VIDESH CARBON (P) LTD, V. ITO WD 7(3)(1),

MA 319/MUM/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2614 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-12-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2007-2008
• Appeal Filed On: 26-06-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIVEK PERAMPUNA
• Assessee Lawyers: R C JAIN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUM BAI , BEFORE SHRI D. MANMOHAN, VP AND SHRI SANJAY ARORA, AM !'!'# $' ./MA NO. 319/MUM/2014 (ARISING OUT OF ITA NO. 5872/MUM/2012) ( / ASSESSMENT YEARS: 2007-08) VISHESH CARBON PVT. LTD. 77/83, J. K. CHAMBERS, NAGDEVI STREET, MASJID, MUMBAI-400 003 % VS. INCOME TAX OFFICER, WARD 7(3)(1), ROOM NO. 616, 6 TH FLOOR, AAYKAR BHAWAN, MUMBAI-400 020 &%$'$ ./PAN/GIR NO. AAACV 9557 C ( APP LICANT ) : ( RESPONDENT ) APPLICANT BY : SHRI R. C. JAIN RESPONDENT BY : SHRI VIVEK PERAMPUNA ( ')*+, / DATE OF HEARING : 19.09.2014 -./*+, / DATE OF PRONOUNCEMENT : 12.12.2014 $0% O R D E R PER SANJAY ARORA, A. M.: THIS IS A MISCELLANEOUS PETITION BY THE ASSESSEE AR ISING OUT OF THE TRIBUNALS ORDER IN THE CAPTIONED APPEAL DATED 28.05.2005, DIS MISSING ITS APPEAL. 2. THE ASSESSEE HAS NOW MOVED AN APPLICATION STATIN G THAT WHILE RELIANCE STOOD PLACED BY IT ON PARA 8 OF THE TRIBUNALS ORDER IN GOYAL INDUSTRIES VS. DY. CIT (IN ITA NO. 702/AHD/2008 DATED 28.05.2010), THE TRIBUNAL IN THE IMPUGNED ORDER HOWEVER ADVERTS TO 2 MA NO. 319/MUM/2014 (A.Y. 2007-08) VISHESH CARBON PVT. LTD. VS. ITO THE INSTEAD PARAS 9 TO 11 THEREOF. THE FACTS OF ITS CASE WERE SIMILAR TO THAT BEFORE THE TRIBUNAL QUA THE DISALLOWANCE DISCUSSED BY IT VIDE PARA 8. TO TH IS EXTENT, THEREFORE, A MISTAKE HAS OCCURRED AT THE END OF THE TRIBUNAL, AN D WHICH THEREFORE NEEDS TO BE RECTIFIED, AMENDING ITS ORDER ACCORDINGLY. THE REVENUE, THROUGH THE LD. DEPARTMENTAL REPRESENT ATIVE (DR), ON THE OTHER HAND, DEFENDS THE IMPUGNED ORDER, SUBMITTING THAT T HERE IS NO INFIRMITY IN THE IMPUGNED ORDER, WHICH IS PASSED CONSIDERING THE ASSESSEES R ELIANCE ON THE CITED DECISION. THERE IS NOTHING TO INDICATE THAT THE TRIBUNAL WAS NOT AWARE OF PARA 8 OF THE SAID ORDER. IT HAD TAKEN A CONSCIOUS DECISION IN THE MATTER, FURTHER RELYING ON PARAS 9 TO 11 OF THE SAID ORDER. 3. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. WE ARE COMPLETELY UNABLE TO APPRECIATE THE ASSESSEE S CASE. DOES IT THEREFORE MEAN TO SAY THAT THE ORDER BY THE TRIBUNAL RELIED U PON IS INTERNAL INCONSISTENT IN-AS-MUCH AS RELIANCE ON ITS DIFFERENT PARAS GIVES RISE TO DI FFERENT RESULTS! WAS THE RELIANCE ON PARA 8 OF THE SAID ORDER TO THE EXCLUSION OF THE OTHER PAR AS THEREOF? THE ONLY THING SIMILAR BETWEEN THE ASSESSEES CASE AND THAT DISCUSSED BY T HE TRIBUNAL VIDE PARA 8 OF THE ORDER RELIED UPON, IS NATURE OF THE EXPENDITURE QUA THE DISALLOWANCE WHEREOF PENALTY U/S. 271(1)(C) STANDS LEVIED, I.E., TRAVEL EXPENDITURE. THAT BY ITSELF WOULD BE OF LITTLE CONSEQUENCE; THE DECISION IN RESPECT OF THE LEVY OR OTHERWISE OF PENALTY BEING DEPENDENT ON THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF T HE CASE, INCLUDING THE ASSESSEE PROVING (OR NOT SO) THE EXPENDITURE CLAIMED; FURNISHING AN EXPLANATION IN ITS RESPECT, WHICH IT SUBSTANTIATES, I.E., IRRESPECTIVE OF THE NATURE OF THE EXPENDITURE. THE DISALLOWANCE IN THE SAID CASE WAS ON ACCOUNT OF THE INABILITY TO PRODUC E EVIDENCE ABOUT THE NATURE OF THE MEETINGS AND PERSONS WHO ATTENDED THE SAME (REFER P ARA 8, PG. 4 OF THE SAID ORDER). THE DISALLOWANCE IN THE INSTANT CASE, ON THE OTHER HAND , IS ON ACCOUNT OF A COMPLETE FAILURE ON THE PART OF THE ASSESSEE TO FURNISH THE PRIMARY EVI DENCES, MUCH LESS ESTABLISHING THE BUSINESS PURPOSE OF THE FOREIGN VISIT, TOWARD WHICH THE EXPENDITURE IS CLAIMED TO BE INCURRED (REFER PARAS 2 AND 3.3 OF THE IMPUGNED ORD ER). THE TRIBUNAL, ACCORDINGLY, WAS UNMOVED BY THE ASSESSEES SAID RELIANCE. 3 MA NO. 319/MUM/2014 (A.Y. 2007-08) VISHESH CARBON PVT. LTD. VS. ITO FURTHER ON, STATING THE POSITION OF LAW IN THE MATT ER (VIDE PARA 3.2 OF ITS ORDER), IT FURTHER FOUND THE ASSESSEES EXPLANATION TO BE ALSO TOTALLY UNSUBSTANTIATED, SO THAT EXPLANATION 1(B) TO SECTION 271(1)(C) WAS ATTRACTED. THE DISCUS SION AND THE FINDINGS BY THE TRIBUNAL IN RESPECT OF THE SECOND DISALLOWANCE, I.E., QUA WHICH LEVY OF PENALTY STOOD CONFIRMED BY IT IN THE CITED CASE, WAS, ON THE CONT RARY, FOUND BY THE TRIBUNAL TO BE APPLICABLE IN THE FACTS OF THE PRESENT CASE, SO THA T THE SAME IN EFFECT SUPPORTED THE STAND OF THE REVENUE, AS INDEED IT DID IN THAT CASE QUA THE SAID DISALLOWANCE. HENCE THE REFERENCE TO PARAS 9 TO 11 - WHEREAT THE SAME FINDS STATEMENT , OF THE SAID ORDER, IN THE IMPUGNED ORDER. INSTEAD OF, THEREFORE, REALIZING ITS RELIA NCE TO BE MISPLACED, OR, RATHER, MISLEADING, I.E., CONSIDERING THAT THE TRIBUNAL, PER THE SAID O RDER ITSELF (VIDE PARAS 9 TO 11), HAD EXPLAINED THE CORRECT POSITION OF LAW - MUCH IN THE SAME MANNER AS IT DOES IN THE INSTANT CASE AND, IN FACT, ACTUALLY APPLIED THE SAME WHERE THE FACTS AND CIRCUMSTANCES SO WARRANTED, AS QUA THE SAID SECOND DISALLOWANCE, THE ASSESSEE-APPLICA NT FINDS A MISTAKE WITH THE TRIBUNALS ADVERTING TO SAID PARAS OF THE SAID ORDER. THE SAID REFERENCE IS IN FACT ONLY SUPPORTIVE; THE TRIBUNAL ISSUING DEFINITE FIND INGS OF FACT IN ADJUDICATING THE MATTER BEFORE IT. PARAS 3.2 AND 3.3 DELINEATE ITS UNDERSTA NDING OF LAW AS WELL AS ITS DECISION IN THE FACTS OF THE CASE. THE SAME HAS NOT BEEN IMPUGN ED BY THE ASSESSEE IN ANY MANNER, WHICH EXPLAINS OUR STATING OF OUR COMPLETE LOSS IN APPRECIATING THE ASSESSEES CASE. UNDER THE CIRCUMSTANCES, WE FIND NO MISTAKE IN THE IMPUGN ED ORDER, MUCH LESS ONE RECTIFIABLE U/S. 254(2). WE, ACCORDINGLY, DECLINE ANY INTERFERE NCE. 4. IN THE RESULT, THE ASSESSEES MISCELLANEOUS APPL ICATION IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON DECEMBER 12, 2014 SD/- SD/- (D. MANMOHAN) (SANJAY ARORA) / VICE PRESIDENT / ACCOUNTANT MEMBER ( 1) MUMBAI; 2 DATED : 12.12.2014 '3% ROSHANI , SR. PS 4 MA NO. 319/MUM/2014 (A.Y. 2007-08) VISHESH CARBON PVT. LTD. VS. ITO ! ' #$%& ' &$ % COPY OF THE ORDER FORWARDED TO : 1. &4 / THE APPELLANT 2. 56&4 / THE RESPONDENT 3. $$ ( 7+ 8 9 / THE CIT(A) 4. $$ ( 7+ / CIT - CONCERNED 5. !':;53+3<# $,<#/ ( 1) / DR, ITAT, MUMBAI 6. ;=) % GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , ( 1) / ITAT, MUMBAI