ERNST & YOUNG MERCHANT BANKING SERVICES P. LTD, MUMBAI V. ITO 6(2)(3), MUMBAI

ITA 4513/MUM/2015

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2708 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 03-08-2015
• Court: TRIBUNAL
• Assessee Lawyers: NIKHIL TIWARI SHRI AN
• Keywords: Depreciation; Principle of natural justice
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) I.T.A. NO. 4513 /MUM/ 20 1 5 (ASSESSMENT YEAR 20 1 0 - 11 ) ERNST & YOUNG MERCHANT BANKING SERVICES (P) LTD. (FORMERLY KNOWN AS IND GLOBAL CORPORATE FINANCE LTD.) 14 TH FLOO R, THE RUBY SENAPATI BAPAT MARG DADAR WEST MUMBAI - 400 028. VS. ITO - 6(2)(3) MUMBAI ( APPELLANT ) ( RESPONDENT ) PAN NO . AAACT8134Q ASSESSEE BY S/ SHRI M.P. LOHIA & NIKHIL TIWARI DEPARTMENT BY SHRI ANIL PANDEY DATE OF HEARING 15 . 7 . 201 6 DATE OF PRONOUNCEMENT 15 . 7 . 201 6 O R D E R THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 10 - 06 - 2015 PASSED BY LD CIT(A) - 12, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2010 - 11. 2. THE ASSESSEE IS ENGAGED IN THE BUSINESS OF PROV IDING CORPORATE ADVISORY SERVICES. 3. THE FIRST ISSUE URGED BY THE ASSESSEE RELATES TO THE NON - GRANTING OF DEPRECIATION ON TECHNICAL KNOWHOW FEE ACQUIRED IN AY 2001 - 02. WITH REGARD TO THIS ISSUE, THE LD A.R SUBMITTED THAT THE ASSESSEE HAS CHALLENGED T HE ADDITION CONFIRMED BY THE TRIBUNAL IN THE EARLIER YEARS BY FILING APPEAL BEFORE HONBLE HIGH COURT OF BOMBAY. HE FURTHER SUBMITTED THAT THE ASSESSEE HAD FILED FORM ERNST & YOUNG MERCHANT BANKING SE RVICES P. LTD. 2 NO.8 AS PER THE PROVISIONS OF SEC. 158A OF THE ACT ON THIS ISSUE IN THE EARLIER YEARS IN ORDER TO AVOID REPETITIVE APPEALS AND THE SAME HAS BEEN ACCEPTED. HE SUBMITTED THAT, IN THIS YEAR ALSO, THE ASSESSEE HAS FILED FORM NO.8 AND ACCORDINGLY HE PRAYED THAT THE SAME MAY BE CONSIDERED. 4. I HEARD LD D.R AND PERUSED THE RECORD. HAVING REGA RD TO THE SUBMISSIONS MADE BY LD A.R, I RESTORE THIS ISSUE TO THE FILE OF THE AO WITH THE DIRECTION TO FOLLOW THE DECISION RENDERED BY HONBLE HIGH COURT OF BOMBAY ON THE IDENTICAL ISSUE CONTESTED IN THE EARLIER YEARS, SINCE THE ASSESSEE HAS FILED A PETITI ON IN TERMS OF SEC. 158A OF THE ACT. 5. THE REMAINING GROUNDS RELATE TO THE FOLLOWING ISSUES: - (A) NON - GRANTING OF DEPRECIATION ON NON - COMPETE FEES. (B) ADOPTION OF WRONG FIGURE OF TOTAL INCOME IN THE TAX COMPUTATION SHEET. (C) NON ALLOWING OF FULL CREDIT OF TAX DEDUCTED AT SOURCE. (D) NON ALLOWING OF CREDIT OF FOREIGN TAX DEDUCTION. I NOTICE THAT THE ASSESSEE HAS MOVED PETITION U/S 154 OF THE ACT BEFORE THE ASSESSING OFFICER WAY BACK ON 15 TH APRIL, 2013 AND THERE AFTER, THE ASSESSEE HAS FILED MANY REMAINDERS IN CONTINUANCE OF THE SAME. HENCE THE LD CIT(A) DID NOT ADJUDICATE THESE ISSUES AND DIRECTED THE AO TO DISPOSE OF THE RECTIFICATION PETITION EXPEDITIOUSLY. THE ORDER OF LD CIT(A) IS DATED 10 TH JUNE, 2015 AND THEREAFTER THE ASSESSEE HAS FILED TWO REMAINDERS VIDE ITS LETTER DATED 30 TH JULY, 2015 AND 10 TH MAY, 2016. THE LD A.R SUBMITTED THAT THE ASSESSING OFFICER HAS NOT DISPOSED OF THE RECTIFICATION PETITION TILL DATE. 6. SINCE THE FIRST ISSUE IS RESTORED TO THE FILE OF THE ASS ESSING OFFICER, I AM OF THE VIEW THAT, IN THE INTEREST OF NATURAL JUSTICE, THE ASSESSING OFFICER SHOULD BE ERNST & YOUNG MERCHANT BANKING SE RVICES P. LTD. 3 DIRECTED TO DISPOSE OF THE RECTIFICATION PETITION FILED BY THE ASSESSEE U/S 154 OF THE ACT. IT IS SURPRISING THAT THE ASSESSING OFFICER HAS NOT DISP OSED OF THE PETITION DESPITE THE DIRECTION GIVEN BY THE LD CIT(A). THE SCANT RESPECT GIVEN BY THE AO TO THE ORDER PASSED BY LD CIT(A) IS DEPLORABLE. ACCORDINGLY I AM OF THE VIEW THAT A TIME LIMIT SHOULD BE FIXED FOR THE AO TO DISPOSE OF THE RECTIFICATION PETITION FILED BY THE ASSESSEE. ACCORDINGLY I DIRECT THE AO TO DISPOSE OF THE RECTIFICATION PETITION FILED BY THE ASSESSEE WITHIN THREE MONTHS FROM THE DATE OF RECEIPT OF THIS ORDER. I ALSO DIRECT THE LD DR TO BRING THIS ORDER TO THE NOTICE OF THE CONCE RNED PRINCIPAL COMMISSIONER, WHO SHALL ENSURE THAT THE RECTIFICATION PETITION SHALL BE DISPOSED OF BY THE AO WITHIN THE TIME FRAME STATED ABOVE. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 15 .7.2016 SD/ - (B.R.BASKARAN) ACCOUNTANT MEMBER MUMBAI ; DATED : 15 / 7 / 20 1 6 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI PS