DCIT, Ghaziabad V. Mankind Pharma Ltd., New Delhi

MA 112/DEL/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2617 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 6 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-09-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 14-07-2022
• Assessment Year: 2011-2012
• Appeal Filed On: 08-03-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 254(2); 73

Judgement Text

Page | 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘E, NEW DELHI Before Dr. B. R. R. Kumar, Accountant Member Sh. Anubhav Sharma, Judicial Member MA No. 90 & 112/Del/2020 (In ITA No.342/Del/2017) Asstt. Year: 2011-12 DCIT, Central Circle, Ghaziabad Vs Mankind Pharma Ltd, C/o. Raj Kumar & Associates, L-7A(LGF), South Ext, Part-2, New Delhi (APPELLANT) (RESPONDENT) PAN No. AAACM9401C Assessee by : Sh. Shri Raj Kumar, CA Revenue by : Sh. S. L. Anuragi, Sr. DR Date of Hearing: 15.07.2022 Date of Pronouncement: 30.09.2022 ORDER Per Dr. B. R. R. Kumar, Accountant Member: This miscellaneous application is filed by the revenue in ITA No. 342/Del/2017 dated 14.08.2019. The miscellaneous application is as under:- “Filing of Miscellaneous application before .he Hon’ble Income Tax Appellate Tribunal, New Delhi in ITA No. 342/Del/2017 dated 14/0ff/2Q19 in the case of M/s Mankind Pharma Ltd., New Delhi (PAN: AAACM94oiGTlui| A.Y 2011- 12 - Authorization. On examination of the Order of the Ld. ITAT in ITA Nov342/Del/2017 dated 14/08/2019 in the case of M/s Mankind Pharma Ltd., New Delhi (PAN- AAACM9401C), it is observed that in its order in ITA No. 342/Del/2017, the Ld. Tribunal has allowed the appeal of the assessee as the Ld. ITAT held that the issue in Page | 2 question was covered by the Order of ITAT, Delhi Bench in the case of the same assessee for preceding A.Y 2010-11 in which the Tribunal following MCI guidelines and Board’s Circular dated 1st August, 2012 had deleted the entire addition made by the A.O. However, reference to the date of 01/08/2012 of Board Circular and payment prior to this date in the instant case is not in order because 'the MCI regulation came into existence (amended) on 10- 12-2009 i.e., prior to such payment. Board circular is just in nature of clarification to curb this practice by such disallowance after MCI amendment. The Mumbai ITAT in (2016) 73 taxman. Com 171 (Mumb-Trib) has upheld such disallowance due to~7vTCT amended guidelines for A.Y 2009HO which has rightly been discussed in CIT(A)’s order. In view of the facts stated above, it is obvious that a mistake has crept into the order dated 14.08.2019 passed by the Ld. ITAT in respect of ITA No.342/Del/2017. Therefore, I, the Principal Commissioner of Income Tax, Meerut, direct the Jt. Commissioner of Income Tax, Circle-1, Meerut, under section 254(2) of the Income Tax Act 1961, to file Miscellaneous Application before the Ld. Income Tax Appellate Tribunal in ITA No.342/Del/2017 and to request the Ld. ITAT to correct this mistake of allowing the appeal of the assessee on the basis of order of A.Y 2010-11. The above mentioned order was received in this office on 14.10.2019. 2. The revenue filed another MA with the similar grounds. Sub.: Filing of Miscellaneous Application before the Hon’ble Income Tax Tribunal, New Delhi in ITA No. 342/Del/2017 dated 14.08.2019 in the case of M/s. Mankind Pharma Ltd, New Delhi (PAN: AAACM9401C-Reg 1. From the perusal of the Order of the Ld. ITAT in ITA No. 342/Del/2017 dated 14/08/2019 in the case of M/s Mankind Pharma Ltd., New Delhi (PAN-AAACM9401C), it is observed that in its order in ITA No. 342/Del/2017, the Ld. Tribunal has allowed the appeal of the assessee as the Ld. ITAT held that the issue in question was covered by the Order of ITAT, Delhi Bench in the case of the same assessee for preceding A.Y 2010-11 in which the Page | 3 Tribunal following MCI guidelines and Board’s Circular dated 1st August, 2012 had deleted the entire addition made by the A.O. However, reference to the date of 01/08/2012 of Board Circular and payment prior to this date in the instant case is not in order because the MCI regulation came into existence (amended) on 10- 12-2009 i.e., prior to such payment Board circular is just in nature of clarification to curb this practice by such disallowance after MCI amendment. The Mumbai ITAT in (2016) 73 taxman. Com 171 (Mumb-Trib) has upheld such disallowance due to MCI amended guidelines for A.Y 2009- 10 which has rightly been discussed in CIT(A)’s order. 2. In view of the facts stated above, it is obvious that a mistake has crept into the order dated 14.08.2019 passed by the Ld. ITAT in respect of ITA No.342/Del/2017. 3. Therefore, the Hon’ble ITAT is requested to correct the mistake and restore the Order of the AO. Miscellaneous application is submitted.” 3. Heard the arguments of both the parties and perused the material available on record. 4. The relevant ITA No.342/Del/2017 for which this M.A. has been filed, was decided by passing a detailed order on merits. 5. Hence, in view of latest authority of Hon’ble Supreme Court Dtd.03.12.21 in the case of CIT (Mumbai) Vs. Reliance Telecom Ltd. (Civil Appeal No.7110/2021) which held as under: “In the present case, a detailed order was passed by the ITAT when it passed an order on 06.09.2013, by which the ITAT held in favour of the Revenue. Therefore, the said order could not have been recalled by the Appellate Tribunal in exercise of powers under Section 254(2) of the Act. If the Assessee was of the opinion that the order passed by the ITAT was erroneous, either on facts or in law, in that case, the only remedy available to the Assessee was to prefer the appeal before the Page | 4 High Court, which as such was already filed by the Assessee before the High Court, which the Assessee withdrew after the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013. Therefore, as such, the order passed by the ITAT recalling its earlier order dated 06.09.2013 which has been passed in exercise of powers under Section 254(2) of the Act is beyond the scope and ambit of the powers of the Appellate Tribunal conferred under Section 254 (2) of the Act. Therefore, the order passed by the ITAT dated 18.11.2016 recalling its earlier order dated 06.09.2013 is unsustainable.” the MAs of the revenue are liable to be dismissed. Order Pronounced in the Open Court on 30/09/2022. Sd/- Sd/- (Anubhav Sharma) (Dr. B. R. R. Kumar) Judicial Member Accountant Member Dated: 30/09/2022 *Ajay Kumar Keot, Sr. PS* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR