MERCK LIMITED, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX RANGE 6(3), MUMBAI

MA 292/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0420 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-11-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: K
• Assessment Year: 2009-2010
• Appeal Filed On: 09-06-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH J, MU MBAI BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER M.A NO. 292/MUM/2017 IN ITA NO.1946/MUM/2014 FOR AS SESSMENT YEAR: 2009-10 MERCK LIMITED, SHIVASAGAR ESTATE A, DR. ANNIE BESANT ROAD, WORLI, MUMBAI 400 018 PAN: AAACE2616F VS. THE DY. CIT, RANGE - 6 (3) MUMBAI. (APPELLANT) (RESPONDENT) M.A NO. 293/MUM/2017 IN ITA NO.1222/MUM/2017 FOR AS SESSMENT YEAR: 2010-11 MERCK LIMITED, SHIVASAGAR ESTATE A, DR. ANNIE BESANT ROAD, WORLI, MUMBAI 400 018 PAN: AAACE2616F VS. THE DY. CIT, RANGE - 7(2)(1) MUMBAI. (APPELLANT) (RESPONDENT) ASSESSEE BY : MS. ARATI VISSANJI(AR) REVENUE BY : DR. SHANTESHAR SWAMI (DR) DATE OF HEARING : 16.11.2018 DATE OF PRONOUNCEMENT : 27.11.2018 ORDER UNDER SECTION 254(2) OF INCOME-TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THESE TWO MISCELLANEOUS APPLICATIONS (MAS) ARE FILE D BY ASSESSEE FOR SEEKING RECTIFICATION OF ALLEGED MISTAKES IN COMMON ORDER D ATED 31.03.2016 PASSED IN ITA NO. 1946/MUM/2014, AND 1222/MUM/2015 FOR ASSES SMENT YEARS 2009-10 AND 2010-11 RESPECTIVELY. 2. IN THE M.A. NO. 292/MUM/2017 THE APPLICANT / ASSESS EE CONTENDED THAT WHILE PASSING THE ORDER DATED 31.03.2016, IN PARA 14 OF T HE ORDER IT WAS DIRECTED TO QUANTITATIVE FILTER OF 20 K.G IS NOT PRACTICALLY WO RKABLE. THE LD. AR OF THE 2 M.AS.NO. 292 & 293/MUM/2017- MERCK LIMITED ASSESSEE SUBMITS THAT THE SINGLE COMPARABLE INSTANC E IS THE SALE OF 1 K.G OF BISOPROLOL BY UNICHEM IN THE DOMESTIC MARKET, WAS F URNISHED AS PER DETAILS OF PROVIDED AS PER PAGE NO. 884 OF THE PAPER BOOK. TH E LD. AR SUBMITS THAT THE DIRECTION IN THE ORDER MAY BE MODIFIED TO ASIAN MAR KETS OR CUP METHOD MAY BE APPLIED IN THE CASE OF ASSESSEE. 3. THE SECOND CONTENTION OF THE LD. AR OF THE ASSESSEE IS WITH REGARD TO GROUND NO. 3, WHICH RELATES TO DISTRIBUTION OF SAMPLE AND STOCK. THE TRIBUNAL WHILE DECIDING THE APPEAL SET ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER ON THE BASIS OF DECISION OF TRIBUNAL IN THE A.Y 2007-08. THE LD. AR OF THE ASSESSEE SUBMITS THAT DURING THE COURSE OF HEARING IT WAS PO INTED OUT IN THE CASE OF JONSON & JONSON IN ITA NO. 83/MUM/2011 THE CO-ORDIN ATE BENCH OF TRIBUNAL DISALLOWED ONLY 2% OF COST OF SAMPLE DISTRIBUTED TO THE PHYSICIANS, COPY OF THE ORDER WAS ALSO FURNISHED VIDE PAGE NO. 154 TO 157 O F THE PAPER BOOK. THE LD. AR FURTHER SUBMITS THAT FULL DETAILS OF SAMPLE DIST RIBUTED WERE PROVIDED. THE MATTER WAS RESTORED IN ASSESSMENT YEAR 2003-04 AND 2007-08 AS NO COMPLETE DATA WAS FURNISHED. THE TRIBUNAL HAS NOT CONSIDERE D THE FACTUAL DIFFERENCES IN THE YEAR UNDER CONSIDERATION. THE LD. AR OF THE ASS ESSEE PRAYED FOR MODIFICATION OF DIRECTION IN RESPECT OF GROUND NO. 2.2 AND GROUND NO. 3. 4. ON THE OTHER HAND THE LD. DR FOR THE REVENUE SUBMIT S THAT THE CONTENTION RAISED IN THE MA AND THE SUBMISSIONS MADE BY THE LD. AR OF THE ASSESSEE ARE BEYOND THE SCOPE OF SEC. 254(2) OF THE ACT. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF BOTH TH E PARTIES AND HAVE PERUSED THE ORDER DATED 31.03.2016. PERUSAL OF ORDER DATED 31.03.2016 SHOWS THAT THE ORDER WAS PASSED AFTER CONSIDERING THE SUBMISSION, THE MATERIAL AVAILABLE ON 3 M.AS.NO. 292 & 293/MUM/2017- MERCK LIMITED RECORD AND ON THE BASIS ORDER OF TRIBUNAL IN EARLIE R YEARS. THE SUBMISSIONS MADE BY LD. AR OF THE ASSESSEE ARE BEYOND THE SCOPE OF SEC. 254(2) OF THE ACT. THE POWER OF TRIBUNAL U/S 254(2) IS RESTRICTED TO T HE MISTAKE APPARENT ON RECORD. IN OUR VIEW, THE LD. AR OF THE ASSESSEE FAILED TO B RING IN OUR NOTICE THE MISTAKE APPARENT WHICH MAY BE CONSIDERED AS MISTAKE APPAREN T ON RECORD. UNDER THE GARB OF APPLICATION FOR RECTIFICATION, WE CANNOT SU BSTITUTE THE FINDING OF THE ORDER. THEREFORE, THE CONTENTION RAISED IN THE APPL ICATION IS DISMISSED. IN MA NO. 293/MUM/2017 IN ITA NO. 1222/MUM/2015 6. THE ASSESSEE HAS RAISED THE CONTENTION WITH RECORD TO DISTRIBUTION OF FREE SAMPLE. WE HAVE NOTED THAT THE ASSESSEE HAS RAISED SIMILAR CONTENTION IN MA 292/MUM/2017, WHICH WE HAVE ALREADY REJECTED, THERE FORE, CONSIDERING THE PRINCIPLE OF ACCOUNTANCY THE CONTENTION RAISED IN T HIS APPLICATION ALSO REJECTED. IN THE RESULT BOTH THE MAS FILED BY THE ASSESSEE AR E DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27 TH NOVEMBER 2018 SD/- SD/- ( R.C. SHARMA ) (PAW AN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 27/11/2018 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/