M/s. Legacy Food Pvt. Ltd., New Delhi V. ACIT, New Delhi

MA 163/DEL/2020

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3564 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-07-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2010-2011
• Appeal Filed On: 29-06-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: RAKESH GUPTA
• Section: 80IC; 254(2); 80IC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH ‘D’, NEW DELHI Before Dr. B. R. R. Kumar, Accountant Member Shri Anubhav Sharma, Judicial Member MA Nos. 162 & 163/Del/2020 (in ITA No. 6196 & 6197/Del/2016: A.Ys. : 2010-11 & 2011-12) M/s. Legacy Food Pvt. Ltd, C-48, Kailash Apartments, Kailash Colony, New Delhi Vs ACIT, Circle-15(1), New Delhi (APPELLANT) (RESPONDENT) PAN No. AAACL9887F Assessee by : Dr. Rakesh Gupta, Adv. Sh. Somil Aggarwal, Adv. Revenue by : Sh. Toufel Tahir, Sr. DR Date of Hearing: 27.05.2022 Date of Pronouncement: 13.07.2022 ORDER Per Dr. B. R. R. Kumar, Accountant Member: 1. The Miscellaneous Application is as under:- “Sub:-Petition u/s 254(2) for recall/rectification of Hon’ble Tribunal’s order passed in the case of M/s Legacy Foods Pvt. Ltd. for AY 2011-12 in ITA 6197/Del/2016, Date of order 28-02-2020. It is most respectfully submitted as under: 1. We thankfully acknowledge the order dated 28.02.2020 downloaded from website on 02.03.2020, wherein Hon’ble ‘D’ Bench of Income Tax Appellate Tribunal, New Delhi decided the above appeals filed by revenue in ITA no. 6196 & 6197/Del/2016 before Hon’ble Tribunal respectively. 2 2. That the said departmental appeal was taken as heard as covered by the earlier year’s order passed by the tribunal in assessee’s own case. 3. Departmental grounds of appeal have been reproduced at page 2 of the Tribunal’s order and Your Honours have also captured in para 2.10 at page 8 of the said appeal order that ground no.1 was against the disallowance of deduction under section 80IC and ground no. 2-6 are on violation of sub rule (4) of Rule 18BBB. 4. Your Honours have held in para 4 at page 9 of the appeal order that assessee is entitled for the deduction u/s 80IC based on tribunal’s order in assessee’s own case for AY 2009-10 in ITA no 3643/Del/2013& thus ground no. 1 of the departmental appeal was decided in favor of the assessee& against the revenue. 5. Thereafter, Your Honours proceeded to dispose ground no. 2-6 of departmental appeal which was in regard to violation of sub rule (4) of Rule 18BBB &which has also been so noted in para 2.10 at page 8 of the appeal order by Your Honours. 6. A perusal of the order of the Tribunal would show, it is submitted with great respect, that the following errors have crept in the order of the Tribunal: (A) It may be noted that your Honours have mentioned in para 4.1 at page 10 of the tribunal’s order that Revenue has challenged that provisions of section 80IC(7) have not been satisfied by the assessee. Fact of the matter is that departmental ground of appeal no. 4 reproduced at page 2 of tribunal’s order was not in respect of section 80IC(7) alone but was limited to “section 80IC(7) r.w.s. 80IA(7)’’only. Thus, departmental ground of appeal has been enlarged in the present order passed by the tribunal as explained further later in this petition. (B) Departmental grounds of appeal no. 2 to 6 was in respect of section 80IC(7) read with section 80IA(7) only and was never in connection with section 80IC(7) read with section 80IA(8) to 80IA(12). Fact of the matter is that Your Honours have decided and recorded finding in respect of section 80IA(8) to 3 80IA(12) in para 4.10 to 4.12 at page 14 - 17 of the impugned tribunal’s appeal order which in fact was never the issue in departmental ground of appeal and hence could not be dealt in the present tribunal’s order, more so when such ground was never there in the assessment order and when department was not aggrieved before your honours on this point.” 2. On going to the page 9 at para 4, we find that the issue of section 80IA(7) and 80IC(7) have been examined and dealt by the Co-ordinate Bench of the Tribunal. The Tribunal has also examined the remand report of the AO and also the applicability of Rule 18BBB and provision of section 80IA(8) and 80IA(12). Further, the Tribunal has also examined the application of section 80IA(8) and 80IA(10) and considered the decision has been taken to restore the issue back to the file of the AO. Placing reliance on the judgment of Hon’ble Apex Court in the case of CIT (Intl. Taxation-4), Mumbai Vs. M/s Reliance Telecom Ltd. and CIT (Intl. Taxation-4), Mumbai Vs. M/s Reliance Communications Ltd. in Civil Appeal No. 7110 of 2021 and Civil Appeal No. 7111 of 2021- 2021 (12) TMI 211 dated 03.12.2021, we hold that the MA filed before the Tribunal beyond the provision of section 254(2) and hence being dismissed herewith. 3. In the result, the MAs of the assessee are dismissed. Order Pronounced in the Open Court on 13/07/2022. Sd/- Sd/- (Anubhav Sharma) (Dr. B. R. R. Kumar) Judicial Member Accountant Member Dated: 13/07/2022 *Ajay Kumar Keot, Sr. PS*