TATA MOTERS LIMITED (FORMERLY KNOWN AS TATA ENGINEERING & LOCOMOTIVE COMPANY LTD.), MUMBAI V. DY.CIT, RANGE 2 (3), MUMBAI

MA 402/MUM/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5835 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-10-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2004-2005
• Appeal Filed On: 09-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VADAL RAJSINGH
• Assessee Lawyers: R R VORA
• Keywords: Rectification of order
• Section: 143(3); 14A; 115JB

Judgement Text

1 MA 402/MUM/2019 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E, MUMBAI BEFORE SHRI PAWAN SINGH (JM) & SHRI G MANJUNATHA (AM) M.A. 402/MUM/2019 (ARISING OUT OF ITA NO. 3335/MUM/2011) (ASSESSMENT YEAR : 2004-05) TATA MOTORS LTD BOMBAY HOUSE, 24, HOMI MODY STREET, HUTATMA CHOWK, MUMBAI-400 001 PAN : AAACT62727Q VS DCIT, RANGE-2(3), MUMBAI APPLICANT RESPONDEDNT APPLICANT BY SHRI RR VORA RESPONDENT BY SHRI VADAL RAJSINGH DATE OF HEARING 04-10-2019 DATE OF PRONOUNCEMENT 14-10-2019 O R D E R PER PAWAN SINGH, JM : THIS MISCELLANEOUS APPLICATION IS FILED BY ASSESSE E FOR SEEKING RECTIFICATION OF MISTAKE STATED TO BE CREPT IN THE ORDER OF THE TRIBUNAL DATED 07 TH JANUARY, 2019. IN THE APPLICATION, THE APPLICANT/ ASSESSEE STATED THAT THE ASSESSEE VIDE APPLICATION DATED 18 TH APRIL, 2018 RAISED ADDITIONAL GROUND OF APPEAL, BEING GROUND NO.5. HOWEVER, THE TRIBUNAL H AS NOT ADJUDICATED THE ADDITIONAL GROUND BY TAKING VIEW THAT NO APPLICATIO N FOR ADMISSION OF ADDITIONAL GROUND WAS FILED BY ASSESSEE AND THAT TH E ASSESSEE HAS MERELY 2 MA 402/MUM/2019 RAISED ADDITIONAL GROUND IN A CHART FURNISHED AT TH E TIME OF MAKING SUBMISSION. IT IS FURTHER STATED THAT THE ASSESSEE FILED ADDITIONAL GROUND OF APPEAL VIDE APPLICATION DATED 12 TH APRIL, 2018 WHICH WAS DULY ACKNOWLEDGED BY THE REGISTRY AS WELL AS BY THE OFFICE OF CIT(DR) , ITAT-6, E-BENCH, MUMBAI ON 18 TH APRIL, 2018. 2. THE LD.AR OF THE ASSESSEE MADE HIS SUBMISSION ON SIMILAR LINES. THE LD.AR OF THE ASSESSEE FURTHER SUBMITS THAT THEY HAV E ANNEXED THE COPY OF APPLICATION FOR ADMISSION OF ADDITIONAL GROUND OF A PPEAL AS WELL AS THE ADDITIONAL GROUND OF APPEAL. THE LD.AR, ON SPECIFI C DIRECTION OF THE BENCH, UNDERTOOK TO SHOW THE ORIGINAL OF THE APPLICATION B EARING ORIGINAL STAMP. ON THE OTHER HAND, THE LD.DR FOR THE REVENUE, AFTER GO ING THROUGH THE CONTENTS OF APPLICATION AND THE ACKNOWLEDGEMENT COPY BY THE OFF ICE OF CIT(DR), ITAT- 6, E-BENCH, MUMBAI STATED THAT THE BENCH MAY TAKE A PPROPRIATE DECISION ON THE APPLICATION OF ASSESSEE QUA THE SAID ADDITIONAL GROUND OF APPEAL. 3. ON MERITS, THE LD.AR OF THE ASSESSEE SUBMITS THA T THE ADDITIONAL GROUND OF APPEAL RAISED BY ASSESSEE IS COVERED IN F AVOUR OF THE ASSESSEE BY THE DECISION OF SPECIAL BENCH OF DELHI TRIBUNAL IN VIREET INVESTMENTS (P) LTD 165 ITD 27 (DEL)(SB) AND BENGAL FINANCE & INVESTMEN T CO LTD I.T.A. NO.337 OF 2013 DATED 20-02-2015 (BOMBAY HIGH COURT) . ON THE OTHER HAND, THE LD.DR, ON MERITS, RELIED UPON THE ORDER OF LOWE R AUTHORITIES. 3 MA 402/MUM/2019 4. WE HAVE CONSIDERED THE SUBMISSIONS OF THE PARTIE S, PERUSED THE RECORDS AS WELL THE ORDER OF THE TRIBUNAL DATED 07-01-2019. WHILE DECIDING THE ADDITIONAL GROUND OF APPEAL / GROUND 5, WE HAVE NOT ED THAT THE SAID ADDITIONAL GROUND OF APPEAL WAS NOT AVAILABLE ON THE RECORD. ON OUR DIRECTION, THE LD.AR HAS SHOWN THE ORIGINAL RECEIPT / ACKNOWLEDGEM ENT OF APPLICATION FOR ADMISSION OF ADDITIONAL GROUND OF APPEAL WHICH IS D ULY ACKNOWLEDGED BY THE REGISTRY OF THIS TRIBUNAL AS WELL AS BY THE OFFICE OF CIT(DR), ITAT-6, E- BENCH, MUMBAI. CONSIDERING THE FACT THAT THE ASSES SEE HAS RAISED ADDITIONAL GROUND OF APPEAL, THOUGH THE APPLICATION COULD NOT BE PLACED ON RECORD BY THE REGISTRY, THE FACT THAT THE ASSESSEE HAS RAISED ADD ITIONAL GROUND OF APPEAL, WHICH FACT IS NOT DISPUTED BY THE LD.DR, AS WELL. THEREFORE, CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, W E ARE INCLINED TO RECALL OUR DECISION ON GROUND 5 / ADDITIONAL GROUND AS MENTION ED AT PARAS 14 TO 16 OF THE ORDER DATED 07 TH JANUARY, 2019 IN ITA NO.3335/MUM/2011. 5. CONSIDERING THE FACT THAT THE GROUND OF APPEAL R AISED BY THE ASSESSEE IS STATED TO BE COVERED BY THE DECISION OF SPECIAL BEN CH OF DELHI TRIBUNAL IN VIREET INVESTMENTS (P) LTD (SUPRA) AND BENGAL FINAN CE & INVESTMENT CO LTD (SUPRA), WE ADJUDICATE GROUND 5 / ADDITIONAL GROUND RAISED BY ASSESSEE VIDE APPLICATION DATED 12-04-2014. 4 MA 402/MUM/2019 6. IN THE APPLICATION FOR ADMISSION OF ADDITIONAL G ROUND OF APPEAL, THE APPLICANT ASSESSEE HAS STATED THAT THE AO, WHILE PA SSING THE ASSESSMENT ORDER U/S 143(3) ADJUSTED THE DISALLOWANCE U/S 14A WHILE COMPUTING BOOK PROFIT U/S 115JB. IN THE APPLICATION IT IS STATED THAT AD DITIONAL GROUND OF APPEAL MAY BE ADMITTED BY TAKING COGNIZANCE OF DECISION OF HON BLE SUPREME COURT IN NATIONAL THERMAL POWER CORPORATION LTD VS CIT 229 I TR 389 (SC) AND JUTE CORPORATION OF INDIA LTD VS CIT 187 ITR 688. THE L D.AR SUBMITS THAT NO NEW FACTS ARE NECESSARILY TO BE BROUGHT ON RECORD F OR ADJUDICATING THE ADDITIONAL GROUND OF APPEAL AND THAT ALL FACTS ARE EMANATING FROM THE ORDERS OF LOWER AUTHORITIES. THE LD.DR FOR THE REVENUE HA S NOT DISPUTED THE FACTUAL POSITION AS SUBMITTED BY LD.AR OF THE ASSESSEE. 7. CONSIDERING THE SUBMISSIONS OF BOTH THE PARTIES AND ON TAKING COGNIZANCE OF THE FACT THAT NO NEW FACTS ARE REQUIR ED TO BE BROUGHT ON RECORD FOR DECIDING THE ADDITIONAL GROUND OF APPEAL, WE AD MIT THE ADDITIONAL GROUND OF APPEAL FOR ADJUDICATION. 8. THE ADDITIONAL GROUND OF APPEAL RELATES TO DISAL LOWANCE UNDER SECTION 14A FOR THE PURPOSE OF COMPUTATION OF BOOK PROFIT U /S 115JB. THE LD.AR OF THE ASSESSEE SUBMITS THAT COMPUTATION U/S 115JB IS TO BE MADE WITHOUT RESORTING TO THE DISALLOWANCE U/S 14A. THE LD.DR, ON THE OTHER HAND, RELIED UPON THE ORDERS OF AUTHORITIES BELOW. 5 MA 402/MUM/2019 9. WE HAVE CONSIDERED THE SUBMISSION OF BOTH THE PA RTIES AND FIND THAT THIS GROUND / ADDITIONAL GROUND OF APPEAL RAISED BY ASSESSEE IS COVERED BY THE DECISION OF SPECAL BENCH OF DELHI TRIBUNAL IN VIREE T INVESTMENTS (P) LTD (SUPRA), WHEREIN IT WAS HELD THAT COMPUTATION UNDER CLAUSE (F) OF EXPLANATION 1 TO SECTION 115JB(2) IS TO BE MADE WITHOUT RESORTI NG TO COMPUTATION AS CONTEMPLATED U/S 14A R.W.R. 8D. CONSIDERING THE DE CISION OF SPECIAL BENCH OF DELHI TRIBUNAL, WE DIRECT THE AO TO RE-COMPUTE T HE BOOK PROFIT U/S 115JB BY FOLLOWING THE DECISION OF SPECIAL BENCH OF DELHI TRIBUNAL IN VIREET INVESTMENTS (P) LTD (SUPRA). 10. IN THE RESULT, THIS GROUND OF APPEAL IS ALLOWED , FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 14-10-2019. SD/- SD/- (G.MANJUNATHA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIALMEMBER MUMBAI, DT : 14 TH OCTOBER, 2019 PK/- COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR /TRUE COPY/ BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI