DEPUTY COMMISSIONER OF INCOME TAX 7(3)(2), MUMBAI V. PIRAMAL GLASS LIMITED , MUMBAI

MA 348/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6948 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-07-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: K
• Assessment Year: 2011-2012
• Appeal Filed On: 10-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAURABH DESH
• Assessee Lawyers: RONAK DOSHI LD

Judgement Text

MA NO. 348/MUM/2017 ARISING OUT OF ITA NO.157/MUM/2016 PIRAMAL GLASS LIMITED ASSESSMENT YEAR 2011-12 IN THE INCOME TAX APPELLATE TRIBUNAL K BENCH, MUMBAI , , BEFORE SHRI MAHAVIR SINGH, JM AND SHRI MANOJ KUMAR AGGARWAL, AM MISCELLANEOUS APPLICATION NO.348/MUM/2017 (ARISING OUT OF ITA NO.157/MUM/2016) ( / ASSESSMENT YEAR: 2011-12) M/S PIRAMAL GLASS LTD. (EARLIER KNOWN AS GUJARAT GLASS PVT. LTD.) PIRAMAL TOWER ANNEXE GANPATRAO KADAM MARG LOWER PAREL,MUMBAI 400 013 / VS. DEPUTY COMMISSIONER OF INCOME TAX 7(3)(2) ROOM NO. 669A, 6 TH FLOOR AAYKAR BHAWAN, M.K.ROAD, CHURCHGATE, MUMBAI 400 020 ./ ./PAN/GIR NO. AABCG-0093-R ( /APPELLANT ) : ( / RESPONDENT ) ASSESSEE BY : SHRI RONAK DOSHI, LD. AR REVENUE BY : SHRI SAURABH DESHPANDE, LD. SR. DR / DATE OF HEARING : 04/05/2018 / DATE OF PRONOUNCEMENT : 25/07/2018 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. BY WAY OF THIS MISCELLANEOUS APPLICATION, THE AS SESSEE SEEKS RECTIFICATION OF THE ORDER OF THE TRIBUNAL ITA NO.1 57/MUM/2016 DATED 04/01/2017. WE TAKE UP THE ISSUES, ONE BY ONE, AS R AISED IN THE APPLICATION. MA NO. 348/MUM/2017 ARISING OUT OF ITA NO.157/MUM/2016 PIRAMAL GLASS LIMITED ASSESSMENT YEAR 2011-12 2 2. THE FIRST ISSUE IS RELATED WITH APPLICATION OF C ORRECT RATE OF SURCHARGE ON DIVIDEND DISTRIBUTION TAX [DDT]. THE LD. AR HAS DREW OUR ATTENTION TO THE FACT THAT THE ASSESSEE HAD RAISED ADDITIONAL GROUND OF APPEAL ON 15/06/2016 CONTESTING THE ORDER OF LD. AO IN MAKING ADDITIONS U/S 115O/115P AND THE SAME HAS NOT BEEN CONSIDERED BY THE BENCH WHILE FRAMING THE ORDER. WE FIND THAT THE ISSUE HAS BEEN DEALT WITH AT PARA-4 OF THE ORDER WHEREIN IT HAS BEEN NOTED THAT THE IMP UGNED DEMAND HAS ARISEN OUR OF WRONG APPLICATION OF SURCHARGE @7 .5% BY LD. AO AS AGAINST 5% TAKEN BY THE ASSESSEE IN TERMS OF FINANC E ACT, 2011. HOWEVER, IT WAS OBSERVED THEREIN THAT THE PROPER CO URSE OF APPLICATION FOR THE ASSESSEE WOULD BE TO FILE RECTIFICATION APPLICATION BEFORE LD. AO . FINDING STRENGTH IN THE PLEA OF THE ASSESSEE, WE RE STORE THE MATTER BACK TO THE FILE OF LD. AO TO WORK OUT CORRECT DDT LIABILITY BY ADOPTING THE CORRECT RATE OF SURCHARGE, AS IT WAS APPLICABLE AT THE RELEVANT POINT OF TIME. THE GROUND STAND ALLOWED FOR STATISTICAL PURP OSES. 3. THE SECOND ISSUE RAISED IN THE APPLICATION IS DI SALLOWANCE OF INTEREST OF RS.73.87 LACS ON ACCOUNT OF INTEREST FREE LOANS GRANTED TO SISTER CONCERNS / SUBSIDIARIES ETC. WHICH HAS BEEN DEALT AT PARA-8 OF THE ORDER. THE LD. AR IS AGGRIEVED BY THE OBSERVATIONS / FINDINGS MADE BY THE TRIBUNAL IN THE ORDER. THE LD. AR, BY WAY OF WR ITTEN SUBMISSIONS, HAS PLEADED THAT THE ORDER OF THE TRIBUNAL IN ASSESSEE S OWN CASE FOR AY 2001-02 & 2006-07 WAS SIMILAR ON FACTS AND THE SAME HAS WRONGLY BEEN DISTINGUISHED BY THE TRIBUNAL AND THEREFORE, THE SA ME CONSTITUTE MISTAKE APPARENT FROM RECORD. AFTER GOING THROUGH THE SAME, WE FIND THAT CONCLUSIONS / DECISION HAS BEEN RENDERED WITH DUE A PPLICATION OF MIND MA NO. 348/MUM/2017 ARISING OUT OF ITA NO.157/MUM/2016 PIRAMAL GLASS LIMITED ASSESSMENT YEAR 2011-12 3 AND AFTER DUE CONSIDERATION OF FACTUAL MATRIX AS WE LL AS STATUTORY PROVISIONS. THE LD. AR IS MERELY SEEKING A REVIEW O F THE ORDER BY ASSERTING THAT THE CASE IN EARLIER YEARS WAS SIMILA R AND THEREFORE, THE SAME SHOULD BE FOLLOWED. THE ONLY OBJECTIVE OF THE OBSERVATIONS WAS TO DETERMINE THE CORRECT INCOME OF THE ASSESSEE. NEVER THELESS, FINDING NO MISTAKE APPARENT FROM RECORD, WE DISMISS THIS ISSUE AS RAISED IN THE APPLICATION. 4. THE LAST ISSUE IS RELATED WITH ADDITION ON ACCOU NT OF FOREIGN EXCHANGE GAIN AMOUNTING TO RS.37.12 LACS ARISING OUT OF CERTAIN LOANS GRANTED TO SUBSIDIARY COMPANIES, WHICH HAVE BEEN DE ALT WITH AT PARA-11 OF THE ORDER. AS PER LD. ARS SUBMISSIONS, THE AFOR ESAID GROUND HAS BEEN DISMISSED ON THE BASIS OF CERTAIN OBSERVATIONS MADE IN THE TAX AUDIT REPORT , WHICH IS FACTUALLY INCORRECT. THE LD. AR STATED T HAT THE AFORESAID GAIN WAS REDUCED FROM OTHER EXPENSES AS EVIDENT FROM SCHEDULE-16 PLACED ON PAGE NUMBER-17 OF THE PAPER-BOOK. IT IS FURTHER SUBMITTED THAT THE REDUCTION FROM EXPENSES HAS THE SAME EFFECT AS CREDIT TO PROFIT & LOSS ACCOUNT AND THEREFORE, THIS GROUND REQUIRE RECONSIDERATION. AFTER PERUSAL OF THE SAME, WE FIND SOME STRENGTH IN THE ARGUMENT OF LD. AR AND DEEM IT FIT TO REMIT THE MAT TER BACK TO THE FILE OF LD. AO TO VERIFY THE ABOVE FACTUAL MATRIX AS RAISED BY LD. AR AND RE- DECIDE THE SAME AS PER LAW. THE ASSESSEE IS DIRECTE D TO SUBSTANTIATE THE AFORESAID PLEA BEFORE LD. AO AS WELL AS JUSTIFY THE CLAIM THEREOF IN THE COMPUTATION OF INCOME. THIS GROUND RAISED IN AS SESSEES APPEAL STAND ALLOWED FOR STATISTICAL PURPOSES. MA NO. 348/MUM/2017 ARISING OUT OF ITA NO.157/MUM/2016 PIRAMAL GLASS LIMITED ASSESSMENT YEAR 2011-12 4 5. THE MISCELLANEOUS APPLICATION STAND DISPOSED-OFF IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH JULY, 2018 SD/- SD/- (MAHAVIR SINGH) (MANOJ KUMAR AGG ARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED :25.07.2018 SR.PS:-THIRUMALESH ! / COPY OF THE ORDER FORWARDED TO : 1. '#$ / THE APPELLANT 2. %&#$ / THE RESPONDENT 3. ' ' ( ( ' ) / THE CIT(A) 4. ' ' ( / CIT CONCERNED 5. )* %+ , ' ' + , / DR, ITAT, MUMBAI 6. *,-. / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI