Income Tax Appellate Tribunal - Mumbai
Deputy Commissioner Of Income Tax (It) 2 ... vs Ing Bewaar Maatschappij I. B.V. As ... on 2 July, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH "L", MUMBAI
BEFORE SH. R. C. SHARMA, ACCOUNTANT MEMBER AND
SHRI PAWAN SINGH, JUDICIAL MEMBER
M.A No. 355/Mum/2017 in ITA No.7119/Mum/2014 ( A Y: 2007-08)
DCIT (IT)-2(2)(1) ING Bewaar Maatschappiji B.V.
Room No. 1722, 17th Floor, as Trustee of ING Emerging
Air India Building, Markets Equity Funds, C/o. SRBC
Nariman Point, Vs. & Associates LLP, 14th Floor, The
Mumbai-21. Ruby, 29, Senapati Bapat Marg,
Dadar (W), Mumbai-400028 .
PAN: AAATI4316D
(Appellant) (Respondent)
M.A No. 353/Mum/2017 in ITA No.7120/Mum/2014 ( A Y: 2008-09)
DCIT (IT)-2(2)(1) ING Bewaar Maatschappiji B.V.
Room No. 1722, 17th Floor, as Trustee of ING Emerging
Air India Building, Markets Equity Funds, C/o. SRBC
Nariman Point, Vs. & Associates LLP, 14th Floor, The
Mumbai-21. Ruby, 29, Senapati Bapat Marg,
Dadar (W), Mumbai-400028 .
PAN: AAATI4316D
(Appellant) (Respondent)
M.A No. 354/Mum/2017 in ITA No.7121/Mum/2014 ( A Y: 2010-11)
DCIT (IT)-2(2)(1) ING Bewaar Maatschappiji B.V.
Room No. 1722, 17th Floor, as Trustee of ING Emerging
Air India Building, Markets Equity Funds, C/o. SRBC
Nariman Point, Vs. & Associates LLP, 14th Floor, The
Mumbai-21. Ruby, 29, Senapati Bapat Marg,
Dadar (W), Mumbai-400028 .
PAN: AAATI4316D
(Appellant) (Respondent)
Revenue by : Miss N. Hemalatha (Sr. DR)
Assessee by Shri Dhanesh Batna/Ravi
:
Sawana (AR)
MA 353 to 355 M 17 - ING Bewaar Maatschappiji
B.V. as Trustee of ING Emerging Markets Equity Funds
Date of hearing : 01.06.2018
Date of Pronouncement : 02.07.2018
Order under section 254(2) of Income-tax Act
PER PAWAN SINGH, JM:
1. The aforesaid three Miscellaneous Applications (MA's) are directed by Revenue for rectification of mistake allegedly apparent in consolidated order of Tribunal dated 09.12.2016 in ITA No. 7119/M/14, 7120/M/14 & 7121/M/14 for Assessment Year 2007-08, 2008-09 & 2010-11. In all applications the revenue has pleaded identical contentions.
2. In the application the applicant/Revenue has contended that the Tribunal passed consolidated order in appeals for all Assessment Years by adopting factual matrix presented in appeal for Assessment Year 2006-07 (ITA No. 5276/Mum/2014). It is further contended that the Tribunal dismissed the appeals of the revenue on technical grounds by taking same inference that the notice under section 143(2) was not issued for assessment years 2007-08, 2008-09 and 2010-11, without discussing the facts for these years.
3. The Ld. Departmental Representative (DR) for the Revenue argued on the similar line. The Ld. DR for the Revenue further submits that the Tribunal while passing the order has not given separate finding with regard to non-issuance of notice under section 143(2) for Assessment Year 2007-08, 2008-09 and for 2010-11. The Ld. DR further submits that notice under section 143(2) was issued and served on assessee for the Assessment Year 2007-08, 2008-09 & 2010-11. There is non-consideration/appreciation of fact by the Tribunal while deciding the appeals for assessment years 2007-08, 2008-09 and 2010-11, which constitute mistake apparent on record and require rectification. The Ld. DR 2 MA 353 to 355 M 17 - ING Bewaar Maatschappiji B.V. as Trustee of ING Emerging Markets Equity Funds further submits that copy of notice under section 143(3) is filed along with application. The ld. DR for the revenue prayed for recalling the order dated 09.12.2016 in ITA No. 7119/M/14, 7120/M/14 & 7121/M/14 for Assessment Year 2007-08, 2008-09 & 2010-11.
