ACIT, CIR 1, Mumbai V. ASB INTERNATIONAL PVT. LTD., AMBERNATH

MA 339/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6490 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-04-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2008-2009
• Appeal Filed On: 05-07-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: M C OMI NINGSHEN
• Keywords: Depreciation; Unabsorbed depreciation
• Section: 10B

Judgement Text

A IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER M A NO. 339/MUM/2017 ARISING OUT OF ITA NO . 551/MUM/2014 ASSESSMENT YEAR 2008 - 09 ASB INTERNATIONAL PVT. LTD. E - 9, ADDL. AMBERNATH IND. AREA, MIDC, ANANDNAGAR, AMBERNATH (E), THANE - 421506 PAN A AACA8424F V. ACIT - CIRCLE 1, 1 ST FLOOR, MOHAN PLAZA, WAYALE NAGAR , KHADAKPADA, KALYAN (W), THANE APPLICANT RESPONDENT APPLICANT BY SHRI. GIRI SH DAVE RESPONDENT BY SHRI M.C. OMI NING SHEN (DR) DATE OF HEARING : 20 - 04 - 2018 DATE OF PRONOUNCEMENT : 26 - 04 - 2018 ORDER PER RAMIT KOCHAR, ACCOUNTANT MEMBER BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE IS MAKING PRAYER FOR ADJUDICATION OF GROUND NO. 2 AND 5 RAISED BY THE ASSESSEE IN MEMO OF APPEAL FILED WITH THE INCOME - TAX APPELLATE TRIBUNAL , MUMBAI IN ITA NO 551/MUM/2014 FOR ASSESSMEN T YEAR 2008 - 09, WHICH READ S AS UNDER: '2. THE LEARNED CIT(A) ERRED IN NOT ADJUDICATING THE DECISION OF THE ASSESSING OFFICER WHEREBY HE HAS CONCLUDED THAT THE APPELLANT IS REQUIRED TO SET OFF BROUGHT FORWARD LOSSES AND UNABSORBED DEPRECIATION AND THEREAFTER CLAIM THE TAX HOLIDAY UNDER SECTION 10B. ::::::::: 5. THE LEARNED CIT(A) ERRED IN NOT ADJUDICATING THE GROUNDS RELATING TO THE RE - COMPUTATION OF PROFITS ELIGIBLE FOR TAX SA NO. 339 /MUM/2017 2 HOLIDAY UNDER SECTION 10B BY THE ASSESSING OFFICER TO RS. 7,90,17,563, WHIC H ARE AS UNDER: A. NOT ALLOWING DEDUCTION OF SERVICE INCOME OF RS. 21,81,604 AND EXCISE DUTY ON DTA SALES OF RS. 10,52,83,430 FROM THE TOTAL TURNOVER. B. ADDITION OF SALE OF SCRAP OF RS. 57,21,757 TO THE TOTAL TURNOVER. C. REDUCING FREIGHT CHARGES OF RS . 1,09,54,064 FROM THE EXPORT TURNOVER; WITHOUT PREJUDICE, THE SAME HAVE ALSO TO BE REDUCED FROM THE TOTAL TURNOVER. D. REDUCING INTEREST INCOME OF RS. 12,52,868 FROM BUSINESS PROFITS; WITHOUT PREJUDICE RS.5,41,541 HAS ALREADY BEEN OFFERE D FOR TAX. 2. IT IS THE SAY OF THE L D. COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE HAD FILED APPEAL IN ITA NO. 551/MUM/2014 FOR ASSESSMENT YEAR 2008 - 09 , WHEREIN AS MANY AS EIGHT GROUNDS WERE RAISED WHILE THE TRIBUNAL DISPOSED OF THE SAID APPEAL VIDE ORDER S DATED 12.04.2017 WHEREIN TRIBUNAL HAS CONSIDERED GROUND NO. 4 AS THE LEAD GROUND OF APPEAL WHICH WAS DISPOSED OF BY THE TRIBUNAL WHILE OTHER GROUNDS WERE CONSIDERED TO BE INTERCONNECTED WITH GROUND NO. 4 AND WERE NOT DISPOSED OF BY THE TRIBUNAL VIDE ITS ORDERS DATED 12.04.2017, WHICH IS A MISTAKE APPARENT FROM RECORD AND IS NOW SOUGHT TO BE RECTIFIED BY THE ASSESSEE BY FILING THIS MA . TO SUBSTANTIATE ITS CONTENTIONS, O UR ATTENTION WAS DRAWN TO PARA 2 OF THE TRIBUNA L ORDER DATED 12.04.2017 IN ITA NO. 551/M UM/2014 FOR AY 2008 - 09, WHICH READ AS UNDER: - 2. THE ASSESSEE HAS TAKEN AS MUCH AS 8 GROUNDS IN THIS APPEAL, WHICH ARE INTERCONNECTED TO EACH OTHER. THE LEAD GROUND OF APPEAL IS GROUND NO. 4, WHICH IS TAKEN FOR ADJUDICATION AND HENCE THE OTHER GROUNDS AR E NOT DISPOSING OF . GROUND NO. 4 READS AS UNDER: - 1. THE LEARNED CIT(A) ERRED IN HOLDING THAT THE AUDIT REPORT SUBMITTED BY THE APPELLANT CANNOT BE RELIED UPON AND SA NO. 339 /MUM/2017 3 THAT THE APPELLANT HAD ADOPTED A VERY CASUAL APPROACH IN RELATION TO THE CLAIM OF DEDUCTION U/S. 10B. