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Inter Gold Gems Pvt. Ltd. Versus Dy. Commissioner of Income Tax –Range 5 (2) , Mumbai.

2016 (1) TMI 1027 - ITAT MUMBAI

Rectification of mistake - Carry forward and set off of losses in the case of certain companies - Held that:- There is no dispute with regard to the fact that the share holding pattern, now presented before us, was not available before the tax authorities as well as the Tribunal during the hearing of appeal. The assessee has accepted throughout the proceedings that there was change in share holding pattern by more than 51%. The decision on the issue of eligibility of the assessee to set off the .....

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rent from record, i.e., mistakes available on the face of record. The assessee may also agree with the position that the order passed by the Tribunal does not suffer from any mistake on the basis of facts available on record at the relevant point of time. Only, if the new facts are taken into account, the decision rendered by the Tribunal may turn out to incorrect one. However, in our considered view, the same may not result in a mistake apparent from record as contemplated u/s 254(2) of the Act .....

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ed by the assessee and accordingly dismiss the same. - Decided against assessee. - Miscellaneous Application No.316/Mum/2013, Arising out of I.T.A. No.5760/Mum/2009 - Dated:- 1-1-2016 - HON BLE S/SHRI JOGINDER SINGH (JM), AND B.R.BASKARAN (AM) For The Appellant : Shri P J Pardiwala, and Shri Nitesh Joshi For The Respondent : Shri Chandra Vijay ORDER PER B.R. BASKARAN (AM) The assessee has filed this miscellaneous application against the order dated 05-06-2013 passed in ITA No.5760/M/2009 for the .....

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ing 54.99% of share capital and RBPL held 5,99,900 shares representing 30% of the share capital as at the beginning of the year. All through, i.e., before the AO, CIT(A) and Tribunal, it was submitted that the entire shareholding of 54.99% of share capital was transferred by IGGPL to RBPL. The effect of the said transfer of shares was that the assessee was denied the benefit of setting off of brought forward losses in view of the provisions of sec. 79 of the Act. The said provisions read as unde .....

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carry-ing not less than fifty-one per cent of the voting power were beneficially held by persons who beneficially held shares of the company carrying not less than fifty-one per cent of the voting power on the last day of the year or years in which the loss was incurred [* * *] : [Provided that nothing contained in this section shall apply to a case where a change in the said voting power takes place in a previous year consequent upon the death of a shareholder or on account of transfer of share .....

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e it was submitted that the entire shareholding of IGGPL, i.e., 54.99% share capital was transferred, the AO noticed that the share holding pattern has changed by more than 51% and accordingly held that the assessee is not entitled to set off the brought forward losses in view of the provisions of sec. 79 of the Act. The said decision of the AO was unsuccessfully challenged before the Ld CIT(A) and the Tribunal. 3. It appears that the assessee has later realized that IGPPL has not transferred it .....

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filed this miscellaneous application. 4. The Ld A.R submitted that the assessee has failed to bring the actual facts before the tax authorities as well as before the Tribunal under the mistaken impression that the entire share holding of IGPPL has been transferred. Subsequently, when the assessee was discussion about the prospects of filing appeal before the Hon ble High Court challenging the order of the Tribunal the factual aspects were examined again and it came to light that IGPPL has not t .....

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ee has thought it appropriate to move the miscellaneous application before the Tribunal u/s 254(2) of the Act. The Ld A.R, by placing reliance on the decision rendered by Hon ble Delhi High Court in the case of CIT Vs. Sakunthala Rajeshwar (160 ITR 840), submitted that the acceptance of a situation under an erroneous impression is a mistake rectifiable u/s 254(2) of the Act. He further placed reliance on the decision rendered by Hon ble Jurisdictional Bombay High Court in the case of Supreme Ind .....

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, which was not available on record before the tax authorities as well as the Tribunal. Accordingly he submitted the prayer of the assessee cannot be considered to be a mistake apparent from record and hence the order passed by the Tribunal does not call for any interference. He further submitted that the issue before the Hon ble Bombay High Court in the case of Supreme Industries Ltd (supra) was about the technical approach adopted by the Tribunal, i.e., the assessee therein filed a miscellaneo .....

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of the Tribunal was not found to be acceptable to the Hon ble High Court and in that context, the Hon ble High Court has made the above said observations. The Ld D.R submitted that the assessee cannot derive support from the above said decision of Hon ble Bombay High Court, as the facts prevailing in the instant case are totally different. 7. The Ld D.R submitted that the decision in the case of Shakuntala Rajeshwar (supra) was rendered on the peculiar facts available in that case. The Ld D.R s .....

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ld be satisfied in the same value was adopted. Accordingly the order was passed by the Tribunal. Later on, it came to the notice of the assessee that the other co-owner has challenged the order passed by Ld CIT(A) and the Tribunal has determined the value at ₹ 18.00 lakhs. Under these set of facts, the assessee filed a miscellaneous application with the plea that it was a bona fide mistake on the part of the representative and it was accepted by the Tribunal by recalling its earlier order. .....

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herein. The Ld D.R submitted that, in the instant case, the assessee is bringing a new fact relating to the pattern of shareholding, which was not available on record before the tax authorities as well as the Tribunal. Further, the above said shareholding pattern also requires examination. The Ld D.R submitted that the acceptance and consideration of new fact by the Tribunal, that too which are not available on record and which require verification would result in review of its own order by the .....

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