4. On the other hand, Ld. Authorized Representative (AR) of the assessee strongly opposed the contention of Ld. DR for the Revenue. The ld. AR for the assessee filed written submission running into 26 pages and submits that before deciding the application of the revenue, the Tribunal should go through their written submissions. The Ld. AR of the assessee further submits that the application filed by Revenue is time barred. The application is filed beyond the six month from the end of month in which the order was passed by Tribunal. In support of his submission, the Ld. AR of the assessee relied upon the following order:
1. Srinivas Sashidhar Chaganty Vs. ITO M.A. No. 05/Hyd/2017
2. Smt. Padma K. Bhat Vs. ACIT (2017) (166 ITD 172)
3. Ms Shamasunissa Begum Vs. DCIT (2017)(165 ITD 557)
4. Bharat Petroleum Corporation Ltd. Vs. ITAT (359 ITR 371)
5. A.S. Chinnaswamy Raju (HUF) Vs. ACIT (300 ITR 96)
6. Ajit Kumar Pitaliya Vs. ITO (318 ITR 182)
7. Raja Malwinder Singh Vs. Union of India (278 ITR 568)
5. In other alternative submission on merit, the Ld. AR of the assessee submits that there is no mistake apparent on record. The Tribunal passed the order on the basis of material placed before the Tribunal. The Assessing Officer/Revenue has not placed the copy of notice under section 143(2) allegedly issued to the assessee. The copy of the notice under section 143(2) is filed for the first time with the Miscellaneous Application and it was not a part of record of the Tribunal at the time of original hearing. The notice has been presented post conclusion of the original appeals and the same is in the nature of "new 3 MA 353 to 355 M 17 - ING Bewaar Maatschappiji B.V. as Trustee of ING Emerging Markets Equity Funds documents" which would not justified the rectification of the order of the Tribunal under section 254(2) of the Act. In support of his submission, the Ld. AR of the assessee relied upon the following decision:
(a) Laxmi Electric Corporation Ltd Vs CIT (1991)( 188 ITR 398)
(b) ACIT Vs Saurashtra Kutch Stick Exchange Ltd (2008) (305ITR 227)
(c) Nisha Synthetic Vs (2017) (291 CTR 329)
(d) Indra Kumar Patodia Vs ITO (2011)(211Taxman 38)
(e) Sesa Goa Ltd Vs ACIT (MA No. 30/Pan/2014) (55 taxmann.com 28)
(f) Shew Paper Exchange Vs ITO (1974) 93 ITR 186,
(g) Suman Tea & Plywood Industries (P) Ltd ( 1997)( 226 ITR 34),
(h) Dholadhar Investment (P) Ltd Vs CIT (2014)362 ITR 111,
(i) Paras Coldstorage & Ice Factory Vs CIT (2005) 272 ITR 301(P&H),
(j) Mrs Sabita Sharma Vs ITO 44 taxmann.com 292,
(k) Gharda Chemicals Vs DCIT (2011)10 taxmann.com 55,
(l) Mrs Jyitsna Suti Vs DCIT (1997) ITD 185,
(m) Thakur Sukhpal Singh vs. Thakur Kalyan Singh AIR 1963 SC 146.
