UTTAM GALVA STEEL LTD., MUMBAI V. ITO 7(3)(2), MUMBAI

MA 292/MUM/2016

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 5571 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: K
• Assessment Year: 2007-2008
• Appeal Filed On: 30-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T A KHAN
• Assessee Lawyers: DR K SHIVARAM

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL K , BENCH MUMBAI BEFORE SHRI R.C.SHARMA, HONBLE A CCCOUNTANT MEMBER SHRI AMARJIT SINGH , HONBLE JUDICIAL MEMBER M A NO. 292 / MUM /20 16 (ARISING OUT OF ITA NO. 3438 / MUM /2012 ) ( ASSESSMENT YEAR : 2007 - 08 ) M/S. UTTAM GALVA S TEEL LTD., UTTAM HOUSE, 69, P.DMELLO ROAD, CARNAC BUNDER, MUMBAI 400 009 VS. INCOME TAX OFFICER CIRCLE 7 (3)(2) AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020 PAN/GIR NO. AAACU 1710 C APPELLANT .. RESPONDENT ASSESSEE BY SHRI DR. K. SHIVARAM REVENUE BY SHRI T.A. KHAN DATE OF HEARING 24 / 11 /201 7 DATE OF PRONOUNCEME NT 27 / 11 /201 7 / O R D E R PER R.C.SHARMA (A.M) : THIS M.A. AROSE OUT OF ITA NO. 3438/MUM/2012 O RDER OF TRIBUNAL DATED 18.12.2013 . 2. THROUGH THIS MISCELLANEOUS APPLICAT ION, IT WAS SUBMITTED BY THE LEARNED AR THAT , THE HONBLE TRIBUNAL IN PARA 17 PAGE 14 - 15, BY HOLDING THAT GUARANTEE COMMISSION SHOULD F RO M PART OF THE ALP HAS ENHANCED THE INCOME THOUGH THE TRIBUNAL HAS NO POWER OF ENHANCEMENT AND THEREBY COMMITTED MISTAKE APPARENT ON RECORD. THUS, ASSESSEE HAS BEEN PUT INTO A WORSE SITUATION THAN WHAT IT WAS AT THE TIME OF ORIGINAL ASSESSMENT. FURTHER, NO MA NO.292/MUM/2016 M/S. UTTAM GALVA STEEL LTD ., 2 GROUND OF APPEAL BEFORE THE TRIBUNAL WAS WITH RESPECT TO GUARANTEE COMMISSION AND HENCE THE TRIBUNAL COMMITTED MISTAK E APPARENT ON RECORD BY HOLDING THAT GUARANTEE COMMISSION SHOULD BE PART OF THE ARMS - LENGTH PRICE. 3. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND GONE THROUGH T HE ORDER OF THE TRIBUNAL AND FOUND THAT THE TPO BY HIS ORDER DATED 11.08.2010 U//S.92CA(3) DETERM INED THE ALP BY MAKING AN ADJUSTMENT OF RS.17,81,06,522/ - TO THE TOTAL INCOME OF THE ASSESSEE. HOWEVER NO ADJUSTMENT OF GUARANTEE COMMISSION WAS MADE BY THE TPO. THE ORDER OF TPO WAS CONFIRMED BY THE CIT(A) BY ORDER DATED 07.03.2012. THE HONBLE TRIBUN AL VIDE ORDER DATED 18.12.2013 SET - ASIDE THE ORDER OF THE CIT(A) ON THIS ISSUE TO THE FILE OF THE A.O . / TPO FOR WANT OF FRESH ASSESSMENT AFTER CONSIDERING THE DIRECTIONS CONTAINED IN THE ORDER. ONE OF THE DIRECTION WAS REGARDING CONSIDERATION OF GUARANTE E COMMISSION WHILE DETERMINING THE ALP. THOUGH THE TPO HAD MADE NO ADJUSTMENT WITH RESPECT TO GUARANTEE COMMISSION WHILE DETERMINING THE ALP. THUS, THE HONBLE TRIBUNAL IN PARA NO. 17 PAGE S 14 - 15, BY HOLDING THAT GUARANTEE COMMISSION SHOULD F R O M PART OF THE ALP HAS ENHANCED THE INCOME THOUGH THE TRIBUNAL HAS NO POWER OF ENHANCEMENT AND THEREBY COMMITTED MISTAKE APPARENT ON RECORD. IN VIEW OF THE ABOVE WE EXPUNGE THE GUARANTEE COMMISSION FROM THE PARA NO.17 OF THE ORDER S. WE DIRECT ACCORDINGLY. MA NO.292/MUM/2016 M/S. UTTAM GALVA STEEL LTD ., 3 4. IN THE RESULT , MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED . O RDER PRONOUNCED IN THE OPEN COURT ON THIS 27 / 11 /2017 SD/ - (AMARJIT SINGH) JUDICIAL MEMBER SD/ - ( R.C.SHARMA) ACCOUNTANT MEMBER MUMBAI ; DATED 27 / 11 /201 7 GIR IDHAR SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER, ( ASSTT. REGISTRAR) ITAT, MUMBAI