BAJAJ ELECTRICALS LTD, MUMBAI V. ADDL CIT 2(1), MUMBAI

ITA 3789/MUM/2012

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 4945 (ITAT-MUMBAI)
• Duration Of Justice: 7 year(s) 4 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 29-05-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAHUL RAMANLD
• Assessee Lawyers: NITESH JOSHI LD
• Section: 254(2)

Judgement Text

ITA NO.3789/MUM/2012 BAJAJ ELECTRICALS LIMITED ASSESSMENT YEAR: 2008-09 1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, VP AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) ./ I.T.A. NO.3789/MUM/2012 ( / ASSESSMENT YEAR : 2008-09) BAJAJ ELECTRICALS LIMITED 45/47, BOMBAY LIFE BUILDING VEER NARIMAN ROAD FORT, MUMBAI-400 001. / VS. ADDL. C IT - 2( 1) AAYKAR BHAVAN, M.K. ROAD MUMBAI-400 020. *+ ./ ./PAN/GIR NO. AAACB-2484-Q ( +- /APPELLANT ) : ( ./+- / RESPONDENT ) ASSESSEE BY : SHRI NITESH JOSHI -LD.AR REVENUE BY : SHRI RAHUL RAMAN -LD.CIT-DR / DATE OF HEARING : 23/02/2021 / DATE OF PRONOUNCEMENT : 03/03/2021 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID MATTER IS A RECALLED MATTER FOR LIMITE D PURPOSE OF ADJUDICATION OF ONE OF THE ADDITIONAL GROUND RAISED BY THE ASSESSEE IN ITS APPEAL FOR ASSESSMENT YEAR (AY) 2008-09. THE APPEAL WAS ORIGINALLY DISPOSED-OFF VIDE ORDER DATED 14/10/2019 WHICH IS C OMMON ORDER FOR CROSS APPEALS FOR AYS 2007-08 & 2008-09. HOWEVER, T HE ASSESSEES MISCELLANEOUS APPLICATION MA NO. 223/MUM/2020 HAS B EEN ALLOWED BY ITA NO.3789/MUM/2012 BAJAJ ELECTRICALS LIMITED ASSESSMENT YEAR: 2008-09 2 THE BENCH VIDE ORDER DATED 08/01/2021 FOR LIMITED P URPOSE OF ADJUDICATION OF ADDITIONAL GROUNDS OF APPEAL AS RAI SED BY THE ASSESSEE DURING THE COURSE OF ORIGINAL HEARING. THE OBSERVAT IONS OF THE BENCH, RECALLING THE ORDER, READ AS UNDER: - 6. BY VIRTUE OF THIS MISCELLANEOUS APPLICATION, THE ASSESSEE SUBMITS THAT THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE ON ACCOUNT OF CLAIMING DEDUC TION OF EXPENDITURE IN RESPECT OF EMPLOYEE STOCK OPTION PLAN (ESOP) AND DEDUCTION IN RESPECT O F EDUCATION CESS WERE NOT AT ALL ADJUDICATED BY THIS TRIBUNAL WHILE DISPOSING OFF ITS APPEAL. NON A DJUDICATION OF ADDITIONAL GROUNDS WOULD CONSTITUTE MISTAKE APPARENT ON RECORD WARRANTING RECTIFICATION U/S. 254(2) OF THE ACT. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THE ADDITIONAL GROUNDS RAISED ON THE AFORESAID TWO ISSUES FOR A.Y.2008-09 HAVE NOT BEEN ADJUDICATED BY THIS TRIBUNAL WHILE DISPOSING OFF THE ORIGINAL A PPEAL WHICH IS AMENABLE TO RECTIFICATION U/S.254(2) OF THE ACT. 8. WITH REGARD TO DEDUCTION CLAIMED IN RESPECT OF EDUCATION CESS, WE HAVE ALREADY HELD FOR THE A.Y.2007-08 IN THIS ORDER SUPRA THAT THE ASSESSEE W OULD BE ENTITLED FOR DEDUCTION IN RESPECT OF EDUCATION CESS. WE DIRECT THE LD. AO ACCORDINGLY TO GRANT DEDUCTION FOR THE SAME FOR A.Y.2008-09 ALSO. 9. WITH REGARD TO DEDUCTION CLAIMED IN RESPECT OF E MPLOYEE STOCK OPTION EXPENDITURE, SINCE THE SAID ISSUE WAS NOT AT ALL ADJUDICATED BY THE TRIBUNAL, W E HEREBY RECALL THE ORDER PASSED BY THIS TRIBUNAL F OR A.Y.2008- 09 ONLY FOR THE LIMITED EXTENT OF ADJUDIC ATION OF THIS ADDITIONAL GROUND ALONE. ACCORDINGLY, THE ISSUE OF DEDUCTION OF EMPLOYEE STO CK OPTION EXPENDITURE (ESOP) HAS COME UP FOR FRESH HEARING BE FORE THIS BENCH. 