The DCIT, Circle-1(1)(2), Ahmedabad V. M/s. Liva Healthcare Limited, (Now merged with cadila Healthcare Ltd), Ahmedabad

MA 282/AHD/2018

• Counselvise Citation: [2019] 114 COUNSELVISE.COM (IT) 6207 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-11-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 30-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIDHUT TRIVEDI
• Assessee Lawyers: MUKESH PATEL
• Keywords: Rectification of order; Commercial expediency; Set aside

Judgement Text

, D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SMT. MADHUMITA ROY, JUDICIAL MEMBER MISCELLANEOUS APPLICATION NO. 282/AHD/2018 (IN I.T.A. NO. 2914/AHD/2014) ( ASSESSMENT YEAR : 2011-12) M/S. LIVA HEALTHCARE LTD. (NOW MERGED WITH CADILA HEALTHCARE LTD.) ZYDUS TOWER, SATELLITE CROSS ROAD, S. G. HIGHWAY, SATELLITE, AHMEDABAD - 380015 / VS. THE DY. COMMISSIONER OF INCOME-TAX OFFICER CIRCLE-1(1)(2), AHMEDABAD / / PAN/GIR NO. : AAACL0709Q ( APPELLANT ) (IN M.A. RESPONDENT ) .. ( RESPONDENT ) (IN M.A. APPLICANT ) / APPELLANT BY : SHRI VIDHUT TRIVEDI, JCIT / RESPONDENT BY : SHRI MUKESH PATEL, A.R. DATE OF HEARING 15/11/2019 !'# / DATE OF PRONOUNCEMENT 19/11/2019 / O R D E R PER PRADIP KUMAR KEDIA - AM: THE CAPTIONED MISCELLANEOUS APPLICATION HAS BEEN FI LED AT THE INSTANCE OF REVENUE SEEKING RECTIFICATION OF ORDER DATED 09.05.2018 PASSED BY THE TRIBUNAL UNDER S. 254(1) OF THE ACT. 2. WHEN THE MATTER WAS CALLED FOR HEARING, THE LEAR NED DR FOR THE REVENUE REFERRED TO THE MISCELLANEOUS APPLICATION A ND ESSENTIALLY M.A. NO. 282/AHD/18 [DCIT VS. M/S. LIVA HEALTHCARE LTD.] A.Y. 2011-12 - 2 - SUBMITTED THAT THE ITAT HAS ERRONEOUSLY ADJUDICATED THE CLAIM OF EXPENDITURE INCURRED BY THE ASSESSEE ON OVERSEAS TR AVEL OF DOCTORS IN FAVOUR OF THE ASSESSEE ON THE GROUNDS OF COMMERCIAL EXPEDIENCY AND BUSINESS NECESSITY OF SUCH EXPENDITURE WITHOUT TAKI NG INTO ACCOUNT THE DECISION OF THE CO-ORDINATE BENCH IN ASSESSEES OWN CASE IN ITA NO. 904/MUM/2013 CONCERNING AY 2009-10 . THE LEARNED DR THUS SUBMITTED THAT THE DECISION OF THE TRIBUNAL IN FAVOUR OF THE ASSESSEE IN AY 2011- 12 IN QUESTION IS IN CONSISTENT WITH THE VIEW EXPRE SSED IN AY 2009-10. IT WAS THUS SUBMITTED THAT THE ORDER OF THE TRIBUNA L SHOULD BE RECALLED AND THE CLAIM OF EXPENDITURE SHOULD BE DISALLOWED B Y APPLYING THE OBSERVATIONS IN AY 2009-10. 3. THE LEARNED AR, ON THE OTHER HAND, RELIED UPON T HE ORDER OF THE TRIBUNAL PASSED UNDER S.254(1) OF THE ACT SOUGHT TO BE RECTIFIED BY THE REVENUE. 4. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MAD E AS WELL AS PERUSED THE ORDER OF THE TRIBUNAL IN ITA NO. 2914/AHD/2014 AY 2011- 12 IN QUESTION. WE FIND THAT THE TRIBUNAL WHILE PASS ING THE ORDER UNDER S.254(1) OF THE ACT HAS REFERRED TO THE DECISION OF THE CO-ORDINATE BENCH IN ASSESSEES OWN CASE RELEVANT TO AY 2010-11 IN ITA NO. 4791/MUM/2014 AND FOLLOWED THE OPINION OF THE CO-ORDINATE BENCH OF FIRST PRINCIPLES. HOWEVER, THE ISSUE WAS REMITTED BACK TO THE FILE OF THE AO FOR EXAMINATION OF CERTAIN FACTUAL DETAILS. IN THE SCENARIO, IT IS DIFFICULT TO ACCEPT THE PLEA RAISED ON BEHALF OF TH E REVENUE THAT THE ORDER PASSED BY THE ITAT UNDER S.254(1) OF THE ACT SUFFERS FROM ANY APPARENT MISTAKE PER SE AND CONSEQUENTLY, SUSCEPTIBLE TO RECTIFICATION UNDER S.254(2) OF THE ACT. WE SEE NO ERROR IN THE ORDER OF THE TRIBUNAL FAR LESS ANY APPARENT ERROR WHILE DETERMINING THE I SSUE. THE TRIBUNAL HAS FOLLOWED THE VIEW EXPRESSED IN THE PRECEDING AS SESSMENT YEAR AND SET ASIDE THE ISSUE TO THE FILE OF THE AO FOR FACTU AL VERIFICATION TOWARDS INCURRING OF EXPENDITURE FOR BUSINESS PURPOSES. SU CH DIRECTIONS OF THE M.A. NO. 282/AHD/18 [DCIT VS. M/S. LIVA HEALTHCARE LTD.] A.Y. 2011-12 - 3 - TRIBUNAL ARE APPARENTLY GIVEN AFTER OBJECTIVE ANALY SIS OF THE CIRCUMSTANCES EXISTING IN THE CASE. A REVIEW OF SUC H FINDINGS IS NOT PERMISSIBLE UNDER S.254(2) OF THE ACT IN THE GARB O F RECTIFICATION OF MISTAKE. THE APPLICATION SEEKING RECTIFICATION IS T HUS NOT MAINTAINABLE IN THE ABSENCE OF ANY APPARENT MISTAKE PER SE. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE REVENUE IS DISMISSED. SD/- SD/- (MADHUMITA ROY) (PRADIP KUMAR KEDIA) JUDICIAL MEMBER ACCOUNTANT M EMBER AHMEDABAD: DATED 19/11/2019 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- & / REVENUE 2 / ASSESSEE ( ) *+ , / CONCERNED CIT 4 ,- / CIT (A) / 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7 289 : / GUARD FILE. BY ORDER / 4 / 5 *+#4 56) THIS ORDER PRONOUNCED IN OPEN COURT ON 19/11/201 9