AAREY DRUGS PHARMACEUTICALS LTD, V. ITO 6(1)(1),

MA 191/MUM/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1461 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-01-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 22-11-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 28-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: O P SINGH
• Keywords: Depreciation; Additional evidence

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE S/SHRI B.R.MITTAL,(JM) AND N.K.BILLAIYA (AM ) . . , . . , MA / NOS.189/MUM/2013 ARISING OUT OF ./ ITA NO.5188/MUM/2009: / A.Y.: 2000-01 MA / NOS.190/MUM/2013 ARISING OUT OF . ITA NO.4600/MUM/2011: / A.Y.: 2003-04 MA / NOS.191/MUM/2013 ARISING OUT OF ITA NO.4601/MUM/2011: / A.Y.: 2004-05 ARREY DRUGS & PHARMACEUTICALS LTD., 203, SAHAKAR BHAVAN, 340/346, NASRSHI NATHA STREET, MASJID, MUMBAI-09 PA NO.AAACA 5253A VS. I.T.O. 6(1)(1) MUMBAI. (APP LICANT ) (RESPONDENT) [ ./ ./PAN/GIR NO. : AAACA 5253A AAKCS4758L ) /: APPLICANT BY SHRI ANIL THAKUR + ) , / RESPONDENT BY SHRI O.P.SINGH , / / DATE OF HEARING : 10.1.2014 , / /DATE OF PRONOUNCEMENT : 15 .1.2014 / O R D E R PER B.R.MITTAL, JM: BY THESE THREE MISCELLANEOUS APPLICATIONS, THE ASS ESSEE HAS PRAYED TO RECALL THE ORDER DATED 13.7.2012 IN RESPECT OF ASSESSMENT YEAR S 2000-01, 2003-04 AND 2004-05 ONLY ON THE GROUND THAT THERE IS A MISTAKE IN THE ORDER. MA NO.189/MUM/2013 2. IN RESPECT OF ASSESSMENT YEAR 2000-01, THE ASSES SEE HAS STATED AS UNDER : MA NOS.189 TO 191 /MUM/2013 2 THE HONBLE TRIBUNAL WHILE DISPOSING THIS GROUND OF APPEAL, HAS OVERLOOKED THE FACT OF THE CASE THAT THE APPELLANT HAS CARRIED ON MANUFACTURING ACTIVITY DURING THE YEAR TILL THE MONTH OF DECEMBER 1999 AND AS SU CH THE CLAIM OF DEPRECIATION ON PLANT & MACHINERY. IT IS ALSO EVIDENT FROM THE CIT(A) ORDER DATED 25.6.2009 VIDE PARA NO.6.2 PAGE NO.4 OF SUCH ORDER, WHERE IT IS CLEARLY MENTIONED AND BIFURCATED THE TOTAL SALE OF RS.51,64,00,716/- 3. AT THE TIME OF HEARING, THE LD. AR DRAWN OUR ATT ENTION TO PARA 10 OF THE TRIBUNAL ORDER DATED 13.7.2012, WHEREIN THE TRIBUNAL AFTER C ONSIDERING THE SUBMISSIONS OF LD. REPRESENTATIVES OF THE PARTIES AND THE ORDERS OF AU THORITIES BELOW HAVE STATED AS UNDER: 10. WE ON CONSIDERATION OF SUBMISSIONS OF LD REPRE SENTATIVES OF PARTIES AND IN THE ABSENCE OF ANY DOCUMENTARY EVIDENCE ON RECORD, THAT THE ASSESSEE USED PLANT AND MACHINERY DURING THE COURSE OF ITS TRADIN G ACTIVITIES AS SUBMITTED BEFORE US, WE DO NOT FIND ANY REASON TO INTERFERE W ITH THE ORDER OF LD CIT(A). HENCE, WE REJECT GROUND NO.1(I) OF APPEAL TAKEN BY ASSESSEE. 4. LD. AR SUBMITTED THAT THE ASSESSEE FILED ADDITIO NAL EVIDENCES BUT THE SAME WERE NOT CONSIDERED BY THE TRIBUNAL. IT WAS POINTED OUT TO THE LD. AR AS TO WHETHER THE ADDITIONAL EVIDENCES FILED BEFORE THE TRIBUNAL WE RE ADMITTED BY THE TRIBUNAL AND THEREAFTER THOSE ADDITIONAL EVIDENCES WERE CONSID ERED BY THE TRIBUNAL AT THE TIME OF HEARING OR NOT. THE LD. AR FAIRLY CONCEDED THAT H E DID NOT APPEAR BEFORE THE TRIBUNAL AT THE TIME OF HEARING, THEREFORE, HE WAS NOT AWARE OF THE SAME. 5. ON PERUSAL OF ORDER OF TRIBUNAL, IT IS OBSERVED THAT THE TRIBUNAL HAS GIVEN ITS FINDINGS AFTER CONSIDERING THE SUBMISSIONS OF THE L D. REPRESENTATIVES OF THE PARTIES AND THE RELEVANT DOCUMENTS REFERRED TO AT THE TIME OF H EARING. HENCE, THERE IS NO MISTAKE IN THE ORDER OF TRIBUNAL IN RESPECT OF ASSESSMENT YEA R 2000-01 AS MENTIONED BY THE ASSESSEE IN MISC. APPLICATION NO.189/MUM/2013 ARISI NG OUT OF ITA NO.5188/MUM/2009. MA NO.190/MUM/2013 6. THE ASSESSEE HAS STATED THE FOLLOWING GROUNDS I N THE MISCELLANEOUS APPLICATION POINTING OUT THE MISTAKE IN THE ORDER OF TRIBUNAL : GROUND NO.2 DISALLOWANCE OF EXPENSES OF RS.13,28,1 50/- THE HONBLE TRIBUNAL, WHILE DISPOSING THIS GROUND O F APPEAL HAS OVERLOOKED THE FACT OF THE CASH THAT THE DISALLOWANCE OF ADMINIST RATIVE EXPENSES WAS ARBITRARY AND WAS ON VERY MUCH ON HIGHER SIDE AS COMPARED TO THE EARLIER 4 YEARS I.E. FROM ASSESSMENT YEAR 1999-2000 TO 2002-2003. MA NOS.189 TO 191 /MUM/2013 3 THE HON. ITAT HAS NOT COMMENTED ON SUCH HIGHER PER CENTAGE OF DISALLOWANCE, AND INSTEAD HAS QUOTED JUDGMENT AS AGAINST THE APPE LLANTS COMPARATIVE STATEMENTS IN ITS OWN CASE, VIDE PAGE NO.61 OF TH E PAPER BOOK AS NOTED IN PARA 39 NO.10 OF THE ITAT ORDER. GROUND NO.3 DISALLOWANCE OF COMMISSION EXPENSES O F RS.20,02,250/- THE HON. ITAT WHILE DISPOSING THIS GROUND OF APPEAL HAS OVERLOOKED THE FACT OF THE CASE THAT THE APPELLANT HAD SUBMITTED ALL THE R ELEVANT DETAILS SUCH AS CERTIFICATE FROM THE PAYEE, CREDIT NOTE, BANK STATE MENT REFLECTING PAYMENT ENTRY AND WORKING OF COMMISSION BASED ON WHICH, THE APPEL LANT HAD RECEIVED AND PAID COMMISSION ETC ON PAGE NO.131-135 OF THE PAPER BOO K FILED. ALSO, THERE IS NO MENTION OF THE ADDITIONAL EVIDENCES FILED BEFORE TH E HON. ITAT THROUGH PAGES NOS. 136-141 OF THE PAPER BOOK ALREADY SUBMITTED AT THE TIME OF HEARING. GROUND NO.4 ADDITION OF RS.19,00,000/- TOWARDS C ASH DEPOSITS IN BANK . THE HON. ITAT WHILE DISPOSING THIS GROUND OF APPEAL HAS OVERLOOKED THE FACT OF THE CASE THAT THE BOOKS OF THE APPELLANT WERE IN CU STODY OF VARIOUS LAW ENFORCEMENT AGENCIES AND AS SUCH THEY WERE NOT PRO DUCED AT THE TIME OF REMAND. HOWEVER, THE APPELLANT HAS SUBMITTED AS NOT ED IN