2013 (7) TMI 688 - AT - Income Tax

Tribunal rejects assessee's requests on tax deductions, defers to High Court,

Siddhivinayak Homes Versus ITO 12(1)(1), Mumbai

The Tribunal dismissed the assessee's Miscellaneous Applications concerning an apparent mistake in the order for assessment years 2007-08 and 2008-09 ... Reviewing the order under section 254(2) of the Act - Assessee filed the appeals against the impugned order of the Tribunal dated 26.9.20123 before the Hon'ble Bombay High Court and the Hon'ble Bombay Court has admitted the question of law – Held that:- Since the question of law has already been admitted by the Hon'ble High Court, the question of considering the impugned order of the Tribunal u/s 254(2) of the Act does not arise – Also, reliance is placed upon the judgment in the case of Pankaj Rathi V/s CIT[ 2011 (8) TMI 15 - CALCUTTA HIGH COURT], wherein it has been held that when the appeals have been filed, the Miscellaneous Applications before the Income Tax Appellate Tribunal, itself 'needless to mention, parallel proceedings for achieving the same purpose cannot be allowed to be done in a self same matter” – Decided against the Assessee. Issues:1. Apparent mistake in the order passed by the Tribunal dated 26.09.2012 for assessment years 2007-08 and 2008-09 in relation to the claim of deduction u/s 80IB(10) of the Income Tax Act, 1961.2. Violation of principle of natural justice by placing reliance on a decision without giving an opportunity of hearing to the assessee.3. Review of the Tribunal's order under section 254(2) of the Act.4. Filing of appeals u/s 260A of the Act before the Hon'ble Bombay High Court against the impugned order of the Tribunal.Analysis:1. The assessee filed two Miscellaneous Applications under section 254(2) of the Income Tax Act, 1961, claiming an apparent mistake in the Tribunal's order for assessment years 2007-08 and 2008-09 regarding the deduction u/s 80IB(10). The issue revolved around profits derived from construction and development of a housing project. The assessee argued that the Tribunal should recall the order and decide the appeals afresh in line with the provisions of section 254 of the Act.2. The assessee contended that the Tribunal's reliance on a specific decision without giving an opportunity of hearing violated the principle of natural justice. The assessee cited cases and argued that the Tribunal should have followed earlier decisions instead of the one relied upon. The assessee further substantiated this stand by citing numerous cases in the applications.3. During the hearing, the Assessing Officer argued that there was no apparent mistake in the Tribunal's order and that the assessee's applications sought a review of the order, which was beyond the purview of section 254(2) of the Act. The Assessing Officer maintained that the Tribunal had considered the submissions and relevant documents before making its decision.4. The assessee had also filed appeals u/s 260A of the Act before the Hon'ble Bombay High Court against the Tribunal's order. The High Court admitted the substantial questions of law raised by the assessee. The Tribunal noted that since the High Court had admitted the questions of law, the consideration of the Tribunal's order under section 254(2) did not arise. Citing a similar case, the Tribunal dismissed the Miscellaneous Applications, stating that parallel proceedings for the same purpose could not be allowed when the High Court was already seized of the matter.In conclusion, the Tribunal dismissed the Miscellaneous Applications filed by the assessee, as the High Court had admitted the questions of law raised in the appeals filed by the assessee. The Tribunal held that the consideration of the Tribunal's order under section 254(2) did not arise in light of the High Court proceedings.