Cellular Mobile Telecom Services, CHENNAI V. ITO, CHENNAI

MA 11/CHNY/2013

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9960 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-03-2013
• Appeal Filed By: Assessee
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 09-01-2013
• Court: TRIBUNAL
• Department Lawyers: T N BETGIRI
• Assessee Lawyers: M P SENTHIL KUMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH CHENNAI BEFORE SHRI N. S. SAINI, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER ------- M.A. NOS. 10 AND 11/MDS/2013 (IN ITA NOS. 1560 & 1561/MDS/2011) ASSESSMENT YEARS : 2009-10 AND 2010-11 M/S. CELLULAR MOBILE TELECOM SERVICES,CHENNAI TELEPHONES (WING OF BSNL),# 78, PURASAWALKAM HIGH ROAD, CHENAI-600 010. V. THE INCOME TAX OFFICER, TDS WARD-I(1), CHENNAI. (PAN : ACGPH2716L) (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI M.P.SENTHILKUMAR, ADVOCATE RESPONDENT BY : SHRI T. N. BETGIRI, JCIT DATE OF HEARING : 15.03.2013 DATE OF PRONOUNCEMENT : 21.03. 2013 O R D E R PER V. DURGA RAO, JUDICIAL MEMBER : THE PRESENT MISCELLANEOUS APPLICATIONS HAVE BEEN F ILED BY THE ASSESSEE U/S 254(2) OF THE INCOME TAX ACT, 1 961 ('THE ACT' FOR SHORT) STATING THAT WHILE DECIDING THE AP PEAL VIDE ORDER MA NS. 10& 11./MDS/2013 : 2 : DATED 30-10-2012 THE TRIBUNAL FAILED TO CONSIDER CE RTAIN ISSUES. 2. THE MAIN ARGUMENT OF THE LEARNED COUNSEL FOR THE ASSESSEE IS THAT ONE OF THE GROUNDS RAISED IN THE A PPEAL WAS NOT CONSIDERED BY THE TRIBUNAL, I.E. IF AT ALL ANY AMOUNT IS TO BE CONSIDERED AS AN INCOME U/S 194H OF THE ACT IT IS O NLY TO THE EXTENT OF 20% OF THE DISCOUNT GIVEN AND THE BALANC E GETS DIVERTED BY WAY OF OVERRIDING UNDERTAKING AND DIVER SION. 3. ON THE OTHER HAND, THE LEARNED DR SUBMITTED THAT THERE IS NO MISTAKE APPARENT ON RECORD IN THE ORDER OF TH E TRIBUNAL. THEREFORE, THE MISCELLANEOUS APPLICATION HAS TO BE DISMISSED. 4. WE HAVE HEARD BOTH THE SIDES, PERUSED THE RECORD S AND GONE THROUGH THE ORDER PASSED BY US. THE TRIBUNAL AFTER CONSIDERING THE ENTIRE ORDER PASSED BY THE CIT(APPE ALS), WHICH INCLUDES THE ADDITIONAL GROUND RAISED BY THE ASSESSEE AND WHICH HAS BEEN EXTRACTED IN THE ORDER, CAME TO THE CONCLUSION THAT THE CIT(APPEALS) HAS CORRECTLY DECI DED THE ISSUE INCLUDING THE ALTERNATIVE GROUND RAISED BY TH E ASSESSEE, AND DISMISSED THE APPEAL. THE ISSUE ON MERITS WAS SQUARELY COVERED BY THE DECISION OF THE HONBLE DELHI HIGH C OURT IN THE CASE OF CIT V. IDEA CELLULAR LTD. (325 ITR 148). IN OUR OPINION, THE ISSUE RAISED IN THE ADDITIONAL GROUND AND CONSI DERED BY THE MA NS. 10& 11./MDS/2013 : 3 : CIT(APPEALS) BY PASSING A COMMON ORDER, WAS CONSIDE RED BY THE TRIBUNAL AND THE TRIBUNAL CAME TO THE CONCLUSIO N THAT THERE IS NO INFIRMITY IN THE ORDER PASSED BY THE CIT(APPE ALS). THEREFORE, THE CONTENTION OF THE ASSESSEE THAT THE ADDITIONAL GROUND HAS NOT BEEN CONSIDERED IS NOT CORRECT. UND ER THESE FACTS AND CIRCUMSTANCES, BY POINTING OUT NON-CONSID ERATION OF ADDITIONAL GROUND IN THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE, DOES NOT AMOUNT TO MISTAKE APPARENT ON RE CORD AND IT DOES NOT COME WITHIN THE SCOPE OF SECTION 254(2) OF THE ACT. THE MISCELLANEOUS APPLICATIONS ARE THEREFORE DISMIS SED. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATI ONS ARE DISMISSED. ORDER PRONOUNCED ON THURSDAY, THE 21 ST OF MARCH, 2013, AT CHENNAI. SD/- SD/- (N. S. SAINI) (V.DURGA RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER CHENNAI, DATED THE 21 ST MARCH, 2013. H. COPY TO: ASSESSEE-APPLICANT/AO/CIT(A)/CIT/D.R./GUAR D FILE