DCIT 10(2)(1), MUMBAI V. JYOTHY LABORATORIES LTD, MUMBAI

MA 39/MUM/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4755 (ITAT-MUMBAI)
• Duration Of Justice: 1 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 15-03-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2011-2012
• Appeal Filed On: 23-01-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJEEV GUBGOTRA
• Assessee Lawyers: P RIYANKA JAIN; SOLI E DASTUR
• Section: 201; 80IC; 254(2); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F, MUMBAI BEFORE SHRI G.S. PANNU, VICE PRESIDENT AND SHRI RAVISH SOOD , JUDICIAL MEMBER MA NO. 39/MUM/2019 ( ARISING OUT OF IT A NO. 7281 /MUM/201 6 ) : (A.Y : 2011 - 12) DCIT - 10(2)(1), MUMBAI (APPLICANT) VS. JYOTHY LABORATORIES LTD. UJALA HOUSE, RAM KRISHNA MANDIR ROAD, KONDIVITA, ANDHERI (E), MUMBAI 400 059. PAN : AAACJ3212B (RESPONDENT) APPLICANT BY : SHRI RAJEEV GUBGOTRA RESPONDENT BY : SHRI SOLI E. D ASTUR & MS. PRIYANKA JAIN DATE OF HEARING : 15/03/2019 DATE OF PRONOUNCEMENT : 15/03/2019 O R D E R PER G.S. PANNU , VICE PRESIDENT : THE CAPTIONED MISCELLANEOUS APPLICATION HAS BEEN MOVED BY THE REVENUE WITH RESPECT TO THE ORDER OF THE TRIBUNAL DATED 30.11.2018 CANVASSING THAT CERTAIN MISTAKE APPARENT FROM RECORD HAS CREPT INTO THE ORDER OF THE TRIBUNAL DATED 30.11.2018 (SUPRA). 2. THE MISTAKE THAT IS SOUGHT TO BE POINTED OUT BY THE REVENUE CONCERNS THE DECISION OF THE TRIBUNAL ALLOWING THE CLAIM OF ASSESSEE FOR DEDUCTION UNDER SECTION 80IC O F THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) . THE 2 MA NO. 39/MUM/2019 JYOTHY LABORATORIES LTD. ASSESSMENT YEAR BEFORE THE TRIBUNAL WAS ASSESSMENT YEAR 2011 - 12, WHICH WAS NOT THE INITIAL YEAR OF CLAIM OF DEDUCTION. THE TRIBUNAL ALLOWED THE CLAIM OF ASSESSEE, INTER - ALIA , FOLLOWING THE RATIO OF THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF SIMPLE FOOD PRODUCTS (P.) LTD. VS CIT - II, NAGPUR, [2017] 84 TAXMANN.COM 239 (BOMBAY) AND THE OPERATIVE PART OF THE ORDER IS PARA 11 TO 17. THE SAME IS NOT REPRODUCED FOR THE SAKE OF BREVITY. THE POINT THAT IS SOUGHT TO BE RAISED BY THE REVENUE IN THE PRESENT MISCELLANEOUS APPLICATION IS EMERGING FROM PARA 9.5 OF THE APPLICATION. ACCORDING TO THE REVENUE, A CRUCIAL FACT OF THE CASE OF THE ASSESSEE HA S BEEN MISSED BY THE BENCH WHILE FOLLOWING THE RATIO OF THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF SIMPLE FOOD PRODUCTS (P.) LTD. (SUPRA) . ACCORDING TO THE REVENUE, PRIOR TO DATE OF COMPLETION OF ASSESSMENT FOR ASSESSMENT YEAR 2011 - 12 ON 31.03.2014, A NOTICE UNDER SECTION S 147 /148 OF THE ACT REOPENING THE ASSESSMENT FOR ASSESSMENT YEAR 2009 - 10 HAD ALREADY BEEN ISSUED AND THEREFORE, THE RATIO OF THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF SIMPLE FOOD PRODUCTS (P.) LTD. (SU PRA) COULD NOT BE INVOKED. PERTINENTLY, AS PER THE RATIO OF JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT, ONCE THE CLAIM OF DEDUCTION UNDER SECTION 80IC OF THE ACT STANDS ALLOWED IN THE INITIAL ASSESSMENT YEAR, THE SAME CANNOT BE WITHDRAWN IN THE SUBSEQUENT YEARS UNLESS THE RELIEF ALLOWED IN THE INITIAL YEAR IS WITHDRAWN. ACCORDING TO THE REVENUE, IN THIS CASE, ON THE DATE OF COMPLETION OF ASSESSMENT FOR THE INSTANT YEAR, REOPENING OF COMPLETED ASSESSMENT FOR INITIAL YEAR OF 2009 - 10 WAS ALREADY INITIATED, TH US REFLECTING THE INTENTION OF THE ASSESSING OFFICER TO WITHDRAW THE CLAIM IN THE INITIAL ASSESSMENT YEAR. 3 MA NO. 39/MUM/2019 JYOTHY LABORATORIES LTD. 3. THE LEARNED REPRESENTATIVE FOR THE RESPONDENT - ASSESSEE HAS CANVASSED THAT ON MERITS, THE TRIBUNAL HAS APPROPRIATE LY DECIDED THE ISSUE, WHICH IS IN COMPLIANCE WITH THE RATIO OF THE JUDGMENT OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF SIMPLE FOOD PRODUCTS (P.) LTD. (SUPRA) . NOTWITHSTANDING THE AFORESAID, SAY OF THE RESPONDENT - ASSESSEE IS THAT THERE IS NO MISTAKE APPARENT FROM RECORD INASMUCH AS TH E FACT SOUGHT TO BE BROUGHT - OUT BY THE REVENUE HAS ALREADY BEEN SPECIFICALLY NOTED AND ADJUDICATED BY THE TRIBUNAL. IN THIS CONTEXT, OUR ATTENTION HAS BEEN INVITED TO THE DISCUSSION BY THE TRIBUNAL IN PARA 14 TO 16 OF ITS ORDER DATED 30.11.2018 (SUPRA). THE LEARNED REPRESENTATIVE FURTHER CANVASSED THAT THE MISCELLANEOUS APPLICATION DESERVES TO BE DISMISSED WITH COSTS . 4. HAVING CONSIDERED THE RIVAL STANDS, AS ALSO THE ORDER OF THE TRIBUNAL DATED 30.11.2018 (SUPRA), WE FIND THAT THE ISSUE RAISED IN THE PRESENT APPLICATION IS NOT ONLY MISCONCEIVED BUT IS OUTSIDE THE PURVIEW OF SEC. 254 (2) OF THE ACT. IT IS QUITE WELL - SETTLE D THAT POWER OF AMENDMENT ENVISAGED UNDER SECTION 254(2) OF THE ACT DOES NOT COVER WITHIN ITS FOLD A REVIEW OF THE ORIGINAL ORDER. THIS IS PRECISELY WHAT THE REVENUE IS SEEKING BY MEANS OF THE PRESENT APPLICATION. W E MAY REFER TO THE DISCUSSION MADE BY T HE TRIBUNAL IN ITS ORDER DATED 30.11.2018 (SUPRA), WHEREIN THE FACT OF ISSUANCE OF NOTICE UNDER SECTION 148 OF THE ACT FOR INITIAL ASSESSMENT YEAR OF 2009 - 10 PRIOR TO COMPLETION OF ASSESSMENT OF INSTANT YEAR HAS BEEN SPECIFICALLY NOTED. NOT ONLY THAT, THE TRIBUNAL HAS ALSO NOTED AND DEALT WITH THE ARGUMENTS OF THE REVENUE BASED ON SUCH FACT. THEREFORE, AT THE OUTSET, WITHOUT GOING INTO THE M ERIT OF THE POINTS RAISED IN THE APPLICATION, IT IS NOTABLE THAT THE APPLICATION IS BEYOND THE SCOPE OF JURISDICTION PRESCRIBED UNDER SECTION 254(2) OF THE ACT AS IT AMOUNTS TO A REVIEW OF THE ORDER, WHICH IS 4 MA NO. 39/MUM/2019 JYOTHY LABORATORIES LTD. IMPERMISSIBLE IN TERMS OF SEC. 254 (2) OF THE ACT. THUS, ON THIS POINT ITSELF, WE ARE INCLINED TO DISMISS THE MISCELLANEOUS APPLICATION FOR THE REASON THAT THE FACT SOUGHT TO BE CANVASSED BY THE REVENUE IN THE PRESENT APPLICATION HAS NOT BEEN MISSED OUT BY THE TRIBUNAL ; AND , THE SAME HAS BEEN ADJUDICATED I N PARA S 14 TO 16 OF THE ORDER . 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. THE ABOVE DECISION WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF BOTH THE PARTIES AT THE CONCLUSION OF THE HEARING ON 15 TH MARCH , 201 9 . SD/ - SD/ - ( RAVISH SOOD ) JUDICIAL MEMBER (G.S. PANNU) VICE PRESIDENT MUMBAI, DATE : 15 TH MARCH, 201 9 *SSL* COPY TO : 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT(A) CONCERNED 4) THE CIT CONCERNED 5) THE D.R, F BENCH, MUMBAI 6) GUARD FILE BY ORDER DY./ASSTT. REGISTRAR I.T.A.T, MUMBAI