SI GROUP INDIA LTD., MUMBAI V. DCIT - LTU, MUMBAI

MA 245/MUM/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 5125 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-12-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: K
• Assessment Year: 2006-2007
• Appeal Filed On: 22-07-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJAT MITTAL
• Assessee Lawyers: DIVYESH I SHAH; AMIT SHETTYAR
• Keywords: Depreciation; Rectification of order

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH K, MUMBAI BEFORE SHRI R.C.SHARMA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER M.A. NO. 245/MUM/2016 IN ITA NO. 9197/MUM/2010 A Y : 2006-07 SI GROUP (INDIA) LIMITED (PLOT NO. 2/1, TTC INDUSTRIAL AREA, THANE BELAPUR ROAD, OPP. JUINAGAR RAILWAY STATION NAVI MUMBAI-400705 PAN:AAACH7323L VS. DCIT- LTU, MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI DIVYESH I. SHAH & AMIT SHETTY(AR) REVENUE BY : SHRI RAJAT MITTAL ( DR) DATE OF HEARING : 16.12.2016 DATE OF ORDER : 16 .12.2016 ORDER PER PAWAN SINGH, JUDICIAL MEMBER 1. THIS MISCELLANEOUS APPLICATION (MA) IS FILED BY THE ASSESSEE FOR RECTIFICATION OF MISTAKE IN THE ORDER DATED 31.03.2016 PASSED IN ITA NO. 919 7/MUM/2010 FOR ASSESSMENT YEAR (AY) 2006-07. IN THE APPLICATION, THE APPLICANT/ASS ESSEE PLEADED THAT WHILE DECIDING THE APPEAL OF THE ASSESSEE, THE TRIBUNAL WRONGLY MENTIO NED THAT NO SPECIFIC ARGUMENTS WERE ADVANCED IN SUPPORT OF GROUND NOS. 2, 6 & 7 AND THE SAME WAS TREATED AS NOT PRESSED. IT IS FURTHER PLEADED THAT APPLICANT/ASSESSEE HAS FILE D ADDITIONAL GROUNDS OF APPEAL VIDE ITS APPLICATION DATED 20.08.2015 ALONG WITH ADDITIONAL GROUND NOS. 1.1 TO 2.1. THE ADDITIONAL GROUND NOS. 1.1 TO 2.2 RELATES TO THE DEDUCTION ON DEPRECIATION ON GOODWILL U/S 32((I)(II) OF THE ACT. THE APPLICANT/ASSESSEE FURTHER PLEADED THAT ALL THESE GROUNDS WERE EXTENSIVELY ARGUED BY ASSESSEE AS WELL AS BY REVENUE. AS THE TR IBUNAL HAS NOT GIVEN ANY FINDING ON THE AFORESAID ADDITIONAL GROUNDS AS WELL AS GROUND NOS. 2, 6 & 7 BY TREATING THOSE GROUNDS AS NOT PRESSED. THERE IS AN ERROR IN THE ORDER OF T HE TRIBUNAL. THE ASSESSEE PRAYED IN THE APPLICATION FOR RECALLING THE ORDER DATED 31.03.201 6 AND TO RE-CONSIDER THE ADDITIONAL GROUND NOS. 1.1 TO 2.1 AND FURTHER TO RECONSIDER GR OUND NO. 1,6 &7 AS THE SAME WERE TREATED AS NOT PRESSED. 2 M.A.NO. 245/MUM/2016 SI GROUP-INDIA LIMITED 2. WE HAVE HEARD THE LD. AUTHORISED REPRESENTATIVE (AR ) OF ASSESSEE AND LD. THE DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENUE AN D PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. AR OF THE ASSESSEE BROUGHT TO OUR N OTICE THAT VIDE APPLICATION DATED 20.08.2015, THE ADDITIONAL GROUNDS (NO.1.1 TO 2.1) WITH REGARD TO DEPRECIATION ON GOODWILL BEING AN INTANGIBLE ASSET WAS RAISED. IN S UPPORT OF THE ADDITIONAL GROUND OF APPEAL, THE LD. AR OF THE ASSESSEE RELIED UPON THE DECISION OF CO-ORDINATE BENCH IN ASSESSEES OWN CASE FOR AY 2003-04 IN ITA NO. 4384/ MUM/2010 AND ARGUED THAT SIMILAR GROUNDS OF APPEAL WAS RAISED AND THE TRIBUNAL HAS R ESTORED THE