6. In the rejoinder submission, the Ld. DR for the Revenue submits that the order dated 09.12.2016 was received by the Revenue in the office of Assessing Officer/CIT only on 13.03.2017 and the application was filed on 14.07.2017. The application is filed within six month from the receipt of order of the Tribunal. The contents of the order of the Tribunal came to the knowledge of assessing officer only on the service of the order. The time period for moving the application for the rectification of mistake only from the knowledge of order of the Tribunal, which is 13rd March 2017; therefore, the application is filed within period of limitation prescribed under section 254(2) i.e. within six month from the communication of the order.
7. We have considered the submission of the parties and have gone through the orders of authorities below. We have also gone through and considered the written synopsis filed by ld. AR for the assessee. The ld. AR for the assessee 4 MA 353 to 355 M 17 - ING Bewaar Maatschappiji B.V. as Trustee of ING Emerging Markets Equity Funds firstly objected the maintainability of the application(s) on his contention that the application is barred by time. We have seen that the order was passed by Tribunal on 09.12.2016 and the applications are filed only on 14.07.2017. During the hearing of application, on our specific quarry the ld. DR for the revenue contended that the order of the Tribunal was received only on 13.03.2017 and the application is filed within six month from the receipt of the order. On perusal of case record, we find that the order was released from the office of Registry of Tribunal only on 09/01/2017. After release of the order from the office of Assistant Registrar, the orders are dispatched in seven days. Therefore, the contention of ld. DR for the Revenue that the order was received on 13.03.2017 seems to be correct. The ld. AR for the assessee failed to show any evidence to us, if the assessee received the award prior to March 2017. The ld. AR of the assessee has relied upon the various decisions, which we have referred in para-4 (supra).
8. The Hon'ble Supreme Court in State of Punjab Vs Mst Qaisar jehan Begum and others (AIR 1963 SC 1604) while considering the words ' knowledge either actually or constructively' has held that knowledge of award (order) does not mean that a mere knowledge of fact that the award has been made. The knowledge must relate to the essential contents of the award. The law declared by Hon'ble Apex Court is binding throughout the territory of India, in accordance with Article 141 of Constitution of India.
9. Therefore, the said preposition of law can safely applied to the case in hand. In the present case, the order of Tribunal was received by revenue on 13.03.2017 and the M.A. was filed before the Tribunal on 14.07.2017. Therefore, the 5 MA 353 to 355 M 17 - ING Bewaar Maatschappiji B.V. as Trustee of ING Emerging Markets Equity Funds application is well within the period of six month from the knowledge of the order and the objection of assessee is liable to be rejected. As we have already noted that the law declared by Hon'ble Supreme Court is having binding precedent on all the Courts and Tribunal in the territory of India. The various decision relied by ld AR for the assessee are not helpful to him in view of the decision of Hon'ble Supreme Court in State of Punjab Vs Mst Qaisar jehan Begum and others(supra)
10. The other objection of ld. AR of the assessee is that the impugned notice under section 143(2) was not a part of record of the Tribunal.
We have noted along with the M.A. the revenue has filed a copy of notice dated 02.09.2013 under section 143(2) for AY 2007-08, 2008-09 & 2010-11 addressed to "Principal Officer, ING Bewaar Maatschappiji B.V as Trustee of ING Emerging Markets Equity Funds, c/o SR Batliboe and Company-CA's, 6th Floor, Express Tower, Nariman Point, Mumbai-21." The notices were allegedly sent through Speed-post as endorsed at the bottom of notices. We have also perused the written submission furnished by ld. AR of the assessee. In the written submission, the assessee has not specifically denied the address of assessee nor the receipt thereof at the address mentioned at the said notice. The assessee has chosen the word intelligently "without prejudice and not admitting the issuance of notice under section 143(2)", to avoid the admission of the alleged notice. On perusal of Form-35 we have find that the assessee has written/provided the address of same Law Firm of different address i.e. SRBC & Associate LLP, 14th Floor, the Ruby, 29 Senapati Bapat Marg, Dadar (W), Mumbai.
