Carbonaire Industries Madras Pvt Ltd., CHENNAI V. DCIT Corporate Circle 1(2), CHENNAI

MA 306/CHNY/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3449 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 7 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-07-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 21-07-2022
• Assessment Year: 2009-2010
• Appeal Filed On: 10-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

आयकर अपीलीय अिधकरण, ‘डी’ यायपीठ, चे ई IN THE INCOME TAX APPELLATE TRIBUNAL ‘D’ BENCH, CHENNAI ीमहावीर सह, उपा य एवं ी मनोज कुमार अ वाल, लेखा सद"यके सम BEFORE SHRI MAHAVIR SINGH, VICE PRESIDENT AND SHRI MANOJ KUMAR AGGARWAL, ACCOUNTANT MEMBER Miscellaneous Application No.306/Chny/2019 [In I.T.A. No.861/CHNY/2018] Assessment Year: 2009 - 2010 M/s. Carbonaire Industries Madras Private Limited, No.207 (Old No.129)., St. Mary’s Road, Alwarpet,Chennai – 600 018. PAN : AAACC 4731H Vs. The Deputy Commissioner of Income Tax, Corporate Circle – 1(2), Chennai (अपीलाथ /Appellant) ( यथ /Respondent) अपीलाथ क ओर से/Appellant by : Mr. T. Vasudevan, Advocate यथ क ओर से/Respondent by : Mr. Hema Bhupal, JCIT सुनवाई क तारीख/Date of Hearing : 22.07.2022 घोषणा क तारीख/Date of Pronouncement : 22.07.2022 आदेश आदेशआदेश आदेश /O R D E R PER MAHAVIR SINGH, VP: By way of this Miscellaneous Application, the Assessee has requested for recalling of the Tribunal’s Order qua Ground No.7 read with Ground No.2. The learned Counsel for the Assessee referred to Ground No.2 and 7 that reads as under: “2. The CIT(A) erred in dismissing the appeal without adjudicating the issue of the claim of the Assessee for deduction u/s.10B. :: 2 :: M.A. No.306Chny/2019 [In I.T.A. No.861/Chny/2018] 7. The CIT(A) further failed to appreciate that the Assessee having clearly exhibited that staff salary, gratuity, keyman insurance and interest- others are expanded as part of the DTA unit and do not pertain to the EOU unit, ought to have upheld the claim of the Assessee u/s.10B and the powers of CIT(A) being co-terminus with that of the Officer, was not justified in refusing to adjudicate this issue raised in the appeal.” 2. The learned Counsel for the Assessee first of all took us through the original order of the Tribunal in I.T.A. No.312?Mds/2014, order dated 31.10.2014. wherein the Tribunal has set aside the issue to the file of the Assessing Officer for computing the deduction u/s.10B of the Act as under: “10. Ground No.(iv): Consequential relief u/s.10B of the Act pursuant to the adjudication of Ground Nos.(i), (ii) and (iii) herein above. This ground raised by the Assessee is identical to the ground No.(iii) for the assessment year 2008-2009 and the same decision is applicable for the relevant assessment year also. Accordingly, this ground raised by the Assessee being consequential in nature is allowed in its favour as such.” 2.1 The learned Counsel for the Assessee thereafter took us through the order of the Assessing Officer giving appeal effect to the order of the Tribunal passed u/s.143(3) r.w.s.254 of the Income Tax Act, 1961 (hereinafter “the Act”), vide order dated 28.01.2016, wherein the Assessing Officer has computed the deduction and has not considered the issue of shifting of common :: 3 :: M.A. No.306Chny/2019 [In I.T.A. No.861/Chny/2018] expenses from DTA to EOU and the relevant computation of deduction u/s.10B of the Act and the relevant portion of computation reads as under: Computation of Deduction u/s.10B : Description As per Order dated 27.12.2011 As per ITAT Direction Shifting of common expenses from DTA to EOU (-)1,08,71,239 (-) 1,08,71,239 2.2. Learned Counsel for the Assessee stated that even the Commissioner of Income Tax (Appeals) has not at all considered this issue and decided the issue vide paragraph No.7 and 8, and in paragraph No.8 had specifically stated that the Assessee has neither raised any ground before the Income Tax Appellate Tribunal [ITAT] challenging the allocation of common expenses on the basis of the turnover of the EOU, nor there is any finding of the Tribunal and hence the Assessee cannot raise any grievance. Aggrieved, the Assessee preferred an appeal before the Income Tax Appellate Tribunal and that the above Ground Nos.2 & 7 were specifically raised before the ITAT but the Tribunal has not at all adjudicated this issue. :: 4 :: M.A. No.306Chny/2019 [In I.T.A. No.861/Chny/2018] 2.3 The learned Counsel for the Assessee specifically took us through the original assessment order where incorrect allocation of common expenses between the DTA and EOU raised were not at all adjudicated by the Tribunal, even in the second round of hearing. The relevant quantum expenses reads as under: Incorrect allocation of common expenditure between DTA and EOU: Description Amount Staff Salary 15,45,641 Staff Gratuity 18,22,570 Keyman Insurance 29,01,461 Interest – Others 21,39,163 Total 84,08,835 2.4 The learned Counsel for the Assessee stated that only the four above-mentioned expenses are to be considered afresh in view of the specifically raised Ground Nos.2 & 7. 3. When these facts were confronted to the learned Senior Departmental Representative, he could not confront to the above factual situation. 4. After hearing both the sides and on going through the facts and circumstances of the case, we are of the view that the ground raised by the Assessee regarding the allocation of common expenses as noted above in paragraph No.2.3 and now :: 5 :: M.A. No.306Chny/2019 [In I.T.A. No.861/Chny/2018] raised by way of Ground No.2 read with Ground No.7 needs adjudication. Hence, qua these two grounds, the order of the ITAT dated 24.09.2019 is recalled. The appeal is fixed for hearing on 05.09.2022 before “C” Bench. Since the order of the Miscellaneous Application is pronounced in the open court, no separate notice shall be served to either party. 5. In the result, the Miscellaneous Applications in M.A. No.306 /Chny/2019 of the Assessee is allowed. Order pronounced in the court on 22 nd July, 2022 at Chennai. Sd/- Sd/- (मनोज कुमार अ वाल) (MANOJ KUMAR AGGARWAL) लेखा सद य/ACCOUNTANT MEMBER (महावीर िसंह ) (MAHAVIR SINGH) उपा य /VICE PRESIDENT चे ई/Chennai, दनांक/Dated, the 22 nd July, 2022 IA, Sr. PS आदेश की ितिलिप अ ेिषत/Copy to: 1. अपीलाथ /Appellant 2. थ /Respondent 3. आयकर आयु (अपील)/CIT(A) 4. आयकर आयु /CIT 5. िवभागीय ितिनिध/DR 6. गाड" फाईल/GF