Income Tax Appellate Tribunal - Mumbai
Joint Commissioner Of Income Tax (Osd) ... vs Bank Of India, Mumbai on 12 April, 2019
1 M.A.No.404/Mum/2018 Arising Out of ITA.No.2833/Mum/2015 Bank of India Assessment Year: 2009-10 आयकर अपीलीय अिधकरण "आआई" यायपीठ मुंबई म ।
IN THE INCOME TAX APPELLATE TRIBUNAL "I" BENCH, MUMBAI माननीय ी संदीप गोसांई, ाियक सद एवं माननीय ी मनोज कुमार अ वाल ,लेखा सद के सम ।
BEFORE HON'BLE SHRI SANDEEP GOSAIN, JM AND HON'BLE SHRI MANOJ KUMAR AGGARWAL, AM M.A No. 404/Mum/2018 [Arising Out of I.T.A. No.2833/Mum/2015] ( िनधा रण वष / Assessment Year: 2009-10) Joint Commissioner of Income Tax Bank of India (OSD), Circle-2(1)(1) Star House, C-5, G-Block बनाम नाम/ नाम Room No. 561 Bandra-Kurla Complex Aaykar Bhawan, M.K.Road Vs. Bandra(E), Mumbai-400 051. Mumbai - 400 020 थायीले खासं ./जीआइआरसं ./PAN/GIR No. AAACB-0472-C (अपीलाथ /Appellant) : (ू यथ / Respondent) Assessee by : Shri C.Naresh, Ld. AR Revenue by : Shri Durga Dutt, Ld. DR सुनवाईक तार!ख/ : 01/02/2019 Date of Hearing घोषणाक तार!ख / : 12/04/2019 Date of Pronouncement आदे श / O R D E R Per Manoj Kumar Aggarwal (Accountant Member):-
1. By way of this miscellaneous application, the revenue seeks certain rectification in Tribunal order ITA No. 2833/Mum/2015 dated 08/11/2017 in assessee's appeal for Assessment Year 2009-10.2 M.A.No.404/Mum/2018
Arising Out of ITA.No.2833/Mum/2015 Bank of India Assessment Year: 2009-10 2.1 The Ld. Authorized Representative for the assessee [AR], Shri C.Naresh, at the outset, raised a preliminary issue by submitting that the order was passed by Tribunal on 08/11/2017 whereas this application has been filed on 01/06/2018 i.e. beyond six months from the end of the month in which the order was passed and therefore, application stood barred by limitation in terms of Section 254(2) since the period of limitation was to be reckoned from the end of the month in which the order was passed . Per Contra, Ld. DR drew attention to Authorization Memo dated 24/05/2018 to submit that the copy of the Tribunal's order was received only on 23/01/2018 and therefore, considering this date, the application was within the stipulated time limit. Our attention has been drawn to the following orders of the Tribunal in this regard: -
i) Shri Jagmohan Gurbakshish Singh Vs DCIT [MA Nos. 40,42/Chd/2018 dated 27/04/2018 ITAT, Chandigarh]
ii) ACIT Vs Indo Global Warehousing & Services P. Ltd. [MA No.16/Pun/2018 dated 17/12/2018 ITAT, Pune]
iii) Srinivas Sasidhar Chaganty Vs ITO [MA No.05/Hyd/2017 dated 12/07/2017 ITAT, Hyderabad] 2.2 We have carefully considered the given factual matrix. The undisputed position that emerges is the fact that the order of the Tribunal has been received by the revenue only on 23/01/2018 which is evident from Authorization Memo dated 24/05/2018 as placed on record. The application seeking rectification against the same has been filed on 01/06/2018 which is within 6 months from the date of receipt of order under question. So far as the statutory provisions as contained in Section 254(2) is concerned, we 3 M.A.No.404/Mum/2018 Arising Out of ITA.No.2833/Mum/2015 Bank of India Assessment Year: 2009-10 find that there could be no quarrel as to the expression used therein since the prescribed period is six months from the end of the month in which the order was passed. However, in terms of Rule 35 of Income Tax (Appellate Tribunal Rules), 1963, the order of the Tribunal is to be communicated to the assessee as well as Commissioner. In our considered opinion, until the order is communicated to the respective parties, the parties could not come to know the contents of the order and would not come to know of any errors in the same. Therefore, no further course of action could be chalked out against the same including filing of rectification etc. Hence, until & unless the order of the Tribunal is communicated to the respective parties, the further course of action against the same would remain in dormant stage and the parties would not be able to exercise their rights unless served with the order against which this right arises. The delay in communicating the order, in our opinion, could neither deprive the effected parties of their vested right to contest the same in further appeal or file rectification against the same nor could it operate so as to curtail the effective time available to do so.
2.3 Upon perusal of the judicial pronouncements as cited before us. we find that the Chandigarh Tribunal in Shri Jagomohan Gurbakshish Singh [supra] considering the decision of Hon'ble Gujarat High Court in Peterplast Synthetics P. Ltd Vs ACIT [2013 86 CCH 0314] & Liladhar T. Kushlani Vs Commissioner of Customs [Tax Appeal No. 915 of 2016 dated 25/01/2017] concluded that the date of dispatch / receipt of the copy of the relevant 4 M.A.No.404/Mum/2018 Arising Out of ITA.No.2833/Mum/2015 Bank of India Assessment Year: 2009-10 order and not the date of passing of the order was to be considered for the purpose of reckoning the period of limitation. The Hon'ble Gujarat High Court in the case of Peterplast Synthetics P. Ltd. [supra] has observed that the date of order would mean and must be construed as meaning the date of communication or knowledge, actual or constructive, of the order sought to be reviewed. These decisions strengthen our aforesaid view. 2.4 The Pune Tribunal in ACIT Vs Indo Global Warehousing & Services P. Ltd. [supra] after considering the above decision as well as the decision of Pune Tribunal in Shri Kasturilal Sardarilal Luthra Vs DCIT [MA No.38/Pun/2017 dated 04/04/2018] & the decision of Mumbai Tribunal in DCIT Vs Hita Land Private Limited [MA No. 103/Mum/2017 dated 25/04/2017], dismissed the preliminary issue and proceeded to decide the application on merits.
2.5 The Hyderabad Tribunal in Srinivas Sasidhar Chaganty Vs. ITO [supra] has taken a view that the period of limitation was to be reckoned from the end of the month in which the order was passed / uploaded on the website. However, we have already noted that in terms of Rule 35 of Income Tax (Appellate Tribunal Rules), 1963, the order was to be communicated to the respective parties and uploading of the order on the website is not one of the prescribed modes of communication to the parties. Therefore, unless the order is communicated in the prescribed manner, the parties would not come to know the contents of the order and could not chalk out further course of action against the same. Therefore, mere 5 M.A.No.404/Mum/2018 Arising Out of ITA.No.2833/Mum/2015 Bank of India Assessment Year: 2009-10 uploading of the order in the website, in our considered opinion, would not trigger the start of limitation period against the respective parties. 2.6 Applying the aforesaid principles to the factual matrix, we find that as counted from the date of receipt of the order i.e. 23/01/2018, the application is within time and therefore, we proceed to dispose-off the same as argued before us.
3. The first error pointed out by the revenue is that the conclusion drawn in para 10 while adjudicating fifth ground of assessee's appeal regarding disallowance of lease premium would need correction since while adjudicating the issue, reliance was placed on the decision of this Tribunal for AYs 2007-08 & 2008-09 wherein the matter was decided against the assessee. Upon perusal, we concur with the same. Accordingly, the last line of para 10 in the stated order may be read as under: -
Following the orders for earlier years, we dismiss ground no. 5
4.1 The second mistake is stated to have arisen while adjudicating the issue of deduction u/s 36(1)(viii). It has been submitted that during assessment proceedings, Ld. AO found that the assessee had claimed deduction u/s 36(1)(viii) in respect of the profits earned on eligible business. While arriving at the profits, the assessee had allocated expenses relating to eligible business based on funds deployed which were computed after considering the amount of deposits, assets, borrowings and other liabilities. However, Ld. AO was of the opinion that only total of assets / liabilities were to be considered while computing the funds deployed. Accordingly, the 6 M.A.No.404/Mum/2018 Arising Out of ITA.No.2833/Mum/2015 Bank of India Assessment Year: 2009-10 expenses were re-allocated and the deduction was restricted to Rs.133 Crores as against Rs.150 Crores claimed by the assessee. The Ld. CIT(A) confirmed the action of Ld. AO which was contested by the assessee before this Tribunal. It has further been submitted that the assessee's claim was allowed by the Tribunal relying upon the orders of the Tribunal in assessee's own case for AYs 2007-08 & 2008-09. The Ld. DR submitted that, however, the issue in AY 2007-08 was only with respect to applicability of provisions of Section 36(1)(viii) to the assessee whereas the issue in this year was regarding the allocation of expenses to eligible business. Therefore, the issue has not been considered in proper perspective and the decision is not acceptable. The Ld. AR submitted that the aforesaid facts were already noted by the co-ordinate bench in para 6 and the matter was adjudicated after considering the same.
4.2 Upon perusal of para 6, we find that it is true that these facts were already noted by the bench while adjudicating the issue. It is not the case of the revenue that certain facts were overlooked which resulted into certain error in the order. The only point urge is that the decision is not acceptable since the issue has not been considered in proper perspective. However, when the decision has been rendered with due appreciation of facts and there are no slippages, it could not be said that there was mistake apparent from record which was amenable to rectification. There is no power with Tribunal to review the issues unless expressly provided under law. Further, the revenue has an alternative remedy under law to contest the decision 7 M.A.No.404/Mum/2018 Arising Out of ITA.No.2833/Mum/2015 Bank of India Assessment Year: 2009-10 before higher judicial authorities. Therefore, finding no mistake apparent from record, this plea stand rejected.
5. The application stands partly allowed in terms of our above order.
Order pronounced in the open court on 12th April, 2019.
Sd/- Sd/-
(Sandeep Gosain) (Manoj Kumar Aggarwal)
ाियक सद / Judicial Member लेखा सद / Accountant Member
मुंबई Mumbai; िदनां क Dated : 12/04/2019
Sr.PS:-Jaisy Varghese
आदे श की #ितिलिप अ े िषत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. थ / The Respondent
3. आयकरआयु (अपील) / The CIT(A)
4. आयकरआयु / CIT- concerned
5. िवभागीय ितिनिध, आयकरअपीलीयअिधकरण, मुंबई/ DR, ITAT, Mumbai
6. गाड& फाईल / Guard File आदे शानुसार/ BY ORDER, उप/सहायकपंजीकार (Dy./Asstt.Registrar) आयकरअपीलीयअिधकरण, मुंबई / ITAT, Mumbai.