Neovia Logistics Services India Private Limited, CHENNAI V. ACIT, CHENNAI

CO 39/CHNY/2016

• Counselvise Citation: [2016] 119 COUNSELVISE.COM (IT) 3170 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 2 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 13-04-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 11-03-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: AJIT KUMAR VARMA

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , . !'# ! , % !& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NOS.75, 76 & 78/MDS/2016 & C.O. NOS.38, 39 & 41/MDS/2016 (IN I.T.A. NOS.75, 76 & 78/MDS/2016) ( )( / ASSESSMENT YEARS : 2007-08, 2008-09 & 2010-11 THE ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 4(2), CHENNAI - 600 034. V. M/S NEOVIA LOGISTICS SERVICES INDIA PRIVATE LIMITED (FORMERLY KNOWN AS M/S CATERPILLAR LOGISTICS SERVICES (INDIA) PVT. LTD.) 7 TH FLOOR, INTERNATIONAL TECH PARK, TARAMANI ROAD, TARAMANI, CHENNAI - 600 113. PAN : AACCC 3949 F ( APPELLANT) ( RESPONDENT & CROSS-OBJECTOR) +, - . / APPELLANT BY : SH. AJIT KUMAR VARMA, CIT /0+, - . / RESPONDENT BY : SH. RAGHUNATHAN SAMPATH, ADVOC ATE 1 - 2% / DATE OF HEARING : 28.03.2016 3') - 2% / DATE OF PRONOUNCEMENT : 13.04.2016 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: ALL THE APPEALS OF THE REVENUE ARE DIRECTED AGAI NST THE RESPECTIVE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS)-1, CHENNAI, DATED 11.09.2015, FOR THE ASSESSMENT YEARS 2007-08, 2 I.T.A. NOS.75,76 & 78/MDS/16 C.O. NOS.38,39 & 41/MDS/ 16 2008-09 AND 2010-11. THE ASSESSEE HAS FILED CROSS- OBJECTIONS AGAINST THE VERY SAME ORDERS OF THE CIT(APPEALS). SINCE COMMON ISSUE ARISES IN THESE APPEALS, WE HEARD ALL THE APP EALS AND THE CROSS-OBJECTIONS TOGETHER AND DISPOSING OF THE SAME BY THIS COMMON ORDER. 2. SHRI AJIT KUMAR VARMA, THE LD. DEPARTMENTAL REPR ESENTATIVE, SUBMITTED THAT THE ASSESSEE CLAIMED DEDUCTION UNDER SECTION 10A OF THE INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'). THE ASSESSING OFFICER FOUND THAT THE TRANSFER OF LOGISTICS DIVISI ON AS A GOING CONCERN TO THE ASSESSEE BY M/S CATERPILLAR COMMERCI AL PVT. LTD., IS A COLOURABLE EXERCISE WITH THE INTENTION OF EVADING TAX, THEREFORE, THE ASSESSING OFFICER DISALLOWED THE CLAIM OF THE A SSESSEE. HOWEVER, ON APPEAL BY THE ASSESSEE, THE CIT(APPEALS ), BY FOLLOWING THE ORDER OF THIS TRIBUNAL IN I.T.A. NO.9 65/MDS/2009 DATED 17.02.2012 IN THE ASSESSEE'S OWN CASE FOR THE ASSES SMENT YEAR 2005-06, ALLOWED THE CLAIM OF THE ASSESSEE. THE LD . D.R. FURTHER SUBMITTED THAT AN APPEAL HAS ALREADY BEEN FILED BEF ORE THE HIGH COURT AGAINST THE ORDER OF THIS TRIBUNAL AND THE SA ME IS PENDING. THE LD. D.R. SUBMITTED THAT THE PRESENT APPEALS ARE FILED ONLY TO KEEP THE MATTER ALIVE. 