396 ITR 721 (SC) AND APPLY THE RATIO LAID DOWN THEREIN. HE FURTHER SUBMITTED , THE TRIBUNAL WRONGLY APPLIED THE RATIO LAID DOWN IN THE DECISION OF THE TRIBUNA L IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2005 06. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , IN THE AFORESAID DECISION THE HON'BLE SUPREME COURT HAS HELD THAT TH ERE CANNOT BE DOUBLE TAXATION OF THE SAME INCOME AT THE HANDS OF TWO PERSONS. HE SUBMITTED , NON CONSIDERATION OF THE DECISION OF THE HON'BLE SUPREME COURT IS A MISTAKE APPARENT ON THE FACE OF RECORD. IN THIS REGARD, HE RELIED UPON THE DECISION OF THE HON'BLE SUPREME COURT IN ACIT V/S SAURASHTRA KUTCH STOCK EXCHANGE LTD., [2008] 305 ITR 227 (SC). L EARNED COUNSEL FOR THE ASSESSEE SUBMITTED , IN THE DECISION OF THE TRIBUNAL FOR ASSESSMENT YEAR 2005 - 06 THE ISSUE INVOLVED WAS THE ASSESSABILITY OF THE RENTAL INCOME FROM SUB LEASING AND NOT CHARGEABILITY. THUS, HE SUBMITTED , THERE BEING A MISTA KE APPARENT ON THE FACE OF RECORD, THE ORDER SHOULD BE RECTIFIED / RECALLED. 3 . THE LEARNED DEPARTMENTAL REPRESENTATIVE STRONGLY OPPOSING THE CONTENTION OF THE ASSESSEE SUBMITTED , BY FILING THE MISC. APPLICATION THE ASSESSEE SEEKS REVIEW OF THE APPEAL ORDER WHICH IS NOT PERMISSIBLE. THEREFORE, THE MISC. APPLICATION SHOULD BE DISMISSED. 3 M/S. FAZLANI EXPORTS PVT. LTD. 4 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. THE LEARNED AUTHORISED REPRESENTATIVE HAS SUBMITTED THAT APPEAL ORDER PASSED BY THE TRIBUNAL SUFFERS FROM MISTAKE APPARENT ON THE FACE OF RECORD, FIRSTLY; DUE TO NON CONSIDERATION OF THE DECISION OF THE HON'BLE SUPREME COURT IN MANEKLAL AGARWAL (SUPRA) AND SECONDLY, DUE TO WRONGLY APPLYING THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2005 06. INSOFAR AS APPLICABILITY OF THE DECISION OF THE HON'BLE SUPREME COURT IN MANEKLAL AGARWAL (SUPRA) IS CONCERNED, AT THE TIME OF HEARING OF APPEAL THE LEARNED AUTHORISED REPRESENTATIVE HAS RELIED UPON THIS DECISION FOR THE PROPOSITION THAT THE RENT RECEIVED FROM GOLDMAN SACHS PVT. LTD. HAVING ALREADY ASSESSED AT THE HANDS OF RATIONAL ARTS AND PRESS PVT. LTD., IT CANNOT BE ADDED AGAIN AT THE HANDS OF THE ASSESSEE , AS IT AMOUNTS TO DOUBLE TAXATION OF THE SAME INCOME. I T NEEDS TO BE OBSERVED , WHILE DEA LING WITH THE AFORESAID CONTENTION OF THE ASSESSEE THE TRIBUNAL HAS RECORDED A CATEGORICAL FINDING THAT THE ASSESSING OFFICER HAS NOT ADDED THE RENTAL INCOME RECEIVED BY THE ASSESSEE FROM GOLDMAN SACHS PVT. LTD. AT THE HANDS OF RATIONAL ARTS AND PRESS PVT. LTD. THE TRIBUNAL HAS OBSERVED THAT THE RENT RECEIVED FROM GOLDMAN SACHS PVT. LTD. BY THE ASSESSEE FROM SUB LETTING OF THE PROPERTY WAS ONLY CONSIDERED AS A YARDSTICK FOR DETERMINING THE ALV OF THE PROPERTY , SINCE , THE LEASE RENT PAID BY THE ASSESSEE TO R ATIONAL ARTS AND PRESS PVT. LTD. FOR THE SUBJECT PROPERTY