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS PREJUDICE D BY NON - DISPOSAL OF GROUND NO. 2 AND 5 RAISED BY THE ASSESSEE IN MEMO OF APPEAL FILED WITH THE TRIBUNAL IN ITA NO. 551/MUM/2014 FOR AY 2008 - 09 , WHICH APPEAL WAS DISPOSED OF BY THE TRIBUNAL VIDE ORDERS DATED 12.04.2017, WHEREIN ONLY GROUND NO. 4 WAS DISPOSED OF BY THE TRIBUNAL. IT IS FURTHER SUBMITTED BY LEARNED COUNSEL FOR THE ASSESSEE THAT THE OTHER GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THE MEMO OF APPEAL FILED WI TH THE TRIBUNAL IN ITA NO. 551/MUM/2014 FOR AY 2008 - 09, NAMELY GROUND NO. 1, 6, 7 AND 8 DOES NOT REQUIRE SEPARATE ADJUDICATION, WHILE GROUND NO.3 IS CONNECTED TO GROUND NO 4 AND HENCE DOES NOT REQUIRE SEPARATE ADJUDICATION. THUS , IN NUTSHELL IT IS PRAYED BY THE LD. COUNSEL FOR THE ASSESSEE THAT IF GROUND NO. 2 AND 5 RAISED BY THE ASSESSEE IN MEMO OF APPEAL IN ITA NO. 551 /MUM/2014 FOR AY 2008 - 09 ARE DISPOSED OF BY THE TRIBUNAL ON MERITS , THE GRIEVANCES OF THE ASSESSEE WILL BE REDRESSED AND THIS MA IS F ILED FOR THE SAID REDRESSAL AS NON ADJUDICATION OF THESE GROUNDS BEARING NUMBER 2 & 5 IN THE VIEW OF THE ASSESSEE IS A MISTAKE APPARENT FROM RECORDS WHICH COULD BE RECTIFIED WITHIN THE MANDATE OF SECTION 254(2) . THE LD. DR DID NOT RAISE ANY OBJECTION IF T HE ORDER OF THE TRIBUNAL DATED 12.04.2017 IS RECALL ED FOR THE SPECIFIC PURPOSE S OF DISPOSAL OF GROUND NO. 2 AND 5 RAISED BY THE ASSESSEE IN MEMO OF APPEAL FILED WITH THE TRIBUNAL IN ITA NO. 551/MUM/2014, ON MERITS IN ACCORDANCE WITH LAW . 3 . WE H AVE CONSI DERED RIVAL CONTENTIONS AND HAVE PERUSED THE MATERIAL ON RECORD . W E HAVE OBSERVED THAT THE ASSESSEE RAISED AS MANY AS 8 GROUND IN THE MEMO OF APPEAL FILED WITH THE TRIBUNAL IN ITA NO. 551/MUM/2014 FOR AY 2008 - 09 , THE TRIBUNAL WHILE DISPOSING OF APPEAL IN ITA NO. 551/MUM/2014 FOR AY 2008 - 09 VIDE ORDER S DATED SA NO. 339 /MUM/2017 4 12.04.2017 CONSIDERED ALL THE GROUNDS INTER - RELATED AND DISPOSED OF GROUND NO. 4 CONSIDERING THE SAME TO BE A LEAD GROUND , WHEREIN GROUND NO. 4 WAS ALLOWED BY THE TRIBUNAL FOR STATISTICAL PURPOSES. WHILE DISPOSING OF GROUND NO. 4 AS LEAD GROUND, THE TRIBUNAL OBSERVED AS UNDER: 2. THE ASSESSEE HAS TAKEN AS MUCH AS 8 GROUNDS IN THIS APPEAL, WHICH ARE INTERCONNECTED TO EACH OTHER. THE LEAD GROUND OF APPEAL IS GROUND NO. 4, WHICH IS TAKEN FOR ADJUDICATI ON AND HENCE THE OTHER GROUNDS ARE NOT DISPOSING OF . GROUND NO. 4 READS AS UNDER: - 1. THE LEARNED CIT(A) ERRED IN HOLDING THAT THE AUDIT REPORT SUBMITTED BY THE APPELLANT CANNOT BE RELIED UPON AND THAT THE APPELLANT HAD ADOPTED A VERY CASUAL APPROACH IN R ELATION TO THE CLAIM OF DEDUCTION U/S. 10B. THE ASSESSEE HAS NOW FILED THIS MA BEING AGGRIEVED BY NON DISPOSAL OF GROUND NO. 2 AND 5 BY THE TRIBUNAL WHILE PASSING ORDERS DATED 12.04.2017, WHICH GROUNDS ARE REPRODUCED HEREUNDER : - '2. THE LEARNED CIT(A) ERRED