SAME GROUND TO THE FILE OF AO FOR FRESH ADJUDICATION VIDE ORDER DATED 16.01.20 15 AND THUS, THE ASSESSEE IS ENTITLED FOR THE SIMILAR RELIEF. WITH REGARD TO GROUND NOS. 2, 6 & 7 RAISED ORIGINALLY AT THE TIME OF FILING THE APPEAL, IT WAS ARGUED THAT THE DISPUTE R ESOLUTION PANEL (DRP) VIDE ORDER DATED 27.09.2010 GAVE SPECIFIC DIRECTION TO THE AO IN PAR A 9 & 10 OF THEIR ORDER. THE AO HAS NOT FOLLOWED THE ORDER OF DRP. IT WAS FURTHER ARGUE D THAT AT THE TIME OF MAKING SUBMISSION IN THE APPEAL BEFORE THE TRIBUNAL, THE G ROUND NOS. 2, 6 & 7 WERE ARGUED EXTENSIVELY. ON THE OTHER HAND, LD. DR FOR THE REVE NUE SUPPORTED THE ORDER OF TRIBUNAL AND ARGUED THAT SO FAR AS GROUND NOS. 2, 6 & 7 ARE CONCERNED. NO SUBMISSION WAS MADE, THUS, THERE IS NO ERROR APPARENT ON THE RECORD. WI TH REGARD TO ADDITIONAL GROUND NO.1 & 2, IT WAS ARGUED THAT THE SAME WAS FILED JUST ONE DAY BEFORE THE DATE OF HEARING BEFORE THE TRIBUNAL AND NO SUBMISSION WAS MADE. 3. WE HAVE CONSIDERED THE RIVAL CONTENTION OF THE PART IES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE SEEN THAT THE ADDITIONAL GROUND OF APPEAL WAS RAISED BY THE ASSESSEE VIDE APPLICATION DATED 20.08.2015,WHICH BEARS THE E NDORSEMENT OF FLING BEFORE REGISTRAR ITAT. THIS APPEAL WAS HEARD ON 14.01.2016. THE LD A R FOR THE ASSESSEE IS RELYING ON THE DECISION OF TRIBUNAL IN ITA NO 4384/M/2010 DATED 16 /01/2015 IN ASSESSEES OWN CASE, WE INSTEAD OF GOING ON THE MERIT AND DEMERIT ON THE SUBMISSION WHETHER THE ADDITIONAL GROUNDS OF APPEAL WAS ARGUED OR NOT, OR THE APPLICA TION FOR ADDITIONAL GROUNDS OF APPEAL WAS FILED JUST ONE DAY BEFORE THE DATE OF HEARING, FIND MERIT IN THE MA FILED BY THE APPLICANT. HENCE, WE DEEM IT APPROPRIATE TO RECALL THE ORDER DATED 31.03.2016 IN ITA NO.9197/M/2010, QUA THE ADDITIONAL GROUND OF APPEAL NO. 1.1 AND 1.2 (2 .1 IS GENERAL IN NATURE). SO FAR AS THE ORIGINAL GROUND NO.2, 6 &7 A RE CONCERNED, WE ARE OF THE CONSIDERED OPINION THAT NO APPEAL NO SUCH APPEAL LIE BEFORE US , IF THE AO HAS NOT GIVEN ANY EFFECT TO THE DIRECTION OF DRP. EVEN OTHERWISE ON PERUSAL OF OUR LOGBOOK WE DO NOT FIND ANY REFERENCE THAT THE LD AR MADE ANY SUBMISSION AT THE TIME OF HEARING OF THE APPEAL ON 14.01.106. THUS, WE DO NOT FIND ANY MERIT IN THE SU BMISSION OF THE ASSESSEE WITH REGARD 3 M.A.NO. 245/MUM/2016 SI GROUP-INDIA LIMITED TO THE GROUND NO.2,6&7 AS RAISED IN THE PRESENT APP LICATION, WHICH WE DECLINE TO INTERFERED WITH. 4. AS WE HAVE PARTIALLY RECALLED THE ORDER DATED 31.03 .201 6 IN ITA NO.9197/M/2010 , QUA THE ADDITIONAL GROUND NO. 1.1 AND 1.2. HENCE, THE R EGISTRY IS DIRECTED TO RE-FIX THE APPEAL FOR HEARING THIS GROUND AFRESH. PARTIES BE INFORMED BY A PROPER NOTICE FOR HEARING OF APPEAL . 5. IN THE RESULT, MA FILED BY THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH DECEMBER, 2016. SD/- SD/- (R.C. SHARMA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 16 /12/2016 S.K.PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / (ASSTT.REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. !'# / GUARD FILE. //TRUE COPY/