Janus Investment P.Ltd , vs Department Of Income Tax

आयकर अपील य अ धकरण, "आई" खंडपीठ मंब ु ई INCOME TAX APPELLATE TRIBUNAL,MUMBAI "I" BENCH सव ी आई पी बंसल , या यक सद य एवं राजे , लेखा सद य Before S/Sh. I P Bansal,Judicial Member & Rajendra,Accountant Member व वध आवेदन सं / MA No.01/Mum/2015 (Arising out of आयकर अपील सं/ ITA No.5057/Mum/2010) नधारण वष/Assessment Year-2007-08 Income tax Officer-5(2)(2) M/s. Janus Investment Pvt. Ltd.

R.No.567, 5th Floor, Aayakar Madgaonkar House, 17 Mathew Bhavan, M.K. Road Vs Road, Opera House Mumbai-400 020. Mumbai-400 004. PAN: AAACJ 1252 E (अपीलाथ /Applicant) ( यथ / Respondent) नधा रती ओर से/Assessee by :Shri R.C. Jain राज व क ओर से/ Revenue by :Shri N. Padmanaban सुनवाई क तार ख/ Date of Hearing : 01-05-2015 घोषणा क तार ख / Date of Pronouncement : 17-06-2015 आदे श/Order लेखा सद य राजे के अनुसार PER RAJENDRA, AM-

Vide its application,dated 01.01.2015,the Assessing Officer(AO)has stated that there were mistakes in the order passed by the Tribunal on 09.04.2014,that same have to rectified by passing order u/s.254(2) of the Act.

Brief Facts:

Assessee-company,engaged in the business of leasing of property and development of properties, filed its return of income on 29/10/2007,declaring total income of Rs. Nil and the AO finalised the assessment order u/s.143(3) of the Act,1961 on 30.12.2009, determining the total income at Rs.4,71,93,590/- by disallowing 1/5th of interest of Rs.63.86 lakhs on borrowed capital (relating to the period upto the date of completion of construction of building) and adding notional interest on deposit money and share application money.It filed an appeal before the First Appellate Authority(FAA),who decided the issue in favour of the =.The appeal filed by the AO was decided by the Tribunal and the matter was restored by it to the file of the FAA for fresh adjudication.The Tribunal observed as under:

" 3.2 Before us, DR supported the order of the AO. AR submitted that interest payment was allowed in earlier AY, that the assessee never treated the property in question as stock in trade. On a specific query by the bench as to whether the assessee had not claimed the interest expenditure under any other section, AR fairly conceded that he was not in a position to make such an averment.

We find that in the statement of facts also assessee has not made a claim that it had not made claim about the interest expenditure under any other head. FAA has also not given any finding in this regard. As per the provisions of section 24 of the Act, interest payment can be allowed while computing the income under the head income from house property, if the assessee had not made a claim about the same under other sections of the Act. As the FAA has not verified this vital fact,so,in the interest of justice, we are remanding back the matter to this file for further verification. Ground no.2 is decided in favour of the A.O., in part."

MA No.01/Mum/2015,AY.07-08

As per the AO the claim made by the assessee with regard to the interest payment was allowed by the A.O. in the assessment year 2006-07 was not fully correct,that in the original assessment for A.Y. 2006-07 completed u/s.143(3),on 30/12/2008,total loss was calculated at Rs.60,76,960/- by allowing 1/5th of accumulated interest,that the income chargeable to tax had escaped assessment for the AY 2006-07 for the reason that the assessee had claimed 1/5th of accumulated interest of construction period of Rs.63,86, 544/-which was not in accordance with provisions of section 24(b) of the Act,that matter was re-opened,that the re-assessment was completed u/s.143(3) r.w.s.147 of the Act,on 30/12/2011 determining the total income at Rs.3,09,584/-, by disallowing 1/5th of accumulated interest,that the order of the Tribunal had to be amended accordingly.

4.During the course of hearing before us,Departmental Representative(DR)could not point out as to what was the mistake apparent in the record that had to be rectified.The Tribunal had decided the issue on the basis of available material.If the AO had reopened the assessment and made a disallowance and these facts could affect the outcome of the issue the AO should appear before the FAA to file an explanation about the chronology of events.But,in any manner the subsequent decision taken by the AO cannot be held to be a mistake apparent from the record.It appears that the AO is not aware that he wants us to review our order,but it is not possible as per the provisions of section 254(2)of the Act.As there is no mistake in the order passed by the Tribunal,therefore,prayer made by the AO is rejected.

As a result, Miscellaneous Application filed by the AO stands dismissed.

फलतः नधा रती अ धकार वारा दा खल व वध आवेदन प नामंजूर कया जाता है .

th Order pronounced in the open court on 17 June,2015. आदे श क घोषणा खल ु े यायालय म दनांक 17 जन ू ,2015 को क गई ।

Sd/- Sd/- (आई पी बंसल/I P Bansal) (राजे / RAJENDRA) या यक सद य / JUDICIAL MEMBER लेखा सद य / ACCOUNTANT MEMBER मुंबई/Mumbai, दनांक/Date: 17.06.2015 व. न.स.Jv.Sr.PS. आदे श क त ल प अ े षत/Copy of the Order forwarded to : 1.Appellant /अपीलाथ 2. Respondent / यथ

3.The concerned CIT(A)/संब ध अपील य आयकर आयु त, 4.The concerned CIT /संब ध आयकर आयु त

5.DR A Bench, ITAT, Mumbai / वभागीय त न ध, ए खंडपीठ,आ.अ. याया.मुंबई

6.Guard File/गाड फाईल स या पत त //True Copy// आदे शानस ु ार/ BY ORDER, उप/सहायक पंजीकार Dy./Asst. Registrar आयकर अपील य अ धकरण, मुंबई /ITAT, Mumbai.

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