Appeal details
Counselvise Citation
[2018] 124 COUNSELVISE.COM (IT) 6115 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 7 month(s) 19 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
05-01-2018
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
L
Assessment Year
2011-2012
Appeal Filed On
16-05-2016
Judgement Text
L IN THE INCOME TAX APPELLATE TRIBUNAL L BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER MA NO. 111/MUM/2016 ARISING OUT OF ITA NO. 1464/MUM/2015 ( / ASSESSMENT YEAR : 2011 - 12) ATOS INFORMATION TECHNOLOGY HK LIMITED, C/O ATOS INDIA PVT. LTD. PLANT NO. 5, GODREJ & BOYCE MFG. CO. LTD. PIROJSHANAGAR, LBS MARG, VIKHROLI (W), MUMBAI 400097 / V. DCIT - (INTERNATIONAL TAXATION) - 1(1)(2), SCINDIA HOUSE, MUMBAI ./ PAN :AAKCS8720L ( / APPLICANT ) .. ( / RESPONDENT ) APPLICANT BY : SHRI DHANESH BAFNA RESPONDENT BY: SHRI. M.C OMI NINGSHEN / DATE OF HEARING : 15 - 12 - 2017 / DATE OF PRONOUNCEMENT : 05 - 01 - 2018 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER THIS MISCELLANEOUS APPLICATIONS, FILED BY THE ASSESSEE, BEING MA NO. 111/MUM/2016 ARISING OUT OF APPEAL BEARING ITA NO. 1464/MUM/2015 FOR ASSESSMENT YEAR 2011 - 12 , WHEREIN THE ASSESSEE HAS SOUGHT RECTIFICATION OF MISTAKE APPARENT FROM RECORDS IN THE APPELLATE ORDER DATED 04.03.2016 PASSED BY INCOME - TAX APPELLATE TRIBUNAL , L - BENCH MUMBAI , (HEREINAFTER CALLED THE TRIBUNAL ) FOR THE ASSESSMENT YEAR 2011 - 12. 2. THIS M.A HAS BEEN FILED BY THE ASSESSEE SEEKING RECTIFICATION FOR MISTAKE APPARENT FROM RECORDS WHEREIN IT HAS BEEN CLAIMED BY THE ASSESSEE THAT THE TRIBUNAL WHILE PASSING O RDER IN ITA NO. 1464/MUM/2015 VIDE ORDER S DATED 04.03.201 6 HAS ERRED IN SETTING ASIDE ALL THE ISSUES TO THE FILE OF A.O FOR DE - NOVO DETERMINATION OF THE ISSUE ON MERITS ALTHOUGH NEWLY INSERTED EXPLANATION 5 TO SECTION 9(1)(VI ) INSERTED RETROSPECTIVELY BY F INANCE ACT, 2012 , W.E.F. 01 - 04 - 1976 WAS DU LY CONSIDERED BY THE A.O WHILE FRAMING ` MA NO. 111/MUM/2016 ARISING OUT OF ITA NO. 1464/MUM/2015 2 ASSESSMENT ORDER. IT IS SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE THAT SINCE EXPLANATION 5 TO SECTION 9(1)(VI ) WHICH WAS INSERTED RETROSPECTIVELY W.E.F. 01 - 04 - 1976 BY FI NANCE ACT, 2012 WAS DU LY CONSIDERED BY THE A.O . , THERE WAS NO NEED FOR THE TRIBUNAL TO HAVE SET ASIDE ALL THE ISSUES BACK TO THE FILE OF THE AO FOR FRESH ADJUDICATION . 3 . THE LD. DR ON THE OTHER HAND SUBMITTED THAT SCOPE OF M.A U/S. 254(2) IS VERY LIMITED AND IT IS ONLY MISTAKES WHICH ARE APPARENT FROM RECORD WHICH CAN ONLY BE RECTIFIED BY THE TRIBUNAL WITHIN PURVIEW OF SECTION 254(2) . THE LEARNED DR PRAYED FOR DISMISSAL OF THE MA FILED BY THE ASSESSEE. 4. WE HAVE CONSIDER ED THE CONTENTION S OF BOTH THE PARTIES AND WE HAVE GONE THROUGH THE CONTENT OF M.A APPLICATION , THE APPELLATE ORDER PASSED BY THE TRIBUNAL IN ITA NO. 1464/MUM/2015 DATED 04.03.2016 AND RECORDS BEFORE US . W E HAVE OBSERVED THAT TRIBUNAL IN ASSESSEE S OWN CASE FOR A.Y 2005 - 06, 2006 - 07, 2008 - 09 AND 2009 - 10 HAS CONSISTENTLY SET ASIDE AND RESTORED THE MATTER TO THE FILE OF THE A.O TO DECIDE THE ISSUE AFRESH DENOVO AND DIRECTING THE AO TO PLACE ALL THE NECESSARY FACTS BEFORE THE AO A S ALSO IT WAS DIRECTED THAT THE ISSUE BE DECIDED IN THE LIGHT OF NEWLY INSERTED EXPLANATION 5 TO SECTION 