GARDEN VIEW REALITIES P. LTD, V. ITO WD 3(1)(4),

MA 741/MUM/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4296 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-01-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2003-2004
• Appeal Filed On: 09-11-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VANDANA SAGAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VP & SHRI R.K. PANDA, AM M.A. NO. 741/MUM/2009 ARISING OUT OF I.T.A. NO. 153/MUM/08 (ASSESSMENT YEAR 2003-04) M/S. GARDEN VIEW REALTORS PVT. LTD., 161-C, MITTAL TOWERS, NARIMAN POINT, MUMBAI-21 PAN: AAACG1917F VS. THE I.T.O. WARD 3(1)(4) R. NO. 666, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400 020 APPELLANT RESPONDENT APPELLANT BY: NONE RESPONDENT BY: SMT. VANDANA SAGAR O R D E R DATE OF HEARING: 15.01.2010 DATE OF ORDER: 20.01.2010 PER R.K. PANDA, AM: THIS MISCELLANEOUS APPLICATION (MA) FILED BY THE A SSESSEE ARISES OUT OF THE ORDER OF THE TRIBUNAL VIDE I.T.A. NO. 153/MUM/08 ORDER DATED 8 TH JULY, 2009 FOR THE A.Y. 2003-04. 2. THIS MA WAS FIXED FOR HEARING ON 1 ST JANUARY, 2010 WHICH WAS ADJOURNED TO 15 TH JANUARY, 2010. HOWEVER, WHEN THE NAME OF THE ASSESSEE WAS CALLED ON 15 TH JANUARY, 2010 NONE APPEARED ON BEHALF OF THE ASSESSEE NOR ANY ADJOURNMENT PETITION SEEKIN G ADJOURNMENT OF THE CASE HAS BEEN FILED. ACCORDINGLY THIS MA IS BEING DISPOSED OFF ON THE BASS OF MATERIAL AVAILABLE ON RECORD AND AFT ER HEARING THE LEARNED DR. 3. THE ASSESSEE IN ITS MA HAS STATED THAT WHILE DECIDI NG THE ISSUE IN APPEAL IN RESPECT OF THE TAXABILITY OF INC OME BY WAY OF LICENCE FEE DERIVED FROM PROVIDING/SUB LEASING OF S PACE FOR DATA PROCESSING, WHICH ACTIVITY IS ALSO ONE OF THE OBJEC TS OF CARRYING ON THE BUSINESS, THE TRIBUNAL MERELY FOLLOWED THE DECI SION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A.YS. 1999-2000 TO 2001-02. M.A. NO. 741/MUM/09 M/S. GARDEN VIEW REALTORS PVT. LTD. ======================== 2 HOWEVER, THE TRIBUNAL DID NOT CONSIDER CERTAIN DECI SIONS OF THE APEX COURT PARTICULARLY IN THE CASE OF S.G. MERCANT ILE, 83 ITR 700 AND KARANTURA DEVELOPMENT CO. LTD. (44 ITR 362). T HEREFORE, THE ORDER PASSED BY THE TRIBUNAL CONSTITUTES THE MISTAK E APPARENT FROM RECORD. ACCORDINGLY, IT HAS BEEN SUBMITTED IN THE MA THAT THE TRIBUNAL MAY SUITABLY AMEND THE ORDER EITHER TO REC TIFY THE MISTAKE OR THE ORDER MAY BE RECALLED FOR FRESH HEARING. 4. THE LEARNED DR, ON THE OTHER HAND, REFERRING TO THE ORDER OF THE TRIBUNAL SUBMITTED THAT THE TRIBUNAL HAS FOLLOW ED THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE PREC EDING A.Y. I.E., 1999-2000 TO 2001-02. THE TRIBUNAL IN THE PRECEDIN G ASSESSMENT YEARS HAS PASSED A VERY ELABORATE ORDER CONSIDERING VARIOUS DECISIONS. THEREFORE, THERE IS NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL. HE ACCORDINGLY SUBMITTED THAT THE MA FILED BY THE ASSESSEE SHOULD BE DISMISSED. 5. AFTER HEARING THE LEARNED DR AND ON PERUSAL OF THE RECORDS, WE FIND THE MA FILED BY THE ASSESSEE IS LIABLE TO B E DISMISSED. THE TRIBUNAL HAS FOLLOWED THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE PRECEDING ASSESSMENT YEARS I.E., A.YS. 1999-2000 TO 2001-02. THE ASSESSEE THROUGH THIS MA NOW REQUEST THE TRIBUNAL TO RECONSIDER ITS EARLIER DECISION WHICH, IN OUR OPINI ON, AMOUNTS TO REVIEW OF ITS OWN ORDER BY THE TRIBUNAL WHICH IS NO T PERMISSIBLE IN LAW. WE, THEREFORE, DO NOT FIND ANY MERIT IN THE M A FILED BY THE ASSESSEE AND ACCORDINGLY DISMISS THE SAME. 6. IN THE RESULT, THE MA FILED BY THE ASSESSEE IS DISM ISSED. ORDER PRONOUNCED ON 20 TH JANUARY, 2010. SD/- (D. MANMOHAN) VICE PRESIDENT SD/- (R.K. PANDA) ACCOUNTANT MEMBER MUMBAI, DATED 20 TH JANUARY, 2010 M.A. NO. 741/MUM/09 M/S. GARDEN VIEW REALTORS PVT. LTD. ======================== 3 COPY TO: (1) THE APPELLANT, (2) THE RESPONDENT, (3) THE CIT(A)-III, MUMBAI, (4) THE CIT, CITY-III, MUMBAI, (5) THE DR, G BENCH, ITAT, MUMBAI. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI TPRAO