DCIT 9(2), MUMBAI V. NOBEL BIOCARE INDIA P.LTD, MUMBAI

ITA 3159/MUM/2013

• Counselvise Citation: 315919914 RSA 2013
• Duration Of Justice: 2 year(s) 3 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 13-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 25-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR SONIDR
• Assessee Lawyers: SHIR ALIASGAR RAM PURAWALA
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Wholly owned subsidiary
• Section: 143(3); 234B

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B, MUMBAI , , , BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER, AND SHRI ASHWANI TANEJA, ACCOUNTANT MEMBER ITA NO.3159/MUM/2013 ASSESSMENT YEAR: 2008-09 DCIT-9(2), ROOM NO.218, 2 ND FLOOR, AAYAKAR BHAVAN,M.K.ROAD MUMBAI400020 / VS. M/S NOBEL BIOCARE INDIA PVT. LTD. FORTUNE 2000, 1 ST FLOOR, C WING, BANDRA KURLA COMPLEX, MUMBAI-400051 ( / REVENUE) ( '#$ /ASSESSEE) P.A. NO . AACCN0274A / REVENUE BY SHRI VIJAY KUMAR SONI-DR '#$ / ASSESSEE BY SHRI DHANESH BAFNA & SHIR ALIASGAR RAM PURAWALA % & ' ( / DATE OF HEARING : 13/08/2015 ' ( / DATE OF ORDER: 28/08/2015 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DAT ED 25/02/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI, DELETING THE ADDITION OF RS.3,49,69,575/- ON ACCOUN T OF NOBEL BIOCARE INDIA PVT. LTD. ITA NO.3159/MUM/2013 2 OTHER CURRENT LIABILITIES WITHOUT APPRECIATING THAT THE ASSESSEE HAS NOT ESTABLISHED THAT LIABILITIES IN QU ESTION WERE ACCRUED EXPENSES AND NOT A PROVISION CREATED. 2. DURING HEARING OF THIS APPEAL, THE LD. DR, SHRI VIJAY KUMAR SONI, ADVANCED HIS ARGUMENTS, WHICH ARE IDENTICAL TO THE GROUND RAISED BY FURTHER ASSERTING THAT THE ASSESSEE FILED ADDITIONAL EVIDENCE BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ON WHICH NEITH ER ANY OPPORTUNITY WAS PROVIDED TO THE ASSESSING OFFIC ER NOR ANY REMAND REPORT WAS SOUGHT FROM HIM, THUS, IT IS CLEAR CUT VIOLATION OF PRINCIPLE OF NATURAL JUSTICE ALONG WITH THE PROVISION OF RULE 46A OF THE INCOME TAX RULES. ON T HE OTHER HAND, SHRI DHANESH BAFNA ALONG WITH SHRI ALIA SGAR RAMPURWALA, LD. COUNSEL FOR THE ASSESSEE, DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER. ON QUESTIONING FROM THE BENCH WITH RESPECT TO FILING O F ADDITIONAL EVIDENCE BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS), THE LD. COUNSEL FOR THE ASSESSEE, FA IRLY AGREED THAT ADDITIONAL EVIDENCE WAS FILED ON WHICH NO REMA ND REPORT WAS SOUGHT FROM THE ASSESSING OFFICER. 2.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IS A WHOLLY OWNED SUBSIDIARY OF NOBEL BIOCARE ASIA AFRICA HOLDING AG FOR UNDERTAKING WHOL ESALE TRADING OF DENTAL PRODUCTS/SOLUTIONS IN INDIA OF NB H FOR PROVIDING REQUISITE SOLUTION/MARKETING (PRE-SAIL/AF TER SAIL) SUPPORT AND TRAINING TO CUSTOMERS IN INDIA. THE ASS ESSEE NOBEL BIOCARE INDIA PVT. LTD. ITA NO.3159/MUM/2013 3 DECLARED INCOME OF RS.1,92,44,000/-. THE ASSESSMENT ORDER WAS FRAMED U/S 143(3) OF INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) ASSESSING THE TOTAL INCOME OF RS.7,22,68,530/-, RAISING THE TAX DEMAND OF RS.3,13,54,842/- (INCLUSIVE OF INTEREST OF RS.34,14 ,252/-, RS.1,16,07,502/- AND RS.3,26,325/- U/S 234A, 234B A ND 234C OF THE ACT). THE ASSESSEE CARRIED THE MATTER I N APPEAL BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) , WHEREIN, PART RELIEF WAS GRANTED TO THE ASSESSEE. THE REVENUE IS AGGRIEVED IS IN APPEAL BEFORE THIS TRIBUNAL. WITHOUT GOING INTO MUCH DELIBERATION, WE FIND, AS AGREED BY THE LD. COUNSEL FOR THE ASSESSEE ALSO, TH AT THE ASSESSEE FILED ADDITIONAL EVIDENCE BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) FOR THE FIRST TIME (WHICH WAS NOT FILED DURING THE ASSESSMENT PROCEEDI NGS) AND NEITHER OPPORTUNITY WAS GRANTED TO THE ASSESSIN G OFFICER NOR ANY REMAND REPORT WAS SOUGHT FROM HIM, THUS, KEEPING IN VIEW, THE PRINCIPLE OF NATURAL JUSTICE A ND ALSO NO PREJUDICE IS CAUSED TO EITHER SIDE, WE REMAND THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE CL AIM OF THE ASSESSEE AFRESH, UNINFLUENCED BY THE CONCLUSION DRA WN IN THE IMPUGNED ORDER, AND DECIDE IN ACCORDANCE WITH L AW. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD WI TH FURTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUP PORT OF ITS CLAIM. THUS, THE APPEAL OF THE REVENUE IS ALLOWED F OR STATISTICAL PURPOSES ONLY. NOBEL BIOCARE INDIA PVT. LTD. ITA NO.3159/MUM/2013 4 FINALLY, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 13/08/2015. SD/ - (ASHWANI TANEJA) SD/ - (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER % & MUMBAI; ) DATED : 28/08/2015 F{X~{T? P.S/. . . %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. +,- / THE APPELLANT 2. ./,- / THE RESPONDENT. 3. 0 0 % 1 ( + ) / THE CIT, MUMBAI. 4. 0 0 % 1 / CIT(A)- , MUMBAI 5. 34 . ' , 0 +( ' 5 , % & / DR, ITAT, MUMBAI 6. 6# 7& / GUARD FILE. / BY ORDER, /3+ . //TRUE COPY// / (DY./ASSTT. REGISTRAR) , % & / ITAT, MUMBAI