ARAMARK INDIA P.LTD, V. ITO WD 6(1)(3),

MA 141/MUM/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3877 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 26-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR SONI
• Section: 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A , MUMBAI BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA , JUDICIAL MEMBER MA NO. 141 /MUM/2015 (IN ITA NO. 3839 /MUM/2013) (ASSESSMENT YEAR : 200 9 - 1 0 ) ARAMARK INDIA PVT. LTD., 437 - 438, SECTOR - 4, GHANSOLI, NAVI MUMBAI 400 701 . PAN : A AGCA 4383 F ( APPLICANT /APPELLANT ) VS I NCOME T AX O FFICER , WARD NO. 6(1) - 3 , MUMBAI. (RESPONDENT) APPLICANT BY : MS. AARTI VISSANJI ( A R) RESPONDENT BY : SHRI VIJAYKUMAR SONI ( D R) DATE OF HEARING : 08/01/2016 DATE OF PRONOUNCEMENT : 15 /01/2016 O R D E R PER AMIT SHUKLA, JM : THE AFORESAID MISCELLANEOUS APPLICATION IS ARISING OUT OF ITA NO. 3839/MUM/2013 , WHEREIN IT HAS BEEN CONTENDED THAT GROUND NOS. 1 TO 4 , AS RAISED BEFORE THE TRIBUNAL , HAS BEEN OMITTED TO BE ADJUDICATED PROPERLY AND IT HAS WRONGLY BEEN STATED THAT THERE IS NO REBUTTAL OF THE FINDING OF THE L D. CIT(A) , ON THE ISSUE OF THE ORDER PASSED BY THE AO BEING U/S 144. IT HAS BEEN CONTENDED BEFORE US THAT S UCH A FINDING OF THE TRI BUNAL IS NOT CORRECT AS THIS ISSUE WAS SPECIFICALLY ARGUED ON 23.2.2015 , WHEREBY THE LD. COUNSEL FOR THE ASSESSEE HAD MADE DETAILED SUBMISSIONS AND HAS ALSO REFERRED TO STATEMENT OF FACTS FROM PAGE 5 TO 9 AND VARIOUS OTHER CORRESPONDENCE AND STATEMENTS F URNISHED BEFORE THE AO , WHICH ARE APPEARING FROM PAGE 47 TO 75 OF THE PAPER 2 ARAMARK INDIA PVT. LTD. MA NO. 141/MUM/2015 BOOK TO REBUT THE FINDINGS OF THE AO REGARDING NON - PRODUCTION OF BOOKS AND OTHER DETAILS . ON THAT DAY , THAT IS, ON 23 RD FEBRUARY, 2015, AFTER HEARING BOTH THE PARTIES , THE B ENCH O BSERVED IN THE OPEN COURT THAT THE MATTER WILL GO BACK TO THE FILE OF THE AO. ON THE ISSUE OF ADDITIONAL GROUND, THE MATTER WAS ADJOURNED FOR 25.2.2015 , AND ON THAT DATE , ONLY THE ISSUE RAISED IN THE ADDITIONAL GROUND WAS ARGUED. THE TRIBUNAL IN ITS ORDE R HAS MAINLY ADJUDICATED ON THE ISSUE OF GOODWILL AS RAISED IN THE ADDITIONAL GROUND , WHEREAS THE ISSUE WHICH WAS ARGUED ON 23.2.2015 HAS NOT BEEN PROPERLY APPRECIATED. HENCE, THE ISSUE RAISED VIDE GROUND NOS. 1 TO 4 NEEDS TO BE ADJUDICATED AND DECIDED UP ON. 2) ON THE OTHER HAND, THE LD. DR SUBMITTED THAT THE TRIBUNAL HAS DISMISSED GROUND NOS. 1 TO 4 , HENCE SAME CANNOT BE NOW RECTIFIED WITHIN SEC. 254 (2) OF THE ACT . 3) AFTER CONSIDERING THE RIVAL CONTENTIONS AND ON PERUSAL OF OUR LOG BOOK FOR 23 RD FEBRUARY, 2015 , WE FIND THAT THE ASSESSEE S COUNSEL, MS. ARTI VISSANJI DID ARGUE THE ISSUE RAISED IN GROUND NOS. 1 TO 4 AT LENGTH. ONLY ON THE ISSUE OF ADDITIONAL GROUNDS, THE MAT TER WAS ADJOURNED FOR 25.2.2015. HOWEVER, WHILE PASSING THE ORDER WE HAVE MAINLY TAKEN COGNIZANCE OF THE ISSUE OF ADDITIONAL GROUND AND OTHER GROUNDS RAISED VIDE GROUND NOS. 1 TO 4 WERE TREATED AS IF NOT ARGUED BEFORE US . IT TRANSPIRE S FROM OUR LOG BOOK AND FROM THE MATERIALS PLACED ON RECORD IN THE FORM OF PAPER BOOK THAT THE LD. COUNSEL HAD MADE A VERY DETAILED SUBMISSION ON THE ISSUE OF PASSING OF ORDER U/S . 144 AND THE ADDITION MADE ON DISCREPANCY IN FIGURES GIVEN IN 26AS AND FIGURES APPEARING IN THE PROFIT AND LOSS ACCOUNT. ACCORDINGLY, THERE IS A MISTAKE APPARENT FROM THE RECORD TO THE EXTENT THAT GROUND NOS. 1 TO 4 HA VE NOT BEEN PROPERLY ADJUDICATED IN THE LIGHT OF THE ARGUMENTS MADE BEFORE US ON 23.2.2015 AND ALSO THE MATERIALS PLACED IN THE PAPER - BOOK , RELIED UPON DURING 3 ARAMARK INDIA PVT. LTD. MA NO. 141/MUM/2015 HEARING . ACCORDINGLY, WE ARE RECALLING OUR ORDER DATED 1.5.2015 FOR A LIMITED PURPOSE OF ADJUDICATING GROUND NOS. 1 TO 4 . HENCE, THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS TREATED AS ALLOWED TO THE EXTENT ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH JANUARY, 2016. SD/ - SD/ - ( SANJAY ARORA ) ACCOUNTANT MEMBER (AMIT SHUKLA) JUDICIAL MEMBER MUMBAI, DATE : 15 TH JANUARY, 2016 COPY TO : 1) THE APPELLANT/APPLICANT 2) THE RESPONDENT 3) THE CIT(A) - 14, MUMBAI 4) THE ITO - 6(1)(3), MUMBAI 5) THE D.R, A BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI *SSL*