LYKA LABS LTD, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX 10(2)(1), MUMBAI

MA 133/MUM/2018

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 7092 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-08-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: J
• Assessment Year: 2010-2011
• Appeal Filed On: 23-02-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJIV GUBGOTHRA
• Keywords: Gift
• Section: 37(1)

Judgement Text

1 MA 133/MUM/2018 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J, MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI G MANJUNATHA (ACCOUNTANT MEMBER) M.A. 133/MUM/2018 (ARISING OUT OF I.T.A NO.3492/MUM/2015) (ASSESSMENT YEAR: 2010-11) LYKA LABS LTD 101, SHIV SHAKTI INDL. ESTATE ANDHERI KURLA ROAD, ANDHERI (E), MUMBAI-59 PAN : AACL0820G VS DY.CIT 10(2)(1), MUMBAI APPELLANT RESPONDENT APPELLANT BY SHRI JAYESH DADIA RESPONDENT BY SHRI RAJIV GUBGOTHRA DATE OF HEARING 03-08-2018 DATE OF PRONOUNCEMENT 13-08-2018 O R D E R PER G MANJUNATHA, AM : THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICAT ION TO RECALL THE ORDER PASSED BY THE ITAT IN ITA NO.3492/MUM/2015 FO R AY 2010-11 VIDE ITS ORDER DATED 29-11-2017. 2. THE LD.AR FOR THE ASSESSEE HAS TAKEN A GROUND CH ALLENGING ORDER PASSED BY THE ITAT ON THE GROUND THAT THERE IS A MI STAKE APPARENT IN THE ORDER OF THE ITAT INSOFAR AS THE ISSUE OF DISALLOWA NCE OF EXPENSES INCURRED TOWARDS DISTRIBUTION OF FREEBIES AND GIFTS GIVEN TO DOCTORS IN THE LIGHT OF CBDT CIRCULAR NO.5 OF 2012 DATED 01-08-201 2 TO ARGUE THAT THE 2 MA 133/MUM/2018 SAID CIRCULAR IS PROSPECTIVE IN NATURE AND DOES NOT APPLY TO THE IMPUGNED ASSESSMENT YEAR. THE ASSESSEE ALSO TAKEN A PLEA TH AT IT HAS CITED DECISION OF ITAT, MUMBAI IN THE CASE OF DCIT VS PHL PHARMA PVT LTD (2017) 78 TAXMANN.COM 38 WHICH WAS NOT CONSIDERED B Y THE ITAT, WHILE DISPOSING OF THE APPEAL. THEREFORE, THE SAME CONST ITUTE MISTAKE APPARENT ON THE FACE OF THE ORDER WHICH REQUIRE REC TIFICATION U/S 254(2) OF THE INCOME-TAX ACT, 1961. 3. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. THE ASSESSEE HAD TAKEN 3 GROUNDS IN ITS APPEAL CHALLENGING ADDITION MADE BY THE AO TOWARDS FREEBIES AND GIFTS GIVEN TO DOCTORS. THE ITAT, AFTER CONSIDERING RELEVANT FACTS AND ALSO CONSIDERING THE NOTIFICATION ISSUED BY MEDICAL COUNCIL OF INDIA REG ARDING DOCTORS IN PROFESSION HELD THAT EXPENDITURE INCURRED TOWARDS F REEBIES AND GIFTS TO DOCTORS IS NOT AN ALLOWABLE DEDUCTION U/S 37(1) OF THE INCOME-TAX ACT, 1961. THE GRIEVANCE OF THE ASSESSEE IS THAT THE TR IBUNAL HAS NOT GIVEN ITS FINDING ON THE APPLICABILITY OF CBDT CIRCULAR N O.5 OF 2012 AND ALSO NOT CONSIDERED THE DECISION RENDERED BY CO-ORDINATE BEN CH IN THE CASE OF DCIT VS PHL PHARMA PVT LTD (SUPRA). WE FIND THAT T HE TRIBUNAL HAS CONSIDERED CBDT CIRCDULAR NO. 5 OF 2012 DATED 01-08 -2012 WHILE DISCUSSING THE ISSUE. HOWEVER, NOT CONSIDERED THE DECISION RENDERED BY CO-ORDINATE BENCH OF ITAT IN THE CASE OF DCIT VS PH L PHARMA PVT LTD 3 MA 133/MUM/2018 (SUPRA) AS THERE IS NO EVIDENCE IN THE FILE THAT TH E ASSESSEE HAS RELIED UPON THE SAID DECISION AT THE TIME OF HEARING OF AP PEAL. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT NON CONSIDERATION O F A DECISION WHICH WAS NOT CITED DURING THE COURSE OF HEARING IS NOT A MISTAKE APPARENT ON RECORD, WHICH REQUIRE RECTIFICATION U/S 254(2) OF T HE I.T. ACT, 1961. HENCE, WE DISMISS MISCEALLANEOUS APPLICATION FILED BY THE ASSESSEE AS NOT MAINTAINABLE. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH AUGUST, 2018. SD/- SD/- (SAKTIJIT DEY) (G MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DT : 13 TH AUGUST, 2018 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER SR.PS, ITAT, MUMBAI