SYNGENTA INDIA LTD., MUMBAI V. ADDL. CIT RANGE - 1(3), MUMBAI

MA 193/MUM/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5471 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-02-2017
• Appeal Filed By: Assessee
• Bench Allotted: K
• Assessment Year: 2008-2009
• Appeal Filed On: 21-07-2016
• Court: TRIBUNAL
• Department Lawyers: M V RAJGURU
• Assessee Lawyers: S S TOMAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL K , BENCH MUMBAI BEFORE SHRI B.R.BASKARAN, AM & SHRI AMIT SHUKLA, JM M.A. NO. 193 / MUM/201 6 (ARISING OUT OF ITA NO.649/MUM/2013) ( ASSESSMENT YEAR: 2008 - 09 ) M/S. SYNGENTA INDIA LTD., S.NO.110/11/3, AMAR PARADI GM BANER ROAD, PUNE 411 045 VS. ACIT 1(3), MUMBAI PAN/GIR NO. AAECS9424P APPELLANT ) .. RESPONDENT ) ASSESSEE BY SHRI S.S. TOMAR REVENUE BY SHRI M.V.RAJGURU DATE OF HEARING 03 / 02 /2017 DATE OF PRONOUNCEMENT 03/02/2017 / O R D E R PER AMIT SHUKLA (J .M) : IN THE AFORESAID APPLICATION FILED BY THE ASSESSEE, IT HAS BEEN POINTED OUT THAT THE APPEAL FOR THE ASSESSMENT YEAR S 2007 - 08 AND 2008 - 09 WERE HEARD TOGETHER BY THIS TRIBUNAL AND THE ORDER WAS DISPOSED OF BY WAY OF COMMON ORDER. 2. ONE OF THE MAIN ISSUES INVOLVED WAS DISALLOWANCE OF ROYALTY PAID WHICH WAS RAISED IN GROUND NO . 12 IN THE APPEAL FOR THE ASSESSMENT YEAR 2007 - 08 AND SIMILAR GROUND WAS ALSO RAISED IN THE ASSESSMENT YEAR 2008 - 09 , BEING GROUND N O.7. THE TRIBUNAL HAS ADJUDICATED GROUND NO.12 IN THE APPEAL FOR THE ASSESSMENT M.A.NO.193/MUM/2016 M/S. SYNGENTA INDIA LIMITED 2 YEAR 2007 - 08 IN FAVOUR OF THE ASSESSEE AS PER DETAILED DISCUSSION APPEARING FROM PARA 22 - 31 AT PAGES 28 - 37. HOWEVER, WHILE DISPOSING OF THE APPEAL FOR THE ASSESSMENT YEAR 2008 - 09 WHICH IS APPEARING AT PAGES 49 - 54 OF THE ORDER , INADVERTENTLY THE TRIBUNAL DID NOT DECIDE THE ISSUE AND SIMILAR DIRECTIONS SHOULD HAVE BEEN GIVEN TO DISPOSE OF THE IDENTICAL ISSUE OF ROYALTY RAISED VIDE GROUND NO.7 IN ASSESSMENT YEAR 2008 - 09. 3. SIMILARLY, GROUND NO.2.1 TO 2.5 IN THE APPEAL FOR THE ASSESSMENT YEAR 2007 - 08 AND GROUND NO. 2(A) TO 2(C) IN THE APPEAL FOR THE ASSESSMENT YEAR 2008 - 09 THE ISSUE RAISED WAS, WHETHER THE LOSS OF ONE ELIGIBLE INDUSTRIAL UNDERTAKING CAN BE SET OFF AGAINST THE PROFIT OF ANOTHER ELIGIBLE INDUSTRIAL UNDERTAKING OR NOT . THE BENCH HAS ADJUDICATED THE SAME ISSUE RAISED IN GROUND NO.2.1 TO 2.5 IN THE APPEAL FOR THE ASSESSMENT YEAR 2007 - 08 IN FAVOUR OF THE ASSESSEE IN DETAIL MANNER A S PER THE OBSERVATION APPEARING FRO M PARAGRAPH 36 - 41, HOWEVER, WHILE DISPOSING OF THE APPEAL FOR THE ASSESSMENT YEAR 2008 - 09, SIMILAR FINDING WAS NOT GIVEN. THUS, THERE IS A MISTAKE APPARENT FROM THE RECORD WHICH NEEDS TO BE RECTIFIED UNDER SECTION 254 (2). 4. THE LEARNED DR ALSO AGREED W ITH THE CONTENTION RAISED BY THE ASSESSEE IN THE MISCELLANEOUS APPLICATION. 5. AFTER CONSIDERING THE AFORESAID CONTENTION, WE FIND THAT THE ISSUE OF ROYALTY WHICH WAS RAISED IN GROUND NO.12 IN THE M.A.NO.193/MUM/2016 M/S. SYNGENTA INDIA LIMITED 3 ASSESSMENT YEAR 2007 - 08 HAS BEEN DECIDED BY THE TRIBUNAL IN THE FAVOUR OF THE ASSESSEE AS PER DISCUSSIONS APPEARING IN PARA 22 - 31. THE RELEVA NT CONCLUSION OF THE TRIBUNAL IS APPEARING FROM PARA 29 - 31 AT PAGES 34 - 37 . A FTER DETAILED DISCUSSION, THE ISSUE OF ROYALTY WAS ALLOWED IN THE FAVOUR WITH CERTAIN DIRECTIONS . HOWEVER, WHILE ADJUDICATING THE APPEAL FOR THE ASSESSMENT YEAR 2008 - 09, SIMILAR GROUND OF ROYALTY, DISALLOWANCE OF ROYALTY PAYMENT RAISED IN GROUND NO.7 (A) COULD NOT BE ADJUDICATED. THUS, NON - ADJUDICATION OF GROUND NO.7 (A) IS A MISTAKE APPARENT FROM RE CORD WHICH NEEDS TO BE RECTIFIED. 6. WE FIND THAT I N THE APPEAL FOR THE AY 2008 - 09 IN G ROUND NO.7, THE ASSESSEE HAD CHALLENGED THE DISALLOWANCE OF ROY ALTY PAYMENT OF RS.3 ,53,30,934 / - ON ACCOUNT OF ROYALTY PAYMENT OF CORN AND SUN FLOWER SEEDS TO ITS AE . THIS ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE AS PER DISCUSSIONS APPEARING FROM PARAGRAPH 22 - 31 IN THE SAME ORDER OF THE TRIBUNAL FOR THE AY 2007 - 08 . SINCE SIMILAR ISSUES ARE INVOLVED IN ASSESSMENT YEAR 2008 - 09 ALSO A RISING OUT OF IDENTICAL SET O F FACTS, THEREFORE, WE HOLD THAT THE FINDING AND DIRECTIONS GIVEN WHILE DECIDING THE G ROUND NO.12 IN THE APPEAL FOR THE ASSESSMENT YEAR 2007 - 08 WITH REGARD TO THE ROYALTY PAYMENT, SAME WILL APPLY MUTATIS - MUTANDIS IN THIS YEAR ALSO , THAT IS, AY 2008 - 09 . AC CORDINGLY, THE AO IS DIRECTED TO M.A.NO.193/MUM/2016 M/S. SYNGENTA INDIA LIMITED 4 FOLLOW THE DIRECTIONS OF THE TRIBUNAL FOR ASSESSMENT YEAR 2007 - 08 AND HENCE, GROUND NO. 7 IS TREATED AS ALLOWED. 7. AS REGARDS THE ISSUE RAISED IN GROUND NO. 2(A) TO 2(C) IN ASSESSMENT YEAR 2008 - 09, WE FIND THAT THIS ISS UE TOO WAS SUBJECT MATTER OF DISPUTE IN THE ASSESSMENT YEAR 2007 - 08 WHICH WAS RAISED BY GROUND NO.2.1 TO 2.5. THIS ISSUE HAS BEEN DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESSEE AS PER DISCUSSIONS APPEARING IN PARA 36 TO 41, PAGES 38 - 47 OF THE ORDER. SIN CE, SIMILAR ISSUE IS INVOLVED IN ASSESSMENT YEAR 2008 - 09 THEREFORE, FINDING GIVEN IN THE APPEAL FOR THE ASSESSMENT YEAR 2007 - 08 WILL APPLY MUTATIS MUTANDIS IN THIS YEAR ALSO. ACCORDINGLY GROUND NO. 2(A) AND 2(C) ARE TREATED AS ALLOWE D. 8. IN THE RESULT, MISCELLANEOUS APPLICATION IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 3 RD FEBRUARY, 2017 . SD/ - ( B.R.BASKARAN ) SD/ - ( AMIT SHUKLA ) ACCOUNTANT MEMBER JUDIC IAL MEMBER MUMBAI ; DATED 03 /02 /201 7 KARUNA SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. M.A.NO.193/MUM/2016 M/S. SYNGENTA INDIA LIMITED 5 BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI //TRUE COPY//