Exide Industries Ltd., Kolkata V. ACIT, R-1, KOLKATA, Lucknow

MA 38/KOL/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4541 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-06-2016
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 15-04-2016
• Court: TRIBUNAL
• Department Lawyers: ANUP SINHA ACA

Judgement Text

M.A. NO. 38/KOL/2016 (IN I.T.A. NO 1414/KOL./2007) ASSESSMENT YEAR: 2004-2005 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C BENCH, KOLKATA BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER M.A. NO. 38/KOL/2016 (ARISING OUT OF I.T.A. NO. 1414/KOL/ 2007) ASSESSMENT YEAR: 2004-2005 EXIDE INDUSTRIES LIMITED,.......................... .......................APPLICANT 59E, CHOWRINGHEE ROAD, KOLKATA-700 020 [PAN : AAACE 6641 E] -VS.- DEPUTY COMMISSIONER OF INCOME TAX,................. ..........RESPONDENT CIRCLE-1, KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 APPEARANCES BY: SHRI ANUP SINHA, ACA & SHRI BISHAN KR. SEAL, ACA, F OR THE ASSESSEE SHRI DEBASISH ROY, JCIT, SR. D.R., FOR THE DEPARTMENT DATE OF CONCLUDING THE HEARING : JUNE 10, 2016 DATE OF PRONOUNCING THE ORDER : JUNE 15, 2016 O R D E R PER SHRI P.M. JAGTAP :- BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE IS SEEKING RECTIFICATION OF THE FOLLOWING MISTAKES ALLEGED TO HAVE CREPT IN THE ORDER OF THE TRIBUNAL DATED JANUARY 20, 2016:- YOUR HONOURS AT PARA 44 PAGE 20-21 OF THE ORDER, C ONCLUDED THAT THE TRIBUNAL IN CASE OF GLAXO SMITHKLINE PHARM ACEUTICALS HAD ALLOWED THE DEDUCTION ON ACCOUNT OF ADDITIONAL CONTRIBUTION IN CASE OF SIMILAR FACTS AND CIRCUMSTANCES AFTER CO NSIDERING THE PROVISIONS OF 36(1)(IV) AND RELEVANT RULES - 87 AND 88. THEREFORE AS NOTED IN PARA 10 ABOVE, THE AMOUNT PAYABLE AS AD DITIONAL CONTRIBUTION IN ORDER TO MEET THE DEFICIT OF FUND I N THE ERA OF FALLING INTEREST AS PER ACTUARIAL VALUATION IS NEIT HER ORDINARY ANNUAL CONTRIBUTION (GUIDED BY RULE 87) NOR INITIAL CONTRIBUTION (GUIDED BY RULE 88) AND HENCE NONE OF THESE RULES D O APPLY. HAVING CONSIDERED THIS YOUR KINDSELF HAD CONCLUDED - 'ACCORDINGLY, WE DECIDE THIS ISSUE IN FAVOUR OF THE ASSESSEE IN PRINCIPLE BY FOLLOWING THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF GL AXO SMITHKILNE PHARMACEUTICALS (SUPRA) AND RESTORE THE M.A. NO. 38/KOL/2016 (IN I.T.A. NO 1414/KOL./2007) ASSESSMENT YEAR: 2004-2005 PAGE 2 OF 3 MATTER TO THE FILE OF THE ASSESSING OFFICER FOR THE LIMITED PURPOSE OF VERIFYING AS TO WHETHER THE AMOUNT PAID IS WITHIN THE LIMITS SPECIFIED IN RELEVANT RULES. SUBJ ECT TO THIS DIRECTION, GROUND NO 8 OF THE ASSESSE'S APPEAL FOR AY 2004-95 IS TREATED AS ALLOWED' (EMPHASIS BY THE PETITIONER) 10. IT IS HUMBLY SUBMITTED THAT THE MUMBAI BENCH (I N THE CASE OF GLAXO SMITHKILNE PHARMACEUTICALS (SUPRA)) AND THE JURISDICTIONAL TRIBUNAL (IN THE CASE OF BRITISH MET AL CORPORATION LTD V DCIT (ITA 775(KOL)/2007)) HAD BOTH HELD THAT THE RESTRICTIONS OR LIMITS PRESCRIBED IN RULES 87 & 88 ARE SPECIFICALLY