PARA 48, PAGE NO.13 OF THE ITAT ORDER THAT THE CASH RECEIVED FOR THE SA LES MADE IN THE YEAR 1998-99 AND 1999-2000 HAS BEEN DEPOSITED IN BANK. IN OTHER WORDS, IT IS NOTHING BUT COLLECTION FROM DEBTORS IN CASH DEPOSITED IN BANK. 7. AT THE TIME OF HEARING, THE LD. AR SUBMITTED TH AT IN RESPECT OF GROUND NO.2 I.E DISALLOWANCE OF EXPENSES OF RS.13,28,150/-, HE DOES NOT PRESS FOR. 8. IN RESPECT OF DISALLOWANCE OF COMMISSION EXPENSE S OF RS.20,02,250/-, THE LD. AR SUBMITTED THAT THE TRIBUNAL DID NOT CONSIDER THE D OCUMENT FILED WHICH ARE PLACED AT PAGES 136 TO 141 OF THE PAPER BOOK. HOWEVER, ATTEN TION OF THE LD. AR WAS DRAWN TO PARAGRAPHS 42 TO 45 OF ORDER OF TRIBUNAL WHEREIN THE TRIBUNAL AFTER CONSIDERING THE ORDERS OF AUTHORITIES BELOW AS WELL AS SUBMISSIONS MADE BEFORE THE TRIBUNAL HAS CONCLUDED IN PARAGRAPHS 45 AS UNDER : 45. WE HAVE CONSIDERED THE ORDERS OF AUTHORITIES B ELOW AND SUBMISSIONS OF LD REPRESENTATIVES OF PARTIES. CONSIDERING THE FACT T HAT ASSESSEE HAS NOT BEEN ABLE TO ESTABLISH WHETHER ANY SERVICE WAS RECEIVED TO TH E ASSESSEE FOR THE ALLEGED PAYMENT OF COMMISSION OF RS.20,02,250 TO M/S. GURUD EV CHEMOX INDUSTRIES, BANGALORE. MERELY FILING OF SAID CERTIFICATE AT PA GE 130 OF PB DOES NOT ESTABLISH THAT ANY SERVICE WAS RECEIVED TO THE ASSESSEE ON AC COUNT OF WHICH THE SAID COMMISSION PAYMENT WAS ALLEGED PAID TO THE ASSESSEE TO M/S. GURUDEV CHEMOX INDUSTRIES, BANGALORE. IN THE ABSENCE OF ANY DOCUM ENTS ON RECORD, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF LD C IT(A). HENCE, GROUND NO.3 IS REJECTED. MA NOS.189 TO 191 /MUM/2013 4 9. IT WAS ALSO POINTED OUT TO THE LD. AR AS TO WHE THER THE DOCUMENTS PLACED AT PAGES 136 TO 141 WHICH ARE STATED TO BE ADDITIONAL EVIDENCE FILED BEFORE THE TRIBUNAL WERE ADMITTED BY THE TRIBUNAL AND ATTENTION OF THE TRIBUNAL WAS DRAWN AT THE TIME OF HEARING OR NOT. THE LD. AR FAIRLY CONCEDED THAT H E DID NOT APPEAR BEFORE THE TRIBUNAL AT THE TIME OF HEARING, THEREFORE, HE WAS NOT AWARE OF IT. 10. ON CONSIDERATION OF ORDER OF TRIBUNAL AND THE A BOVE SUBMISSIONS OF THE LD.AR, WE DO NOT FIND ANY MISTAKE IN THE ORDER OF TRIBU NAL IN REGARD TO CONFIRMING THE DISALLOWANCE OF COMMISSION EXPENSES OF RS.20,02,2 50/-. 11. IN RESPECT OF CONFIRMING THE ADDITION OF RS.19 ,00,000/- BEING CASH DEPOSITS IN BANK. THE LD. AR COULD NOT POINT OUT ANY MISTAKE IN THE ORDER OF TRIBUNAL. WE ALSO OBSERVE THAT THE SAID ISSUE HAS BEEN DISCUSSED BY T HE TRIBUNAL IN ITS ORDER IN PARAS 47 TO 51 OF THE ORDER AND HAS CONFIRMED THE ORDER OF LD. CIT(A) AFTER CONSIDERING THE RELEVANT DOCUMENTS AND THE SUBMISSIONS OF THE LD. REPRESENTA TIVES OF THE PARTIES. IN THE ABSENCE OF ANY MISTAKE POINTED OUT BY LD. AR IN T HE ORDER OF TRIBUNAL, THE SAID GROUND NO.4 TAKEN BY ASSESSEE IS REJECTED. 12. IN VIEW OF ABOVE, THE MISC. APPLICATION BEING MA NO.190/MUM/2013 IN ITA NO.4600/MUM/2011 IS REJECTED. 13. MA NO.191/MUM/2013 14. THE ASSESSEE HAS STATED THE FOLLOWING GROUNDS TO RECALL THE ORDER OF TRIBUNAL: GROUND NO.2-DISALLOWANCE OF EXPENSES RS.1,82,880/ - THE HONBLE TRIBUNAL, WHILE DISPOSING THIS GROUND O F APPEAL HAS OVERLOOKED THE FACT OF THE CASE THAT THE DISALLOWANCE OF ADMINIST RATIVE EXPENSES WAS ARBITRARY AND WAS ON VERY MUCH ON HIGHER SIDE AS COMPARED TO THE EARLIER 4 YEARS I.E. FROM AY 1999-2000 TO AY 2002-2003. THE HON. ITAT HAS NOT COMMENTED ON SUCH HIGHER PERC ENTAGE OF DISALLOWANCE, AND INSTEAD HAS QUOTED JUDGMENTS AS AGAINST THE APP ELLANTS COMPARATIVE STATEMENT IN ITS OWN, CASE VIDE PARA NO.61 OF THE PAPER BOOK AS NOTED IN PARA 39, PAGE NO.10 OF THE ITAT ORDER. GROUND NO.3 ADDITION OF RS.36,20,000/-TOWARD CAS H DEPOSITS IN BANK. THE HON. ITAT WHILE DISPOSING THIS GROUND OF APPEAL HAS OVERLOOKED THE FACT OF THE CASE THAT THE BOOKS OF THE APPELLANT WERE IN CU STODY OF VARIOUS LAW ENFORCEMENT AGENCIES AND AS SUCH THEY WERE NOT PRO DUCED AT THE TIME OF REMAND. HOWEVER, THE APPELLANT HAS SUBMITTED AS NOT ED IN PARA 48, PAGE NO.13 MA NOS.189 TO 191 /MUM/2013 5 OF THE ITAT ORDER THAT THE CASH RECEIVED FOR THE SA LES MADE IN THE YEAR 1998-99 AND 1999-2000 HAS BEEN DEPOSITED IN BANK. IN OTHER WORDS, IT IS NOTHING BUT COLLECTION FROM DEBTORS IN CASH DEPOSITED IN BANK. 15. AT THE TIME OF HEARING, THE LD. AR COULD NOT P OINT OUT THE MISTAKE IN THE ORDER OF TRIBUNAL. FURTHER, IT IS OBSERVED THAT THE ABO VE GROUNDS HAVE BEEN CONSIDERED BY THE TRIBUNAL IN ITS ORDER VIDE PARAS 56 TO 58 AND 60 TO 61 OF THE IMPUGNED ORDER. THE LD. AR COULD NOT POINT OUT ANY MISTAKE IN THE SAID ORDER. HENCE, THE GROUNDS TAKEN BY ASSESSEE IN MISC. APPLICATION RELATING TO ASSESSMEN T YEAR 2004-05 ARE ALSO REJECTED. 16. IN VIEW OF ABOVE, ALL THE THREE MISC. APPLICATI ONS RELATING TO ASSESSMENT YEARS 2000-01, 2003-04 AND 2004-05 ARE REJECTED. 17. IN THE RESULT, ALL THE THREE MISCELLANEOUS APP LICATIONS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH JANUARY, 2014 , 3 4 15TH JANUARY, 2014 , SD SD ( . . /N.K.BILLAIYA ) ( . . /B.R.MITTAL) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI: ON THIS 15 TH DAY OF JANUARY, 2014 . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. ) / THE APPELLANT /APPLICANT 2. + ) / THE RESPONDENT. 3. @ ( ) / THE CIT(A)- 4. @ / CIT 5. +B , / B , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) / B , /ITAT, MUMBAI