9(1)(VI ) OF THE ACT WHICH WAS INSERTED BY FINANCE ACT, 2012 W.E.F. 01 - 04 - 1976 . THE TRIBUNAL WHILE ADJUDICATING APPEAL FOR AY 2009 - 10 HAS REFRAINED FROM DECIDING ALL THE ISSUES IN PARA 12 IN ITA NO. 7321/MUM/2012 VIDE ORDERS DATED 19 - 11 - 2014 KEEPING IN VIEW THAT EARLIER YEAR ASSESSMENTS WERE ALSO SET ASIDE AND WERE SET ASIDE TO THE FILE OF THE AO FOR FRESH ADJUDICATION, BY HOLDING AS UNDER: - 12. ON HEAR ING BOTH THE SIDES , WE ARE OF THE VIEW THAT SINCE THE PRECEDING YEARS WERE AWAITING ADJUDICATION AT THE AO STAGE, IT WOULD BE INAPPROPRIATE FOR US , TO COME TO ANY CONCLUSION. WE, THEREFORE SET ASIDE THE ORDERS OF THE REVENUE AUTHORITIES AND RESTORE THE I SSUE TO THE FILE OF THE AO FOR A FRESH ADJUDICATION, IN LINE WITH THE DECISION TAKEN BY THE AO IN THE PRECEDING YEAR(S). NEEDLESS TO MENTION, ADEQUATE AND REASONABLE OPPORTUNITY SHALL BE GIVEN TO THE ASSESSEE, TO PRESENT ITS CASE. THUS IT WAS AN CONSCIO US DECISION TAKEN BY THE TRIBUNAL WHILE ADJUDICATING THE APPEAL IN ITA NO. 1464/MUM/2015 FOR AY 2011 - 12 WHEREIN ALL THE ISSUES WERE SET ASIDE AND RESTORED TO THE FILE OF THE A.O FOR FRESH DETERMINATION OF THE ISSUE ON MERITS IN ACCORDANCE WITH LAW. THUS T HERE IS NO MIST AKE APPARENT FROM RECORD AND IT IS TO BRING IN CONSISTENCY IN THE LIGHT ` MA NO. 111/MUM/2016 ARISING OUT OF ITA NO. 1464/MUM/2015 3 OF THE ORDERS OF THE TRIBUNAL FOR THE PRECEDING YEARS , A CONSCIOUS DECISION WAS TAKEN BY THE TRIBUNAL FOR THE IMPUGNED ASSESSMENT YEAR 2011 - 12 BY SETTING ASIDE AND RES TORING ALL THE ISSUES BACK TO THE FILE OF THE AO , AS THE EARLIER YEARS ISSUES FOR AY 2005 - 06, 2006 - 07, 2008 - 09, 2009 - 10 WERE ALSO SET ASIDE BY THE TRIBUNAL TO THE FILE OF A.O FOR DE - NOVO DETERMINATION OF ISSUE ON MERITS AFTER CONSIDERING THE FACTS OF TH E CASE WHICH IS TO BE PLACED BY THE ASSESSEE BEFORE THE AO AND THE APPLICABLE PROVISION S OF THE ACT INCLUDING NEWLY INSERTED EXPLANATION 5 TO SECTION 9(1)(VI) WHICH WAS INSERTED BY FINANCE ACT, 2012 W.E.F. 01 - 04 - 1976 . S ECTION 254(2) HAS A LIMITED MANDATE AND ONLY MISTAKES APPARENT FROM RECORD CAN BE CORRECTED WITHIN THE LIMITED SCOPE OF PROVISION OF SECTION 254(2) AND ANY MATTER WHICH REQUIRES LONG DRAWN REASONING AND APPLICATION OF MIND SHALL BE OUT OF PURVIEW OF LIMITE D SCOPE OF SECTION 254(2). I N THE INSTANT CASE WE FIND THERE IS NO MISTAKE APPARENT FROM RECORD WHICH CAN BE RECTIFIED U/S. 254(2) OF THE ACT R ATHER A CONSCIOUS DECISION WAS TAKEN BY THE TRIBUNAL IN SETTING SIDE AND RESTORING ALL THE ISSUES IN THE APPEAL FOR AY 2011 - 12 TO THE FILE OF THE A.O FOR THE FRESH DETERMINATION OF THE ISSUE ON MERITS IN ACCORDANCE WITH LAW. THUS, WE DONOT FIND ANY MERIT IN THIS MA WHICH STOOD DISMISSED. 4. IN THE RESULT THIS M.A NO 111/MUM/2016 ARISING OUT OF APPEAL IN ITA NO. 146 4/MUM/2015 FILED BY THE ASSESSEE STOOD DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 05 .01.2018 05 .01.2018 SD/ - SD/ - (SAKTIJIT DEY) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOU NTANT MEMBER MUMBAI, DATED: 05 .01.2018 NISHANT VERMA SR. PRIVATE SECRETARY COPY TO 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI ` MA NO. 111/MUM/2016 ARISING OUT OF ITA NO. 1464/MUM/2015 4 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, E 6 . MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI
