SABMILLER INDIA LTD, MUMBAI V. ASST CIT 11(1)(2), MUMBAI

ITA 4872/MUM/2016

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 8318 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 22-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIDISHA KALRA
• Keywords: Principle of natural justice; Retrospective amendment

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'G' BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI RAVISH SOOD, JUDICIAL MEMBER ITA NOS. 1750/PUN/2016 (ASSESSMENT YEAR: 2009-10) SAB MILLER BREWERIES P. LTD. ( DEMERGED WUTG THE RESULTING COMPANY OF SAB MILLER INDIA LTD.) PLOT NO. 99, MIDC, WALUJ AURANGABAD 431136 VS. ACIT, CIRCLE - 2 2ND FLOOR, 'JEEVAN SUMAN' LIC BUILDING, N-5, CIDCO, AURANGABAD 431003 PAN AAACR3140F APPELLANT RESPONDENT ITA NOS. 4872/MUM/2016 (ASSESSMENT YEAR: 2009-10) SAB MILLER INDIA LTD. (RESULTING COMPANY OF SAB MILLER BREWERIES PVT. LTD.) PLOT NO. 99, MIDC, WALUJ AURANGABAD 431136 VS. ACIT, CIRCLE - 11(1)(2) (PREVIOUSLY ACIT, CIRCLE-1) 2ND FLOOR, 'JEEVAN SUMAN' LIC BUILDING, N-5, CIDCO, AURANGABAD 431003 PAN AAICS2238R APPELLANT RESPONDENT APPELLANT BY: SHRI RAJAN R. VORA & SHRI HEMEN CHANDARIYA RESPONDENT BY: SHRI VIDISHA KALRA DATE OF HEARING: 03.10.2018 DATE OF PRONOUNCEMENT: 03.10.2018 O R D E R PER B.R. BASKARAN, AM BOTH THE APPEALS FILED BY THE ASSESSEES ARE DIRECT ED AGAINST THE VERY SAME ORDER DATED 16-05-2016 PASSED BY LD CIT(A)-AUR ANGABAD AND THEY RELATE TO THE ASSESSMENT YEAR 2009-10. 2. THE FACTS LEADING TO FILING OF TWO DIFFERENT APPEALS AGAINST THE SAME ORDER PASSED BY LD CIT(A) ARE SET OUT IN BRIEF. TH E LD CIT(A), AURANGABAD HAS PASSED THE ABOVE SAID ORDER IN THE HANDS OF THE ASSESSEE NAMED M/S ITA NO. 1750/PUN & 4872/MUM/2016 SAB MILLER BREWERIES P. LTD. & SAB MILLER INDIA LTD. 2 SABMILLER BREWERIES P LTD (HEREIN AFTER REFERRED T O AS M/S SABMILLER, AURANGABAD). HENCE THE APPEAL NUMBERED AS 1750/PU N/2016 WAS FILED BEFORE THE PUNE BENCH OF TRIBUNAL IN THE NAME OF M /S SABMILLER BREWERIES P LTD. 3. THE ASSESSEE SUBMITS THAT M/S SABMILLER, AUR ANGABAD HAS SINCE BEEN MERGED WITH M/S SABMILLER INDIA LTD (HEREINAFT ER REFERRED AS M/S SABMILLER, MUMBI) WITH RETROSPECTIVE EFFECT FROM 3 1-03-2009, VIDE ORDER DATED 29-03-2012 PASSED BY HONBLE HIGH COURT OF BO MBAY. THE ASSESSEE FURTHER SUBMITS THAT THE PARAGRAPH 6.1 OF THE ORDER PASSED BY HONBLE BOMBAY HIGH COURT READS AS UNDER:- 6.1 UPON THE SCHEME BEING EFFECTIVE, ALL LEGAL, T AXATION OR OTHER PROCEEDINGS, SUITS, CLAIMS, ACTIONS BEFORE ANY STAT UTORY OR QUASI- JUDICIAL AUTHORITY OR TRIBUNAL OF WHATSOEVER NATURE , PERTAINING TO THE UNDERTAKING, BY OR AGAINST THE DEMERGED COMPANY PEN DING AND/OR ARISING ON OR BEFORE THE DATE ON WHICH THIS SCHEME SHALL FINALLY TAKE EFFECT OR AT THE APPOINTED DATE, SHALL BE CONTINUED AND ENFORCED BY OR AGAINST THE RESULTING COMPANY ONLY, TO THE EXCLUSION OF THE DEMERGED COMPANY IN THE MANNER AND TO THE SAME EXTE NT AS WOULD HAVE BEEN CONTINUED AND ENFORCED BY OR FROM THE EFF ECTIVE DATE, THE RESULTING COMPANY SHALL AND MAY, IF REQUIRED, INITI ATE ANY LEGAL PROCEEDINGS IN RELATION TO THE RELEVANT MATTERS PER TAINING TO THE DEMERGED COMPANY IN THE SAME MANNER AND TO THE SAME EXTENT AS WOULD OR MIGHT HAVE BEEN INITIATED BY THE DEMERGED COMPANY. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE DEMERGED C OMPANY SHALL IN NO EVENT BE RESPONSIBLE OR LIABLE IN RELATION TO AN Y SUCH LEGAL, TAXATION OR OTHER PROCEEDINGS AGAINST THE RESULTING COMPANY. THE RESULTING COMPANY SHALL BE REPLACED/ADDED AS PARTY TO SUCH PR OCEEDINGS AND SHALL PROSECUTE OR DEFEND SUCH PROCEEDINGS AT ITS O WN COST, IN CO- OPERATION WITH THE DEMERGED COMPANY. THE LD A.R SUBMITTED THAT THE DEMERGED COMPANY WO ULD MEAN M/S SABMILLER, AURANGABAD AND THE RESULTING COMPANY WOULD MEAN M/S SABMILLER, BOMBAY. HE SUBMITTED THAT, AS PER ORD ER PASSED BY HONBLE HIGH COURT OF BOMBAY, THE LD CIT(A), AURANGABAD SHO ULD HAVE PASSED THE ORDER IN THE NAME OF M/S SABMILLER, BOMBAY ONLY, SINCE THE EFFECTIVE DATE OF MERGER IS 31.03.2009,. HOWEVER, SINCE THE LD CIT(A), AURANGABAD HAS PASSED THE ORDER IN THE NAME OF M/S SABMILLER, AURANGABAD, AN APPEAL HAS BEEN PREFERRED BEFORE THE PUNE BENCH OF TRIBUNAL IN THE NAME ITA NO. 1750/PUN & 4872/MUM/2016 SAB MILLER BREWERIES P. LTD. & SAB MILLER INDIA LTD. 3 OF DEMERGED COMPANY. HOWEVER, SINCE M/S SABMILLER , BOMBAY IS ENTITLED TO PROSECUTE THE MATTER AS PER THE MERGER ORDER PASSED BY HONBLE HIGH COURT OF BOMBAY, ONE MORE APPEAL HAS BEEN PREF ERRED BEFORE MUMBAI BENCH OF TRIBUNAL BY M/S SABMILLER, BOMBAY CHALLE NGING THE VERY SAME ORDER PASSED BY LD CIT(A), AURANGABAD IN THE NAME O F M/S SABMILLER, AURANGABAD. THUS A SAFER PATH WAS FOLLOWED BY THE ASSESSEE IN THIS MATTER BY FILING TWO DIFFERENT APPEALS AGAINST THE VERY SAME ORDER. 4. THE LD A.R FURTHER SUBMITTED THAT THE HONBLE PRESIDENT OF TRIBUNAL HAS SINCE TRANSFERRED THE APPEAL FILED BEFORE THE P UNE BENCH TO MUMBAI BENCHES. ACCORDINGLY BOTH THE IMPUGNED APPEALS HAV E BEEN CONSOLIDATED AND POSTED BEFORE THIS BENCH. 5. THE LD A.R SUBMITTED THAT THE ORDER PASSED BY LD CIT(A) IN THE NAME OF M/S SABMILLER, AURANGABAD IS NOT CORRECT, SINC E M/S SABMILLER, AURANGABAD NO LONGER EXISTS AFTER THE ORDER OF HON BLE BOMBAY HIGH COURT. HE SUBMITTED THAT THE LD CIT(A) SHOULD HAVE PASSED THE ORDER IN THE NAME OF M/S SABMILLER, BOMBAY, AS THE SAID AS SESSEE IS THE ASSESSEE WHICH WAS ENTITLED TO PROSECUTE THE APPEAL AS PER T HE ORDER PASSED BY HONBLE HIGH COURT OF BOMBAY. 6. AT THIS JUNCTURE, THE BENCH SUGGESTED THAT THE ISSUES CONTESTED IN THE PRESENT APPEALS MAY BE RESTORED TO THE FILE OF CONC ERNED LD CIT(A), MUMBAI FOR EXAMINING THEM, AS THE ORDER PASSED BY LD CIT(A ), AURANGABAD IS CONTRARY TO THE ORDERS PASSED BY HONBLE HIGH COURT OF BOMBAY. BOTH THE PARTIES AGREED TO THE SAME. THE LD A.R, HOWEVER, S UBMITTED THAT THE ISSUE CONTESTED ON MERITS IS COVERED BY THE ORDER PASSED BY THE AO IN 2008-09 AND ALSO THE ORDERS PASSED BY THE AO IN OTHER YEARS IN THE HANDS OF DEMERGED COMPANY AND RESULTING COMPANY. ACCORDINGL Y HE PRAYED THAT THE TRIBUNAL MAY FIX A TIME LIMIT TO LD CIT(A) FOR PASSING THE ORDER. 7. HAVING HEARD RIVAL SUBMISSIONS, WE ARE OF TH E VIEW THAT THE ORDER PASSED BY LD CIT(A), AURANGABAD NEEDS TO BE SET ASI DE, AS HE HAS PASSED HIS ORDER IN THE HANDS OF NON-EXISTENT ASSESSEE. I N THAT CASE, IN THE INTEREST OF NATURAL JUSTICE, THE ASSESSEE, I.E., M /S SABMILLER, BOMBAY, ITA NO. 1750/PUN & 4872/MUM/2016 SAB MILLER BREWERIES P. LTD. & SAB MILLER INDIA LTD. 4 SHOULD BE GIVEN AN OPPORTUNITY TO CONTEST THE IMPUG NED ADDITIONS MADE BY THE AO. ACCORDINGLY, IN RESPECT OF APPEAL FILED BY M/S SABMILLER, BOMBAY, WE RESTORE ALL THE ISSUES TO THE FILE OF C ONCERNED LD CIT(A), MUMBAI FOR ADJUDICATING ALL THE ISSUES AFRESH. 8. THE LD A.R SUBMITTED THAT THE AO DID NOT MAKE ANY SUCH DISALLOWANCE IN AY 2007-08 AND 2008-09, EVEN THOUGH IDENTICAL PAYMENTS WERE MADE IN THOSE TWO YEARS. THE LD A.R FURTHER S UBMITTED THAT THE ASSESSEE M/S SABMILLER, BOMBAY HAS ALSO MADE IDEN TICAL PAYMENTS AND THE SAME HAS BEEN ALLOWED IN ITS HANDS IN THE SET A SIDE PROCEEDINGS AFTER THE ORDER PASSED BY THE TRIBUNAL. ACCORDINGLY, IT WAS CONTENDED BY LD A.R THAT THIS ISSUE IS, IN A WAY, COVERED IN FAVOUR OF THE ASSESSEE. ACCORDINGLY IT WAS PRAYED THAT A TIME LIMIT MAY BE PRESCRIBED T O LD CIT(A) FOR DISPOSING OF THIS APPEAL. 9. WE FIND MERIT IN THE SUBMISSIONS SO MADE BY L D A.R. ACCORDINGLY, WE FIX A TIME LIMIT OF THREE MONTHS FROM THE DATE OF R ECEIPT OF THIS ORDER BY LD CIT(A) FOR DISPOSING OF THE APPEAL OF THE ASSESSEE NOW RESTORED TO HIS FILE. WE SHALL ALSO DIRECT THE ASSESSEE NOT TO SEEK ADJOU RNMENT BEFORE LD CIT(A), FAILING WHICH THE PERIOD OF DELAY CAUSED BY THE ACT ION OF THE ASSESSEE SHALL BE ADDED TO THE ABOVE SAID TIME LIMIT OF THREE MONT HS. 10. IN THE RESULT, THE APPEAL FILED UNDER ITA NO .1750/PUN/2016 IS TREATED AS DISMISSED AND THE APPEAL FILED UNDER ITA NO.4872/MUM/2016 IS TREATED AS ALLOWED, FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD OCTOBER, 2018. SD/ - SD/ - (RAVISH SOOD) (B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 3 RD OCTOBER, 2018 ITA NO. 1750/PUN & 4872/MUM/2016 SAB MILLER BREWERIES P. LTD. & SAB MILLER INDIA LTD. 5 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -2, MUMBAI 4. THE PR.CIT-2, AURANGABAD 5. THE DR, G BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.