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Shri Umesh M. Joshi,Kohinoor Bhavan, "A",Senapati Bapat Marg,Dadar (West),Mumbai -400 028 VS. The Income-tax Officer -6(3)(2),Mumbai
July, 13th 2012
       IN THE INCOME TAX APPELLATE TRIBUNAL
                 "F" BENCH: MUMBAI

       BEFORE SHRI B.R. MITTAL, JUDICIAL MEMBER
       AND SHRI P.M. JAGTAP, ACCOUNTANT MEMBER

                        MA No.81/Mum/2012
       Arising out of ITA no.4287/Mum/2010 for A.Y. 2006-07


Shri Umesh M. Joshi,
Kohinoor Bhavan, "A",
Senapati Bapat Marg,
Dadar (West),
Mumbai -400 028
PAN: ACJPJ 9493 M                                             .......... Applicant

              Vs
The Income-tax Officer -6(3)(2),
Mumbai                                                       ........ Respondent

PAN: ACJPJ 9493 M
                       Applicant by:    Shri Jayesh Dadia
                     Respondent by:     Shri M. Rajan
                    Date of Hearing:    06.07.2012
            Date of Pronouncement:      11.07.2012




                               ORDER

PER P.M. JAGTAP, AM
      By this Miscellaneous application, the assessee is seeking
rectification of the mistake alleged to have crept in the order of the
Tribunal    dated     23rd     December,      2011        passed   in     ITA
No.4287/Mum/2010.


2.    As submitted in the present application and further reiterated
by the Ld. Counsel for the assessee at the time of hearing before us,
the order of the Tribunal dated 23rd December, 2011(supra) allegedly
suffers from a mistake as given hereunder:
      "In Ground No.3 of the said appeal, the Appellant had raised
      alternative claim that sales tax benefit is in the nature of capital
      receipts and therefore not subject to tax at all.
                              2                         MA 81/Mum/2012
                                                      Shri Umesh M. Joshi


It was submitted at the time of hearing that this ground was not
raised before the Assessing Officer but it was certainly raised
before the Ld. CIT (A).


The Hon'ble Members, therefore, felt that the issue raised in
ground number 3 cannot be decided and needs to go back to the
Assessing Officer for verification and examination.


However, on receipt of the order, it was noticed that in para 9, the
Hon'ble Tribunal has dismissed this ground of appeal on the
ground that "there is nothing on record to show that this issue
was raised by the assessee by way of an additional ground filed
before the Ld. CIT (Appeals) and therefore this issue is not arising
from the impugned order of the Ld. CIT (Appeals).


The findings of the Hon'ble Tribunal stated above is factually
incorrect as the Ld. CIT(Appeals) himself has discussed the issue
raised before him regarding the nature of subsidy in para 8 page
4,5,6,7,8 & 9. The Ld. CIT (A) has reproduced the Appellant's
submissions where a claim was made that subsidy received is in
the nature of capital. This clearly establish that there was a claim
before the Ld. CIT (Appeals) and it was discussed by the
CIT(Appeals) in his order and therefore the issue has arisen from
the impugned order the Ld. CIT(Appeals).


Further, in support of claim of subsidy in the nature of capital, the
Appellant has also filed circular and case laws including the Apex
Court and Bombay Tribunal from page number 1 to 109 where
the Courts have held similar nature of subsidy as capital. The
Appellant did not get the opportunity to explain the contents of
these decisions as the Tribunal has stated that the matter
deserve to go back to the Assessing Officer.
                                    3                        MA 81/Mum/2012
                                                           Shri Umesh M. Joshi


     It was also submitted in the course of proceedings that the Ld.
     CIT(Appeals) did not admit the additional ground of appeal in
     view of the decision of Hon'ble Supreme Court in the case of
     Goetze India Limited (284 ITR 323) (relevant para 10 -- page 9) of
     the CIT (Appeals)'s order.


     During the course of proceedings before the Hon'ble Tribunal, it
     was also mentioned by the Appellant's Authorized Representative
     that decision in the case of Goetze India Limited have no
     applicability before the Appellate Authorities.


     Under the circumstances, the Hon'ble Tribunal, therefore, has
     erred in dismissing the 3rd ground of appeal on incorrect facts as
     the issue is arising from the impugned order of the Ld. CIT
     (Appeals)."


