VILE PARLE PRARTHANA CO-OP.HSG. SOC.LIMITED, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX -25(3), MUMBAI

MA 92/MUM/2020

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3891 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2012-2013
• Appeal Filed On: 21-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: THANIAN OOMMEN
• Keywords: Rectification of order
• Section: 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUM BAI BEFORE SHRI SHAMIM YAHYA, AM AND SHRI PAVAN KUMAR GADALE, JM M.A. NOS. 91 & 92/MUM/2020 (ARISING OUT OF ITA NOS. 1411 & 1409/MUM/2018) (ASSESSMENT YEARS: 2014-15 & 2012-13) VILE PARLE PRARTHANA CO-OP. HSG. SOC. LIMITED 19, TPS, PRARTHANA SAMAJ ROAD, VILE PARLE (E), MUMBAI-400 057 VS. ASST. CIT-25(3) MUMBAI-400 057 PAN/GIR NO. AAAAV 0984 F ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : SHRI VIMAL PUNMIYA RESPONDENT BY : SHRI THANIAN OOMMEN DATE OF HEARING : 12.03.2021 DATE OF PRONOUNCEMENT : 01.06.2021 ORDER U/S. 254(2) OF THE INCOME TAX ACT, 1961 PER SHAMIM YAHYA, A. M.: BY WAY OF THESE MISCELLANEOUS APPLICATIONS THE ASSE SSEE SEEKS RECTIFICATION OF MISTAKE OF THE ORDER OF THIS TRIBUNAL IN ITA NO. 14 11 & 1409/MUM/2018 VIDE ORDER DATED 24.09.2019. 2. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. IT IS THE CONTENTION OF THE LD. COUNSEL OF THE ASSESSEE THAT IN THIS CASE THE I SSUE IN APPEAL WAS MESNE PROFITS. THE ASSESSEES CLAIM WAS THAT THE SAME IS CAPITAL PROFI T AND HENCE NOT TAXABLE. THAT THIS WAS DULY SUPPORTED BY SPECIAL BENCH DECISION OF ITAT IN THE CASE OF NARANG OVERSEAS PVT. 2 M.A. NOS. 91 & 92/MUM/2020 VILE PARLE PRARTHANA CO-OP. HSG. SOC. LIMITED VS. A SST. CIT LTD. VS. ACIT [111 ITD 1 (MUM)(SB)] AND HON'BLE BOMBAY HIGH COURT DECISION. HOWEVER, ITAT HAD REPRODUCED THE ORDER OF THE LD. C IT(A) IN PAGE 12 AND THEREAFTER IN A VERY SHORT ORDER HAD UPHELD THE ORDER OF THE LD. CI T(A). IT IS THE CONTENTION OF THE ASSESSEE THAT THE ITAT HAS NOT DEALT WITH THE ENORM OUS DETAILS SUBMITTED IN THE ABOVE, AND HAS NOT DEALT WITH THE SAME. THE FURTHER CONTEN TION OF THE ASSESSEE THAT THE LD. CIT(A) HAS GROSSLY ERRED IN NOT FOLLOWING THE EARLIER SPEC IAL BENCH DECISION AND THE HON'BLE BOMBAY HIGH COURT DECISION ON THIS ISSUE. HE FURTHE R SUBMITTED THAT THE LD. CIT(A)S ORDER IS NOT AT ALL SUSTAINABLE, AS IT REFUSED TO F OLLOW 5 MEMBER SPECIAL BENCH DECISION OF ITAT IN THE CASE OF NARANG OVERSEAS PVT. LTD. (SUPRA). HE SUBMITTED THAT IN THE ORDER OF OTHER HIGH COURTS REFERRED BY THE LD. CIT(A), THE I SSUE WAS CONFIRMATION OF SMALLER SPECIAL BENCH OF ITAT. 3. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE (LD. DR FOR SHORT) SUBMITTED THAT THE ASSESSEE SEEKING A REVIEW OF THE ORDER WHICH IS NOT PERMISSIBLE. 4. UPON CAREFUL CONSIDERATION, WE FIND THAT THE CON TENTION OF THE LD. COUNSEL OF THE ASSESSEE IS THAT ITAT HAS REPRODUCED THE ORDER OF T HE LD. CIT(A) AND UPHELD HIS ORDER. HE SUBMITTED THAT THE LD. CIT(A) HAS NOT FOLLOWED THE ORDER OF LARGER SPECIAL BENCH OF THE ITAT IN THE CASE OF NARANG OVERSEAS PVT. LTD. (SUPRA) AND THE DECISION OF HON'BLE BOMBAY HIGH COURT IN CIT VS. GOODWILL THEATRES P. LTD. [2018] 400 ITR 566 (SC), WHEREIN THE SPECIAL BENCH DECISION OF NARANG OVERSEAS PVT. LTD. (SUPRA) WAS REFERRED AND IT WAS NOTED THAT THE REVENUE HAS NOT FILED THE APP EAL AGAINST IT. SUBSEQUENTLY, THE HON'BLE SUPREME COURT HAD REMITTED THE MATTER TO THE HON'BL E BOMBAY HIGH COURT TO DECIDE THE 3 M.A. NOS. 91 & 92/MUM/2020 VILE PARLE PRARTHANA CO-OP. HSG. SOC. LIMITED VS. A SST. CIT MATTER AFRESH. THUS, ITAT LARGER BENCH DECISION IS STILL IN FAVOUR OF THE ASSESSEE. THE DECISION RELIED BY THE LD. CIT(A) RELATE TO DIFFERE NT HIGH COURT WHICH HAD UPHELD THE DECISION OF SMALLER SPECIAL BENCH OF ITAT. HENCE, T HE SHORT AND CRITICAL ISSUE AS TO WHY THE DECISION OF LARGER SPECIAL BENCH IN NARANG OVERSEAS PVT. LTD. (SUPRA) WHICH HAS NOT BEEN REVERSED BY THE HON'BLE JURISDICTIONAL HIGH CO URT IS NOT TO BE CONSIDERED HAS NOT BEEN DEALT WITH IN THE AFORESAID ORDER. HENCE, THER E IS A MISTAKE APPARENT FROM RECORD IN THE ORDER OF ITAT. WE RECALL THE AFORESAID ORDER OF THE ITAT. THE REGISTRY IS DIRECTED TO FIX THE CASE IN THE NORMAL COURSE. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS FI LED BY THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 01.06.2021 SD/- SD/- (PAVAN KUMAR GADALE) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; DATED : 01.06.2021 ROSHANI , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR, ITAT, MUMBAI 6. GUARD FILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI