Johnson Controls-Hitachi Air Conditioning India Ltd., Ahmedabad V. The Deputy Commissioner of Income Tax, Circle-2(1)(1), Ahmedabad

MA 122/AHD/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4806 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-04-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 11-06-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S.S. SHUKLA
• Keywords: Capital receipt
• Section: 254(2)

Judgement Text

आयकर अपीलीय अिधकरण, अहमदाबाद ᭠यायपीठ IN THE INCOME TAX APPELLATE TRIBUNAL, ‘’ D’’ BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT AT AHMEDABAD) BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER And SHRI WASEEM AHMED, ACCOUNTANT MEMBER, MA Nos.122 /Ahd/2020 In आयकर अपील सं./In ITA Nos. 454/Ahd/2019 िनधाᭅरण वषᭅ/Asstt. Year: 2011-2012 And MA Nos.123 /Ahd/2020 In आयकर अपील सं./In ITA No. 773/Ahd/2018 िनधाᭅरण वषᭅ/Asstt. Year: 2012-2013 Jhonson Controls-Hitachi Air Conditioning India Ltd. (Formerly known as Hitachi Home & Life Solutions (India) Ltd., 9 th Floor, Abhijeet, Mithakhali Six Roads, Ellisbridge, Ahmedabad-380006. PAN: AABCA2392K Vs. D.C.I.T., Circle-2(10(1), Ahmedabad And M.A Nos.124 & 125 /Ahd/2020 In C.O Nos. 45 & 54/Ahd/2019 (Arising out of) आयकर अपील सं./ ITA Nos.2603 & 2527/Ahd/2017 िनधाᭅरण वषᭅ/Asstt. Years: 2013-2014 & 2014-15 Jhonson Controls-Hitachi Air Conditioning India Ltd. (Formerly known as Hitachi Home & Life Solutions (India) Ltd., 9 th Floor, Abhijeet, Mithakhali Six Roads, Ellisbridge, Ahmedabad-380006. PAN: AABCA2392K Vs. D.C.I.T., Circle-2(10(1), Ahmedabad M.A No.122/AHD/2020 In ITA No.454/Ahd/2017 Asstt. Year 2011-12 (with three others) 2 (Applicant) (Respondent) Assessee by : Shri S.N. Soparkar, Sr. Advocate with Shri Parin Shah, A.R Revenue by : Shri S.S. Shukla, Sr. D.R सुनवाई कᳱ तारीख/Date of Hearing : 21/01/2022 घोषणा कᳱ तारीख /Date of Pronouncement: 08/04/2022 PER WASEEM AHMED, ACCOUNTANT MEMBER: The assessee by way of this miscellaneous application is seeking to recall the order of the ITAT for the purpose of adjudication of the additional ground of appeal bearing No. 1 & 2 raised by it which was held to be infructuous inadvertently. MA No. 122/AHD/2020 in ITA No. 454/AHD/2017 for A.Y. 2011-12 2. In the miscellaneous application, it was submitted that there was some income which was shown as excise duty refund and the same was held by the learned CIT-A as eligible for deduction under section 80-IB of the Act. The assessee before the learned CIT-A also made alternate claim by stating that the excise duty refund is a capital receipt and therefore the same should not at all be included as part of the profit and loss account for normal computation of income as well as for computation of income under MAT. However, the learned CIT-A did not adjudicate the alternate contention raised by the assessee by observing that once the impugned excise duty refund has been held to be eligible for deduction under section 80 IB of the Act, then the same does not require to be adjudicated whether the same is revenue or capital receipt. 3. Against the finding of the learned CIT-A, the assessee filed the additional grounds of appeal before the ITAT praying to treat the impugned amount of excise M.A No.122/AHD/2020 In ITA No.454/Ahd/2017 Asstt. Year 2011-12 (with three others) 3 duty refund as capital receipt. However, the ITAT confirmed the order of the learned CIT-A by holding that the impugned amount of excise duty refund has been treated as revenue receipt. The ITAT in holding so has also made a reference to the order of the ITAT in the own case of the assessee pertaining to the assessment year 2008- 09 to 2010-11 bearing ITA Nos. 2399/AHD/2013, 2286/AHD/2014 and 931/AHD/2016 wherein the ITAT has held that such excise duty refund is revenue receipt and thus eligible for deduction under section 80-IB of the Act. 4. At the time of hearing, learned AR vehemently contended that the issue whether the excise duty refund represents the capital receipt or not has already been adjudicated by this Tribunal in the own case of the assessee for the assessment years 2008-09 to 2010-11 (supra). However, the ITAT for the year in dispute inadvertently omitted to make the reference to the finding of the ITAT in the own case for the assessment year 2008-09 to 2010-11. Thus, the issue raised by the assessee by way of additional ground of appeal before the ITAT is covered issue in favour of the assessee. As per the learned AR the order of the coordinate bench is binding on the Tribunal’s in the own case of the assessee in order to maintain the consistency. Therefore, there is a mistake apparent from record in the order of the ITAT as much as the ITAT has held the additional ground of appeal as infructuous and therefore no adjudication is required. 5. On the other hand, the learned DR vehemently supported the order of the ITAT. 6. We have heard the rival contentions of both the parties and perused the materials available on record. The Hon’ble Supreme Court in the case of Honda Siel Power Products Ltd. v. Commissioner of Income-tax reported in 295 ITR 466 has held that the non-consideration of the order of the coordinate bench cited at the time of hearing amounts to a mistake apparent from record. Therefore, if such order is not considered by the tribunal, then the order of the tribunal suffers M.A No.122/AHD/2020 In ITA No.454/Ahd/2017 Asstt. Year 2011-12 (with three others) 4 from the mistake apparent from the record. The relevant finding of the Hon’ble Supreme Court reads as under: In the instant case, the Tribunal was justified in exercising its powers under section 254(2) when it was pointed out to the Tribunal that the judgment of the co-ordinateBench was placed before the Tribunal when the original order came to be passed but it had committed a mistake in not considering the material, which was already on record. The Tribunal had acknowledged its mistake; it had accordingly rectified its order. If prejudice had resulted to the party, which prejudice is attributable to the Tribunal’s mistake, error or omission and which error is a manifest error then the Tribunal would be justified in rectifying its mistake. The same thing had been done in the instant case. 6.1 Coming to the facts of the case, we note that this tribunal in the own case of the assessee for the assessment years 2008-09 to 2010-11 has already held that the excise duty refund is a capital receipt. The relevant extract of the order is reproduced as below: "Coming to the application filed by the assessee under Rule 27 of ITAT Rules, 1963. 38. In this regard, we note that the assessee has received the refund of excise duty in terms of Notification No.56/2002 and 57/2002 dated 14.11.2002 which has been held as capital subsidy by the judgement of Hon'ble High Court of Jammu & Kashmir in the case of Shree Balaji Alloys vs. CIT reported in 333 ITR 335, wherein it was held as under: "30. For all what has been said above, the finding of the Tribunal on the first issue that the Excise Duty Refund, Interest Subsidy and Insurance Subsidy were Production Incentives, hence revenue Receipt, cannot be sustained, being against the law laid down by Hon'ble Supreme Court of India in Sahney Steel & Press Works Ltd's case (supra) and Ponni Sugars & Chemicals Ltd.'s case (supra). 31. The finding of the Tribunal that the incentives were Revenue Receipt is, accordingly, set aside holding the incentives to be Capital Receipt in the hands of the assessee." 38.1 We further note that the Hon'ble Supreme Court upheld the above judgement of Hon'ble J & K High Court in the case of CIT vs. Shree Balaji Alloy reported in 80 taxmann.com 239. 38.2 From the above, there remains no ambiguity that the amount of excise duty is capital receipt not chargeable to tax. 38.3 In view of the above, we do not find any reason to disturb the findings of the Ld. CIT(A), therefore the ground of appeal raised by the Revenue is dismissed, and the ground of appeal of the assessee in the application filed under Rule No.27 of the ITAT is allowed." 6.2 However, we find that the tribunal while adjudicating the issue on hand has not made reference to the particular aspects of the order of this tribunal in the own case of the assessee as discussed above. It is the trite law that non consideration of the order of the coordinate bench by the tribunal is a mistake apparent from record which needs to be rectified under the provisions of section 254(2) of the Act. M.A No.122/AHD/2020 In ITA No.454/Ahd/2017 Asstt. Year 2011-12 (with three others) 5 Accordingly, we hold that the order of the tribunal in the case on hand suffers from a mistake apparent from record which needs to be rectified. Therefore, we are recalling the order of this tribunal for the limited purpose of the adjudication of additional ground of appeal raised by the assessee as per the provisions of law under intimation to both the parties. Hence, the miscellaneous application filed by the assessee is allowed. 7. Coming to the M.A No.123/Ahd/2020 in ITA No.773/Ahd/2018 for A.Y. 2012-13 8. At the outset we note that similar issue was raised by the Assessee in the M.A. No.122/Ahd/2020 in ITA No.454/Ahd/2017 corresponding to A.Y. 2011-12 which has been decided in favour of assessee vide paragraph No. 6 of this order. For detailed discussion please refer the above mentioned paragraph number of this order. Accordingly we hold that finding given in above paragraphs with regard to M.A. No.122/Ahd/2020 in ITA No.454/Ahd/2017 will mutatis mutandis apply here in this case also. 8.1 In the result, the miscellaneous application filed by the assessee is allowed. 9. Coming to the M.A Nos. 124 & 125 /Ahd/2020 in CO Nos. 45 & 54/Ahd/2019 (Arising out of) ITA Nos. 2603 & 2527/Ahd/2017 for A.Ys 2013-14 and 2014-15. 10. At the outset we note that similar issue was raised by the Assessee in the M.A. No.122/Ahd/2020 in ITA No. 454/Ahd/2017 corresponding to A.Y. 2011-12 which has been decided in favour of assessee vide paragraph No. 6 of this order. For, detailed discussion please refer the above mentioned paragraph number of this order. Accordingly, we hold that finding given in above paragraphs with regard to M.A. No. 122/Ahd/2020 in ITA No. 454/Ahd/2017 will mutatis mutandis apply here in these two cases also. M.A No.122/AHD/2020 In ITA No.454/Ahd/2017 Asstt. Year 2011-12 (with three others) 6 10.1 In the result, both the Miscellaneous Applications filed by the assessee are allowed. 11. In the combined results, all the Miscellaneous Applications filed by the assessee are allowed. Order pronounced in the Court on 08/04/2022 at Ahmedabad. Sd/- Sd/- (MAHAVIR PRASAD) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (True Copy) Ahmedabad; Dated 08/04/2022 Manish