IN NOT ADJUDICATING THE DECISION OF THE ASSESSING OFFICER WHEREBY HE HAS CONCLUDED THAT THE APPELLANT IS REQUIRED TO SET OFF BROUGHT FORWARD LOSSES AND UNABSORBED DEPRECIATION AND THEREAFTER CLAIM THE TAX HOLIDAY UNDER SECTION 10B. ::::::::: 5. THE LEARNED CIT(A) ERRED IN NOT ADJUDICATING THE GROUNDS RELATING TO THE RE - COMPUTATION OF PROFITS ELIGIBLE FOR TAX HOLIDAY UNDER SECTION 10B BY THE ASSESSING OFFICER TO RS. 7,90,17,563, WHICH ARE AS UNDER: A. NOT ALLOWING DEDUCTION OF SERVICE INCOME OF RS. 2 1,81,604 AND EXCISE DUTY ON DTA SALES OF RS. 10,52,83,430 FROM THE TOTAL TURNOVER. B. ADDITION OF SALE OF SCRAP OF RS. 57,21,757 TO THE TOTAL TURNOVER. SA NO. 339 /MUM/2017 5 C. REDUCING FREIGHT CHARGES OF RS. 1,09,54,064 FROM THE EXPORT TURNOVER; WITHOUT PREJUDICE, THE SAME HAVE ALSO TO BE REDUCED FROM THE TOTAL TURNOVER. D. REDUCING INTEREST INCOME OF RS. 12,52,868 FROM BUSINESS PROFITS; WITHOUT PREJUDICE RS.5,41,541 HAS ALREADY BEEN OFFERED FOR TAX. OTHER GROUND S OF APPEAL NO S . 1,3,6,7 AND 8 IN ASSESSE S OWN SUBMISSION DOES NOT REQUIRED SEPARATE ADJUDICATION. THUS , KEEPING IN VIEW THIS M.A FILED BY THE ASSESSEE , ORDER OF THE TRIBUNAL DATED 12.04.2017 READ IN CONJUNCTION WITH THE GROUNDS OF APPEAL FILED BY THE ASSESSEE IN MEMO OF APPEAL IN ITA NO. 551/MUM/2014 FOR AY 2008 - 09 AND IN ORDER TO MEET END OF JUSTICE KEEPING IN VIEW THE TOTALITY OF CIRCUMSTANCE OF THE CASE BEFORE US , WE ARE OF THE CONSIDER ED VIEW THAT THERE IS A MISTAKE APPARENT FROM RECORD IN THE ORDER DATED 12.04.2017 PASSED BY THE TRIBU NAL IN ITA NO. 551/MUM/2014 FOR AY 2008 - 09 WHEREIN THE TRIBUNAL ONLY DISPOSED OF GROUND NO 4 TREATING THE SAID GROUND NO. 4 AS LEAD GROUND AND CONSIDERING THE OTHER GROUNDS AS INTERCONNECTED GROUNDS, WHICH MISTAKE OF THE TRIBUNAL IS A MISTAKE APPARENT FRO M RECORDS AND IS COVERED UNDER THE MANDATE OF SECTION 254(2) OF THE ACT AS THE T RIBUNAL WAS REQUIRED TO DISPOSE OFF ALL THE GROUNDS OF APPEAL BY A SPEAKING AND REASONED ORDER, WHILE PASSING THE ORDERS DATED 12.04.2017 AND HENCE IN THE INTEREST OF SUBSTAN TIAL JUSTICE , WE ARE OF THE CONSIDERED VIEW THAT THE ORDER DATED 12.04.2017 PASSED BY THE TRIBUNAL IN ITA NO. 551/MUM/2014 FOR AY 2008 - 09 IS REQUIRED TO BE RECALLED FOR THE SPECIFIC PURPOSES AND TO THE EXTENT OF ADJUDICATING GROUND NO. 2 AND 5 RAISED B Y THE ASSESSEE IN MEMO OF APPEAL FILED WITH THE TRIBUNAL IN ITA NO. 551/MUM/2014 FOR AY 2008 - 09. THE R EGISTRY IS DIRECTED TO PLACE THE APPEAL BEFORE THE REGULAR B ENCH AND THE DATE OF HEARING IS FIXED FOR 22 ND MAY 2018 WHICH WAS ANNOUNCED IN THE OPEN COURT IN TH E PRESENCE OF BOTH THE SA NO. 339 /MUM/2017 6 RIVAL PARTIES AND THE SAME WAS NOTED BY BOTH THE PARTIES AND HENCE NO SEPARATE NOTICES OF HEARING WILL BE ISSUED BY REGISTRY TO BOTH THE PARTIES . THE ASSESSEE SUCCEEDS IN THIS MA AS INDICATED ABOVE. WE ORDER ACCORDINGLY. 4. IN THE RESULT MA FILED BY THE ASSESSEE IS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 2 6 .04.2018 2 6 .04.2018 S D / - S D / - (JOGINDER SINGH ) (RA MIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 2 6 .04.2018 COPY TO NISHANT VERMA SR. PRIVATE SECRETARY 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, 6 . MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI