TATA INDUSTRIES LTD, MUMBAI V. ASST CIT RG 2(3), MUMBAI

MA 72/MUM/2019

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0345 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-12-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 2011-2012
• Appeal Filed On: 01-02-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: MRS ARATI VISSANJI
• Keywords: Earning of tax free income; Rule 8D
• Section: 14A; 115JB; 254(2)

Judgement Text

1 MA NOS.72 TO 75/MUM/2019 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E, MUMBAI BEFORE SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) M.A. NOS.72 /MUM/2019 (ARISING OUT OF ITA NO.1855/MUM/2015) (ASSESSMENT YEAR: 2011-12) & M.A. NOS.73 /MUM/2019 (ARISING OUT OF ITA NO.7595/MUM/2013) (ASSESSMENT YEAR: 2010-11) & M.A. NOS.74 /MUM/2019 (ARISING OUT OF ITA NO.1763/MUM/2015) (ASSESSMENT YEAR: 2011-12) & M.A. NOS.75 /MUM/2019 (ARISING OUT OF ITA NO.612/MUM/2014) (ASSESSMENT YEAR : 2010-11) TATA INDUSTRIES LTD. BOMBAY HOUSE, 24 HOMI MODI STREET, FORT MUMBAI-400 001 VS ACIT,RANGE - 2(3) ROOM NO.552, 5 TH FLOOR AAYKAR BHAWAN M.K.ROAD MUMBAI-400 020 PAN : AAACT4058L APPLICANT RESPONDENT APPLICANT BY MRS.ARATI VISSANJI , ADVOCATE RESPONDENT BY SHRI. CHAUDHARY ARUN KUMAR SINGH - SR. AR-DR DATE OF HEARING 18.10 .2019 DATE OF PRONOUNCEMENT 09 .1 2 .2019 O R D ER PER G MANJUNATHA: AM 2 MA NOS.72 TO 75/MUM/2019 THESE FOUR MISCELLANEOUS APPLICATION FILES FILED BY THE ASSESEE U/S 254(2) OF THE I.T.ACT, 1961 ARE DIRECTED AGAINST CO NSOLIDATED ORDER PASSED BY THE TRIBUNAL IN ITA NO. 7595/MUM/2013, 18 55/MUM/2015, 612/MUM/2014 AND 1763/MUM/2015 FOR AY 2010-11 AND 2 011-12. 2. THE ASSESSE HAS NARRATED FACTS AND MISTAKES STAT ED TO BE APPARENT ON RECORD FROM THE ORDER OF THE TRIBUNAL F OR BOTH ASSESSMENT YEARS. THE CONTENTS OF MISCELLANEOUS APPLICATION FI LED BY THE ASSESSEE IN ALL FOUR MISCELLANEOUS APPLICATIONS ARE MORE OR LESS COMMON. THEREFORE, FOR THE SAKE OF CONVENIENCE, MISCELLANEO US APPLICATION FILED BY THE ASSESSEE FOR AY 2011-12 IN M.A.NO.72/MUM/201 9 ARE REPRODUCED AS UNDER: 1. THE ABOVE MENTIONED APPEAL WAS DISPOSED OF BY TH E HON ITAT, MUMBAI 'E' BENCH BY ITS COMMON ORDER DATED 28 TH SEPTEMBER, 2013 FOR THE ASSESSMENT YEAR(S) 2010-11 AND 2011-12. A COPY OF T HE SAID ORDER IS ENCLOSED (ANNEXURE 1) 2. GROUND NO 2 RAISED BY THE ORIGINAL APPELLANT IS AS UNDER: 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN FEW. THE ID CIT(A) ERRED IN APPLYING RULE 8D(2)(IT) RWS 14A BY HOLDING THAT SINCE THE AMOUNT OF INVESTMENT OUT OF SHARE APPLICATION MONEY, HAD NOT EARNED ANY EXEMPT INCOME, THE SAME SHOULD BE EXCLUDED FROM THE CALCUL ATION WITHOUT APPRECIATING (HAT RULE 8D(2)(II) R.WS. 14A DOES NOT EXCLUDE ANY FB/M OF INVESTMENT IN CASE OF MIXED FUNDS ' 2.1 THE HON'BLE ITAT HAS CONSIDERED AND DECID ED THE ABOVE GROUND AT PGS 15, 16-18 OF ITS ORDER. THE RELEVANT EXTRACTS A RE SET OUT HEREIN BELOW: {A) PAGE NO. 15. PARA 15 'COMING TO THE ISSUE . .THE ASSESSES CLAIMS THAT FO R THE PURPOSE OF DETERMINATION OF AVERAGE VALUE OF INVESTMENTS, INVE STMENT WHICH DID NOT YIELD EXEMPT INCOME AND INVESTMENT IN SHARE APPLICATION M ONEY, NEEDS TO BE EXCLUDED .'' {EMPHASIS SUPPLIED) (B) PAGE 16 TO 18. PARA 16 'HAVING HEARD BOTH THE SIDES THE ASSESSES BEING A CORPORATE GIANT ADVISED BY LAY CONSULTANT IS WELL AWARE OF THE PROV ISIONS. THE ASSESSEE ON ITS OWN DETERMINED DISALLOWANCES AS PER THE PROVISIONS OF SECTION 14A R.W.R 8D(2)(III). THEREFORE WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO REASON FOR H ASSESSEE TO SEEK REVISION OF ITS OWN COMPUTATION . ACCORDINGLY, WE REJECT 3 MA NOS.72 TO 75/MUM/2019 ADDITIONAL GROUND TAKEN BY THE ASSESSES FOR EXCLUSI ON OF INVESTMENTS, WHICH DID NOT YIELD ANY EXEMPT INCOME FOR THE PURPOSE OF COMPUTATION OF AVERAGE VALUE OF INVESTMENTS WE REVERSE THE FINDINGS AT T HE LD CIT(A) IN DIRECTING THE AO TO EXCLUDE SHARE APPLICATION MONEY FOR THE P URPOSE OF COMPUTATION OF AVERAGE VALUE OF INVESTMENT. FINALLY, WE DO NOT WAN T TO DISTURB SUO MOTO DISALLOWANCE QUANTIFIED BY THE ASSESSES U/S 14A R.W.R.8D(2)(III) OF RS 6,72,11,103 AND ACCORDINGLY, WE REJECT ALL GROUNDS TAKEN BY THE ASSESSES CHALLENGING EXCLUSION OF INVESTMENTS WHICH DID NOT YIELD EXEMPT INCOME INCLUDING SHARE APPLICATION MONEY '(EMPHASIS SUPPLIED) 2 .2 THE APPLICANT RESPECTFULLY SUBMITS THAT: (A) THE CONCLUSION OF THE HONBLE ITAT IN (B) ABOVE THAT THE APPLICANT CANNOT SEEK REVISION OF ITS OWN COMPUTATION WAS NOT PUT TO THE APPLICANT'S REPRESENTATIVE IN THE COURSE OF THE HEARING AND THE REFORE NO CONTENTIONS COULD BE MADE IN THIS BEHALF BY THE APPLICANT. IN A DDITION. THIS CONCLUSION IS AN APPARENT ERROR BEING CONTRARY TO THE FOLLOWING J UDGMENTS OF THE HONBLE APEX COURT AND HON'BLE JURISDICTIONS! HIGH COURT (I) CLT VS. PRUTHVI BROKERS AND SHAREHOLDERS PVT. LTD (2012) 349 ITR 336 (BOM.) THE HONBLE HIGH COURT HAS HELD THAT THE APPELLATE AUTHORITIES HAVE JURISDICTION TO DEAF NOT MERELY WITH ADDITIONAL GRO UNDS WHICH BECOME AVAILABLE ON ACCOUNT OF CHANGE OF CIRCUMSTANCES OR LAW BUT WITH ADDITIONAL GROUNDS WHICH WERE AVAILABLE WHEN THE RE TURN WAS FILED (II) NTPC VS. CIT - 229 ITR 383 (SUPREME COURT) THE HON'BLE SUPREME COURT HAS HELD AS UNDER 'THE POWER OF THE TRIBUNAL IN DEALING WITH APPEALS IS THUS EXPRESSED IN THE WIDEST POSSIBLE TERMS. THE PURPOSE OF THE ASSESSMENT PROCEEDINGS BEFORE THE TAXING AUTHORITIES IS TO ASSESS