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MA 353 to 355 M 17 - ING Bewaar Maatschappiji B.V. as Trustee of ING Emerging Markets Equity Funds
11. We are conscious of the fact that the jurisdiction of the Tribunal is limited while considering the miscellaneous application under section 254(2). However, fact remains that the service/issuance of the notice under section 143(2) was the sole basis for quashing the assessment orders for assessment years 2007-08, 2008-09 and 2009-10. Therefore, we are not taking in account the issuance or service of notice under section 143(2) at this stage. However, considering the contention of ld. DR that while deciding the appeal for Assessment Year 2007-08, 2008-09 & 2010-11 the Tribunal has not given specific finding that no notice under section 143(2) was issued and all the appeals were dismissed on the basis of facts for assessment year 2006-07 . We find merit in the contention of ld. DR that order dated 09.12.2016 is silent about the discussion of the facts related with assessment years 2007-08, 2008-09 and 2010-11 or about issuance/non-issuance of notice under section 143(2). We have further noted that the assessee raised the additional grounds of appeal, challenging the validity of assessment order in absence of notice under section 143(2). However, while deciding the appeal the application for raising additional grounds of appeal was neither discussed nor the additional grounds of appeal were admitted. All the appeals were dismissed, even without admitting the additional grounds on the premises that no notice under section 143(2) was issued. Therefore, considering the fact that there is no finding that for Assessment Year 2007-08, 2008-09 & 2010-11 that no notice under section 143(2) was issued and non-consideration of facts for each Assessment Year in deciding the appeals in a common order for four Assessment Years is mistake apparent on record. Considering the fact that there is mistake apparent in the order dated 09.12.2016 in respect of appeal for 7 MA 353 to 355 M 17 - ING Bewaar Maatschappiji B.V. as Trustee of ING Emerging Markets Equity Funds Assessment Year 2007-08, 2008-09 & 2010-11 in ITA No. 7119, 7120, & 7121/M/2014 respectively. Hence, the order dated 09.12.20016 qua Assessment Year 2007-08, 2008-09 & 2010-11 in ITA No. 7119, 7120, & 7121/M/2014 are recalled.
12. The various decision relied by ld. AR of the assessee as referred by us in para-5 are not applicable on the factual matrix of the present case. For the sake of brevity, we may add that none of the case law relied by ld. AR relates to the factual matrix of the cases in our hand. We have recalled the order on the apparent mistake that without referring and considering the fact for Assessment years 2007-08, 2008-09 and 2010-11and admitting the additional grounds of appeal ,the appeals file by revenue were dismissed at threshold.
13. As we have already noted that appeal for Assessment Year 2007-08, 2008-09 & 2010-11 was decided on the basis of fact for Assessment Year 2006-07. Since we have recalled the order dated 09.12.2012 qua Assessment Year 2007-08, 2008-09 & 2010-11 in ITA No. 7119, 7120, & 7121/M/2014. The registry is directed to fix the cases for hearing afresh by the regular bench. As we
14. In the result, all Miscellaneous Application filed by Revenue are allowed. Order pronounced in the open court on this 2ndJuly 2018 Sd/- Sd/-
(R.C. SHARMA) (PAWAN SINGH)
ACCOUNTANT MEMBER JUDICIAL MEMBER
मुंबई Mumbai; दनांक Dated 02/07/2018
S.K.PS
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MA 353 to 355 M 17 - ING Bewaar Maatschappiji
B.V. as Trustee of ING Emerging Markets Equity Funds आदेशक ितिलिपअ िे षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent.
3. आयकरआयु (अपील) / The CIT(A), Mumbai.
4. आयकरआयु / CIT
5. िवभागीय ितिनिध,आयकरअपीलीयअिधकरण,मुंबई/ DR, आदेशानुसार /BY ORDER, ITAT, Mumbai
6. गाड फाईल / Guard file.
स यािपत ित //True Copy/ उप/ उप/सहायकपंजीकार (Asstt.Registrar) आयकरअपीलीयअिधकरण ,मुंबई / ITAT, Mumbai 9