Appeal details
Counselvise Citation
[2022] 104 COUNSELVISE.COM (IT) 3770 (ITAT-DELHI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
4 year(s) 10 month(s) 27 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
27-06-2022
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
I1
Assessment Year
2011-2012
Appeal Filed On
31-07-2017
Judgement Text
1 MA no. 447/Del/2017 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH “I-1”: NEW DELHI BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER M.A. No. 447/Del/2017 ( In ITA No. 789/DEL/2016 [Assessment Year: 2011-12 DCIT, Circle-3, Gurgaon Vs Perfetti Van Melle India Pvt. Ltd., 47 th Milestone, Delhi-Jaipur Highway, Manesar, Gurgaon. PAN: AAACP2626A APPLICANT RESPONDENT Applicant by Sh. Deepak Chopra, Adv. & Ms. Rashi Khanna, CA Respondent by Sh. Sh. Rajat Kureen, Sr. DR Date of hearing 08.04.2022 Date of pronouncement 28.06.2022 O R D E R PER KUL BHARAT, JM: This miscellaneous application has been preferred by the Revenue, seeking rectification of the order dated 28.02.2017 passed by the ITAT Delhi Bench “I-1” in ITA no. 789/Del/2016 for assessment year 2011-12. 2. Learned DR reiterated the submissions as made in the misc. application. For the sake of clarity the contents of the misc. application are reproduced as under: “The facts of the case in brief are that the assessee filed its return of income on 02.11.2011 showing the total income as Rs. Nil under normal provisions of the Act. Book profit u/s 115JB of the I.T. Act was shown at 88,47,89,546/- 2 MA no. 447/Del/2017 . The assessee paid tax under MAT to the extent of 17,64,02,593/- on the book profit of Rs. 88,47,89,546/-. The Draft Assessment order passed on 27.03.2015 wherein Total Income was assessed at Rs. 2,53,25,65,854/-. Being aggrieved assessee filed an appeal before DRP. The Dispute Resolution Panel-1, New Delhi passed an order on 30.12.2015. In pursuant to aforesaid DRP order, the final order was passed on 28.01.2016 by the A.O. creating a demand of Rs. 85,05,14,320/-. Being aggrieved assessee filed an appeal before Hon’ble ITAT for the A.Y. 201 1-12.Consequently, the order was passed by Hon’ble ITAT vide order dated 28 . 0 4 . 2 0 1 7 , ITA No. 789/Del/20 16. In this regard, your kind attention is sought to the below mentioned points/issues as the same were ignored and not considered while passing the order. The Hon’ble ITAT has completely ignored the detailed submissions of the Sr. departmental Representative on the below mentioned regarding allowability of claim of deduction u/s 801C to the AO (refer para 8.2 of the impugned order) on this ground that assessee’s location of the Rudrapur Unit is needed to be verified. The copy of the written submissions made by the Sr. departmental Representative is enclosed for your kind perusal and reference. 1. The Hon’ble ITAT has completely ignored the detailed submission of the undersigned on the above issue and restored the matter to the AO in an erroneous manner. However, the AO has passed a very detailed assessment order and the claim of deduction u/s 80IC was not allowed on account of the fact that the undertaking has manufactured any article or thing mentioned in Fourteenth Schedule. Hence, filing of MA may be considered on this issue. 2. The Hon’ble ITAT has ignored and not considered & discussed the submissions made by Sr. DR. The AO has disallowed the claim of deduction on the ground of non-maintenance of separate books of accounts as per the provision of Rule 18BBB of Income Tax Rules. The assessee had contested the above finding before the Hon'ble ITAT with specific grounds of appeal (Grounds No. 19 to 21) as well. The Sr. departmental Representative had made detailed submission on the above grounds on which the Hon’ble ITAT has not commented at all. The Sr. Departmental Representative had also relied on the judgment (mentioned in the written submission as well) of the Hon’ble Apex Court given in case of Arisudana Spinning Mills Ltd. v/s 3 MA no. 447/Del/2017 Commissioner of Income-tax. Ludhiana [20121 26 taxmann.com 39 (SC) wherein the Hon'ble Supreme Court has held that for claim of deduction u/s 80IA separate accounts are required to be maintained. Nonconsideration of above grounds and non-consideration of provision of the Income Tax Rules (Rule 18BBB) and binding judgment of Hon'ble Apex Court is a mistake apparent from the record. Hence, filing of MA may be considered on this issue. 3. The Hon'ble ITAT failed to adjudicate this issue despite the fact that the assessee had raised specific grounds (ground no. 23 and 24) in appeal. The Hon’ble ITAT has ignored and not considered & discussed the submissions made by Sr. DR. However, the AO has also restricted the claim of deduction u/s 80IC without prejudice to his disallowance of claim of deduction u/s 80IC on account of shift in assessee's profit from its other two ineligible units at Manesar and Chennai to eligible unit at Rudrapur. Hence, filing of MA may be considered on this issue. The Hon'ble ITAT has not adjudicated the Ground No. 25 pertaining to disallowance of claim of deduction u/s 80IC on the interest income on FDRs amounting to Rs.5,54,89,633/- despite the fact that the above issue is covered in favour of the revenue by the Hon'ble Apex Court in case of Pandian Chemicals Ltd. v. CIT [2003] 129 Taxman 539 (SC) and by the Hon’ble J&K 1 high Court has held in case of Asian Cement Industries/ Income Tax Appellate Tribunal [2012] 28 Taxmann.com 290 )Jammu & Kashmir). However, the Sr. DR had relied on both of these judgments as evident from the written submissions. Hence, filing of MA may be considered on this issue.” 3. On the contrary, learned counsel for the assessee opposed the submissions and submitted that by filing the present misc. application the Revenue is seeking review of the order of the Tribunal which is not within the purview of Section 254(2) of the Act. 4 MA no. 447/Del/2017 4. We have heard rival submissions and perused the material available on record. On perusal of the Tribunal’s order dated 28.02.2017, we find that the Tribunal in arriving its conclusion has duly taken into consideration all aspects of the matter. We find merit in the contention of the learned counsel for the assessee that by way of present misc. applications the Revenue is seeking review of the Tribunal’s order which is not permissible under law and is outside the scope of Section 254(2) of the Act, in the light of the judgment of the Hon’ble Supreme Court rendered in the case of CIT Vs. M/s Reliance telecom Ltd. in Civil appeal No. 7110 of 2021, observing as under: “5. From the impugned judgment and order passed by the High Court, it appears that the High Court has dismissed the writ petitions by observing that (i) the Revenue itself had in detail gone into merits of the case before the ITAT and the parties filed detailed submissions based on which the ITAT passed its order recalling its earlier order; (ii) the Revenue had not contended that the ITAT had become functus officio after delivering its original order and that if it had to relook/revisit the order, it must be for limited purpose as permitted by Section 254(2) of the Act; and (iii) that the merits might have been decided erroneously but ITAT had the jurisdiction and within its powers it may pass an erroneous order and that such objections had not been raised before ITAT. 6. None of the aforesaid grounds are tenable in law. Merely because the Revenue might have in detail gone into the merits of the case before the ITAT and merely because the parties might have filed detailed submissions, it does not confer jurisdiction upon the ITAT to pass the order de hors Section 254(2) of the Act. As observed hereinabove, the powers under Section 254(2) of the Act are only to correct and/or rectify the mistake apparent from the record and not beyond that. Even the observations that the merits might have been decided erroneously and the ITAT had jurisdiction and within its powers it may pass 5 MA no. 447/Del/2017 an order recalling its earlier order which is an erroneous order, cannot be accepted. As observed hereinabove, if the order passed by the ITAT was erroneous on merits, in that case, the remedy available to the Assessee was to prefer an appeal before the High Court, which in fact was filed by the Assessee before the High Court, but later on the Assessee withdrew the same in the instant case. 5. Respectfully following the judgment of Hon’ble Supreme Court in Reliance Telecom Ltd. (supra), the misc. applications moved by the Revenue is hereby dismissed. 6. Revenue’s misc. application is dismissed. Order pronounced in open court on 28.06.2022. Sd/- Sd/- (ANIL CHATURVEDI ) (KUL BHARAT) ACCOUNTANT MEMBER JUDICIAL MEMBER *MP* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT, NEW DELHI