CORRECTLY THE TAN LIABILITY OF AN ASSESSEE IN ACCORDANCE WITH LAW. IF, FOR EXAMPLE, AS A RESULT OF A JUDICIAL DECISION GIVEN W HILE THE APPEAL IS PENDING BEFORE THE TRIBUNAL, IT IS FO UND THAT A NON-TAXABLE ITEM IS TAXED OR A PERMISSIBLE DEDUCTION IS DENIED, THERE IS NO REASON WHY THE ASSESSES SHOULD BE PREVENTED FROM RAISING THAT QUESTION BEFORE THE TRIBUNAL FOR THE FIRST TIME, SO LONG AS THE RELEVANT FACTS ARE ON RECORD IN RESPECT OF T HE ITEM. (III) NIRMALA L. MEHTA--269 ITR 1 (BOMBAY HIG H COURT) THE HON'BLE HIGH COURT HAS HELD AS UNDER; 'ARTICLE 265 OF THE CONS TITUTION OF INDIA IN UNMISTAKABLE TERMS PRO VIDES THAT NO TAX SHAFT BE LEVIED OR COL LECTED EXCEPT BY AUTHORITY OF TAW. ACQUIE SCENCE CANNOT TAKE AWAY FROM A PARTY THE R ELIEF THAT HE IS ENTITLED TO WHERE THE T AX IS LEVIED OR COLLECTED WITHOUT AUTHORITY OF L AW.' (IV) BALMUKUND ACHARYA - 310 ITR 310 [BOMBAY HIGH COURT) 4 MA NOS.72 TO 75/MUM/2019 THE HONBLE HIGH COURT HAS HELD AS UNDER 'TAX CAN BE COLLECTED ONLY AS PROVIDED UNDER THE AC T. IF ANY ASSESSEE, UNDER 3 MISTAKE, MISCONCEPTIONS OR ON NOT BEING PRO PERLY INSTRUCTED IS OVER ASSESSED, THE AUTHORITIES UNDER THE ACT ARE RE QUIRED TO ASSIST HIM AND ENSURE THAT ONLY LEGITIMATE TAXES DUE ARE COLLE CTED' (B) FURTHER, THE CONCLUSION OR THE HON'BLE I TAT IN (B) ABOVE THAT APPLICANT CANNOT SEEK REVISION OF HIS OWN COMPUTATION IS AN A PPARENT ERROR BEING CONTRARY TO THE DECISION IN THE APPLICANT S OWN CAS E OF THE HON. ITAT, 'J' BENCH, MUMBAI IN APPEAL NO. ITA 4894/M UM/2008 FOR THE ASSESSMENT YEAR 2004-05 DATED 20 IN JULY 2016, WHICH WAS CITED BY THE APPLICANT IN CONN ECTION WITH ADDITIONAL GROUND AND WAS BEFORE HON'BLE ITAT HOLDING THAT EVEN IF THE ASSESSEE UNDER A MISTAKE OR MISCONCEPTION HAS OVER ASSESSED ITSELF IN THE RETURN OF INCOME, THE TRIBUNAL CAN GIVE RELIEF TO THE ASSESSEE TO THE EXTENT THE ASSESSES IS OVER ASSESSED AND DIRECT THE LOWER AUTHORITIES TO TAX THE ASSESSEE AS PER THE PROVISIONS OF LAW (REFE R PAGE NO, 47 TO 50, PARA NO, 30 & 31) 2.3 IT IS A WELL-SETTLED PROPOSITION IN LAW TH AT NON-CONSIDERATION OF THE JUDGMENT OF THE HON'BLE HIGH COURT AND HONBLE SUPR EME COURT CONSTITUTE AN ERROR APPARENT FROM RECORD. A. ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. [2003] [262 ITR 146] (GUJARAT] B. CITVS. SUBODHCHANDRA S.PATEL [2004] 138 TAXMAN 185 (GUJRAT) C. WALCHAND NAGAR INDUSTRIES LTD. V S. V.S. GAITONDE [1962] 44 ITR 260 (BOMBAY) D KIL KOTAGIRI TEA S COFFEE ESTATES CO- LTD. VS. ITAT [1989] 42 TAXMAN 33 (KERALA) E. ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LID. [2008] 305 ITR 227 (SC) (C) FURTHER THE HONBLE ITAT AT PAGE NO.16 &1 7 , PARA 16 HAS CONSIDERED AND CONCLUDED AS UNDER:- 'HAVING HEARD IN THIS CASE, THE ASSESSES, ON ITS OW N. DETERMINED AVERAGE VALUE OF INVESTMENTS WHICH MAY INCLUDE SHARE APPLIC ATION MONEY AND INVESTMENTS WHICH DID NOT YIELD ANY EXEMPT INCOME H AD IT BEEN A CASE OF THE ASSESSEE THAT IT HAS MADE A CLAIM BY FILING THE REV ISED STATEMENT OF TOTAL INCOME BEFORE SHE AO FOR MATING FRESH CLAIM OF EXCL USION OF INVESTMENTS WHICH DID NOT YIELD ANY EXEMPT INCOME THE ASSESSED, ALL ALONG DID NOT DISTURB SUO MOTO DISALLOWANCE QUANTIFIED U/S 14A R W.S 8D(2 )(III), BUT AT A LATER STAGE, ON THE BASIS OF CERTAIN DECISIONS MADE A FRESH_ CLA IM BY RAISING ADDITIONAL GROUNDS FOR EXCLUSIONS OF THOSE INVESTMENTS WITHOUT ANY PROPER FACTS AS. TO HOW THE COMPUTATION MADE BV THE ASSESSEE WHITE FILI NG RETURN OF INCOME IS INCORRECT WHICH NEEDS CORRECTION ON THE BASIS OF SU BSEQUENT DECISIONS OF COURTS ARID TRIBUNALS THE ASSESSEE BEING A CORPORATE GIANT ADVISED BY TA X CONSULTANT IS WELL AWARE OF THE PROVISIONS THE ASSE SSES, ON ITS OWN, DETERMINED DISALLOWANCE AS PER THE PROVISIONS OF SE CTION 14A R W. R. 8D(2}(III). THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO REASON. FOR THE ASSESSEE TO SEEK REVISION OF ITS OWN COMPUTATION ACCORDINGLY, WE REJECT ADDITIONAL GROUND TAKEN BY THE ASSESSEE FOR EXCLUSI ON OF INVESTMENTS, WHICH 5 MA NOS.72 TO 75/MUM/2019 DID NOT YIELD ANY EXEMPT INCOME FOR THE PURPOSE OF THE COMPUTATION OF AVERAGE VALUE OF INVESTMENTS '(EMPHASIS SUPPLIED) 2.4 THE APPLICANT RESPECTFULLY SUBMITS AS UNDER: (A) THE SUO-MOTO DISALLOWANCE BY THE APPLICA NT U/S 14A, AS PER 'ANNEXURE F' OF THE TAX AUDIT REPORT DATED 28 TH SEPTEMBER 2010, COPY ENCLOSED (ANNEXURE 2) WAS QUALIFIED INTER ALIA BY N OTE NOS.2 AND 3, REPRODUCED HEREUNDER:- '2. AVERAGE VALUE OF INVESTMENTS- . . ARE EXCLUDED 3. THE ABOVE DISALLOWANCE IS COMPUTED CONSIDERING T HE AVERAGE VALUE OF INVESTMENTS AS MENTIONED IN NOTE NO 2 ABOVE, IRRESP ECTIVE OF WHETHER DIVIDEND INCOME HAS BEEN RECEIVED FROM SUCH INVESTM ENTS DURING THE YEAR. HOWEVER, IN FUTURE, IN THE EVENT THERE IS ANY CLARI FICATION FROM THE DEPARTMENT OR JUDICIAL DECISIONS, TO THE EFFECT THAT ONLY THOS E INVESTMENTS FROM WHICH DIVIDEND INCOME IS RECEIVED DURING THE YEAR, IS TO BE CONSIDERED FOR COMPUTING THE DISALLOWANCE, THEN THE COMPANY RESERVES RIGHT TO REVISE THE COMMUTATION, ACCORDINGLY '' (B) THE CONCLUSION OF THE HON'BLE ITAT IS CO NTRARY TO THE DECISION OF THE SPECIAL BENCH ACIT VS. VIREET INVESTMENT (P) LTD. ( [2017] 165 ITD 27 (DELHI) WHICH WAS RELIED UPON AND BINDING UPON IT. (C) DIVIDEND IS NOT RECEIVED ON SHARE APPLICA TION MONEY ALSO, D) IN VIEW OF THE DECISIONS REFERRED IN PARA 2.2(A), 2.2(B) AND 2.3. THE ABOVE FINDINGS ARE APPARENT ERRORS 