SKM EGG PRODUCTS EXPORT (I) LTD., ERODE V. ACIT CIRCLE 1, ERODE

MA 44/CHNY/2021

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 4560 (ITAT-CHENNAI)
• Duration Of Justice: 9 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-04-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 11-07-2021
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Depreciation; Question of law; Unabsorbed depreciation
• Section: 115JB

Judgement Text

आयकर अपीलीय अिधकरण ‘सी’ ायपीठ चे ई म । IN THE INCOME TAX APPELLATE TRIBUNAL ‘C’ BENCH, CHENNAI माननीय ी महावीर िसंह, उपा ! एवं माननीय ी मनोज कु मार अ&वाल ,लेखा सद) के सम!। BEFORE HON’BLE SHRI MAHAVIR SINGH, VICE PRESIDENT AND HON’BLE SHRI MANOJ KUMAR AGGARWAL, AM M.P No.44/Chny/2021 (Arising out of ITA No.1708/Chny/2019) (िनधा@रण वष@ / Assessment Year: 2014-15) M/s. SKM Egg Products Exports (I) Ltd. No.185, Chennimalai Road, Erode – 638 001. बनाम/ V s. ACIT Circle-1, Erode. थायी लेखा सं. /जीआइ आर सं. /P A N/ G I R No . AACC S-7016-G (अपीलाथ /Appellant) : ( थ / Respondent) अपीलाथ की ओरसे/ Appellant by : Shri G. Baskar (Advocate) – Ld. AR थ की ओरसे/Respondent by : Shri G. Johnson (Addl. CIT) – Ld. DR सुनवाई की तारीख/Date of Hearing : 29.04.2022 घोषणा की तारीख / Date of Pronouncement : 29.04.2022 आदेश / O R D E R Manoj Kumar Aggarwal (Accountant Member) 1. By way of this Miscellaneous Petition, the assessee seeks recall of Tribunal’s order passed in ITA No.1708/Chny/2019 on 15.06.2021 wherein the appeal of the revenue has been allowed. 2. Drawing attention to the petition, Ld. AR submitted that the sole issue in the appeal relates to claim of set-off of brought forward losses and unabsorbed depreciation while computing book-profits u/s. 115JB of the Act. The Ld. AR submitted that during the course of hearing, reliance M.P No:44/Chny/2021 2 was placed on the decision of this Tribunal in M/s. Prithvi Softech Ltd. Vs. CIT in ITA No.797/2010 as well as on the decision of Kolkata Tribunal in the case of DCIT vs. Binani Industries Ltd. [2017] 82 taxmann.com 320 and the decision of Mumbai Tribunal in the case of Go Airlines (India) Ltd. Vs. DCIT [2021] 127 taxmann.com 803. However, the Bench went wrong in not following the legal proposition settled by the Co-ordinate Benches and accordingly, there is mistake apparent from record which would justify recall of the order. The Ld. AR also submitted that CBDT Circular No.495 dated 22.09.1987 as considered by Ld. CIT(A) in the impugned order was not referred by the Tribunal while adjudicating the appeal. Accordingly, the Ld. AR sought recall of the order. 3. The Ld. Sr. DR, on the other hand, submitted that the assessee is seeking mere review of the order which is impermissible. The attention was also drawn to the fact that substantial question of law in assessee’s appeal has already been admitted by Hon’ble Madras High Court. 4. After going through order dated 15.06.2021, we find that the bench, at para-7 of the order, held that the computation has to be made as per books of accounts from the year of incorporation to the current assessment year. There was no brought forward business loss or unabsorbed depreciation loss as per books for setting-off against the book-profit of this assessment year. The ratio was held to be in accordance with the case law of Mumbai Tribunal in the case of Go Airlines (India) Ltd. DCIT in ITA No.3788/Mum/2018 dated 13.01.2021 and accordingly, the revenue’s appeal was allowed. We find that the issue is debatable one and there was no mistake apparent from record which would require any interference on our part. If the plea of Ld. AR is M.P No:44/Chny/2021 3 to be accepted, it would amount to review of the order which is impermissible. 5. The Miscellaneous Petition stands dismissed in terms of our above order. Order pronounced in open court on 29 th April, 2022. Sd/- (MAHAVIR SINGH) उपा ! /VICE PRESIDENT Sd/- (MANOJ KUMAR AGGARWAL) लेखा सद) / ACCOUNTANT MEMBER चे*ई Chennai; िदनांक Dated : 29-04-2022 EDN EDNEDN EDN आदेशकीTितिलिपअ&ेिषत/Copy of the Order forwarded to : 1. अपीलाथ /Appellant 2. यथ /Respondent 3. आयकर आयु (अपील)/CIT(A) 4. आयकर आयु /CIT 5. िवभागीय ितिनिध/DR 6. गाड फाईल/GF