Income Tax Appellate Tribunal - Mumbai
Fazlani Exports P. Ltd, Mumbai vs Dcit Cen Cir 44, Mumbai on 18 April, 2019
IN THE INCOME TAX APPELLATE TRIBUNAL
"F" BENCH, MUMBAI
BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND
SHRI N.K. PRADHAN, ACCOUNTANT MEMBER
M.A. no.694/Mum./2018
(Arising out of ITA no.4090/Mum./2016)
(Assessment Year : 2010-11)
M/s. Fazlani Exports Pvt. Ltd.
21st Floor, Nirmal, Nariman Point
................ Appellant
Mumbai 400 021
PAN - AABCV8120E
v/s
Dy. Commissioner of Income Tax
................ Respondent
Central Circle-44, Mumbai
Assessee by :Dr. K. Shivram a/w
Shri Rahul Hakani
Revenue by : Shri B. Yedagiri
Date of Hearing - 25.01.2019 Date of Order - 18.04.2019
ORDER
PER SAKTIJIT DEY, J.M.
By the aforesaid application filed by the assessee purported 254(2) of the Income Tax Act, 1961 (for short "the Act") the assessee seeks recall/rectification of the order dated 4th May 2018, passed in ITA no.4090/Mum./2016.
2. Dr. K. Shivram, learned Counsel for the assessee submitted, the order passed by the Tribunal suffers from mistake apparent on the 2 M/s. Fazlani Exports Pvt. Ltd.
face of record, as it failed to deal with the decision of the Hon'ble Supreme Court in Maneklal Agarwal v/s DCIT, [2017] 396 ITR 721 (SC) and apply the ratio laid down therein. He further submitted, the Tribunal wrongly applied the ratio laid down in the decision of the Tribunal in assessee's own case for the assessment year 2005-06. The learned Authorised Representative submitted, in the aforesaid decision the Hon'ble Supreme Court has held that there cannot be double taxation of the same income at the hands of two persons. He submitted, non-consideration of the decision of the Hon'ble Supreme Court is a mistake apparent on the face of record. In this regard, he relied upon the decision of the Hon'ble Supreme Court in ACIT v/s Saurashtra Kutch Stock Exchange Ltd., [2008] 305 ITR 227 (SC). Learned Counsel for the assessee submitted, in the decision of the Tribunal for Assessment Year 2005-06 the issue involved was the assessability of the rental income from sub-leasing and not chargeability. Thus, he submitted, there being a mistake apparent on the face of record, the order should be rectified / recalled.
3. The learned Departmental Representative strongly opposing the contention of the assessee submitted, by filing the misc. application the assessee seeks review of the appeal order which is not permissible. Therefore, the misc. application should be dismissed. 3
M/s. Fazlani Exports Pvt. Ltd.
4. We have considered rival submissions and perused material on record. The learned Authorised Representative has submitted that appeal order passed by the Tribunal suffers from mistake apparent on the face of record, firstly; due to non-consideration of the decision of the Hon'ble Supreme Court in Maneklal Agarwal (supra) and secondly, due to wrongly applying the decision of the Tribunal in assessee's own case for assessment year 2005-06. Insofar as applicability of the decision of the Hon'ble Supreme Court in Maneklal Agarwal (supra) is concerned, at the time of hearing of appeal the learned Authorised Representative has relied upon this decision for the proposition that the rent received from Goldman Sachs Pvt. Ltd. having already assessed at the hands of Rational Arts and Press Pvt. Ltd., it cannot be added again at the hands of the assessee, as it amounts to double taxation of the same income. It needs to be observed, while dealing with the aforesaid contention of the assessee the Tribunal has recorded a categorical finding that the Assessing Officer has not added the rental income received by the assessee from Goldman Sachs Pvt. Ltd. at the hands of Rational Arts and Press Pvt. Ltd. The Tribunal has observed that the rent received from Goldman Sachs Pvt. Ltd. by the assessee from sub-letting of the property was only considered as a yardstick for determining the ALV of the property, since, the lease rent paid by the assessee to Rational Arts and Press Pvt. Ltd. for the subject property is substantially low compared to the rent received by 4 M/s. Fazlani Exports Pvt. Ltd.
the assessee from sub-leasing of the property. Therefore, it becomes very much clear that the rent received from Goldman Sachs Ltd. was neither added at the hands of Rational Arts and Press Pvt. Ltd., nor there is any question of double taxation of the same income. That being the case, the ratio laid down in the cited decisions will not apply to the facts of the present appeal. For that reason only, though, the Tribunal took note of the decision cited by the assessee, however, since it was not applicable to the facts of the case, the ratio laid down in the decision was not elaborately discussed.
5. As regards the contention of the assessee that the decision of the Tribunal in assessment year 2005-06 was wrongly interpreted/applied, we must observe that the Tribunal has not at all wrongly applied the decision while deciding the appeal of the assessee. It is relevant to observe, in the return of income the assessee itself has offered the rent received from Goldman Sachs Pvt. Ltd. as income under the head business. Whereas, the Assessing Officer assessed it as income from other sources. While deciding the issue, the Tribunal found that in assessment year 2005-06, the Co-ordinate Bench has held that the income received by the assessee from sub-leasing of the property is to be assessed as income from other sources. Therefore, to that extent, the Tribunal referred to the decision of the Co-ordinate Bench in assessment year 2005-06. In any case of the matter, the finding of the Tribunal on the disputed issue is backed by elaborate reasoning 5 M/s. Fazlani Exports Pvt. Ltd.
and the Tribunal has taken a view on the issues raised before it by considering all the facts and material on record. Therefore, if the assessee is aggrieved with the decision of the Tribunal, the course open to it is to seek appropriate remedy available under the statute by filing an appeal before the higher Appellate Court. In fact, as stated in the misc. application, the assessee has already filed an appeal under section 260A of the Act challenging the decision of the Tribunal. By filing the present misc. application the assessee, in effect, is seeking a review of the appeal order passed by the Tribunal which is not permissible as per the provisions of section 254(2) of the Act. In view of the aforesaid, we decline to entertain the misc. application filed by the assessee.
6. In the result, misc. application is dismissed.
Order pronounced in the open Court on 18.04.2019 SD/- SD/-
N.K. PRADHAN SAKTIJIT DEY
ACCOUNTANT MEMBER JUDICIAL MEMBER
MUMBAI, DATED: 18.04.2019
6
M/s. Fazlani Exports Pvt. Ltd.
Copy of the order forwarded to:
(1) The Assessee;
(2) The Revenue;
(3) The CIT(A);
(4) The CIT, Mumbai City concerned;
(5) The DR, ITAT, Mumbai;
(6) Guard file.
True Copy
By Order
Pradeep J. Chowdhury
Sr. Private Secretary
(Sr. Private Secretary)
ITAT, Mumbai