AMBUJA CEMENTS LIMITED ,MUMBAI vs. DCIT (LTU), MUMBAI

During the hearing, the learned Authorised Representative (“learned AR”) submitted that the assessee vide ground no.8 raised an issue pertaining to the applicability of the rate of tax provided in India Mauritius Double Taxation Avoidance Agreement (“DTAA”) to the dividend declared by the assessee. However, the coordinate bench of the Tribunal dismissed the said ground as not pressed, even though similar grounds raised in appeals for assessment years 2011-12 and 2012-13, which were also decided vide the common order dated 07/11/2012, were remanded to the file of the Assessing Officer for adjudication on merits. The learned AR further submitted that this issue was raised by way of additional ground before the first appellate authority, however the same was dismissed, and accordingly the assessee raised grounds no.8 in its appeal for the assessment year 2010-11 before the Tribunal. It was further submitted that during the hearing ground-wise chart of submissions was also filed by the assessee.

On the other hand, the learned Departmental Representative did not bring anything on record to controvert the submissions made on behalf of the assessee.

We have considered the submissions of both sides and perused the material available on record. The grievance of the assessee in the present miscellaneous application filed under section 254(2) of the Act is that while deciding assessee’s appeal for assessment year 2010-11, the coordinate bench dismissed ground no.8 raised by the assessee as not pressed. On a perusal of the common order dated 07/11/2022, passed in assessee’s appeal for assessment years 2010-11, 2011-12, and 2012-13, we find that the assessee also raised similar issue in its appeal for assessment years 2011-12 and 2012-13, which were remanded to the Assessing Officer for adjudication on merits. We also find from the perusal of the record that the issue of the applicability of the rate of tax provided in the DTAA on dividend declared by the assessee was also raised before the learned CIT(A) by way of an application seeking admission of additional ground. The learned CIT(A) though rejected the prayer of admission of additional ground, however, on a without prejudice basis decided this issue against the assessee on merits. Therefore, in view of the above, we find merits in the submissions of the assessee that this issue was specifically raised before the Tribunal and was also pressed in its appeal for the assessment year 2010-11. Accordingly, to this limited extent, we are of the considered view that there is a mistake apparent from the record, which constitutes a rectifiable mistake under section 254(2) of the Act. Accordingly, the order dated 07/11/2022, passed Page | 3

With the consent of both parties, the corresponding appeal being ITA no. 2384/Mum./2019, was taken up for hearing limited to the extent of adjudication of ground no.8 raised by the assessee. During the hearing, the learned Representative appearing for the parties fairly agreed that the issue arising in ground no.8 is covered in favour of the Revenue by the recent decision of the Special Bench of the Tribunal in DCIT v/s Total Oil India Private Ltd, [2023] 149 taxmann.com 332 (Mumbai - Trib.) (SB). Accordingly, respectfully following the aforesaid decision of the Special Bench of the Tribunal, ground no.8 is dismissed.

In the result, Miscellaneous Application filed by the assessee is allowed, while ground no.8 raised in assessee’s appeal for the assessment year 2010- 11, is dismissed Order pronounced in the open Court on 29/05/2023