UMESH M JOSHI, V. ITO 6(3)(2),

MA 81/MUM/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8812 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-07-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2006-2007
• Appeal Filed On: 09-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Capital receipt; Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH: MUMBAI BEFORE SHRI B.R. MITTAL, JUDICIAL MEMBER AND SHRI P.M. JAGTAP, ACCOUNTANT MEMBER MA NO.81/MUM/2012 ARISING OUT OF ITA NO.4287/MUM/2010 FOR A.Y. 2006-0 7 SHRI UMESH M. JOSHI, KOHINOOR BHAVAN, A, SENAPATI BAPAT MARG, DADAR (WEST), MUMBAI -400 028 PAN: ACJPJ 9493 M ....... APPLICANT VS THE INCOME-TAX OFFICER -6(3)(2), MUMBAI ..... RESPONDENT PAN: ACJPJ 9493 M APPLICANT BY: SHRI JAYESH DADIA RESPONDENT BY: SHRI M. RAJAN DATE OF HEARING: 06.07.2012 DATE OF PRONOUNCEMENT: 11.07.2012 O R D E R PER P.M. JAGTAP, AM BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE IS SEEKING RECTIFICATION OF THE MISTAKE ALLEGED TO HAVE CREPT IN THE ORDER OF THE TRIBUNAL DATED 23RD DECEMBER, 2011 PASSED IN ITA NO.4287/MUM/2010. 2. AS SUBMITTED IN THE PRESENT APPLICATION AND FURT HER REITERATED BY THE LD. COUNSEL FOR THE ASSESSEE AT THE TIME OF HEARING BEFORE US, THE ORDER OF THE TRIBUNAL DATED 23RD DECEMBER, 2011 (SUPRA) ALLEGEDLY SUFFERS FROM A MISTAKE AS GIVEN HEREUNDER: IN GROUND NO.3 OF THE SAID APPEAL, THE APPELLANT H AD RAISED ALTERNATIVE CLAIM THAT SALES TAX BENEFIT IS IN THE NATURE OF CAPITAL RECEIPTS AND THEREFORE NOT SUBJECT TO TAX AT ALL. MA 81/MUM/2012 SHRI UMESH M. JOSHI 2 IT WAS SUBMITTED AT THE TIME OF HEARING THAT THIS G ROUND WAS NOT RAISED BEFORE THE ASSESSING OFFICER BUT IT WAS CERT AINLY RAISED BEFORE THE LD. CIT (A). THE HONBLE MEMBERS, THEREFORE, FELT THAT THE ISSUE RAISED IN GROUND NUMBER 3 CANNOT BE DECIDED AND NEEDS TO GO B ACK TO THE ASSESSING OFFICER FOR VERIFICATION AND EXAMINATION. HOWEVER, ON RECEIPT OF THE ORDER, IT WAS NOTICED TH AT IN PARA 9, THE HONBLE TRIBUNAL HAS DISMISSED THIS GROUND OF APPEA L ON THE GROUND THAT THERE IS NOTHING ON RECORD TO SHOW THA T THIS ISSUE WAS RAISED BY THE ASSESSEE BY WAY OF AN ADDITIONAL GROUND FILED BEFORE THE LD. CIT (APPEALS) AND THEREFORE THIS ISS UE IS NOT ARISING FROM THE IMPUGNED ORDER OF THE LD. CIT (APPEALS). THE FINDINGS OF THE HONBLE TRIBUNAL STATED ABOVE I S FACTUALLY INCORRECT AS THE LD. CIT(APPEALS) HIMSELF HAS DISCU SSED THE ISSUE RAISED BEFORE HIM REGARDING THE NATURE OF SUBSIDY I N PARA 8 PAGE 4,5,6,7,8 & 9. THE LD. CIT (A) HAS REPRODUCED THE A PPELLANTS SUBMISSIONS WHERE A CLAIM WAS MADE THAT SUBSIDY REC EIVED IS IN THE NATURE OF CAPITAL. THIS CLEARLY ESTABLISH THAT THERE WAS A CLAIM BEFORE THE LD. CIT (APPEALS) AND IT WAS DISCUSSED B Y THE CIT(APPEALS) IN HIS ORDER AND THEREFORE THE ISSUE H AS ARISEN FROM THE IMPUGNED ORDER THE LD. CIT(APPEALS). FURTHER, IN SUPPORT OF CLAIM OF SUBSIDY IN THE NATU RE OF CAPITAL, THE APPELLANT HAS ALSO FILED CIRCULAR AND CASE LAWS INC LUDING THE APEX COURT AND BOMBAY TRIBUNAL FROM PAGE NUMBER 1 TO 109 WHERE THE COURTS HAVE HELD SIMILAR NATURE OF SUBSIDY AS C APITAL. THE APPELLANT DID NOT GET THE OPPORTUNITY TO EXPLAIN TH E CONTENTS OF THESE DECISIONS AS THE TRIBUNAL HAS STATED THAT THE MATTER DESERVE TO GO BACK TO THE ASSESSING OFFICER. MA 81/MUM/2012 SHRI UMESH M. JOSHI 3 IT WAS ALSO SUBMITTED IN THE COURSE OF PROCEEDINGS THAT THE LD. CIT(APPEALS) DID NOT ADMIT THE ADDITIONAL GROUND OF APPEAL IN VIEW OF THE DECISION OF HONBLE SUPREME COURT IN TH E CASE OF GOETZE INDIA LIMITED (284 ITR 323) (RELEVANT PARA 1 0 PAGE 9) OF THE CIT (APPEALS)S ORDER. DURING THE COURSE OF PROCEEDINGS BEFORE THE HONBLE TRIBUNAL, IT WAS ALSO MENTIONED BY THE APPELLANTS AUTHORIZED RE PRESENTATIVE THAT DECISION IN THE CASE OF GOETZE INDIA LIMITED H AVE NO APPLICABILITY BEFORE THE APPELLATE AUTHORITIES. UNDER THE CIRCUMSTANCES, THE HONBLE TRIBUNAL, THER EFORE, HAS ERRED IN DISMISSING THE 3RD GROUND OF APPEAL ON INC ORRECT FACTS AS THE ISSUE IS ARISING FROM THE IMPUGNED ORDER OF THE LD. CIT (APPEALS). 3. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBS ERVED THAT GROUND NO.3 RAISED BY THE ASSESSEE IN HIS APPEAL WAS DECID ED BY THE TRIBUNAL VIDE PARAGRAPH NO.9 OF ITS ORDER DATED 23RD DECEMBE R, 2011 (SUPRA) WHICH READS AS UNDER: 9. IN GROUND NO. 3, THE ASSESSEE HAS RAISED ANOTH ER ALTERNATIVE CLAIM THAT THE SALES-TAX BENEFIT BEING IN THE NATURE OF INCENTIVE RECEIVED ON CAPITAL ACCOUNT, THE SAME SHO ULD BE TREATED AS CAPITAL RECEIPT. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED THAT THIS ALTERNATIVE CLAIM OF THE AS SESSEE HAS NOT BEEN EXAMINED EITHER BY THE AO OR BY THE LEARNED CI T (APPEALS) AND, THEREFORE, THE MATTER MAY BE SENT BACK TO THE AO FOR SUCH EXAMINATION. A PERUSAL OF THE IMPUGNED ORDER OF THE LEARNED CIT (APPEALS), HOWEVER, SHOWS THAT THIS ASPECT OF THE M ATTER WAS FOUND TO BE IRRELEVANT BY HIM TO THE ISSUE OF ELIGI BILITY OF SALES-TAX BENEFIT FOR DEDUCTION U/S 80IA(4) WHICH WAS RAISED BY THE ASSESSEE IN THE APPEAL FILED BEFORE HIM. IT WAS ALS O NOTED BY THE MA 81/MUM/2012 SHRI UMESH M. JOSHI 4 LEARNED CIT (APPEALS) THAT THIS CLAIM WAS NOT MADE BY THE ASSESSEE BEFORE THE AO DURING THE COURSE OF ASSESSM ENT PROCEEDINGS BY WAY OF A REVISED RETURN. WE HAVE ALS O NOTED FROM THE GROUNDS RAISED BY THE ASSESSEE IN AN APPEAL FIL ED BEFORE THE LEARNED CIT (APPEALS) THAT THIS ISSUE WAS NOT RAISE D THEREIN. THERE IS ALSO NOTHING ON RECORD TO SHOW THAT THIS I SSUE WAS RAISED BY THE ASSESSEE BY WAY OF AN ADDITIONAL GROUND FILE D BEFORE THE LEARNED CIT (APPEALS). HAVING REGARD TO ALL THESE F ACTS OF THE CASE, WE ARE OF THE VIEW THAT THIS ISSUE IS NOT ARI SING FROM THE IMPUGNED ORDER OF THE LEARNED CIT (APPEALS) AND THE SAME CANNOT BE ENTERTAINED AT THIS STAGE AND RESTORED TO THE FI LE OF THE AO FOR CONSIDERATION AS SOUGHT BY THE LEARNED COUNSEL FOR THE ASSESSEE. WE, THEREFORE, DISMISS GROUND NO. 3 OF THE ASSESSEE S APPEAL. 