TMI Blog2019 (6) TMI 590X X X X Extracts X X X X X X X X Extracts X X X X ..... discuss the said case in the order as long the larger ratio rendered by the courts is not in conformity with the facts of the present case. The ratio rendered by any Courts/Tribunal is not universal and such ration is solely depends upon facts of each case. The ratio or observations of the Court cannot be picked to suit the particular facts of the present case, unless the facts brought out in those cases are identical to the facts brought out by the lower authorities in the case on hand. We find that the case relied upon by the the assessee is all together different which cannot be applied to the facts of the present case and hence, the Tribunal has taken conscious decision not to discuss the case laws referred by the assessee in its order. We are of the considered view that there is no merit in the miscellaneous application filed by the assessee in light of decision in Honda Siel Power Products Ltd. vs CIT [ 2007 (11) TMI 8 - SUPREME COURT] hence, we are of the considered view that assessee has failed to make out a case of mistakes apparent on record in the order of the Tribunal which can be rectified u/s 254(2) - Miscellaneous application filed by the assessee is dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t being the business of investment in shares of group companies for acquiring controlling interest and also managing, financing and rehabilitating those companies. 5) The case of the AO (as summarized by the CIT(A) in Para 5.3) of his order was that, having regard to the statutory audit report of the chartered accountants read with the Memorandum of Association and the Article of Association of the appellant company, the appellant company was not engaged in any business activity and that the only activity carried out by the appellant company was investment in shares of Anand Group companies. 6) Your Honors have decided this issue in Para 13 of the order which reads as under: Having heard both the sides and considered materials available on record, we do not find any merits in the arguments of the assessee for the reason that the activity carried out by the assessee i.e. investment in shares of Anand Group of Companies for holding controlling interest cannot be considered as main business activity of the assessee in the nature of trade or commerce. The assessee itself has admitted that it is in the activity of investment in group compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Honors. 10) It is respectfully submitted that non-consideration of a decision cited during the course of the hearing constitutes a mistake apparent from the record. 11) Further, during the course of the hearing attention of the Hon'ble Members was also drawn to the decision of Hon'ble Mumbai Tribunal in case of Pistabai Rikhabchand Kothari (ITA No 46491M12008). The relevant portion of the order is reproduced below We further noted that in case of Vodafone International Holding B. V. the Hon ble Supreme Court has observed at page no 13 para (v) of its order that controlling interest forms and inalienable part of the share itself and cannot be traded separately unless otherwise provided by the statute. Control is an interest arising from holding a particular number of shares and cannot be separately acquired or transferred. Controlling interest is not an identifiable or distinct capital asset independent of holding of shares. It is respectfully submitted that non-consideration of the decision of the Mumbai Tribunal in the case of Pistabai Rikhabchand Kothari (ITA No 4649/M/2008) and by implication non-consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidiary company is made to have control over that company and further that such an investment was accordingly part of the business of the assessee, the assessee was entitled to deduction of interest u/s 36(1)(iii). 18) The mistake that is apparent from the record is that the ratio of the jurisdictional High Court in the case Phil Corporation (supra) and of the Mumbal ITAT in the case of Tata Industries (supra) has not been applied and which squarely applies to the facts of the case as demonstrated before Your Honors. 19) The other mistake that is apparent from the record is that the Honorable Tribunal inadvertently overlooked the fact that the assessee had filed its return declaring income under the head 'profits and gains of business (page 25 of the paper - computation of income); form of the Return of Income (Form No. 1) (submitted during the course of the hearing) and in particular item 15 on page 1 of the Return and item 15 of Schedule H General Information of the Return. Your Honors have also inadvertently overlooked the fact that the AO has assessed the assessee under the same head of income. 20) In the light o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... b.) where similar issue has been decided. Although, all the above decision were referred at the time of hearing, the Tribunal has failed to consider the ratio of the above judgments before arrive at a conclusion, therefore, the said observation of the Tribunal constitutes mistake apparent on record which could be rectified u/s 254(2) of the Act. In this regard, he relied upon the decision of Hon ble Supreme Court in the case of Honda Seil Power Projects Ltd. vs CIT (2007) 295 ITR 0466 (SC). 4. The Ld. DR, on the other hand, submitted that the assessee has failed to make out a case of mistakes apparent on record in the order of the Tribunal and what the assessee s counsel seeks is review the judgment of the Tribunal, which is not permissible u/s 254(2) of the Act. Therefore, the miscellaneous application filed by the assessee may be dismissed. 5. We have heard both the parties and perused the miscellaneous application filed by the assessee along with order of the Tribunal in ITA No.7539/Mum/2013, dated 23/02/2018, for AYs 2003-04. We find that the Tribunal has discussed the issue threadbare in light of facts brought out by the lower authorities and evid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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