ALF ENGINEERING COMPANY, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX 33(1), MUMBAI

MA 37/MUM/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 7889 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 11-04-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 29-02-2024
• Assessment Year: 2012-2013
• Appeal Filed On: 19-02-2024
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 80IC; 80IC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, MUMBAI BEFORE SHRI ABY T. VARKEY, JM AND SHRI AMARJIT SINGH, AM MA. Nos. 37 & 38/Mum/2024 (Arising out of ITA. Nos.2055 & 4204/Mum/2018 (निर्धारण वर्ा / Assessment Years: 2012-13 & 2013-14) M/s. ALF Engineering Company Plot No. 227-231, Sector-7, Integrated Industrial Estate, SIDCUL, Haridwar, Uttarakhand, Haridwar- 249403. बिधम/ Vs. Asst. CIT-33(1) Room No. 711, 7 th Floor, Building No. C-12, Pratyakshkar Bhavan, Bandra Kurla Complex, Bandra (E), Mumbai- 400051. स्थधयी लेखध सं./जीआइआर सं./PAN/GIR No. : AAAFA2372B (अपीलार्थी /Appellant) .. (प्रत्यर्थी / Respondent) सुनवाई की तारीख / Date of Hearing: 01/03/2024 घोषणा की तारीख /Date of Pronouncement: 12/04/2024 आदेश / O R D E R PER ABY T. VARKEY, JM: These are Miscellaneous applications preferred by assessee against the impugned order of this Tribunal dated 24.08.2023 in Revenue Appeals ITA. No.37 & 38/Mum/2018 for AY. 2012-13 and AY. 2013-14 respectively. 2. The impugned orders dated 24.08.2023 were passed by this Tribunal on the sole issue raised by revenue in respect of deduction u/s 80IC of the Income Tax Act, 1961 (hereinafter “the Act”) and has held (relevant portion only) as under: - “2. In both the appeals, the revenue has assailed the impugned action of the Ld. CIT(A) allowing the claim of the assessee u/s 80IC of the Income Tax Act, 1961 (hereinafter “the Act”). Assessee by: Shri S. C. Agrawal Revenue by: Smt Mahita Nair (Sr. DR) MA. Nos. 37 & 38/Mum/2024 A.Y. 2012-13 & AY. 2013-14 M/s ALF Engineering Company 2 3. At the outset, the Ld. DR brought to our notice that the deduction u/s 80IC of the Act was claimed by assessee for the first time in AY. 2007-08. And the Tribunal by order dated 20.02.2018 has set aside the order of the Ld. CIT(A) granting relief to the assessee on their claim u/s. 80IC of the Act back to the file of AO for AY. 2007-08 to AY. 2009-10 (ITA. Nos. 2452 & 6241/Mum/2012 and ITA. No.4923/Mum/2013) and for AY. 2010-11, (ITA. No.5707/Mum/2014) by holding as under: - “...................... 4. According to the Ld. DR pursuant to the Tribunal order dated 28.02.2018 (AY. 2007-08 to AY. 2011-12), the AO had given effect to the Tribunal order dated 28.02.2018. And the assessee has preferred appeals before the Ld. CIT(A) in the second round for those assessment years including the first year of section 80IC of the Act i.e. AY 2007-08. And thus appeals of the assessee (second round) are pending before the Ld. CIT(A). Therefore, according to him, these appeals (AY. 2012-13 and AY. 2013-14) arising from the first round of assessment order, need to undergo the same course of action as done for earlier year (AY 2007-08 to 2011-12) and appeals arising therefrom, needs to be decided along with appeals of the assessee emanating from the second round pursuant to the Tribunal order in the first round dt. 28.02.2018 (supra). 5. Per contra, the Ld. AR could not controvert the aforesaid submission of the Ld. DR that the assessee made the claim for the deduction u/s 80IC of the Act for the first time in the assessment year 2007-08 which claim of assessee has been restored to the file of AO by Tribunal order dated 28.02.2018; MA. Nos. 37 & 38/Mum/2024 A.Y. 2012-13 & AY. 2013-14 M/s ALF Engineering Company 3 and the AO has given effect to Tribunal’s order dated 28.02.2018 and the assessee has preferred an appeal before the Ld. CIT(A) which is pending adjudication (second round). Therefore, according to him, the decision of the Ld. CIT(A) in the second round would have its consequences/impact in the relevant AY’s i.e. AY 2012-13 & AY 2013-14. In the light of the aforesaid submissions discussed (supra), we note that the first year of the claim made by the assessee u/s 80IC of the Act is in AY. 2007-08. And we find that the Tribunal has set aside the order of Ld. CIT(A) in the first round by an order dated 28.02.2018 (supra) to the file of the AO for fresh adjudication of claim u/s. 80IC of the Act. And thereafter, the AO has given effect to the Tribunal order (dated 28.02.2018 for AY. 2007-08 to AY. 2011-12) and presently the appeals of assessee from the decision of AO (in the second round) is pending before the Ld. CIT(A). Therefore, since the decision of the Ld. CIT(A) in respect of claim u/s. 80IC of the Act for AY. 2007-08 will have its impact for the years under consideration i.e. AY. 2012-13 & AY. 2013-14, for the interest of justice, we set aside the impugned order of the Ld. CIT(A) and restore the issues back to the file of the AO for fresh adjudication as per the decision of the Tribunal order dated 28.02.2018 (supra). The AO is directed to pass the fresh assessment order in accordance with the direction given by the Tribunal in assessee’s own case for AY. 2007-08 to AY. 2011-12 (supra) after hearing the assessee in accordance to law. And assessee is directed to file written submission/documents, etc. to substantiate its claim. 6. In the result, the appeals of the revenue are allowed for statistical purpose.” MA. Nos. 37 & 38/Mum/2024 A.Y. 2012-13 & AY. 2013-14 M/s ALF Engineering Company 4 3. It was brought to our notice that pursuant to the earlier orders of Tribunal in assessee’s own case on the same issue for earlier/subsequent assessment years viz AY 2007-08, AY 2009-10 and for AY 2011-12, AY 2014-15 and AY 2015-16, the AO had duly given effect to the same i.e, Tribunal orders; and pursuant to it, the assesse has filed appeals which are pending before the Ld. CIT(A) [second round of litigation]. In such a scenario, it was prayed in the Miscellaneous application filed by assessee before us that these appeals for (AY. 2012-13 & AY. 2013-14) may be restored to the file of the Ld. CIT(A) rather than before the AO as ordered in the impugned order of the Tribunal. However, we are not inclined to accept such a plea of the assessee for the simple reason that similar contention was raised by the assessee before this Tribunal at the time of hearing of Appeals, and the Tribunal before passing the impugned order has already taken note of such a plea and declined to do so (supra); and since assessee failed to point out any mistake apparent on the face of the record, we are inclined to dismiss the Miscellaneous applications of the assessee. 4. In the result, Miscellaneous applications filed by the assessee stands dismissed. Order pronounced in the open court on this 12/04/2024. Sd/- Sd/- (AMARJIT SINGH) (ABY T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER मुुंबई Mumbai; दिनाुंक Dated : 12/04/2024. Vijay Pal Singh, (Sr. PS) MA. Nos. 37 & 38/Mum/2024 A.Y. 2012-13 & AY. 2013-14 M/s ALF Engineering Company 5 आदेश की प्रनिनलनि अग्रेनर्ि/Copy of the Order forwarded to : आदेशधिुसधर/ BY ORDER, सत्यादपत प्रदत //True Copy// उि/सहधयक िंजीकधर /(Dy./Asstt. Registrar) आयकर अिीलीय अनर्करण, मुुंबई / ITAT, Mumbai 1. अपीलार्थी / The Appellant 2. प्रत्यर्थी / The Respondent. 3. आयकर आयुक्त / CIT 4. दवभागीय प्रदतदनदि, आयकर अपीलीय अदिकरण, मुुंबई / DR, ITAT, Mumbai 5. गार्ड फाईल / Guard file.