IS SUBSTANTIALLY LOW COMPARED TO THE RENT RECEIVED BY 4 M/S. FAZLANI EXPORTS PVT. LTD. THE ASSESSEE FROM SUB LEASING OF THE PROPERTY. THEREFORE, IT BECOMES VERY MUCH CLEAR THAT THE RENT RECEIVED FROM GOLDMAN SACHS LTD. WAS NEITHER ADDED AT THE HANDS OF RATIONAL ARTS AND PRESS PVT. LT D., NOR THERE IS ANY QUESTION OF DOUBLE TAXATION OF THE SAME INCOME. THAT BEING THE CASE, THE RATIO LAID DOWN IN THE CITED DECISIONS WILL NOT APPLY TO THE FACTS OF THE PRESENT APPEAL. FOR THAT REASON ONLY, THOUGH, THE TRIBUNAL TOOK NOTE OF THE DECISION CIT ED BY THE ASSESSEE, HOWEVER, SINCE IT WAS NOT APPLICABLE TO TH E FACTS OF THE CASE, THE RATIO LAID DOWN IN THE DECISION WAS NOT ELABORATELY DISCUSSED. 5 . AS REGARDS THE CONTENTION OF THE ASSESSEE THAT THE DECISION OF THE TRIBUNAL IN ASSESSMENT YEAR 2005 06 WA S WRONGLY INTERPRETED/ APPLIED, WE MUST OBSERVE THAT THE TRIBUNAL HAS NOT AT ALL WRONGLY APPLIED THE DECISION WHILE DECIDING THE APPEAL OF THE ASSESSEE. IT IS RELEVANT TO OBSERVE , IN THE RETURN OF INCOME THE ASSESSEE ITSELF HAS OFFERED THE RENT RECEIVED FRO M GOLDMAN SACHS PVT. LTD. AS INCOME UNDER THE HEAD BUSINE SS. WHEREAS , THE ASSESSING OFFICER ASSESSED IT AS INCOME FROM OTHER SOURCES. WHILE DECIDING THE ISSUE, THE TRIBUNAL FOUND THAT IN ASSESSMENT YEAR 2005 06, THE CO ORDINATE BENCH HAS HELD THAT THE INCO ME RECEIVED BY THE ASSESSEE FROM SUB LEASING OF THE PROPERTY IS TO BE ASSESSED AS INCOME FROM OTHER SOURCES. THEREFORE, TO THAT EXTENT, THE TRIBUNAL REFERRED TO THE DECISION OF THE CO ORDINATE BENCH IN ASSESSMENT YEAR 2005 06. IN ANY CASE OF THE MATTER, TH E FINDING OF THE TRIBUNAL ON THE DISPUTED ISSUE IS BACKED BY ELABORATE REASONING 5 M/S. FAZLANI EXPORTS PVT. LTD. AND THE TRIBUNAL HAS TAKEN A VIEW ON THE ISSUES RAISED BEFORE IT BY CONSIDERING ALL THE FACTS AND MATERIAL ON RECORD . THEREFORE, IF THE ASSESSEE IS AGGRIEVED WITH THE DECISION OF THE TRIBUNAL, THE COURSE OPEN TO IT IS TO SEEK APPROPRIATE REMEDY AVAILABLE UNDER THE STATUTE BY FILING AN APPEAL BEFORE THE HIGHER APPELLATE COURT. IN FACT, AS STATED IN THE MISC. APPLICATION, THE ASSESSEE HAS ALREADY FILED AN APPEAL UNDER SECTION 260 A OF THE ACT CHALLENGING THE DECISION OF THE TRIBUNAL. BY FILIN G THE PRESENT MISC. APPLICATION THE ASSESSEE, IN EFFECT, IS SEEKING A REVIEW OF THE APPEAL ORDER PASSED BY THE TRIBUNAL WHICH IS NOT PERMISSIBLE AS PER THE PROVISIONS OF SECTION 254(2) OF THE A CT. IN VIEW OF THE AFORESAID, WE DECLINE TO ENTERTAIN THE MISC. APPLICATION FILED BY THE ASSESSEE. 6 . I N THE RESULT, MISC. APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18.04.2019 SD/ N.K. PRADHAN ACCOUNTANT MEMBER SD/ SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 18.04.2019 6 M/S. FAZLANI EXPORTS PVT. LTD. COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY (SR. PRIVATE SECRETARY) ITAT, MUMBAI