4. AS IS CLEARLY EVIDENT FROM THE RELEVANT PORTION OF THE ORDER EXTRACTED ABOVE, THE ISSUE RAISED BY THE ASSESSEE I N GROUND NO.3 RELATING TO ITS ALTERNATIVE CLAIM WAS NOT ENTERTAIN ED BY THE TRIBUNAL AFTER HAVING FOUND THAT THE SAME WAS NOT RAISED BY THE ASSESSEE IN THE APPEAL FILED BEFORE THE LD. CIT (A) EITHER IN THE O RIGINAL GROUND OR EVEN BY WAY OF ADDITIONAL GROUND. THE TRIBUNAL THUS HEL D THAT IT WAS NOT ARISING FROM THE IMPUGNED ORDER OF THE LD. CIT (A). MERELY BECAUSE THE SUBMISSIONS MADE BY THE ASSESSEE ON CERTAIN ISS UE WAS REPRODUCED BY THE LD. CIT (A) OR WAS REFERRED TO BY HIM IN HIS APPELLATE ORDER, IT CANNOT BE SAID THAT THE SAID IS SUE IS ARISING FROM THE ORDER OF THE LD. CIT (A) UNLESS THE SAME HAD BE EN RAISED BY THE ASSESSEE IN THE APPEAL FILED BEFORE THE LD. CIT (A) EITHER BY WAY OF ORIGINAL GROUND OR ADDITIONAL GROUND. IN THE CASE OF THE ASSESSEE, IT WAS FOUND BY THE TRIBUNAL THAT THERE WAS, HOWEVER, NOTHING ON RECORD TO SHOW THAT THE ISSUE RAISED IN GROUND NO.3 WAS RA ISED BY THE ASSESSEE IN AN APPEAL FILED BEFORE THE LD. CIT (A) IN THE ORIGINAL GROUND OR EVEN BY WAY OF ADDITIONAL GROUND AND ON THE BASI S OF THE SAID FINDING, THE ISSUE RAISED IN GROUND NO.3 WAS NOT EN TERTAINED BY THE TRIBUNAL HOLDING THAT IT WAS NOT ARISING FROM THE I MPUGNED ORDER OF MA 81/MUM/2012 SHRI UMESH M. JOSHI 5 THE LD. CIT (A). THERE IS NOTHING AVAILABLE ON REC ORD TO SHOW THAT THIS FINDING RECORDED BY THE TRIBUNAL IS FACTUALLY INCOR RECT AS ALLEGED BY THE ASSESSEE IN THE PRESENT APPLICATION. MOREOVER, THE TRIBUNAL HAS TAKEN A VIEW ON CONSIDERATION OF THE MATERIAL AVAIL ABLE ON RECORD THAT THE ISSUE RAISED BY THE ASSESSEE IN GROUND NO.3 WAS NOT ARISING FROM THE IMPUGNED ORDER OF THE LD. CIT (A) AND IT IS NOT PERMISSIBLE TO REVIEW THE SAME IN THE GUISE OF RECTIFICATION U/S. 254(2) AS SOUGHT BY THE ASSESSEE. WE ARE THEREFORE OF THE VIEW THAT TH ERE IS NO MISTAKE MUCH LESS A MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF THE TRIBUNAL DATED 23.12.2011 (SUPRA) AS ALLEGED BY THE ASSESSEE, WHICH CAN BE RECTIFIED U/S.254(2). WE, THEREFORE, DISMIS S THIS M.A. FILED BY THE ASSESSEE BEING DEVOID OF ANY MERITS. 5. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11TH DAY OF JULY, 2012. SD/- ( B.R. MITTAL ) JUDICIAL MEMBER SD/- ( P.M. JAGTAP ) ACCOUNTANT MEMBER MUMBAI, DATE: 11TH JULY, 2012 COPY TO:- 1) THE APPLICANT. 2) THE RESPONDENT. 3) THE CIT (A)VI, MUMBAI, 4) THE CIT- VI, MUMBAI. 5) THE D.R. F BENCH, MUMBAI. BY ORDER / / TRUE COPY / / ASSTT. REGISTRAR I.T.A.T., MUMBAI *CHAVAN