ZENSAR TECNOLOGIES LTD, V. JT CIT SP RG 12,

MA 215/MUM/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3875 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-01-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 1996-1997
• Appeal Filed On: 09-09-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Revenue expenditure

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN (AM) AND RAMLAL NEGI , (JM) MISCELLANEOUS APPLICATION S NO. 214 AND 215 /MUM/2015 ARISING OUT OF I.T.A S . NO. 608 & 609 / MUM/20 01 ( / ASSESSMENT YEAR S : 1995 - 96 & 1996 - 97 ) ZENSAR TECHNOLOGIES LTD., (FORMERLY KNOWN AS M/S FUJITSU ICIM LTD. ) MAGNET HOUSE, 2 ND FLOOR, N M MARG, BELARD ESTATE, MUMBAI - 400001 / VS. JOINT COMMISSIONER OF INCOME TAX , SPECIAL RANGE 1 2, AAYAKAR BHAVAN, 6 TH FLOOR,R NO.665A, M K ROAD, MUMBAI - 400020 ( / APPELLANT ) .. ( / RESPONDENT ) ./ ./PAN : AAACFO742K / APPLICANT BY SHRI GIRISH DAVE NAD MS.KADAMBARI DAVE / RESPONDENT BY SHRI GANESH BARE / DATE OF HEARING : 1 5.1.2016 / DATE OF PRONOUNCEMENT : 15.1.2016 / O R D E R PER B.R. BASKARAN (AM) THE ASSESSEE HAS FILED THESE MISC ELLANEOUS APPLICATIONS POINTING OUT THAT THE COMMON ORDER DATED 26.6.2015 PASSED BY THE TRIBUNAL SUFFERS FROM CERTAIN MISTAKES APPARENT FROM RECORD AND HENCE NEEDS RECTIFICATION . 2. THE LD. COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HA D CLAIMED EXPENSES INCURRED ON COMPUTER SOFTWARE AS REVENUE EXPENDITURE IN BOTH T HE ASSESSMENT YEARS UNDER CONSIDERATION. HE SUBMITTED THAT THE IDENTICAL ISSUE WAS CONSIDERED BY THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE EARLIER YEARS AND THE SAME WAS AL LOWED. HE M A NO. 214 AND 215 /MUM/2015 2 SUBMITTED THAT THE ASSESSEE HAD PLACED RELIANCE ON THE DECISION OF THE TRIBUNAL RENDERED FOR THE EARLIER YEARS, BUT THE TRIBUNAL DID NOT TAKE NOTE OF THE SAME WHILE ADJUDICATING THIS ISSUE AND INSTEAD RESTORED THE MATTER TO THE FILE OF THE AO. ACCORDINGLY HE SUBMITTED THAT THE NON - CONSIDERATION OF THE DECISION OF CO - ORDINATE BENCH RENDERED IN THE ASSESSEES OWN CASE FOR EARLIER YEARS HAS RESULTED IN A MISTAKE APPARENT FROM RECORD. 3. ON THE CONTRARY, THE LD.DR POINTED OUT THAT THE TRIBUNAL H AS PLACED RELIANCE ON THE DECISION OF SPECIAL BENCH OF DELHI TRIBUNAL IN THE CASE OF AMWAY INDIA ENTERPRISES V/S DCIT (111 ITD 112) AND RESTORED THE MATTER BACK TO THE FILE OF THE AO FOR FRESH EXAMINATION IN ACCORDANCE WITH THE DECISION RENDERED BY THE SPECIAL BENCH . THE LD. DR SUBMITTED THAT THE TRIBUNAL HAS FOLLOWED THE DECISION RENDERED BY A LARGER BENCH OF THE TRIBUNAL AND HAS TAKEN A CONSCIOUS DECISION THAT THIS ISSUE REQUIRES EXAMINATION AFRESH AT THE END OF THE AO . ACCORDINGLY HE SUBMITTED THAT THE DECISION OF THE TRIBUNAL DOES NOT RESULT IN A MISTAKE APPARENT FROM RECORD. 4. IN THE REJOINDER, THE LD A.R SUBMITTED THAT THE CO - ORDINATE BENCH OF THE TRIBUNAL HAS CONSIDERED THE DECISION RENDERED IN THE CASE OF AMWAY INDIA ENTERPRISES (SUPRA) AN D ACCORDINGLY DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. 5 . WE HEARD THE PARTIES ON THIS ISSUE AND PERUSED THE RECORD. AS SUBMITTED BY THE LD. D . R, THE TRIBUNAL HAS PL ACED RELIANCE ON THE DECISION RENDERED BY THE LARGER BENCH OF THE TRIBUNAL I N THE CA SE OF AMWAY INDIA ENTERPRISES (SUPRA) . IN THE ABOVE SAID CASE, THE SPECIAL BENCH HAS PRESCRIBED CERTAIN CRITERIA FOR TREATING THE NATURE OF EXPENDITURE INCURRED ON SOFTWARE. ACCORDINGLY, THE TRIBUNAL TOOK THE VIEW THAT THE EXPENDITURE CLAIMED BY THE ASSE SSEE NEEDS TO BE EXAMINED IN ACCORDANCE WITH THE M A NO. 214 AND 215 /MUM/2015 3 DECISION RENDERED BY THE SPECIAL BENCH, SINCE THE FACTS RELATING TO THE SOFTWARE EXPENDITURE WERE NOT AVAILABLE ON RECORD. ACCORDINGLY, THE TRIBUNAL HAS TAKEN A CONSCIOUS DECISION TO RESTORE THE MATTER TO T HE FILE OF THE AO FOR FRESH EXAMINATION. HENCE , IN OUR VI EW, T HE DECISION RENDERED BY THE TRIBUNAL SHALL NOT FALL IN THE CATEGORY OF MISTAKE APPARENT FROM THE RECORD. ACCORDINGLY, WE DO NOT FIND ANY MERIT IN THE SUBMISSIONS OF THE ASSESSEE ON THIS ISSUE. 6 . THE NEXT MISTAKE POINTED BY THE ASSESSEE RELATES TO DEDUCTION CLAIMED IN RESPECT OF LEASE RENT PAID FOR COMPUTER S . THIS ISSUE ARISES IN BOTH THE YEARS UNDER CONSIDERATION. THE CONTENTION OF THE ASSESSEE THAT THE CO - ORDINATE BENCH OF TRIBUNAL HAS ALLO WED SIMILAR CLAIM IN THE EARLIER YEARS AND HENCE THE TRIBUNAL HAS FAILED TO FOLLOW THE SAME. HOWEVER, W E NOTICE THAT THE TRIBUNAL HAS RESTORED THIS MATTER ALSO TO THE FILE OF THE AO , AS IT WAS FELT THAT CERTAIN FACTUAL ASPECTS , WHICH HAVE BEEN ELABORAT ED IN THE ORDER, REQUIRE VERIFICATION. THE DETAILS RELATING TO THE ABOVE SAID FACTUAL ASPECTS WERE NOT AVAILABLE IN THE ORDER OF THE TRIBUNAL PASSED FOR EARLIER YEARS. THUS, WE NOTICE THAT THE T RIBUNAL HAS TAKEN A CONSCIOUS DECISION TO RESTORE THIS ISSUE IN BOTH THE YEARS TO THE FILE OF THE AO AND HENCE WE ARE OF THE VIEW THAT IT SHALL ALSO NOT FALL IN THE CATEGORY OF MISTAKE APPARENT FROM THE RECORD. ACCORDINGLY, WE DO NOT FIND ANY MERIT IN THE SUBMISSIONS OF THE ASSESSEE ON THIS ISSUE. 7 . THE NEXT MIS TAKE POINTED BY THE ASSESSEE RELATES TO WRITING OF CLOSING STOCK AND THIS ISSUE ARISES ONLY IN AY 1996 - 97 . THE CONTENTION OF THE ASSESSEE IS THAT THIS ISSUE IS ALSO COVERED BY THE DECISION OF THE CO - ORDINATE BENCH RENDERED IN THE ASSESSEES OWN CASE FOR AY 1984 - 85. WE NOTICE THAT THE TRIBUNAL HAS SPECIFICALLY OBSERVED THAT THE FACTUAL ASPECTS RELATING THERETO WERE NOT EXAMINED BY THE TAX AUTHORITIES , EVEN THOUGH THE ASSESSEE HAS FURNISHED THE DETAILS RELATING TO THE SAME. THE TRIBUNAL HAS M A NO. 214 AND 215 /MUM/2015 4 OBSERVED FURTH ER THAT THE AO HAS MERELY FOLLOWED CERTAIN DECISIONS OF THE TRIBUNAL WITHOUT ACTUALLY EXAMINING THE FACTUAL ASPECTS. ACCORDINGLY , THE TRIBUNAL HAS RESTORED THE MATTER TO THE FILE OF THE AO FOR FRESH EXAMINATION. THERE SHOULD NOT BE ANY DISPUTE THAT THE C LAIM OF WRITE OFF OF STOCK IS A FACTUAL ASPECT AND THE PRECEDENTS MAY NOT APPLY IN ALL THE SITUATIONS. SINCE THE TRIBUNAL HAS TAKEN A CONSCIOUS DECISION ON THIS ISSUE ALSO, WE ARE OF THE VIEW , IT SHALL ALSO NOT FALL IN THE CATEGORY OF MISTAKE APPARENT FRO M THE RECORD. ACCORDINGLY, WE DO NOT FIND ANY MERIT IN THE SUBMISSIONS OF THE ASSESSEE ON THIS ISSUE. 8 . IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE STAND DISMISSED. PRONOUNCED ACCORDINGLY ON 15 TH JAN, 2016 . 15 TH JAN, 2016 SD SD ( RAMLAL NEGI ) ( B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 15 TH JAN, 2016 . . . ./ SRL , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI