TMI Blog2021 (3) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... (10) TMI 251 - BOMBAY HIGH COURT] and (ii) Manek lal Agarwal Vs DCIT [ 2017 (8) TMI 667 - SUPREME COURT] . The registry is accordingly directed to fix the matter on 23.04.2021. - M.A. No. 449/Mum/2019 (Arising out of ITA No.7615/Mum/2016) - - - Dated:- 26-3-2021 - Shri M. Balaganesh, AM And Shri Ravish Sood, JM For the Applicant : Shri Pankaj R. Toprani, A.R. For the Respondent : Shri Gurbinder Singh, D.R. ORDER PER RAVISH SOOD, JM: The present miscellaneous application filed by the assessee company arises from the order passed by the Tribunal while disposing off its appeal i.e M/s Rational Art Press Pvt. ltd. Vs. Dy. Commissioner of Income Tax, Central Circle-44, Mumbai in ITA No. 7615/Mum/2016 for A.Y. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D.R ) objected to the application filed by the assessee. It was submitted by the ld. D.R that as the Tribunal had disposed off the appeal by way of a speaking order, therefore, no mistake emerged from its order which would therein render the same amenable for rectification under Sec.254(2) of the Act. 4. We have heard the authorized representatives for both the parties, perused the application filed by the assessee and also the material available on record. We would mince no words in observing that a perusal of the application filed by the assessee reveals that in the garb of the application filed under sub-section (2) of Sec.254 of the Act, it has primarily sought review of the order that was passed by the Tribunal while disposing off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid two judgments. In our considered view the non-consideration of a decision of the Hon'ble Supreme Court or that of the jurisdictional High Court would constitute a mistake apparent from record, which would therein render it amenable for rectification under sub-section (2) of Sec.254 of the Act. Our aforesaid observation is fortified by the judgment of the Hon ble Supreme Court in the case of ACIT Vs. Saurashtra Kutch Stock Exchange Ltd. (2008) 305 ITR 227 (SC). In the aforesaid case the Hon'ble Supreme Court had observed that the failure on the part of the Tribunal to consider a decision of the Supreme Court or that of the jurisdictional High Court, though not relied upon in the course of hearing of the appeal would however b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the appeal had taken us through the order of a co-ordinate bench of the Tribunal viz. ITAT F Bench, Mumbai in the case of a sister concern of the assessee i.e M/s Faziani Exports Pvt. Ltd (tenant of the assessee) for A.Y 2010-11 in ITA No. 4090/Mum/2016 [Page 83-100 of the assessee's Paper book ] (for short APB ). In its order passed in the case of M/s Faziani Exports Pvt. Ltd. (supra) for A.Y 2010-11, it was observed by the Tribunal that earlier in the appeal of the said assessee for A.Y 2005-06 in ITA No. 7150/Mum/2007, dated 30.03.2010, an issue had came up before it as to whether the rental income received by the assessee before them viz. M/s Faziani Exports Pvt. Ltd. (supra) from sub-leasing was to be assessed as business i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue before the Tribunal in its aforesaid order viz. M/s Faziani Exports Pvt. Ltd. Vs. Dy. CIT [ITA No. 4090/Mum/2016, dated 04.05.2018 for A.Y 2010-11] was that now when the sub-leasing receipts of property Rational House had been offered by M/s Faziani Exports Pvt. Ltd. as its income for the year under consideration i.e A.Y 2010-11, and was assessed as such in its hands, therefore, in the backdrop of the fact that the A.O had assessed the same amount of ₹ 11,02,50,000/- in the hands of the assessee i.e M/s Rational Art Press Pvt. Ltd. in A.Y 2010-11 on the premise that the said sum constituted the annual lettable value of the property u/s 23(1)(a) in its hands, the income to the said extent i.e ₹ 11,02,50,000/- was to be d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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