HERRENKNECHT AG, NEW DELHI V. DCIT INTERNATIONAL TAXATION 1(2), CHENNAI

MA 29/CHNY/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4957 (ITAT-CHENNAI)
• Duration Of Justice: 4 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-03-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2015-2016
• Appeal Filed On: 31-10-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Set aside

Judgement Text

Miscellaneous Application No.29/Chny/2021 (in ITA No.3068/Chny/2018) िनधा रण वष /Assessment Year: 2015-16 M/s.Herrenknecht AG, S-268 LGF, Greater Kailash-I, New Delhi-110 048. v. The Dy. Commissioner of Income Tax, International Taxation – Circle-1(2), Chennai. [PAN: AACCH 4421 M] (अपीलाथ /Appellant) ( यथ /Respondent) अपीलाथ क ओर से/ Appellant by : Mr.T.Banusekar, CA यथ क ओर से /Respondent by : Mr.P.Sajit Kumar, JCIT सुनवाई क तारीख/Date of Hearing : 18.03.2022 घोषणा क तारीख /Date of Pronouncement : 18.03.2022 आदेश / O R D E R PER G. MANJUNATHA, ACCOUNTANT MEMBER: The assessee has filed present Miscellaneous Application against the order of the Tribunal in ITA No.3068/Chny/2018 dated 11.06.2021 for assessment year 2015-16. 2. The assessee has narrated the facts and mistakes stated to be apparent on record from the order of the Tribunal dated 11.06.2021 and the relevant contents of Miscellaneous Application filed by the assessee, are reproduced as under: आयकर अपीलीय अिधकरण, ’डी’ यायपीठ, चे ई। IN THE INCOME TAX APPELLATE TRIBUNAL ‘D’ BENCH: CHENNAI ी वी. दुगा राव, माननीय ाियक सद एवं ी जी. मंजूनाथा, माननीय लेखा सद के सम BEFORE SHRI V. DURGA RAO, HON’BLE JUDICIAL MEMBER AND SHRI G. MANJUNATHA, HON’BLE ACCOUNTANT MEMBER MA No.29/Chny/2021 (in ITA No.3068/Chny/2018) :: 2 :: The petitioner had filed an appeal in ITA No.3068/Chny/2018 for the assessment year 2015-16 against the order of the Commissioner of Income Tax (Appeals) before the Hon'ble Income Tax Appellate Tribunal. The Hon'ble Income Tax Appellate Tribunal disposed of the appeal vide order dated 11.06.2021. It is submitted that the following error is apparent from the said order of the Hon'ble Income Tax Appellate Tribunal in ITA No.3068/CHNY/2018. 1. It is submitted that the following ground raised by the petitioner was inadvertently omitted to be adjudicated by the Hon'ble Income Tax Appellate Tribunal: "Ground No-4 Double Disallowance of Rs.52,11,040/- The CIT(A) erred in disallowing an amount of Rs.52,11,040/- twice, 1st as External Service of Rs.52,11,0407- and then again in Rs.77,39,322/- under expenses incurred by Head Office. The appellant respectfully prays that the directions of CIT(A) to the AO be quashed and AO be directed to allow the expenses of Rs.52,11,040/-. It is humbly submitted that the Hon'ble Income Tax Appellate Tribunal at Para 6 of Page No.9 while discussing about ground no.3 has at line 6 states "The assessee further claims that out of total expenses disallowed by the assessee of Rs.77,39,322/- a sum of Rs.52,11,040/- disallowed by the Assessing Officer under External service charges was also included". However, the Hon'ble Income Tax Appellate Tribunal has not made any specific adjudication of ground no.4 with regard to the double disallowance of Rs.52,11,040/-. It is humbly submitted that failure to adjudicate the said ground, amounts to a mistake apparent on record u/s.254(2) of the Income Tax Act, 1961. Therefore, the petitioner most humbly prays for recalling the order to the extent for adjudicating ground no.4 and for considering this issue in the order of the Hon'ble Income Tax Appellate Tribunal in ITA No.3068/CHNY/2018 for the assessment year 2015-16, dated 11.06.2021. 3. The Ld.AR for the assessee referring to Miscellaneous Application filed by the assessee submitted that the assessee has taken specific Ground No.4 challenging disallowance made by the AO towards external service charges of Rs.52,11,040/-, which has already been included in total expenses disallowed by the AO of Rs.77,39,322/- and thus, it amounts to double disallowance. Although, the Tribunal has noted this fact in Para No.6 of its order, but does not given any findings on the arguments made MA No.29/Chny/2021 (in ITA No.3068/Chny/2018) :: 3 :: by the assessee which constitutes mistake apparent from the record, which can be rectified u/s.254(2) of the Act and thus, requested to recall the order, qua, the Ground No.4 of the assessee’s appeal. 4. The Ld.DR, on the other hand, submitted that the assessee has failed to make out a case of mistake apparent on record, in the order of the Tribunal which can be rectified u/s.254(2) of the Act and thus, Miscellaneous Application filed by the assessee may be dismissed. 5. We have heard both sides and considered the Miscellaneous Application filed by the assessee and we find that the Tribunal has set aside the issue of disallowances made by the AO towards total expenses, including expenses under external service charges amounting to Rs.77,39,322/- and direct the AO to re-consider the issue afresh in light of claim of the assessee that said payment is reimbursement of expenses to Head Office for allocation/apportionment of expenses to various Branch Offices. Since, the issue, in total, has been set aside to the file of the AO, we are of the considered view that specific Ground No.4 taken by the assessee on the issue of disallowance of external service charges separately, is also considered by the Tribunal and direct the AO to re- examine the claim of the assessee. Therefore, we are of the considered view that there is no error in the order of the Tribunal dated 11.06.2021 and thus, in our considered view Miscellaneous Application filed by the MA No.29/Chny/2021 (in ITA No.3068/Chny/2018) :: 4 :: assessee on the issue of non-adjudication of Ground No.4, devoid of merits and thus, Miscellaneous Application filed by the assessee is dismissed. 6. In the result, the Miscellaneous Application filed by the assessee is dismissed. Order pronounced on the 18 th day of March, 2022, in Chennai. Sd/- (वी. दुगा राव) (V. DURGA RAO) याियक सद य/JUDICIAL MEMBER Sd/- (जी. मंजूनाथा) (G. MANJUNATHA) लेखा सद य/ACCOUNTANT MEMBER चे ई/Chennai, दनांक/Dated: 18 th March, 2022. TLN आदेश क ितिलिप अ ेिषत/Copy to: 1. अपीलाथ /Appellant 4. आयकर आयु"/CIT 2. यथ /Respondent 5. िवभागीय ितिनिध/DR 3. आयकर आयु" (अपील)/CIT(A) 6. गाड फाईल/GF