PR. CIT -3, MUMBAI V. JABIL CIRCUIT INDIA P. LTD., MUMBAI

MA 18/MUM/2023

AI Insights

The case involves the Assistant Commissioner of Income Tax-3(2)(1) as the appellant and M/s Jabil Circuit India Pvt. Ltd. as the respondent. The dispute centers on the claim of depreciation on assets of a discontinued SEZ unit at Chennai for the assessment year 2013-14. Initially, the ITAT had ruled in favor of the assessee, referencing a prior decision that did not cover the specific assessment year in question. The revenue filed a miscellaneous application arguing that the issue had not been adjudicated for A.Y. 2013-14, leading to the recall of the ITAT's earlier order. The tribunal acknowledged the oversight and directed a fresh decision on the matter.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 130285 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-09-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 10-08-2023
• Assessment Year: 2013-2014
• Appeal Filed On: 10-01-2023
• Other Referred Cases: M/s. RW Promotion Pvt. Ltd Vs. ITAT, Daryapur Shetkari Sahakari Ginning & Pressing Factory Vs. ACIT, Amravati, Golden Times Service Pvt. Ltd. Vs. DCIT, CIT(Exemption) Vs. Slum Rehabilitation Authority, Ranka Jewellers Vs. ACIT, CIT Vs. K. Sera Sera Productions Ltd., CIT Vs. Shashi Theatre P. Ltd., CIT Vs. Mehsana Co. Op Milk Producers Union Ltd., Haryana Paper Distributors P. Ltd. Vs. PCIT, Fortaleza Developers Vs. CIT, Nirma Chemicals Works Pvt. Ltd. Vs. CIT, Sonal Garments Vs. JCIT, Fabindia Overseas Pvt. Ltd. Vs. DCIT, Subhash Chander Kathuria Vs. DCIT, Marico Industries Ltd. Vs. ACIT
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Revision of order; Depreciation; Set aside
• Section: 263; 143(3); 260A; 254(2)

Judgement Text

P a g e | 1 M.A. 18/Mum/2023 The ACIT-3(2)(1) vs. M/s Jabil Circuit India Pvt. Ltd. IN THE INCOME TAX APPELLATE TRIBUNAL “F” BENCH, MUMBAI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER M.A No.18/Mum/2023 (Arising out of ITA No. 349/Mum/2021) (A.Y. 2013-14) The Asst. Commissioner of Income Tax- 3(2)(1) Room No. 608, 6 th Aayakar Bhavan, M.K. Road, Mumbai – 400 020 Vs. M/s Jabil Circuit India Pvt. Ltd. Arena House, 3 rd Floor, Plot No. 103 Road No. 12, Opp. Tulip Telecom Marol MIDC, Andheri (E) Mumbai – 400093 स्थायी लेखा सं./जीआइआर सं./PAN/GIR No: AACCP7114K Appellant .. Respondent [ Appellant by : Nitesh Joshi Respondent by : Ujjawal Chavan Date of Hearing 11.08.2023 Date of Pronouncement 07.09.2023 आदेश / O R D E R Per Amarjit Singh (AM): The miscellaneous application filed by the revenue is directed against the order of the ITAT, Mumbai passed on 26.04.2022 vide ITA No. 349/Mum/2021. Vide miscellaneous application filed the revenue has submitted as under: “3. The present miscellaneous application is sought to be filed on the issue of claim of depreciation as decided by the Hon'ble ITAT, 'F' Bench, Mumbai against the Revenue. While passing the aforesaid order, the Hon'ble ITAT has held that the issue has already been. adjudicated by Hon'ble ITAT by virtue of order in ITA no. 2200/Mum/2017 & P a g e | 2 M.A. 18/Mum/2023 The ACIT-3(2)(1) vs. M/s Jabil Circuit India Pvt. Ltd. 867/Mum/2018 dated 19.11.2018, therefore, invoking the revisional power u/s 263 of the Act nowhere seems justifiable 4. With regard to the decision of the Hon'ble ITAT on this issue, it is submitted that the contention of the Hon'ble ITAT that the issue has already been adjudicated by Hon'ble ITAT by virtue of order in ITA no. 2200/Mum/2017 & 867/Mum/2018 dated 19.11.2018 is not correct as this issue was adjudicated only for the A.Y 2012-13 and was not adjudicated for the A.Y 2013- 14 in the said order. 5. Further, it is pertinent to note that the Hon'ble ITAT had not only adjudicated this issue only for the A.Y. 2012-13 wherein the disallowance of Rs. 2,71,85.103 on account of depreciation of Chennai SEZ Unit was affirmed by the Hon'ble ITAT, rather decided the issue against the assessee. Thus, to protect the interest of the revenue, the PCIT-3, Mumbai was right in invoking the provisions u/s. 263 of the Act and giving direction for revision of the assessment order for the A.Y. 2013-14 Accordingly, the AO passed order u/s. 143(3) r.ws 263 of the Income Tax Act, 1961 dated 21.09.2021 after making disallowance of Rs.6,12,36,889/- on account of depreciation of assets of discontinued SEZ unit at Chennai. In view of the same, the order of the Hon'ble Tribunal in ITA No. 349/Mum/2021 dated 26.04.2022 is prejudicial to the interest of the Revenue. 6. In this case, appeal u/s. 260A of the Act has already been filed on 05.12.2022 against the order of Hon'ble ITAT in ITA No. 349/Mum/2021 for A.Y. 2013-14 dated 26.04.2022 however, in view of the decision of the Hon'ble Bombay High Court in the case of M/s. RW Promotion Pvt. Ltd Vs. ITAT for filing MA & 260A appeal simultaneously, a Miscellaneous Application (MA) is to be filed in this case which has been approved by the CCIT-2, Mumbai vide letter dated 24.11.2022 7. In view of the above, it is humbly prayed that the Hon'ble ITAT. Mumbai "F" Bench, may recall its order dated 26.04.2022 in ITA No.349/Mum/2022 for A.Y. 2013-14 for rectification of the apparent errors of facts therein and the conclusion based thereon and modify its order accordingly.” 2. During the course of appellate proceedings before us at the outset the ld. Counsel submitted that the impugned miscellaneous application filed by the revenue on 11.01.2023 is time barred. In this regard, the ld. Counsel referred the copy of letter dated 30.05.2022 addressed by the assessee to the assessing officer requesting to give appeal effect to the order of the ITAT dated P a g e | 3 M.A. 18/Mum/2023 The ACIT-3(2)(1) vs. M/s Jabil Circuit India Pvt. Ltd. 26.04.2022 decided in favour of the assessee vide ITA No. 349/Mum/2021 dated 26.04.2022. By giving reference of this letter the ld. Counsel contended that assessing officer got knowledge of the decision of the order of the ITAT on 30.05.2022. The ld. Counsel has placed reliance on the decision of Hon’ble High Court of Bombay in the case of Daryapur Shetkari Sahakari Ginning & Pressing Factory Vs. ACIT, Amravati (2021) 123 taxman.com 301 (Bom). 3. However, the ld. Departmental Representative contended that the date of knowledge of the order passed by the ITAT in the case of the revenue is to be taken when the order of the ITAT communicated to the Pr. Commissioner of Income Tax. 4. Heard both the sides and perused the material on record. We have perused the decision of Hon’ble High Court of Bombay in the case of Daryapur Shetkari Sahakari Ginning & Pressing Factory Vs. ACIT, Amravati (2021) 123 taxman.com 301 (Bom). In that case there was no appearance on behalf of the assessee and the appeal of the assessee was dismissed ex-parte on 01.02.2023 in limine on the ground that despite the service of notice none had appeared on behalf of the assessee. Therefore, the Hon’ble High Court held that in view of the provision of Rule 24 of the ITAT Rule the P a g e | 4 M.A. 18/Mum/2023 The ACIT-3(2)(1) vs. M/s Jabil Circuit India Pvt. Ltd. Tribunal was not justified in dismissing the appeal filed by the assesse in limine in absence of either the appellant or its authorised representative. The Hon’ble jurisdictional High Court in that case has also referred the decision of Hon’ble Delhi High Court in the case of Golden Times Service Pvt. Ltd. Vs. DCIT, 422 ITR 102 (Del) wherein the Hon’ble Delhi High Court held that the period of limitation prescribed for 250(2) would commence from the date effected party got knowledge of the decision in question and it would not commence from the date of order passed. 