Income Tax Appellate Tribunal - Mumbai
Mukund Limited, Mumbai vs Ito 3(2)(2), Mumbai on 3 July, 2019
P a g e |1
M.A. No. 104/Mum/2019 A.Y. 2004-05
(Arising out of ITA No.679/Mum/2011)
Mukund Limited Vs. The Income Tax Officer-3(2)(2)
IN THE INCOME TAX APPELLATE TRIBUNAL
"D" Bench, Mumbai
Before Shri Shamim Yahya, Accountant Member
and Shri Ravish Sood, Judicial Member
M.A. No. 104/Mum/2019
(Arising out of ITA No.679/Mum/2011)
(Assessment Years: 2004-05)
Mukund Limited, The Income Tax Officer-3(2)(2)
Bajaj Bhavan, 3rd Floor, Aayakar Bhavan,
226, Nariman Point, Vs. Maharshi Karve Road,
Mumbai - 400021 Mumbai - 400020
PAN - AAACM5008R
(Applicant) (Respondent)
Applicant by: Ms. Vasanti Patel, A.R
Respondent by: Shri Chaitnya Anjaria, D.R
Date of Hearing: 05.04.2019
Date of Pronouncement: 03.07.2019
ORDER
PER RAVISH SOOD, JM:
The present miscellaneous application filed by the assessee arises from the order passed by the Tribunal while disposing off its appeal viz. Mukund Ltd. Vs. ITO-3(2)(2), (ITA No. 679/Mum/2011, dated 05.12.2018) for A.Y.2004-05.
2. The ld. Authorized Representative (for short „A.R‟) for the assessee submitted that the order passed by the Tribunal suffered from a mistake apparent from record, which had thus rendered the same amenable for rectification under sub-section (2) of Sec. 254 of the Income-tax Act,1961 (for short „Act‟). The ld. A.R taking us through the application filed by the assessee submitted, that the Tribunal P a g e |2 M.A. No. 104/Mum/2019 A.Y. 2004-05 (Arising out of ITA No.679/Mum/2011) Mukund Limited Vs. The Income Tax Officer-3(2)(2) while disposing off the "Ground of appeal No. 3" had failed to take cognizance of certain judicial pronouncements on which reliance was placed in the course of the appellate proceedings viz. (i) The CIT Vs. M/s Bajaj Hindustan Ltd. (ITA No. 198 of 2009, dated 15.04.2009) (Bom); (ii) Gulf Oil Corporation Ltd Vs. ACIT (2008) 111 ITD 124 (Hyd);
(iii) CIT Vs. Khaitan Chemicals Fertilizers Ltd. (2019) 221 CTR (Del) 501; and (iv) Tamil Nadu Cements Corporation Ltd. Vs. JCIT (2012) 349 ITR 58 (Mad); and (v) DCIT (Assessment) Vs. Farmson Pharmaceuticals Guj. Ltd. (2012) 347 ITR 394 (Guj). It was submitted by the ld. A.R that the copies of the aforesaid judicial pronouncements formed part of the assessee paper book (for short „APB‟) at Page No. 241-271. It was further submitted by the ld. A.R, that in the course of the hearing of the appeal specific reliance was placed upon two of the aforesaid judicial pronouncements viz. (i) The CIT Vs. M/s Bajaj Hindustan Ltd. (ITA No. 198 of 2009, dated 15.04.2009) (Bom); and (ii) Gulf Oil Corporation Ltd Vs. ACIT (2008) 111 ITD 124 (Hyd). It was submitted by the ld. A.R that the failure on the part of the Tribunal to consider the aforesaid judicial pronouncements constituted a mistake apparent from record, which had thus rendered the order amenable for rectification under sub-section (2) of Sec. 254 of the Act.
3. Per contra, the ld. Departmental Representative (for short „D.R‟) submitted, that as the appeal had been disposed off by the Tribunal after considering all the aspects on merits, therefore, no mistake did emerge from its order.
4. We have heard the authorized representatives for both the parties and also perused the records. On a perusal of the records, we find, that though the ld. A.R in the course of hearing of the appeal had relied on the judgment of the Hon‟ble High Court of Bombay in the case of The CIT Vs. M/s Bajaj Hindustan Ltd. (ITA No. 198 of 2009, P a g e |3 M.A. No. 104/Mum/2019 A.Y. 2004-05 (Arising out of ITA No.679/Mum/2011) Mukund Limited Vs. The Income Tax Officer-3(2)(2) dated 15.04.2009) (Bom) and the order of a co-ordinate bench of the Tribunal viz. Gulf Oil Corporation Ltd Vs. ACIT (2008) 111 ITD 124 (Hyd) by referring to the said respective orders, however, the same had inadvertently remained omitted to be considered on our part while disposing off the appeal. We are of the considered view that the non- consideration of the judgment of the Hon‟ble jurisdictional High Court and that of a co-ordinate bench of the Tribunal, which were specifically relied upon by the counsel for the assessee during the course of the hearing of the appeal, therein constitutes a mistake apparent from record, which renders the order passed while disposing off the appeal in context of the issue under consideration amenable for rectification under sub-section (2) of Sec. 254 of the Act. Accordingly, we recall the order for the limited purpose of re-adjudicating the „Ground of appeal No. 3‟ that was raised by the assessee before us, as under:
"3. On the facts and in the circumstances of the case and in law, the Commissioner of Income-tax (Appeals) erred in not granting deduction of an amount of Rs.111,810,595/- in respect of prior period adjustments (net) while computing the book profits under Sec.115JB of the Act."
5. As regards the claim of the ld. A.R that reliance was also placed on the aforementioned remaining judicial pronouncements viz. (i) CIT Vs. Khaitan Chemicals Fertilizers Ltd. (2019) 221 CTR (Del) 501; (ii) Tamilnadu Cements Corporation Ltd. Vs. JCIT (2012) 349 ITR 58 (Mad); and (v) DCIT (Assessment) Vs. Farmson Pharmaceuticals Guj. Ltd. (2012) (347 ITR 394) (Guj), we find that though the copies o the said respective orders were filed by the assessee in its „APB‟ at Page Nos. 249 -271, however, no reliance was placed on the said judicial pronouncements at the time of hearing of the appeal. Accordingly, in terms of our aforesaid observations, the order passed by the Tribunal viz. Mukund Ltd. Vs. ITO-3(2)(2), Mumbai (ITA No. 679/Mum/2011, P a g e |4 M.A. No. 104/Mum/2019 A.Y. 2004-05 (Arising out of ITA No.679/Mum/2011) Mukund Limited Vs. The Income Tax Officer-3(2)(2) dated 05.12.2018) for A.Y. 2004-05 is recalled for the limited purpose of readjudicating the "Ground of appeal No. 3" after considering the aforesaid two judicial pronouncements viz. (i) The CIT Vs. M/s Bajaj India Ltd. (ITA No. 198 of 2009, dated 15.04.2009) (Bom) ;and (ii) Gulf Oil Corporation Ltd Vs. ACIT (2008) 111 ITD 124 (Hyd).
5. The order passed by the Tribunal is recalled for the limited purpose for readjudicating „Ground of appeal No. 3‟.
6. The miscellaneous application filed by the assessee is allowed and, the registry is directed to re-fix the matter in terms of our aforesaid observations.
Order pronounced in the open court on 03.07.2019 Sd/- Sd/-
(Shamim Yahya) (Ravish Sood)
ACCOUNTANT MEMBER JUDICIAL MEMBER
भुंफई Mumbai; ददन ुंक 03.07.2019
Ps. Rohit
आदे श की प्रतिलऱपि अग्रेपिि/Copy of the Order forwarded to :
1. अऩीर थी / The Appellant
2. प्रत्मथी / The Respondent.
3. आमकय आमक्त(अऩीर) / The CIT(A)-
4. आमकय आमक्त / CIT
5. विब गीम प्रतततनधध, आमकय अऩीरीम अधधकयण, भुंफई / DR, ITAT, Mumbai
6. ग र्ड प ईर / Guard file.
सत्म वऩत प्रतत //True Copy// आदे शानस ु ार/ BY ORDER, उि/सहायक िंजीकार (Dy./Asstt. Registrar) आयकर अिीऱीय अधिकरण, भुंफई / ITAT, Mumbai P a g e |5 M.A. No. 104/Mum/2019 A.Y. 2004-05 (Arising out of ITA No.679/Mum/2011) Mukund Limited Vs. The Income Tax Officer-3(2)(2)