4. IN VIEW OF THE ABOVE, THE APPLICANT RESPECTFULL Y SUBMITS THAT THE ABOVE ERRORS THAT HAVE OCCURRED IN COMMON ORDER DAT ED 28 TH SEPTEMBER 2016 OF THE HON'BLE ITAT ARE APPARENT FROM THE FACE OF RECORD. THE APPLICANT FURTHER RESPECTFULLY SUBMITS THAT IN THE COURSE OF THE HEARING, NO QUERY REGARDING THE APPLICANT'S ENTITLEMENT TO RAISE A FR ESH CLAIM WAS PUT TO THE APPLICANT'S REPRESENTATIVE AND HENCE THE APPLICANT HAD NO OPPORTUNITY TO MAKE ITS SUBMISSIONS. THE CONCLUSION OF THE HON'BLE ITAT REJECTING THE APPLICANT'S CLAIM ON THIS GROUND ATONE WITHOUT PROV IDING AN OPPORTUNITY TO THE APPLICANT AND CONTRARY TO THE JUDGMENTS OF THE APEX COURT AND THE JURISDICTIONS! HIGH COURT AND CO-ORDINATE BENCHES O F THE ITAT IS ALSO AN ERROR APPARENT, 5. THE APPLICANT THEREFORE PRAYS THAT IT IS IN T HE INTEREST OF JUSTICE THAT THE HON'BLE ITAT: A) RECTIFIES THE ABOVE-MENTIONED ERRORS APP ARENT ON RECORD AND MODIFIES ITS ORDER AND/OR B) PASSES SUCH OTHER ORDER AS IT DEEMS APPRO PRIATE. 3. THE FIRST GREVIENCE OF THE ASSESSEE BY WAY OF TH IS MISCELLANEOUS APPLICATION IS DISALLOWANCES OF EXPENDITURE INCURRE D IN RELATION TO EXEMPT INCOME U/S 14A R.W.RULE 8D(2) OF I.T.RULES, 1962. 6 MA NOS.72 TO 75/MUM/2019 4. THE LD. AR FOR THE ASSESSEE SUBMITTED THAT THERE IS AN ERROR IN THE ORDER OF THE TRIBUNAL, INASMUCH AS, ALTHOUGH THE TR IBUNAL HAS ACCEPTED THE FACT THAT THE ASSESSE MAKES INVESTMENTS MAINLY IN GROUP COMPANIES IN THE CAPACITY AS PROMOTER/ CO-PROMOTER AND SUCH I NVESTMENTS IS BEING STRATEGIC INVESTMENTS DO NOT REQUIRE DAY TO DAY ANA LYSIS OF MARKET TRENDS NOR ANY REAL TIME MONITORING, BUT WENT AHEAD TO CON FIRM, THE DISALLOWANCE OF EXPENDITURE INCURRED IN RELATION TO EXEMPT INCOME U/S. 14A TO THE EXTENT OF SUO-MOTO DISALLOWANCES MADE BY THE ASSESSEE IN RETURN OF INCOME WITHOUT APPRECIATING THE FACT THAT THE ASSESSEE HAS FILED ADDITIONAL GROUNDS MAKING FRESH CLAIM OF EXCLUSION OF CERTAIN INVESTMENTS, ON THE BASIS OF SUBSEQUENT DECISION OF THE COURTS, INCLUDING THE DECISION OF HONBLE SUPREME COURT, IN THE CASE OF M/S MAXOPP INVESTMENTS LTD. VS CIT (2018) 402 ITR 640. THE LD. AR FURTHER SUBMITTED THAT THIS FACTUAL POSITION THOUGH EXPLAIN ED IN THE COURSE OF THE HEARING OF THE APPEAL, BUT IT SEEMS TO HAVE BEEN OV ER LOOKED BY THE TRIBUNAL AND HENCE, THE FINDINGS OF THE TRIBUNAL RE FERRED TO IN PARA 12 AND 14 OF THE ORDER CONSTITUTE MISTAKE APPARENT ON RECORD, WHICH NEEDS TO BE RECTIFIED 254(2) OF THE I.T.ACT, 1961. 5. THE LD. DR FOR THE REVENUE, ON THE OTHER HAND SU BMITTED THAT THE ASSESSEE HAS FAILED TO MAKE OUT A PRIMA-FACIE CASE OF MISTAKE APPARENT ON RECORD FROM THE ORDER OF THE TRIBUNAL, BUT WHAT THE LD. AR FOR THE ASSESSEE SEEKING IS TO REVIEW THE DECISION OF THE T RIBUNAL IN GIVEN FACTS AND CIRCUMSTANCES OF THIS CASE, WHICH IS NOT PERMIS SIBLE U/S 254 (2) OF THE I.T.ACT 1961 AND HENCE, THE MISCELLANEOUS APPLI CATION FILED BY THE ASSESSEE CANNOT BE ENTERTAINED. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED CONTE NTS OF MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ALO NG WITH ORDER OF THE TRIBUNAL, DATED 28/09/2018. WE FIND THAT THE TRIBUN AL HAS DISCUSSED THE 7 MA NOS.72 TO 75/MUM/2019 ISSUE OF DISALLOWANCES OF EXPENDITURE INCURRED IN R ELATION TO EXEMPT INCOME U/S 14A FOR BOTH AYS IN PARA 12 AND 14 OF THE ORDER IN THE GIVEN FACTS AND CIRCUMSTANCES OF THIS CASE AND ALSO CONSIDERED VARIOUS ARGUMENTS ADVANCED BY THE LD. AR OF THE ASSESSEE AL ONG WITH CERTAIN JUDICIAL PRECEDENTS AND CAME TO THE CONCLUSION THAT THE ASSESSEE HAS FAILED TO OFFER ANY EXPLANATION WHY SUO-MOTO DISAL LOWANCES MADE BY THE ASSESSEE IN RETURN OF INCOME IS INCORRECT, WHICH NE EDS TO BE REVISITED AT THIS POINT OF TIME. WE FURTHER NOTED THAT THE ISSUE HAS BEEN DISCUSSED IN DETAIL AND ALSO CONSIDERED VARIOUS CASE LAWS CITED BY THE ASSESSEE AND FINALLY ACCEPTED ARGUMENTS OF THE ASSESSEE, INSOFAR AS ADDITIONAL DISALLOWANCES COMPUTED BY THE AO, BUT RESTRICTED DI SALLOWANCES OF EXPENDITURE INCURRED IN RELATION TO EXEMPT INCOME U /S 14A ON THE BASIS OF SUO-MOTO COMPUTATION FILED BY THE ASSESSEE ALONG WITH RETURN OF INCOME. THEREFORE, WE ARE OF THE CONSIDERED VIEW TH AT THERE IS NO ERROR IN FINDING RECORDED BY THE TRIBUNAL, INASMUCH AS SU STAINING SUO-MOTO DISALLOWANCES MADE BY THE ASSESSEE, IN RESPECT OF E XPENDITURE INCURRED IN RELATION TO EXEMPT INCOME U/S 14A OF THE I.T.ACT 1961 AND HENCE, WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO MERIT I N MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ON THIS GROUND AN D HENCE, THE SAME IS REJECTED. 7. THE NEXT ISSUE IS THAT CAME UP FOR OUR CONSIDERA TION FROM ADDITIONAL GROUND OF APPEAL FILED BY THE ASSESSEE R EGARDING DEDUCTION OF LEGAL AND PROFESSIONAL FEE OF RS. 3,67,99,200/-. T HE LD. AR FOR THE ASSESSEE SUBMITTED THAT AS EVIDENT FROM THE GROUND ITSELF, THE SAID ADDITIONAL GROUND WAS RAISED CONSEQUENT TO AND ON T HE BASIS OF THE DECISION OF ITAT FOR AY 2004-05, DATED 28/07/2016 W HERE THE TRIBUNAL HAS BEEN CONSIDERED THIS ISSUE AND HELD THAT THE AS SESSEE IS ENTITLED TO DEDUCTION OF EXPENSES INCURRED ON INVESTMENTS MADE WITH A VIEW TO 8 MA NOS.72 TO 75/MUM/2019 EXERCISE CONTROL OVER SUBSIDIARY AND GROUP CONCERNS . THE LD. AR, FURTHER SUBMITTED THAT IN THE COURSE OF THE HEARING, IT WAS AGRGUED THAT THE CLAIM INVOLVED IS A LEGAL ISSUE AND THE FACTS BEING ON TH E RECORD, THE GROUNDS COULD BE ADMITTED AND RESTORED TO THE AO FOR CONSID ERATION ON MERITS. ALTHOUGH, THE ASSESSEE HAS PLEADED FOR ADMISSION OF ADDITIONAL CLAIM BY FILING ADDITIONAL GROUND OF APPEAL, THE TRIBUNAL HA S REJECTED THE SAID GROUND FOR THE REASON THAT IT WAS A FRESH CLAIM, WH ICH COULD NOT BE ENTERTAINED IN CONTRARY TO THE DECISION CITED BY TH E ASSESSEE. THE SAID FINDING CONSTITUTES A MISTAKE APPARENT ON RECORD, W HICH NEEDS TO BE RECTIFIED U/S 254(2) OF THE I.T.ACT 191. 8. THE LD. DR FOR THE REVENUE, ON THE OTHER HAND SU BMITTED THAT THE ASSESSEE HAS FAILED TO MAKE OUT A PRIMA-FACIE CASE OF MISTAKE APPARENT ON RECORD FROM THE ORDER OF THE TRIBUNAL, BUT WHAT THE LD. AR FOR THE ASSESSEE SEEKING IS TO REVIEW THE DECISION OF THE T RIBUNAL GIVEN FACTS AND CIRCUMSTANCES OF THIS CASE, WHICH IS NOT PERMIS SIBLE U/S 254 (2) OF THE I.T.ACT 1961 AND HENCE, THE MISCELLANEOUS APPLI CATION FILED BY THE ASSESSEE CANNOT BE ENTERTAINED. 9. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ISCELLANEOUS APPLICATION FILED BY THE ASSESEE ALONG WITH ORDER O F THE TRIBUNAL, DATED 28/09/2018 AND FIND THAT THE TRIBUNAL HAS DISCUSSED THE ISSUE IN LIGHT OF VARIOUS ARGUMENTS ADVANCED BY THE LD. AR FOR THE AS SESSEE ALONG WITH CERTAIN JUDICIAL PRECEDENTS AND CAME TO THE CONCLUS ION THAT THE ADDITIONAL CLAIM MADE BY THE ASSESSE FOR DEDUCTION OF LEGAL AN D PROFESSIONAL FEES CANNOT BE ENTERTAINED IN PARA 18 OF THE TRIBUNAL OR DER. WE FURTHER NOTED THAT THE TRIBUNAL HAS RECORDED ITS CATEGORICAL FIND INGS TO THE EFFECT THAT THE ASSESSEE ON ITS OWN HAS MADE SUO-MOTO DISALLOWA NCES OF LEGAL AND PROFESSIONAL FEES OF RS. 3,67,99,200/- INCURRED IN RELATION TO ARBITRATION MATTER OF IDEA CELLULAR LIMITED IN STATEMENT OF TO TAL INCOME, ON THE 9 MA NOS.72 TO 75/MUM/2019 GROUND THAT THERE IS NO NEXUS BETWEEN BUSINESS ACTI VITY AND EXPENDITURE INCURRED UNDER THE HEAD PROFESSIONAL AND LEGAL FEE. THE TRIBUNAL, FURTHER RECORDED THAT WHEN, ASSESSEE ON ITS OWN MADE SUO-MO TO DISALLOWANCES TOWARDS SAID EXPENDITURE, ON THE GROUND THAT THERE IS NO NEXUS BETWEEN THE BUSINESS AND EXPENDITURE, THEN MAKING A FRESH C LAIM BY FILING ADDITIONAL GROUND WITHOUT THERE BEING ANY MATERIAL CHANGES IN FACT CANNOT BE ACCEPTED. THEREFORE, WE ARE OF THE CONSID ERED VIEW THAT THE SAID FINDINGS OF THE TRIBUNAL DOES NOT CONSTITUTES A MISTAKE APPARENT ON RECORD, WHICH COULD BE RECTIFIED 254 OF THE I.T.ACT 1961 AND HENCE, WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO MERIT I N MISCELLANEOUS APPLICATION FILED BY THE ASSESEE ON THIS GROUND AND HENCE, THE SAME IS REJECTED. 