FOR ANNUAL CONTRIBUTION AND INITIAL CONTRIBUTION AN D IS NOT APPLICABLE TO ADDITIONAL CONTRIBUTION WHICH IS PAYA BLE ONE-TIME TO MAKE GOOD THE DEFICIT OF THE FUND DETERMINED BY AN ACTUARY. ACCORDINGLY THE ABOVE DIRECTION GIVEN BY OUR HONOUR S TO THE ASSESSING OFFICER TO VERIFY WHETHER THE PAYMENT OF RS 9.147 CRORES TO LIC BY EXIDE, IS CONTRARY TO THE PRINCIPL E LAID DOWN BY BOTH THE TRIBUNALS AND ALSO CONTRARY TO THE CONCLUS ION REACHED BY YOUR HONOURS ON THE SAME ISSUE. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. AS RIGHTLY P OINTED OUT BY THE ASSESSEE IN THE PRESENT MISCELLANEOUS APPLICATION, THE DIRECTION GIVEN BY THE TRIBUNAL IN PARAGRAPH NO. 44 OF ITS ORDER TO TH E ASSESSING OFFICER TO VERIFY AS TO WHETHER THE AMOUNT IN QUESTION PAID BY THE ASSESSEE TO DONATION FUND IS WITHIN THE LIMITS SPECIFIED IN THE RELEVANT RULES IS NOT IN CONSONANCE WITH THE CONCLUSION DRAWN BY THE TRIBUNA L THAT THE ISSUE UNDER CONSIDERATION IS SQUARELY COVERED IN FAVOUR O F THE ASSESSEE BY THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL A T MUMBAI IN THE CASE OF CIT VS.- GLAXO SMITHKLINE PHARMACEUTICALS (ITA NO 6444/MUM./2007 DATED 28.01.2011), WHEREIN IT WAS HELD THAT THE LIM ITATIONS PLACED UNDER RULE 87 ARE NOT APPLICABLE TO THE PAYMENT OF ADDITI ONAL CONTRIBUTION NECESSITATED DUE TO SHORTFALL DISCOVERED IN THE COU RSE OF ACTUAL VALUATION OF THE FUND AS THE SAME IS IN THE NATURE OF ONE TIM E EXCEPTIONAL PAYMENT TO ENSURE THAT THE SUPERANNUATION FUND IS ABLE TO D ISCHARGE ITS OBLIGATION. THERE IS THUS A MISTAKE IN THE ORDER OF THE TRIBUNA L IN GIVING SUCH DIRECTION TO THE ASSESSING OFFICER WHILE DECIDING T HIS ISSUE VIDE PARAGRAPH NO 44 AND THE SAME BEING APPARENT FROM RE CORD, WE RECTIFY THE M.A. NO. 38/KOL/2016 (IN I.T.A. NO 1414/KOL./2007) ASSESSMENT YEAR: 2004-2005 PAGE 3 OF 3 SAME BY DELETING LAST EIGHT LINES OF THE SAID PARA AND SUBSTITUTING THE SAME WITH THE FOLLOWING:- WE ARE UNABLE TO ACCEPT THIS CONTENTION OF THE LD. D.R. IN OUR OPINION, THE ISSUE INVOLVED IN GROUND NO. 8 OF THE ASSESSEES APPEAL IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF GLAXO SMITHKLINE PHARMACEUTICALS (SUPRA) AND RESPECTFULLY FOLLOWING THE SAME, WE DELETE THE ADDITION MADE BY THE ASSESSING OFFICER AND CONFIRMED BY THE LD. CIT(APPEALS) ON THIS ISSUE. GROUND NO 8 OF THE ASSESSEES APPEAL FOR A.Y. 2004- 05 IS ACCORDINGLY ALLOWED. 3. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON JUNE 15, 2016 . SD/- SD/- (S.S. VISWANETHRA RAVI) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER KOLKATA, THE 15 TH DAY OF JUNE, 2016 COPIES TO : (1) EXIDE INDUSTRIES LIMITED, 59E, CHOWRINGHEE ROAD, KOLKATA-700 020 (2) DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1, KOLKATA, AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 (3) COMMISSIONER OF INCOME TAX, KOLKATA- , K OLKATA (4) THE DEPARTMENTAL REPRESENTATIVE (5) CIT(APPEALS)-1, KOLKATA (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.