M/s apple i P Ltd, Bangalore V. DEPUTY commissioner of Income tax, Bangalore

MA 120/BANG/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5328 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 10 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-03-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 04-11-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M K BIJU J
• Assessee Lawyers: K R SEKAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : BANGALORE BEFORE S MT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER MISC.PETN.NO.120/BANG2016 (IN ITA NO. 824/ BANG/20 15 ) (ASSESSMENT YEAR: 2009 - 10 ) M/S.APPLE IND IA PVT. LTD. 19 TH FLOOR, CONCORDE TOWER C UB CITY, NO.24, VITTAL MALLYA ROAD, BANGALORE - 560001. PA NO. AAACV 7566 R VS. PETITIONER DEPUTY COMMISSIONER OF INCOME - TAX, CIRCLE 11(1), BANGALORE. RESPONDENT PETITIONER BY : SH RI K.R.SEKAR, CA. RESPONDENT BY : SHRI M.K.BIJU, JCIT(DR) DATE OF HEARING : 06/01 /201 7 DATE OF PRONOUNCEMENT : 15 /0 3 /201 7 O R D E R PER I NTURI RAMA RAO, AM : THIS MISCELLANEOUS PETITION (MP) IS FILED BY THE ASSESSEE SEEKING RECALL OF THE OR DER PASSED BY THIS TRIBUNAL IN ITA NO.824/BANG/2015 DATED 20/07/2016 FOR THE ASSESSMENT YEAR 2009 - 10 ON THE GROUND THAT THE ADDITIONAL GROUNDS OF APPEAL FILED BY THE ASSESSEE HAD NOT BEEN ADJUDICATED. IT IS SUBMITTED THAT SINCE THE TRIBUNAL HAS FAILED TO ADJUDICATE THE ADDITIONAL GROUNDS MP NO . 120/ BANG/201 6 PAGE 2 OF 3 OF APPEAL, THE ORDER MAY BE RECALLED FOR LIMITED PURPOSE OF ADJUDICATING ADDITIONAL GROUNDS OF APPEAL. 2. WE HEARD RIVAL SUBMISSIONS AND PERUSED MATERIAL ON RECORD. THE ADDITIONAL GROUNDS OF APPEAL ARE FILED IN SUPPOR T OF THE CONTENTION THAT THE PROVISION FOR WARRANT Y IS BASED ON SCIENTIFIC BASIS. IT IS ALSO THE CONTENTION OF THE ASSESSEE THAT MATERIAL HAS BEEN FILED ESTABLISHING THAT PROVISION WAS MADE ON SCIENTIFIC BASIS. THE TRIBUNAL HAD NOT CONSIDERED THIS MATERIA L AND RENDERED FINDING WHETHER PROVISION FOR WARRANTY WAS MADE BY THE ASSESSEE ON SCIENTIFIC BASIS OR NOT. THE TRIBUNAL, WHILE PASSING THE IMPUGNED ORDER HAD CATEGORICALLY HELD THAT THE AO HAD NOT MADE INQUIRY INTO THE ASPECT WHETHER THE PROVISION FOR WAR RANTY IS ON SCIENTIFIC BASIS OR NOT. THEREFORE, THE TRIBUNAL IN ITS WISDOM FELT THAT THE POWER OF REVISION EXERCISED BY THE CIT WAS JUSTIFIED. IT IS THE PRIMARY DUTY OF THE AO TO MAKE INQUIRY IN THIS ASPECT AND RENDER A FINDING. THE APPELLATE JURISDICTI ON CAN BE INVOKED ONLY ON THE ISSUE ON WHICH ASSESSING AUTHORITY RENDERED THE FINDING. I T IS OPEN TO THE ASSESSEE TO CHALLENGE THE CORRECTNESS OF THE FINDING GIVEN BY THE AO BEFORE THE APPELLATE AUTHORITIES. IN THE ABSENCE OF SUCH FINDING BY THE AO, IT I S NEITHER PERMISSIBLE NOR D FOR THE APPELLATE AUTHORITY TO GIVE A FINDING ON AN ISSUE WHICH REQUIRES VERIFICATION OF FACTS. IN ABSENCE OF THIS FINDING BY THE AO, THE TRIBUNAL HAS, IN ITS WISDOM FELT THAT THE MATTER REQUIRED REMAND TO THE AO AND THEREFORE, HAD NOT GONE INTO THE ADDITIONAL GROUNDS OF APPEAL. THEREFORE, THE TRIBUNAL CONSIDERED IT UNNECESSARY TO MP NO . 120/ BANG/201 6 PAGE 3 OF 3 GO INTO THE ADDITIONAL GROUNDS OF APPEAL ON THIS ISSUE AS THERE IS NO FINDING OF FACT BY THE AO. 3. IN THE RESULT, MP FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH MARCH,2017 SD/ - SD/ - (ASHA VIJAYARAGHAVAN) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE : BANGALORE D A T E D : 15 /0 3/2017 SRINIVASULU, SPS COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A) - II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE TRIBUNAL BANGALORE