ATTEST TESTING SERVICES LTD, MUMBAI V. ADDL CIT RG 5(3), MUMBAI

ITA 454/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 84342 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2014
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 08-10-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 15-01-2013
• Court: TRIBUNAL
• Department Lawyers: VIVEK BATRA
• Assessee Lawyers: S C TIWARI
• Keywords: Capital expenditure
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ./I.T.A. NO. 454/M/2013 ( AY: 2009 - 2010 ) M/S. ATTEST T ESTING SERVICES LTD , CHAMPION SEALS COMPOUND, 2 ND & 3 RD FLOOR, 15 PARSI PANCHAYAT ROAD, ANDHERI (E), MUMBAI 400 069. / VS. DCIT - 8(1), R.NO.210/262, 2 ND FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 20. ./ PAN : AAECA 9 2 62B ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI S.C. TIWARI / RESPONDENT BY : SHRI VIVEK BATRA / DATE OF HEARING : 08.10.2014 / DATE OF PRONOUNCEMENT : 26 .11.2014 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 15.1.2013 IS AGAINST THE ORDER OF THE CIT(A) - 16, MUMBAI DATED 16.11.2012 FOR THE ASSESSMENT YEAR 2009 - 2010. 2. IN THIS APPEAL, ASSESSEE RAISED THE FOLLOWING EFFECTIVE GROUND WHICH READS AS UNDER: THE LD CIT (A) ERRED IN LAW AND ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE IN CONFIRMING THE DISALLOWANCE MADE BY THE ASSESSING OFFICER IN RESPECT OF ESOP CHARGES. 3. AT THE OUTSET, SHRI S.C. TIWARI, LD COUNSEL FOR THE ASSESSEE MENTION ED THAT THE ONLY ISSUE INVOLVED IN THIS APPEAL RELATES TO THE DISALLOWA N CE MADE WITH REGARD TO THE ESOP CHARGES AMOUNTING TO RS. 1,32,021/ - . BRIEFLY STATED RELEVANT FACTS OF THE CASE ARE THAT IN THE RETURN OF INCOME ASSESSEE CLAIMED ESOP COMPENSATION COS T AMOUNTING TO RS.1,32,021/ - . ASSESSMENT WAS COMPLETED U/S 143(3) OF THE ACT DETERMINING THE LOSS AT RS.54,87,676/ - AGAINST THE TOTAL LOSS SHOWN IN THE RETURN OF RS. 56,19,697/ - . IN THE ASSESSMENT, AFTER CONSIDERING THE SUBMISSIONS OF THE 2 ASSESSSEE, AO R EJECTED THE SAID CLAIM OF ESOP CHARGES BY HOLDING THAT THE SAME CONSTITUTE CAPITAL EXPENDITURE. FOR THIS PROPOSITION, AO RELIED ON THE DECISION OF THE ITAT DELHI BENCH IN THE CASE OF RANBAXY LABORATORIES VS. ADIT [2010] 39 SOT 17 (DELHI) (URO). MATTER TR AVELLED TO THE FIRST APPELLATE AUTHORITY. 4. DURING THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY, ASSESSEE COULD NOT IMPROVE ITS CASE. EVENTUALLY, CIT (A) CONFIRMED THE ADDITION MADE BY THE AO. AGGRIEVED, ASSESSEE FILED THE PRESENT APPEAL BEFORE THE TRIBUNAL BY RAISING THE ABOVE MENTIONED GROUND. 5. DURING THE PROCEEDINGS BEFORE US, AT THE OUTSET, LD COUNSEL FOR THE ASSESSEE MENTIONED THAT THIS ISSUE REQUIRES TO BE REMANDED TO THE FILE OF THE AO FOR FRESH ADJUDICATION AND DECISION IN THE MATTER CO NSIDERING THE SPECIAL BENCH DECISION ON THE SIMILAR ISSUE IN THE CASE OF BIOCON LIMITED VS. DCIT (LTU) VIDE ITA NO.368/BANG/2010 AND OTHERS, DATED 16.7.2013. FURTHER, HE MENTIONED THAT THE SAID DECISION OF THE SPECIAL BENCH IS ANTERIOR TO THE DATE OF PASS ING OF THE IMPUGNED ORDER. 6. ON THE OTHER HAND, LD DR DUTIFULLY RELIED ON THE ORDERS OF THE REVENUE AUTHORITIES. 7. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE REVENUE AUTHORITIES AS WELL AS THE CITED ORDER OF THE ITAT, SPECIAL BENCH IN T HE CASE OF BIOCON LIMITED ( SUPRA). ON PERUSAL OF THE SAID ORDER OF THE SPECIAL BENCH, WE FIND THE SIMILAR ISSUE WAS ADJUDICATED BY THE TRIBUNAL (SUPRA) AND THE SAME IS RELEVANT HERE. CONSIDERING THE SAME, WE ARE OF THE OPINION THAT THE MATTER SHOULD BE REMANDED TO THE FILE OF THE AO TO FOLLOW THE SAID DECISION OF THE SPECIAL BENCH IN THE CASE OF BIOCON LIMITED (SUPRA). ACCORDINGLY, GROUND RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONO UNCED IN THE OPEN COURT ON 2 6 T H NOVEMBER, 2014. S D / - S D / - ( SANJAY GARG ) (D. KARUNAKARA RAO ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER 3 MUMBAI ; 2 6 /11/2014 . . ./ OKK , SR. PS / 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI