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

MA 246/MUM/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 5124 (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: Allowed
• Bench Allotted: K
• Assessment Year: 2007-2008
• Appeal Filed On: 22-07-2016
• Result in Favour of: Assessee
• 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. 246/MUM/2016 IN ITA NO. 1009/MUM/2013 A Y : 2007-08 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. 813 /MUM/2013 FOR ASSESSMENT YEAR (AY) 2007-08. IN THE APPLICATION, THE APPLICANT/ASS ESSEE PLEADED THAT THE ASSESSEE HAS RAISED ADDITIONAL GROUND OF APPEAL VIDE APPLICATION DATED 20.08.2015. ALONG WITH APPLICATION THE APPLICANT/ ASSESSEE RAISED ADDITION AL GROUNDS NO.1.1 TO 2.1, WITH REGARD TO DEDUCTION OF DEPRECIATION ON GOODWILL U/S 32(1)(II) OF THE ACT. THE ASSESSEE FURTHER PLEADED IN THE APPLICATION THAT GROUND NO.6 WHICH R ELATES TO THE DISALLOWANCE OF EXPENSES BY AO TREATING THE SAME AS CAPITAL IN NATURE WAS AL SO RAISED IN ORIGINAL GROUNDS OF APPEAL. HOWEVER, THE TRIBUNAL WHILE PASSING THE ORDER OBSER VED THAT ASSESSEE HAS NOT PRESSED THIS GROUND OF APPEAL. THE TRIBUNAL NOT ADJUDICATED THE ADDITIONAL GROUNDS OF APPEAL RAISED VIDE APPLICATION DATED 25/08/2015. THE ASSESSEE PLE ADED IN THE APPLICATION THAT THE SAID GROUND WAS EXTENSIVELY ARGUED BY THE ASSESSEE AT TH E TIME OF MAKING THE SUBMISSION. AS THE TRIBUNAL HAS NOT GIVEN ANY FINDING OF THE ADDIT ION GROUND AS WELL AS ON GROUND NO.6. THUS, THERE IS APPARENT ERROR ON THE RECORD. THE AS SESSEE PRAYED IN THE APPLICATION THAT ORDER PASSED BY THE TRIBUNAL ON 31.03.2016 MAY BE R ECALLED TO DECIDE THE MATTER AFRESH. 2 M.A.NO. 246/MUM/2013 SI GROUP-INDIA LIMITED IN SUPPORT OF APPLICATION FOR RAISING ADDITIONAL GR OUND OF APPEAL, THE ASSESSEE HAS PLACED ON RECORD THE COPY OF ACKNOWLEDGEMENT OF ADDITIONAL GROUNDS OF APPEAL FILED ON 20.08.2015 WITH THE REGISTRY OF THIS TRIBUNAL. 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 THE APPLICATION DATED 20.08.2015, WHEREIN THE ADDITION GROUND WITH REGARD TO DEPRECIATION ON GOODWILL BEING AN INTANGIBLE ASSET WAS RAISED. THE LD. AR OF THE A SSESSEE FURTHER ARGUED THAT NOW HE IS NOT PRESSING GROUND NO.6 RAISED IN THE ORIGINAL GRO UNDS OF APPEAL. IN SUPPORT OF ADDITIONAL GROUND NO. 1.1 TO 2.1, LD. AR OF THE ASSESSEE RELIE D UPON THE DECISION OF CO-ORDINATE BENCH IN ASSESSEES OWN CASE FOR AY 2003-04 IN ITA NO. 4384/M/2010, WHEREIN SIMILAR GROUNDS OF APPEAL WAS RAISED AND THE SAME WAS REST ORED TO THE FILE OF AO FOR FRESH ADJUDICATION VIDE ORDER DATED 16/01/2015. ON THE OT HER HAND, LD. DR FOR THE REVENUE OBJECTED THAT THOUGH THERE IS NO APPARENT ERROR ON THE FACE OF ORDER OF TRIBUNAL DATED 31.03.2016. IT WAS FURTHER ARGUED THAT THE ALLEGED ADDITIONAL GROUND OF APPEAL WAS FILED JUST ONE DAY BEFORE THE DATE OF HEARING. IT WAS FUR THER ARGUED THAT THOUGH THE ADDITIONAL GROUND OF APPEAL WAS RAISED ON THE ELEVENTH HOUR BU T THE SAME WAS NOT ARGUED BY LD. AR OF THE ASSESSEE NOR ANY SUBMISSION WAS MADE IN RESP ECT OF GROUND NO.6 RAISED ORIGINALLY. 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 ENDORSEMENT 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.813/M/2013, 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. 6 IS CON CERNED. THE LD. AR OF THE ASSESSEE MADE THE STATEMENT THAT HE IS NOT PRESSING GROUND NO.6. THUS, THE GROUND NO.6 IS TREATED AS DISMISSED AS NOT PRESSED. 4. AS WE HAVE PARTIALLY RECALLED THE ORDER DATED 31.03 .2016 QUA THE ADDITIONAL GROUND NO. 1.1 AND 1.2. HENCE, THE REGISTRY IS DIRECTED TO RE- FIX THE APPEAL FOR HEARING THIS GROUND AFRESH. PARTIES BE INFORMED BY A PROPER NOTICE FOR HEARING OF APPEAL. 3 M.A.NO. 246/MUM/2013 SI GROUP-INDIA LIMITED 5. IN THE RESULT, MA FILED BY THE ASSESSEE IS 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/