5. We find that in the case of revenue it is mandatory requirement that order passed by the ITAT shall be communicated to the Commissioner of Income Tax or the Pr. Commissioner of Income tax. In this regard we have perused the provision of Sec. 254(3) of the Income Tax Act which is reproduced as under: “(3) The Appellate Tribunal shall send a copy of any orders passed under this section to the assessee and to the [Principal Commissioner or] Commissioner].” Even the ITAT rule 35 say that the Tribunal shall after the order is signed caused to be communicated to the assessee and the Commissioner of Income Tax and nowhere it is mentioned that communication is to be made to the assessing officer. P a g e | 5 M.A. 18/Mum/2023 The ACIT-3(2)(1) vs. M/s Jabil Circuit India Pvt. Ltd. 6. The ITAT Mumbai vide M.A. No. 369/Mum/2023 in the case of ITO Vs. Tuff Guard Force Pvt. Ltd. dated 05.09.2023 and in the case of DCIT Vs. Oricon Enterprises Ltd. vide MA No. 379/Mum/2023 dated 06.08.2023 also held that as stipulates in Section 253(3) of the Income Tax Act and rule 35 of the ITAT Rule it is required to communicate the ITAT orders to the Principal Commissioner of Income Tax or Commissioner of Income Tax. 7. We find that u/s 254(3) of the Act, the Law stipulates that the ITAT in case of the revenue the order of the ITAT is required to be communicated to the Pr.CIT or CIT. In this case the the ld. Pr.CIT has received the copy of order of the ITAT on 01.08.2022 therefore the Pr.CIT has got the knowledge of the order of the ITAT on 01.08.2022. The Hon’ble jurisdictional High Court in the case of Daryapur Shetkari Sahakari Ginning & Pressing Factory Vs. ACIT, Amravati (2021) 123 taxman.com 301 (Bom) held that period of limitation prescribed in Sec. 254(2) would commence from the date when affected party got knowledge of the decision. In this case as per the acknowledgment the order of the ITAT was communicated to the ld. Pr. CIT only on 01.08.2022 and there is no other evidence contrary filed by the assesse to substantiate that ld. Pr.CIT got knowledge of the order before the communication of the order of the ITAT on 01.08.2022. Therefore the limitation period of six months for filing the miscellaneous P a g e | 6 M.A. 18/Mum/2023 The ACIT-3(2)(1) vs. M/s Jabil Circuit India Pvt. Ltd. application would start from 01.09.2022 and ended on 28.02.2023. Therefore, we don’t find any merit on the objection raised by the assesse that miscellaneous application filed by the Revenue is time barred. 8. On merit of the miscellaneous application we have heard both the side and perused the material on record. We find that there is an apparent mistake on record as vide order dated 26.04.2022 the ITAT has allowed the appeal of the assesse by referring the order of the ITAT in the case of the assesse itself dated 19.11.2018 for assessment year 2012-13 & 2013-14 vide ITA No. 2200/Mum/2017 and 87/Mum/2018 on the ground that issue of depreciation has already been adjudicated by the ITAT vide order dated 19.11.2018, therefore, invoking the revisional power u/s 263 of the Act nowhere seems justifiable. The relevant part of the decision of the ITAT is reproduced as under: “7. The assessment order for invoking the power u/s 263 of the Act i.e. 2013- 14 is the same which has been decided by Hon’ble ITAT vide order dated 19.11.2018. Since the issue has already been adjudicated by Hon’ble ITAT by virtue of order dated 19.11.2018, therefore, invoking the revisional power u/s 263 of the Act nowhere seems justifiable. In this regard, we find support of the decision in the case of CIT(Exemption) Vs. Slum Rehabilitation Authority (2019) 107 taxmann.com 18, Ranka Jewellers Vs. ACIT (2010) 190 Taxman. 265, CIT Vs. K. Sera Sera Productions Ltd. (374 ITR 503), CIT VS. Shashi Theatre P. Ltd. 114 taxman 274, CIT Vs. Mehsana Co. Op Milk Producers Union Ltd. 130 taxman 235, Haryana Paper Distributors P. Ltd. Vs. PCIT (2018) 95 taxmann.com 152, Fortaleza Developers Vs. CIT (2013) 30 taxmann.com 411, Nirma Chemicals Works Pvt. Ltd. Vs. CIT 309 ITR 67, Sonal Garments Vs. JCIT 95 ITD 363, Fabindia Overseas Pvt. Ltd. Vs. DCIT 10 taxmann.com 70, Subhash Chander Kathuria Vs. DCIT 51 SOT 58 & P a g e | 7 M.A. 18/Mum/2023 The ACIT-3(2)(1) vs. M/s Jabil Circuit India Pvt. Ltd. Marico Industries Ltd. Vs. ACIT 27 SOT 73. Taking into account of all the facts and circumstances, we set aside the order passed by Hon’ble PCIT dated 30.11.2017 in question. Accordingly, we decide issue no.5 in favour of the assessee against the revenue.” 9. However, on perusal of the order of the ITAT, dated 19.11.2018 we find that the ITAT has adjudicated the issue pertaining to the claim of depreciation on discontinued unit at Chennai for assessment year 2012-13 and this issue was not adjudicated for the assessment year 2013-14. We consider merit in the miscellaneous application filed by the revenue, therefore, we recall the order of the ITAT vide ITA No. 349/Mum/2021 dated 26.04.2022 for deciding afresh after considering the various submission filed by the assesse. The registry is directed to list the appeal in regular course and inform both the parties. 10. Therefore, the miscellaneous application filed by the revenue is allowed. Order pronounced in the open court on 07.09.2023 Sd/- Sd/- (Amit Shukla) (Amarjit Singh) Judicial Member Accountant Member Place: Mumbai Date 07.09.2023 Rohit: PS P a g e | 8 M.A. 18/Mum/2023 The ACIT-3(2)(1) vs. M/s Jabil Circuit India Pvt. Ltd. आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपीलाथी / The Appellant 2. प्रत्यथी / The Respondent. 3. आयकर आयुक्त / CIT 4. विभागीय प्रविविवि, आयकर अपीलीय अविकरण DR, ITAT, Mumbai 5. गार्ड फाईल / Guard file. सत्यावपि प्रवि //True Copy// आदेशानुसार/ BY ORDER, उि/सहायक िंजीकार (Dy./Asstt. Registrar) आयकर अिीिीय अतिकरण/ ITAT, Bench, Mumbai.