M/s. Express Publications (Madurai) Ltd., CHENNAI V. DCIT, CHENNAI

MA 168/CHNY/2022

AI Insights

The case involves M/s. Express Publications (Madurai) Limited, which filed a Miscellaneous Application under section 254(2) of the Income-tax Act, 1961, against an order of the Tribunal concerning the assessment year 2008-09. The dispute centered on the disallowance of a payment of incentive to distributors amounting to Rs. 92,62,896, which was initially disallowed in the assessment and confirmed by the Commissioner (Appeals). The Tribunal had earlier remanded the issue back to the CIT(A) for fresh adjudication, following a similar decision in the appellant's case for the assessment year 2009-10. However, the appellant pointed out that the issue was actually remanded back to the AO in a subsequent Miscellaneous Application for the 2009-10 assessment year, and requested the Tribunal to correct this oversight for consistency.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 135021 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-03-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 09-03-2023
• Assessment Year: 2008-2009
• Appeal Filed On: 09-11-2022
• Other Referred Cases: I.T.A.Nos.615 & 706/Chny/2018
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 40(a)(ia); 254(2)

Judgement Text

आयकर अपीलीय अिधकरण, ‘बी’ ᭠यायपीठ, चे᳖ई IN THE INCOME TAX APPELLATE TRIBUNAL ‘B’ BENCH, CHENNAI ᮰ी वी दुगाᭅ राव, ᭠याियक सद᭭य एवं ᮰ी मंजुनाथ. जी, लेखा सद᭭य के समᭃ BEFORE SHRI V. DURGA RAO, HON’BLE JUDICIAL MEMBER AND SHRI MANJUNATHA. G, HON’BLE ACCOUNTANT MEMBER Misc. Application No. 168/Chny/2022 [In ITA No. 1839/Chny/2019] (िनधाᭅरणवषᭅ / Assessment Year: 2008-09) M/s. Express Publications (Madurai) Limited, C/o. Shri T.N. Seetharaman, Advocate, No. 384 (Old No. 196), Lloyds Road, Chennai – 600 086. [PAN: AAACI-0842-D] v. Deputy Commissioner of Income Tax, Company Circle –II(1), Now DCIT, Company Circle -2(1), Chennai – 600 034. (ᮧाथᭅक /Petitioner) (ᮧ᭜यथᱮ/Respondent) ᮧाथᭅक कᳱ ओरसे/ Petitioner by : Shri. R.K.V. Sundar, Advocate ᮧ᭜यथᱮ कᳱ ओर से/Respondent by : Shri. AR V Sreenivasan, Addl. CIT सुनवाई कᳱ तारीख/Date of Hearing : 10.03.2023 घोषणा कᳱ तारीख/Date of Pronouncement : 22.03.2023 आदेश /O R D E R PER MANJUNATHA. G, ACCOUNTANT MEMBER: The assessee has filed present Miscellaneous Application u/s. 254(2) of the Income-tax Act, 1961 (hereinafter referred to as “the Act”) against order of the Tribunal in ITA No. 1839/Chny/2019 dated 26.08.2022 and relevant to assessment year 2008-09. :-2-: MA. No: 168/Chny/2022 2. The assessee has narrated facts and mistakes stated to be apparent on record from the order of the Tribunal and relevant contents of Miscellaneous Application filed by the assessee are reproduced as under: “The above appeal has been disposed of by the Hon'ble Tribunal 'B' Bench, Chennai (Hon'ble Shri.G.Manjunatha, AM and Hon'ble Shri Rahul Chaudhary, JM) by order dt.26.08.2022. One of the issues decided in the appeal relates to "claim of payment of incentive to distributors disallowed (Rs. 92,62,896/-)" in the assessment and confirmed by the Commissioner (Appeals) dealt with and decided by the Hon'ble Tribunal in Para 10 of the order. The Hon'ble Tribunal has been pleased to remand the issue "back to the file of the Learned CIT(A) for fresh adjudication and verification of invoices & bills in accordance with law" following the decision of the coordinate Bench of the Tribunal for A.Y 2009-10 (I.T.A.Nos.615 & 706/Chny/2018 dt.27.05.2019) in the appellant's own case. The Petitioner/ appellant wishes to bring to the kind notice of the Hon'ble Tribunal that while in the Tribunal's order for A.Y 2009-10 referred to above this issue was remanded back to the file of the Ld. Commissioner of Income Tax (Appeals) for