3 I.T.A. NOS.75,76 & 78/MDS/16 C.O. NOS.38,39 & 41/MDS/ 16 3. WE HAVE HEARD SH. RAGHUNATHAN SAMPATH, THE LD.CO UNSEL FOR THE ASSESSEE ALSO. ADMITTEDLY, THE AGREEMENT D ATED 15.07.2004 FOR TRANSFER OF LOGISTICS DIVISION AS A GOING CONCE RN, WAS EXAMINED BY THIS TRIBUNAL IN THE ASSESSEE'S OWN CASE FOR ASS ESSMENT YEAR 2005-06 AND FOUND THAT THE LOGISTICS DIVISION WAS T RANSFERRED AS GOING CONCERN TO THE ASSESSEE. THE CIT(APPEALS) HA S SIMPLY FOLLOWED THE ORDER OF THIS TRIBUNAL IN THE ASSESSEE 'S OWN CASE FOR THE ASSESSMENT YEAR 2005-06. THEREFORE, AT THIS ST AGE, THE REVENUE CANNOT CONTEND THAT THE AGREEMENT DATED 15. 07.2004 WAS A COLOURABLE EXERCISE WITH AN INTENTION TO EVADE TA X. ACCORDING TO THE LD. COUNSEL, MERELY BECAUSE AN APPEAL IS PENDIN G BEFORE THE HIGH COURT AGAINST THE ORDER OF THIS TRIBUNAL FOR T HE ASSESSMENT YEAR 2005-06, THAT CANNOT BE A REASON TO TAKE A DIF FERENT VIEW. THE LD.COUNSEL FURTHER SUBMITTED THAT THE CROSS-OBJECTI ONS ARE ONLY TO SUPPORT THE ORDERS OF THE CIT(APPEALS). 4. WE HAVE CONSIDERED THE SUBMISSIONS ON EITHER SID E AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE AGREEMENT DATED 15.07.2004 WAS A SUBJECT MATTER OF EXAMINATIO N BY THIS TRIBUNAL IN THE ASSESSEE'S OWN CASE FOR ASSESSMENT YEAR 2005-06 AND THIS TRIBUNAL FOUND THAT THE LOGISTICS DIVISION WAS TRANSFERRED 4 I.T.A. NOS.75,76 & 78/MDS/16 C.O. NOS.38,39 & 41/MDS/ 16 AS GOING CONCERN TO THE ASSESSEE AND THE ASSESSEE I S ELIGIBLE FOR DEDUCTION UNDER SECTION 10A OF THE ACT. THE CIT(AP PEALS) FOR THE YEARS UNDER CONSIDERATION, HAS SIMPLY FOLLOWED THE ORDER OF THIS TRIBUNAL FOR ASSESSMENT YEAR 2005-06. IT IS NOT IN DISPUTE THAT THE FACTS ARE IDENTICAL TO THAT OF THE ASSESSMENT YEAR 2005-06. THEREFORE, THE DECISION OF CO-ORDINATE BENCH OF THI S TRIBUNAL FOR ASSESSMENT YEAR 2005-06 IS APPLICABLE TO THE ASSESS MENT YEARS UNDER CONSIDERATION. MERE PENDENCY OF APPEAL BEFOR E THE HIGH COURT CANNOT BE A REASON TO TAKE A DIFFERENT VIEW. IT IS NOBODYS CASE THAT THE ORDER OF THE TRIBUNAL IS STAYED BY TH E HIGH COURT. IN THOSE CIRCUMSTANCES, THIS TRIBUNAL IS OF THE CONSID ERED OPINION THAT THE CIT(APPEALS) HAS RIGHTLY FOLLOWED THE ORDER OF THIS TRIBUNAL IN THE ASSESSEE'S OWN CASE, FOR ASSESSMENT YEAR 2005-06. THEREFORE, THIS TRIBUNAL DO NOT FIND ANY REASON TO INTERFERE WITH T HE ORDERS OF THE CIT(APPEALS) AND ACCORDINGLY THE SAME ARE CONFIRMED . 5. THE CROSS-OBJECTIONS FILED BY THE ASSESSEE ARE O NLY TO SUPPORT THE ORDERS OF THE CIT(APPEALS). THIS TRIBU NAL IS OF THE CONSIDERED OPINION THAT THE ASSESSEE CAN VERY WELL SUPPORT THE ORDERS OF THE CIT(APPEALS) WITHOUT FILING THE CROSS -OBJECTIONS. 5 I.T.A. NOS.75,76 & 78/MDS/16 C.O. NOS.38,39 & 41/MDS/ 16 THEREFORE, THE CROSS-OBJECTIONS FILED BY THE ASSESS EE ARE NOT MAINTAINABLE. KKK 6. IN THE RESULT, BOTH, THE APPEALS OF THE REVENUE AND THE CROSS-OBJECTIONS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED ON 13 TH APRIL, 2016 AT CHENNAI. SD/- SD/- (. !'# ! ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 13 TH APRIL, 2016. KRI. - /267 87)2 /COPY TO: 1. +, /APPELLANT 2. /0+, /RESPONDENT 3. 1 92 () /CIT(A)-1, CHENNAI 4. PRINCIPAL CIT, CHENNAI-1, CHENNAI 5. 7: /2 /DR 6. ;( < /GF.