GREAVES COTTON LIMITED INDUSTRY MANOR, V. D.C.I.T.,

MA 145/MUM/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8799 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2002-2003
• Appeal Filed On: 09-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P C MAURYA
• Assessee Lawyers: ARATI VISSANJEE
• Keywords: Revenue expenditure; Capital expenditure
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH, H , MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI RAJENDRA SINGH, ACCOUNTANT MEMBER MA NO: 145/MUM/2011 ARISING OUT OF :ITA NO.6830/MUM/2005 ASSESSMENT YEAR : 2002-03 M/S. GREAVES COTTON LIMITED INDUSTRY MANOR, APPASAHEB MARATHE MARG, PRABHADEVI MUMBAI-400 025. PAN NO.: AAACG 2062 M DY. COMMISSIONER OF INCOME TAX , CIRCLE-6(3), 5 TH FLOOR, ROOM NO.522, AAYAKAR BHAVAN MUMBAI-400 020. (APPLICANT) VS. (RESPONDENT) APPLICANT BY : MS. ARATI VISSANJEE RESPONDENT BY : MR. P. C. MAURYA DATE OF HEARING : 15.06.2012 DATE OF PRONOUNCEMENT : 20.06.2012 ORDER PER RAJENDRA SINGH (AM). THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSE E REQUESTING FOR RECALL OF THE ORDER DATED 24.9.2010 OF THE TRIBUNAL IN ITA NO.6830/M/05. APPARENT MISTAKES HAVE BEEN POINTE D OUT IN RELATION TO GROUNDS AT SL.NO.(A), (D) AND (I) RAISED BY THE ASSESSEE IN THE APPEAL. 2. WE HAVE HEARD BOTH PARTIES IN THE MATTER. THE LD. AR FOR THE ASSESSEE SUBMITTED THAT AT THE TIME OF HEARING OF THE A PPEAL BENCH HAD DIRECTED THE ASSESSEE TO FILE WRITTEN SUBMISSIONS WHICH T HE MA NO.145/M/11 ARISING OUT OF ITA NO. 6830/M/11 A.Y:02-03 2 ASSESSEE HAD DONE VIDE LETTER DATED 20 TH SEPT. 2010 WHICH HAD NOT BEEN CONSIDERED BY THE TRIBUNAL AND NON-CONSIDERATION OF THE SUBMISSION OF THE ASSESSEE CONSTITUTES APPARENT MISTAKE FROM RECORD. THE LD. AR POINTED OUT THAT IN THE WRITTEN SUBMISSION THE ASSESSEE HAD NOT PRESSED GROUND NO.(A) RELATING TO DISALLOWANCE OF E XPENSES UNDER SECTION 14A BUT THE TRIBUNAL HAD SET ASIDE THE ORDER OF CIT(A) AND RESTORED THE ISSUE FOR PASSING OF FRESH ORDER BY THE AO W HICH WAS AN APPARENT MISTAKE. SIMILARLY ASSESSEE HAD ALSO FILED WRIT TEN SUBMISSION FOR GROUND NO.(I) RELATING TO DISALLOWANCE OF LOSS DUE TO IRRECOVERABLE DEBTS WRITTEN OFF WHICH HAD NOT BEEN CONSIDERED BY THE TRIBUNAL. THE TRIBUNAL IN THE ORDER OBSERVED THAT THE ASSESSEE HAD NOT GIVEN SUPPORTING DOCUMENTS REGARDING WORKING OF CAPITAL LOSS AN D EVEN NAMES AND ADDRESSES OF THE PARTIES HAD NOT BEEN GIVEN. THE ASSESSEE IN THE WRITTEN SUBMISSIONS HAS MENTIONED THAT THE ASSESSEE H AD GIVEN REQUIRED INFORMATION VIDE RECTIFICATION APPLICATION DA TED 9.7.2005. THE ASSESSEE HAD ALSO MENTIONED THAT THE COPY OF LETTER DATED 9.7.2005 ALONGWITH ANNEXURE HAD BEEN ATTACHED AT PAGE 192-196 OF THE PAPER BOOK. BUT THESE HAD NOT BEEN CONSIDERED BY THE TRIBUNA L. 3. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE MATTER CAREFULLY. IT IS CLEAR FROM THE RECORDS THAT THE ASSESSEE H AD FILED WRITTEN SUBMISSIONS ON 20.9.2010 BUT THE SAME WAS PUT U P BEFORE THE BENCH ONLY ON 24.9.2010 WHEN THE ORDER HAD ALREADY B EEN PASSED. MA NO.145/M/11 ARISING OUT OF ITA NO. 6830/M/11 A.Y:02-03 3 THE WRITTEN SUBMISSION, THEREFORE, COULD NOT BE TAKEN INTO ACCOUNT BY THE TRIBUNAL. NON-CONSIDERATION OF THE SUBMISSIONS OF TH E ASSESSEE DOES CONSTITUTE MISTAKE APPARENT FROM RECORD. WE, THERE FORE, RE-CALL THE ORDER OF THE TRIBUNAL IN RELATION TO THE GROUND (A) AND (I) OF THE ASSESSEE AND FIX THE APPEAL FOR HEARING ON 9.7.2012. TH E DATE OF HEARING WAS PRONOUNCED IN THE OPEN COURT AND, THEREFOR E, NO FORMAL NOTICE OF HEARING IS REQUIRED TO BE ISSUED BY THE REGIST RY. 4. AS REGARDS THE MISTAKE POINTED OUT IN GROUND (D), WE FIND THAT THE GROUND RELATED TO DISALLOWANCE OF RESTRUCTURING EXP ENSES OF RS.33,25,113/-. THE AO HAD DISALLOWED EXPENSES AS CAPITAL EXPENDITURE. HOWEVER, CIT(A) WHILE HOLDING THAT THE EXPENSES WERE CAPITAL IN NATURE ALLOWED THE SAME UNDER SECTION 35D O VER A PERIOD OF 5 YEARS. THE TRIBUNAL FOLLOWING THE DECISION OF THE TR IBUNAL IN ASSESSEES OWN CASE IN 2001-02 IN ITA NO.3546/M/04 HELD T HAT THE EXPENDITURE WAS ALLOWABLE AS REVENUE EXPENDITURE AND DISMISSED APPEAL OF THE REVENUE. HOWEVER, BY AN INADVERTENT MI STAKE THE TRIBUNAL ALSO DISMISSED THE GROUND (D) OF THE ASSESSEE WHI CH ACTUALLY SHOULD HAVE BEEN ALLOWED FOLLOWING THE DECISION OF THE TRIBUNAL IN RELATION TO THE REVENUES APPEAL ON THE SAME ISSUE. 4.1. WE HAVE PERUSED THE RECORDS AND FIND THE SUBMISSION OF THE ASSESSEE TO BE CORRECT. THE TRIBUNAL IN PARA 2.1 FOLLOWI NG THE DECISION MA NO.145/M/11 ARISING OUT OF ITA NO. 6830/M/11 A.Y:02-03 4 OF THE TRIBUNAL IN ASSESSMENT YEAR 2001-02 (SUPRA), HAD SET ASIDE THE ORDER OF CIT(A) AND ALLOWED THE CLAIM OF THE ASSESSEE AS REVENUE EXPARTE AND THEREFORE THERE IS AN APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL IN PARA-7 IN WHICH IT WAS INADVERTENTLY MENT IONED THAT THE GROUND RAISED BY THE ASSESSEE WAS DISMISSED. THEREFORE, WE A MEND PARA-7 OF THE ORDER OF THE TRIBUNAL BY SUBSTITUTING T HE WORD ALLOWED IN PLACE OF THE WORD DISMISSED MENTIONED THEREIN. 5. IN THE RESULT THE MISCELLANEOUS APPLICATION OF THE ASSE SSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 20.6.2012. SD/- SD/- (D. MANMOHAN) ( RAJENDRA SINGH ) VICE PRESIDENT ACCO UNTANT MEMBER MUMBAI, DATED: 20.6.2012. JV. COPY TO: THE APPLICANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.