TaxTMI 
TaxTMI 
2019 (4) TMI 1225
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....nder: "5. In the order passed by the Hon'ble Members, the Appellant would like to bring to the notice of the Hon'ble Members that certain facts were not appreciated correctly and/ or not considered (as listed below) and which may have had a bearing on the final judgment/ conclusion: (i) In para 6.14 of the order passed, the Hon'ble IT AT has held that the Appellant's main object is to carry on the business of construction and development of airport by itself which is not undertaken and also to invest in other companies as promoter, sponsor, which is the only activity undertaken by the Appellant. The Appellant wishes to point out that as per the Memorandum of Association of the appellant, the appellant can carry out any....
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....e can be capitalized to the cost of investment and as and when any capital gain arises, the same can be claimed. In this regard, the Appellant wishes to point out that it has provided loans/ advances to level - 2 company and has not utilized the borrowing to make investment in equity shares of level - 2 company, in which case alone there could have been possibility of capitalizing the interest with the cost of the investment. Thus, it appears that the Hon'ble IT AT seems to have proceeded on a factually incorrect basis that borrowed funds were utilized to make investments in level - 2 company which is not so as the borrowing by the Appellant company was used to onward lend to level 2 company without charging interest with immediate ef....
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....ity and which is not the case. 6. Given the above, it seems that the Hon'ble Members were of view that the Appellant has utilized the borrowings to make investment in the level - 2 company which is not the fact and the Appellant believe that the same may have had a bearing on the final judgment/ conclusion. In the circumstances stated above, the Appellant most humbly prays before the Hon'ble Members for recalling of the Order passed by the Hon'ble Tribunal." 3. Ld. AR submitted that assessee has filed additional evidence before ITAT, but, this was completely ignored by ITAT while passing the order. In that process, he took us to the order of ITAT pages 3, 9, 10, 12, 15, 20 & 21 to submit that ITAT has led to a wrong conclus....
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....h 6.13 of the order, Hon'ble ITAT clearly mentioned the objects of the assessee and at paragraph 6.14, it was observed that the assessee is carrying out activity only with reference to object 2 and no activity is conducted with respect to object 1. This observation is factually correct as on the date of the order. Now, through the MA, the assessee is trying to create a hypothetical situation that because object 1 is mentioned in the MoA, the assessee should be treated as carried out the said activity, which is contrary to the facts. The Hon'ble ITAT never stated that the assessee is prevented in carrying out object 1. Hon'ble ITAT stated the factual position and therefore there is no mistake apparent from record on this point. ....
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....amination the matter, Hon'ble ITAT held that the assessee is not in the business of investment and held that at best the interest can be capitalized to the cost of investment and as and when capital gain arises, the same can be claimed but it cannot be showed as business loss. Through the present MA, the assessee states that amounts are advanced to Level - 2 companies and it is not investment in their shares, the observation of ITAT is not correct. In this regard, it is submitted that the assessee is not in finance business and hence even the advances made by the assessee to Level - 2 companies are similar to some sort of mezzanine financing which yields interest. In such financing, the capital investment would yield interest and it is ....
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....nsidered for disallowance u/s 14A even when the investment in Level - 2 company is not in the nature of equity. It is humbly submitted that this argument is self-contradictory with the assertions made by the assessee in this MA with reference to the observations of the Hon'ble ITAT at paragraph 6.16 of the order. Besides, the issue was not raised by way of any ground of appeal and the assessee cannot make it good through an MA because it would amount to review of the entire order. Even on merits, advances would not be treated as investments in the nature of those yielding exempt income. Again, this is a highly debatable issue and is not a mistake apparent from record. 7. It is humbly submitted that in summary, the appellant is seeking....