2. THE LD. CIT-DR, AT THE OUTSET, OBJECTED TO ADMIS SION OF ADDITIONAL GROUND AND SUBMITTED THAT THE FACTS OF THE SAME ARE NOT AVAILABLE IN THE ASSESSMENT ORDER AS WELL AS IN THE APPELLATE ORDER. THE LD. AR, ON THE OTHER HAND, SUBMITTED THAT THIS ISSUE WAS RAISED BY THE ASSESSEE VIDE ITS LETTER DATED 04/12/2018 WHEREAS THE APPEAL WAS ORIG INALLY HEARD ON 20/08/2019. THIS GROUND, THOUGH ADMITTED AND ARGUED , WAS NOT ADJUDICATED BY THE BENCH WHICH LED THE ASSESSEE TO PREFER MISCELLANEOUS APPLICATION AGAINST THE ORDER AND FIN DING MERIT IN THE SAME, THE MISCELLANEOUS APPLICATION WAS ALLOWED BY THE BENCH. 3. UPON DUE CONSIDERATION OF MATERIAL ON RECORD, WE FIND THAT THE ASSESSEE HAD, IN FACT, RAISED THE ISSUE OF DEDUCTIO N OF EDUCATION CESS AS ITA NO.3789/MUM/2012 BAJAJ ELECTRICALS LIMITED ASSESSMENT YEAR: 2008-09 3 WELL AS DEDUCTION OF EXPENDITURE INCURRED IN RESPEC T OF EMPLOYEE STOCK OPTION PLAN (ESOP) BY WAY OF ADDITIONAL GROUND OF A PPEAL VIDE LETTER DATED 04/12/2018. THESE TWO GROUNDS REMAINED TO BE ADJUDICATED IN TRIBUNAL ORDER DATED 14/10/2019. IN THE MA ORDER, T HE BENCH NOTED THE AFORESAID FACT AND ALLOWED THE GROUND OF DEDUCTION OF EDUCATION CESS BUT RECALLED THE ORDER FOR THE PURPOSE OF ADJUDICATING GROUND RELATED TO DEDUCTION OF ESOP EXPENDITURE. THEREFORE, IT IS QUI TE EVIDENT THAT THE ISSUES WERE ADMITTED AS WELL AS ARGUED DURING THE H EARING OF ORIGINAL APPEAL, THOUGH NOT ADJUDICATED IN THE ORDER. THEREF ORE, THE OBJECTION RAISED BY LD. CIT-DR AS TO ADMISSION OF ADDITIONAL GROUND OF APPEAL STAND REJECTED. 4. PROCEEDING FURTHER ON THE MERIT OF THE CASE, UPO N PERUSAL OF ASSESSMENT ORDER AS WELL AS APPELLATE ORDER, WE CON CUR WITH THE SUBMISSION OF LD. CIT-DR THAT THE FACTUAL MATRIX WI TH RESPECT TO ISSUE OF DEDUCTION OF ESOP EXPENDITURE IS NOT AVAILABLE ON R ECORD AND THE SAME WAS NOT SUBJECT MATTER OF ASSESSMENT FRAMED BY LD. AO FOR THE YEAR UNDER CONSIDERATION. ACCORDINGLY, WHILE ADMITTING T HIS GROUND OF APPEAL, WE RESTORE THE SAME BACK TO THE FILE OF LD. AO TO C ONSIDER THE FACTUAL MATRIX OF THE SAME AND ADJUDICATE THE ISSUE AFTER P ROVIDING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSE E, IN TURN, IS DIRECTED TO SUBSTANTIATE HIS CLAIM ACCORDINGLY. ITA NO.3789/MUM/2012 BAJAJ ELECTRICALS LIMITED ASSESSMENT YEAR: 2008-09 4 5. THE ADDITIONAL GROUND THUS RAISED STAND ALLOWED FOR STATISTICAL PURPOSES. THE APPEAL OF ASSESSEE REMAINS PARTLY ALL OWED AS INDICATED IN THE ORIGINAL ORDER. ORDER PRONOUNCED ON 03 RD MARCH, 2021 SD/- SD/- (MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) / VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI; DATED : 03/03/2021 SR.PS, JAISY VARGHESE !'! / COPY OF THE ORDER FORWARDED TO : 1. +- / THE APPELLANT 2. ./+- / THE RESPONDENT 3. 6 ( ) / THE CIT(A) 4. 6 / CIT CONCERNED 5. 78.19 , 9 , / DR, ITAT, MUMBAI 6. 8:;< / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.