fresh adjudication and verification of invoices and bills in accordance with law - vide Para 15 @ Page 12 of the order, by order dt.26.12.2019 in M.A.No.146/CHNY/2019 the Hon'ble Tribunal amended the order dt.27.05.2019 and held: "In Para 15 at page 12, it may be read as "we remand this issue back to the file Assessing Officer in the place of Id. CIT (A)". - Para 3 @ Page 3 The Petitioner / appellant humbly submits that for the sake of uniformity and consistent with the order for A.Y 2009-10 this issue may be remanded back to the file of the assessing officer in the place of Commissioner of Income Tax (Appeals). The Petitioner/ appellant prays that the Hon'ble Tribunal be pleased to order accordingly.” :-3-: MA. No: 168/Chny/2022 3. We have heard both the parties and considered relevant contents of Miscellaneous Application filed by the assessee and we find that there is a mistake in the order of the Tribunal in Para 10 of their order dated 26.08.2022 in as much as the issue of disallowance of bulk incentive allowed to distributors has been set aside to the file of the CIT(A) for fresh adjudication by following the decision of the Tribunal in assessee’s own case for assessment year 2009-10 in ITA No. 615 & 706/Chny/2018 order dated 27.05.2019. The ld. Counsel for the assessee explained before us that although in earlier assessment year 2009-10 initially the issue was set aside to the file of the CIT(A), but on Miscellaneous Application filed by the assessee, the issue has been remitted back to the file of the AO vide order dated 16.12.2019 in MA No. 146/Chny/2019, and this fact was brought to the notice of the bench at the time of hearing of the appeal. However, the Tribunal by inadvertent error restored the issue back to the file of the CIT(A). Therefore, he submitted that the order of the Tribunal dated 26.08.2022 may be modified. The ld. DR, on the other hand fairly agreed that as per records, the issue has been set aside to the file of the AO for further verification in :-4-: MA. No: 168/Chny/2022 Miscellaneous Application order passed by the Tribunal and thus, the order of the Tribunal should be modified. 4. Having heard both the sides and considering relevant material on record, we find that there is a prima facie mistake in the order of the Tribunal dated 26.08.2022 in Para 10, in so far as the issue of disallowance of bulk incentive allowed to distributors, treating it as a commission by invoking section 194H of the Act and consequent disallowance u/s. 40(a)(ia) of the Act, because in earlier years the issue has been set aside to the file of the AO by the Tribunal in their order in Miscellaneous Application 146/Chny/2019 dated 16.12.2019 and this fact was brought to the notice of the bench while hearing the appeal. Therefore, we are of the considered view that the order of the Tribunal dated 26.08.2022 in ITA No. 1839/Chny/2019 needs to be modified and thus, Para 10 of the order of the Tribunal dated 26.08.2022 is now reads as under: “In view of the above and respectfully following the decision of Coordinate bench of the Tribunal, we remit the issue back to the file of the AO for fresh adjudication and verification of invoices and bills in accordance with law.” :-5-: MA. No: 168/Chny/2022 5. In the result, Miscellaneous Application filed by the assessee is allowed in terms of our observations given herein above. Order pronounced in the court on 22 nd March, 2023 at Chennai. Sd/- (वी दुगाᭅ राव) (V. DURGA RAO) ᭠याियकसद᭭य/Judicial Member Sd/- (मंजुनाथ. जी) (MANJUNATHA. G) लेखासद᭭य/Accountant Member चे᳖ई/Chennai, ᳰदनांक/Dated: 22 nd March, 2023 JPV आदेश कᳱ ᮧितिलिप अᮕेिषत/Copy to: 1. अपीलाथᱮ/Appellant 2. ᮧ᭜यथᱮ/Respondent 3. आयकर आयुᲦ (अपील)/CIT(A) 4. आयकर आयुᲦ/CIT 5. िवभागीय ᮧितिनिध/DR 6. गाडᭅ फाईल/GF