10. THE NEXT ISSUE THAT CAME UP OF OUR CONSIDERATIO N FROM MA NO. 73/MUM/2019 FOR AY 2010-11 IS ADDITIONAL GROUND RAI SED BY THE ASSESSEE, IN RELATION TO COMPUTATION OF BOOK PROFIT U/S 115JB OF THE I.T.ACT, 1961. THE LD. AR FOR THE ASSESSEE SUBMITTE D THAT THERE IS AN ERROR IN THE ORDER OF THE TRIBUNAL, INASMUCH AS THE TRIBUNAL HAS RECORDED FINDINGS THAT THE ADDITIONAL GROUND RAISED BY THE A SSESSEE DOES NOT EMANATE FROM THE ORDER OF THE AO, AS THE LD. AO HAS NEVER MADE ANY ADJUSTMENT TO BOOK PROFIT COMPUTED U/S 115JB OF THE I.T.ACT 1961 IN RESPECT OF DISALLOWANCES OF MADE U/S 14A OF THE I.T .ACT 1961 IN THE ASSESSMENT ORDER,. HOWEVER, THE FACT REMAINS THAT T HE LD. AO HAS COMPUTED TAX UNDER NORMAL PROVISIONS OF THE ACT, BE CAUSE THE ASSESSED INCOME AS PER THE NORMAL PROVISION OF THE ACT, 1961 IS HIGHER THAN THE BOOK PROFIT. THEREFORE, THE FINDING OF THE TRIBUNAL THAT ADDITIONAL GROUND TAKEN BY THE ASSESSEE DID NOT EMANATE IS AN APPAREN T ERROR, WHICH COULD BE RECTIFIED U/S 254(2) OF THE INCOME TAX ACT, 1961 . 10 MA NOS.72 TO 75/MUM/2019 11. THE LD. DR FOR THE REVENUE, ON THE OTHER HAND S UBMITTED THAT THE ASSESSEE HAS FAILED TO MAKE OUT A PRIMA-FACIE CASE OF MISTAKE APPARENT ON RECORD FROM THE ORDER OF THE TRIBUNAL, BUT WHAT THE LD. AR FOR THE ASSESSEE SEEKING IS TO REVIEW THE DECISION OF THE T RIBUNAL GIVEN FACTS AND CIRCUMSTANCES OF THIS CASE, WHICH IS NOT PERMIS SIBLE U/S 254 (2) OF THE I.T.ACT 1961 AND HENCE, THE MISCELLANEOUS APPLI CATION FILED BY THE ASSESSEE CANNOT BE ENTERTAINED. 12. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE CONTENTS OF MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE ON THIS ISSUE AND FOUND THAT THE TRIBUNAL HAS RECORDED CATEGORICAL FINDING, IN THE LIGHT OF THE ADDITIONAL GROUND FILED BY THE ASSESSEE AND HELD TH AT ADDITIONAL GROUND RAISED RELATED TO COMPUTATION OF BOOK PROFIT DOES N OT EMANATE FROM THE ORDER OF THE AO, AS THE AO WAS NEVER MADE ANY ADJUS TMENT TO BOOK PROFIT COMPUTED U/S 115JB OF THE I.T.ACT 1961. WE F IND THAT EVEN NOW, THE ASSESSEE HAS FAILED TO MAKE OUT A CASE OF PRIMA -FACIE MISTAKE IN THE ORDER OF THE TRIBUNAL, INSOFAR AS ADDITIONAL GROUND RELATES TO COMPUTATION OF BOOK PROFIT U/S 115JB, BECAUSE THE LD. AO NEVER MADE ANY ADJUSTMENT TO BOOK PROFIT U/S 115JB IN THE ASSESSME NT ORDER AND HENCE, WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO MERI T IN ADDITIONAL GROUND FILED BY THE ASSESSEE AND ACCORDINGLY, THE SAME IS REJECTED. 13. IN THE RESULT, ALL MISCELLANEOUS APPLICATIONS F ILED BY THE ASSESSEE FOR AYS 2010-11 AND 2011-12 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09.12.2019. SD/- SD/- MAHAVIR SINGH G MANJUNATHA JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 09.12.2019 11 MA NOS.72 TO 75/MUM/2019 THIRUMALESH, SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//