3.   We have heard the arguments of both the sides and also
perused the relevant material on record. It is observed that ground
no.3 raised by the assessee in his appeal was decided by the Tribunal
vide paragraph No.9 of its order dated 23rd December, 2011 (supra)
which reads as under:
     "9.   In ground No. 3, the assessee has raised another
     alternative claim that the sales-tax benefit being in the nature of
     incentive received on capital account, the same should be treated
     as capital receipt. Before us, the learned counsel for the assessee
     has submitted that this alternative claim of the assessee has not
     been examined either by the AO or by the learned CIT (Appeals)
     and, therefore, the matter may be sent back to the AO for such
     examination. A perusal of the impugned order of the learned CIT
     (Appeals), however, shows that this aspect of the matter was
     found to be irrelevant by him to the issue of eligibility of sales-tax
     benefit for deduction u/s 80IA(4) which was raised by the
     assessee in the appeal filed before him. It was also noted by the
                                    4                       MA 81/Mum/2012
                                                          Shri Umesh M. Joshi


      learned CIT (Appeals) that this claim was not made by the
      assessee before the AO during the course of assessment
      proceedings by way of a revised return. We have also noted from
      the grounds raised by the assessee in an appeal filed before the
      learned CIT (Appeals) that this issue was not raised therein.
      There is also nothing on record to show that this issue was raised
      by the assessee by way of an additional ground filed before the
      learned CIT (Appeals). Having regard to all these facts of the
      case, we are of the view that this issue is not arising from the
      impugned order of the learned CIT (Appeals) and the same cannot
      be entertained at this stage and restored to the file of the AO for
      consideration as sought by the learned counsel for the assessee.
      We, therefore, dismiss ground No. 3 of the assessee's appeal."



4.    As is clearly evident from the relevant portion of the order
extracted above, the issue raised by the assessee in ground no.3
relating to its alternative claim was not entertained by the Tribunal
after having found that the same was not raised by the assessee in the
appeal filed before the Ld. CIT (A) either in the original ground or even
by way of additional ground. The Tribunal thus held that it was not
arising from the impugned order of the Ld. CIT (A). Merely because
the submissions made by the assessee on certain issue was
reproduced by the Ld. CIT (A) or was referred to by him in his
appellate order, it cannot be said that the said issue is arising from
the order of the Ld. CIT (A) unless the same had been raised by the
assessee in the appeal filed before the Ld. CIT (A) either by way of
original ground or additional ground. In the case of the assessee, it
was found by the Tribunal that there was, however, nothing on record
to show that the issue raised in ground no.3 was raised by the
assessee in an appeal filed before the Ld. CIT (A) in the original ground
or even by way of additional ground and on the basis of the said
finding, the issue raised in ground no.3 was not entertained by the
Tribunal holding that it was not arising from the impugned order of
                                   5                       MA 81/Mum/2012
                                                         Shri Umesh M. Joshi





the Ld. CIT (A). There is nothing available on record to show that this
finding recorded by the Tribunal is factually incorrect as alleged by
the assessee in the present application. Moreover, the Tribunal has
taken a view on consideration of the material available on record that
the issue raised by the assessee in ground no.3 was not arising from
the impugned order of the Ld. CIT (A) and it is not permissible to
review the same in the guise of `rectification u/s.254(2)' as sought by
the assessee. We are therefore of the view that there is no mistake
much less a mistake apparent from the record in the order of the
Tribunal dated 23.12.2011 (supra) as alleged by the assessee, which
can be rectified u/s.254(2). We, therefore, dismiss this M.A. filed by
the assessee being devoid of any merits.


5.    In the result, miscellaneous application of the assessee is
dismissed.
      Order pronounced in the open court on 11th day of July, 2012.




             Sd/-                                   Sd/-
        (B.R. MITTAL )                         (P.M. JAGTAP)
      JUDICIAL MEMBER                      ACCOUNTANT MEMBER

Mumbai, Date: 11th July, 2012

Copy to:-

      1)     The   Applicant.
      2)     The   Respondent.
      3)     The   CIT (A)­VI, Mumbai,
      4)     The   CIT- VI, Mumbai.
      5)     The   D.R. "F" Bench, Mumbai.

                                                       By Order
             / / True Copy / /

                                                    Asstt. Registrar
                                                   I.T.A.T., Mumbai
*Chavan
 
 
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