BANK OF INDIA, MUMBAI V. DCIT 2(1)(1), MUMBAI

MA 90/MUM/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 4608 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 11-02-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CHAUDHARY ARUN KUMAR SINGH
• Keywords: Rule 8D; Set aside
• Section: 14A; 115JB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER & SHRI MANOJ KUMAR AGGARWAL , HON'BLE ACCOUNTANT MEMBER M .A. NO. 90 /MUM/201 9 [ ARISING OUT OF ITA NO. 3762 /MUM/201 7 (A.Y: 2013 - 14 )] M/S. BANK OF INDIA STAR HOUSE, C - 5, G BLOCK, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI 400 051 PAN: AAACB 0472 C V. D .C.I.T 2(1)(1) ROOM NO. 561, 5 TH FLOOR AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400 020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI C. NARESH DEPARTMENT BY : SHRI CHAUDHARY ARUNKUMAR SINGH DATE OF HEARING : 05.04.2019 DATE OF PRONOUNCEMENT : 09 . 05 .2019 O R D E R PER C. N. PRASAD (JM) 1. THROUGH THIS MISCELLANEOUS APPLICATION ASSESSEE SEEKS TO RECALL THE APPEAL WITH REGARD TO GROUND OF APPLICABILITY OF PROVISIONS OF SECTION 115JB AND POST THE CASE FOR FRESH HEARING STATING THAT THERE IS A MISTAKE APPARENT ON RECORD IN DISPOSING OFF THIS GROUND OF APPEA L. 2. IT IS THE CONTENTION OF THE APPELLANT THAT, THE TRIBUNAL SET ASIDE THE ISSUE OF APPLICABILITY OF PROVISIONS U/S. 115JB OF THE ACT FOR THE A.Y. 2013 - 2 M.A. NO. 90/MUM/2019 M/S. BANK OF INDIA 14 TO THE FILE OF THE ASSESSING OFFICER ON THE GROUND THAT LD. CIT(A) DECIDED THE ISSUE WITHOUT EXAMINING THE IMPLICATION OF EXPLANATION 3 TO SECTION 115JB. IT IS THE CONTENTION OF THE ASSESSEE THAT EXPLANATION 3 TO SECTION 115JB WAS IN FACT CONSIDERED BY THE LD. CIT(A) IN PARA NO.15.3 OF HIS ORDER AND THEREFORE, IT IS A MISTAKE APPARENT ON RECORD IN STATING THAT THE EXPLANATION 3 TO SECTION 115JB WAS NOT CONSIDE RED BY THE LD. CIT(A). 3. ON THE OTHER HAND LD. DR SUBMITTED THAT THE TRIBUNAL CONSIDERING ALL THE FACTS ON RECORD AND THE OBSERVATION OF THE LD. CIT(A) , HELD THAT THE ASSESSING OFFICER OR LD. CIT(A) HAV E NOT EXAMINED THE IMPLICATION OF EXPLANATION 3 TO SECTION 115JB OF THE ACT AND THEREFORE RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE ISSUE IN VIEW OF THE AMENDMENT MADE BY THE FINANCE ACT, 2012 AND THE INSERTION OF EXPLANATION 3 TO SECTION 115JB W.E.F 01.04.2013 WHICH IS APPLICABLE TO THE A.Y. 2013 - 14 THE ASSESSMENT YEAR UNDER CONSIDERATION. THEREFORE, THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL IN HOLDING THAT THE IMPLICATIONS OF THE PROVISIONS OF EXPL ANATION 3 TO SECTION 115JB HAVE NOT BEEN EXAMINED BY THE LOWER AUTHORITIES AND IN RESTORING THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR DENOVO EXAMINATION . 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDER OF THE TRIBUNAL. THIS TRIBUNAL WHILE DISPOSING OF THE APPEAL HAD CONSIDERED ALL 3 M.A. NO. 90/MUM/2019 M/S. BANK OF INDIA THE RELEVANT FACTS AND THE DECISION RENDERED BY THE FIRST APPELLATE AUTHORITY AND ARRIVED AT A CONCLUSION THAT NONE OF THE LOWER AUTHORITIES HAVE EXAMINED THE IMPLICATION OF EXPLANATION 3 TO SECTION 115JB WHILE DE CIDING THE ISSUE ESPECIALLY EXPLANATION 3 WHICH WAS INSERTED W.E.F. 01.04.2013 AND IS APPLICABLE FOR THE A.Y. 2013 - 14 WHICH IS THE ASSESSMENT YEAR UNDER CONSIDERATION. IN THE CIRCUMSTANCES, WE DO NOT SEE ANY MERIT IN THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IN STATING THAT THERE IS MISTAKE APPARENT ON RECORD IN THE TRIBUNAL ORDER IN OBSERVING THAT LD. CIT(A) HAS NOT CONSIDERED THE EXPLANAT ION 3 TO SECTION 115JB OF THE ACT. 5. IN THE MISCELLANEOUS APPLICATION IT IS ALSO STATED THAT APPLICATION UNDER RULE 27 OF ITAT RULES WAS FILED ON THE ISSUE S OF DISALLOWANCE OF PROVISION FOR WAGE REVISION AND SECTION 14A OF THE ACT IN COMPUTING THE BOOK PROFI TS AND THIS WAS NOT ADJUDICATE D AND THEREFORE CONSTITUTED A MISTAKE APPARENT ON RECORD. 6. IN THIS REGARD, SINCE THE ISSUE OF APPLICABILITY OF THE PROVISIONS OF SECTION 115JB OF THE ACT , IN THE LIGHT OF THE EXPLANATION 3 HAS BEEN RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR DENOVO EXAMINATION , THE QUESTION OF ADJUDICATING THE ADJUSTMENTS MADE U/S. 14A R.W. RULE 8D A N D THE PROVISION OF WAGE REVISION TO THE BOOK PROFITS DID NOT ARISE A T THIS STAGE 4 M.A. NO. 90/MUM/2019 M/S. BANK OF INDIA AND THE ISSUES CAN BE AGITATED BEFORE THE ASSESSING OFFICER AS AND WHEN THE CONSEQUENTIAL ORDER IS PASSED GIVING EFFECT TO THE ORDER OF THE TRIBUNAL IN ITA.NO. 3762/MUM/2017 FOR THE A.Y. 2013 - 14. HENCE , THERE IS NO MISTAKE APPARENT ON RECORD IN THE ORDER PASSED BY THE TRIBUNAL. THUS , THE MISCELLANEOUS APPLICATION FILE D BY THE ASSESSEE IS REJECTED. 7. IN THE RESULT, MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 09 TH MAY , 2019 SD/ - SD/ - ( MANOJ KUMAR AGGARWAL ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 0 9 / 0 5/2019 GIRIDHAR, SR.PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM