ABB India Ltd, Bangalore V. Joint Commissioner of Income tax, Bangalore

MA 44/BANG/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5656 (ITAT-BANGALORE)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-06-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 05-05-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 23-02-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: INDER SOLANKI
• Assessee Lawyers: T SURYANARAYANA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: BANGALORE BEFORE SHRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER MP NO. 44/BANG/2017 (IN ITA NO. 1124/BANG/2014) ASSESSMENT YEAR: 2008-09 M/S. ABB INDIA LTD., 21 ST FLOOR, WORLD TRADE CENTRE, BRIGADE GATEWAY, NO. 26/01, DR. RAJKUMAR ROAD, MALLESWARAM WEST, BANGALORE 560 055. PAN: AAACA 3834B APPELLANT VS. THE JOINT COMMISSIONER OF INCOME TAX, LTU, BANGALORE. .....RESPONDENT APP ELLANT BY : SHRI T. SURYA NARAYANA, ADVOCATE RESPONDENT BY : SHRI INDER SOLANKI, JCIT DATE OF HEARING : 0 5 .0 5 .2017 DATE OF PRONOUNCEMENT : 07 .0 6 .2017 O R D E R PER SHRI INTURI RAMA RAO, AM: THIS PRESENT MISCELLANEOUS PETITION IS FILED BY THE ASSESSEE-COMPANY SEEKING THE RECTIFICATION / MODIFICATION OF THE ORD ER PASSED BY THIS TRIBUNAL IN ITA NO. 1124/BANG/2014 FOR THE ASSESSMENT YEAR 2008 -09 DATED 26.08.2016. MP NO. 44/BANG/2017 IN ITA NO. 1124/BANG/2014 PAGE 2 OF 3 2. IT IS SUBMITTED THAT THE ORDER OF THIS TRIBUNAL IS BASED ON WRONG ASSUMPTION THAT THE CIT(A) CATEGORICALLY GIVEN A FI NDING THAT THE ASSESSEE-COMPANY HAD FAILED TO LINK THE PROVISIONS REVERSED WITH THE AMOUNT OF PROVISIONS ORIGINALLY CREATED. IT IS SUB MITTED THAT THE CIT(A) HAD NEVER RENDERED SUCH FINDING BUT THE FINDING OF THE CIT(A) WAS IN THE CONTEXT OF THE PROVISION CREATED AND THE TDS DO NE LATER. THUS IT WAS SUBMITTED THAT THE TRIBUNAL ASSUMING THE WRONG FACTS HAD PASSED THE IMPUGNED ORDER THEREFORE PRAYED FOR THE RECTIFI CATION / MODIFICATION OF THE IMPUGNED ORDER. 3. WE HEARD THE RIVAL SUBMISSIONS PERUSED THE MATERIAL ON RECORD. NO DOUBT THE TRIBUNAL WHILE PASSING THE IMPUGNED ORDER ASSUMED THAT THE ASSESSEE-COMPANY HAD FAILED TO ESTABLISH THE LINK B ETWEEN THE PROVISIONS CREATED AND THE AMOUNT DISALLOWED AND CR EDITED TO THE PROFIT AND LOSS ACCOUNT. BUT AS RIGHTLY SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE-COMPANY THE CIT(A) FINDING WAS IN THE CONT EXT OF PROVISION CREATED AND THE TDS COMPLIANCE THEREOF IN A LATER P ERIOD. SINCE THE IMPUGNED ORDER IS PASSED ON THE WRONG ASSUMPTION OF FACTS THE FINDING OF THE TRIBUNAL VIDE PARA 7 IS MODIFIED AS FOLLOWS. THE FOLLOWING PART OF THE PARAGRAPH STANDS DELETED. THE CIT(A) HAS RECORDED A CATEGORICAL FINDING THAT THE ASSESSEE HAS FAILED TO LINK PROVISION REVERSED WITH THE AMOUNT OF PROVISION ORIGINALLY CREATED AND DISALLOWED. IN ITS PLACE THE FOLLOWING SHALL BE INSERTED. MP NO. 44/BANG/2017 IN ITA NO. 1124/BANG/2014 PAGE 3 OF 3 WE REMIT THE MATTER BACK TO THE FILE OF THE AO FOR LIMITED PURPOSE OF VERIFYING THAT THE AMOUNT OF PROVISION CREDITED TO PROFIT AND LOSS ACCOUNT IS OUT OF THE PROVISIONS DISALLOWED IN THE YEAR OF CREATION OF THE PROVISION. THUS IF THE AO IS SATISFIED THE SAM E MAY BE ALLOWED AS DEDUCTIONS. 4. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 07 TH DAY OF JUNE, 2017 SD/- SD/- ( VIJAY PAL RAO ) (INTURI RAMA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 07 TH JUNE, 2017. / MS/ COPY TO: 1. APP ELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE.