VISVESVARAYA INDL RESEARCH & DEVELOPMENT CENTRE, V. JCIT RG 12(20), MUMBAI

MA 543/MUM/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5319 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-11-2010
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: misc
• Appeal Filed On: 09-09-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: D SONGATE
• Assessee Lawyers: ANIL J SATHE

Judgement Text

1 MA 543/M/2010 M/S VISVESVARASYA IND. RESEARCH & DEV. CENTRE IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D BEFORE SHRI P.M. JAGTAP, A.M. AND SHRI R.S. PADVEKA R, JM MISC. APPLICATION NO. 543/MUM/2010 ARISING OUT OF ITA NOS. 7110 & 7111/MUM/2008 ASSESSMENT YEAR 2002-2003 & 2005-06 M. VISVESVARAYA INDUSTRIAL RESEARCH & DEVELOPMENT CENTRE, CENTRE -1, 31 ST FLOOR, CUFFE PARADE, MUMBAI -400 005. PAN AAACR2831H VS. J.C.I.T. RANGE 12(20), AAYAKAR BHAWAN, MUMBAI 400 020. APPLICANT RESPONDENT APPLICANT BY SHRI ANIL J. SATHE RESPONDENT BY SHRI D. SONGATE ORDER PER P.M. JAGTAP, A.M. BY THIS MISC. APPLICATION, THE ASSESSEE IS SEEKING RECTIFICATION OF THE MISTAKES ALLEGED TO HAVE CREPT IN THE ORDER OF THE TRIBUNAL DTD. 20.11.09 PASSED IN ITA NO. 7110 & 7111/MUM/08. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SID ES AND ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS OBSERVED THAT THE ISSUE R ELATING TO THE DISALLOWANCE OF ` 3,48,11,110/- MADE ON ACCOUNT OF AMOUNT PAID BY THE ASSESSEE TO KPMG TOWARDS REPAYMENT OF DEPOSIT ON TERMINATION OF AGREEMENT WA S RESTORED BY THE TRIBUNAL BY ITS ORDER DTD. 20.11.09 TO THE FILE OF THE A.O. WITH A DIRECTION TO DECIDE THE SAME AFRESH ON 2 MA 543/M/2010 M/S VISVESVARASYA IND. RESEARCH & DEV. CENTRE MERIT AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF B EING HEARD AND AFTER TAKING INTO CONSIDERATION THE FINALITY OF THE ISSUE RELATING TO TAXABILITY OF THE AMOUNT OF ` 3,94,19,523/- RECEIVED BY THE ASSESSEE AS DEPOSIT I N A.Y. 1996-97. THE DIRECTION TO CONSIDER THE FINALITY OF THE ISSUE IN A.Y. 1996-97 WAS GIVEN BY THE TRIBUNAL KEEPING IN VIEW THE SUBMISSION OF THE LD. D.R. THAT THE SAID I SSUE WAS STILL PENDING BEFORE THE HONBLE BOMBAY HIGH COURT AND UNLESS AND UNTIL THE SAME BECAME FINAL, DEDUCTION OF ` 3,48,11,110/- COULD NOT BE ALLOWED TO THE ASSESSEE. IN THE PRESENT APPLICATION, THE ASSESSEE HAS POINTED OUT THAT THERE IS NO SUCH ISSUE PENDING BEFORE THE HONBLE HIGH COURT FOR A.Y. 1996-97 AS SUBMITTED BY THE D.R. AT THE TIME O F HEARING BEFORE TRIBUNAL AND THE SAME HAVING BEEN ALREADY BECOME FINAL, THERE IS A M ISTAKE IN THE ORDER OF THE TRIBUNAL IN GIVING DIRECTION TO THE A.O. TO DECIDE THE ISSUE RE LATING TO DISALLOWANCE OF ` 3,48,11,110/- INVOLVED IN A.Y. 2002-03 ONLY AFTER THE FINALITY TO THE ISSUE RELATING TO THE TAXABILITY OF THE AMOUNT OF ` 3,94,19,523/- IN A.Y. 1996-97. IT IS, HOWEVER, OBS ERVED THAT THE DIRECTION GIVEN BY THE TRIBUNAL IN THIS REGARD IS THAT THE A. O. MAY ALSO TAKE INTO CONSIDERATION THE FINALITY OF THE ISSUE RELATING TO THE TAXABILITY OF THE AMOUNT OF ` 3,94,11,110/- IN A.Y. 1996-97 WHICH IS RELEVANT IN THIS CONTEXT. KEEPING IN VIEW OF THIS SPECIFIC DIRECTION OF THE TRIBUNAL IN PARA NO. 19 DTD 20.11.2009, IF AT A LL THE ISSUE HAS ACTUALLY BECOME FINAL IN A.Y. 1996-97 AS POINTED OUT BY THE LEARNED COUNSEL FOR THE ASSESSEE IN THE PRESENT APPLICATION, WE DO NOT SEE ANY PROBLEM FOR THE A.O. TO GO AHEAD AND DECIDE THE ISSUE RELATING TO DISALLOWANCE OF ` 3,48, 11,110/- AFRESH ON MERIT. HOWEVER, IN ORDER TO AVOID ANY CONFUSION AND TO KEEP THE RECORD STRAIGHT, WE D IRECT THE A.O. TO VERIFY THE STAND OF THE ASSESSEE RELATING TO THE FINALITY OF THE ISSUE OF T AXABILITY OF AMOUNT OF ` 3,94,19,523/- IN A.Y. 1996-97 FROM THE RELEVANT RECORD AND ACCORDING LY DECIDE THE ISSUE RELATING TO ASSESSEES CLAIM FOR DEDUCTION OF ` 3,48,11,110/- INVOLVED IN A.Y. 2002-03 ON MERIT AS PER THE DIRECTION OF THE TRIBUNAL. 3. AS REGARDS THE OTHER MISTAKE ALLEGEDLY POINT ED OUT BY THE ASSESSEE IN THE ORDER OF THE TRIBUNAL DTD. 20.11.09 CONFIRMING THE ADDITION OF ` 42,87,047/-U/S 68 MADE IN A.Y. 2005- 06 INSTEAD OF RESTORING THE SAID ISSUE TO THE FILE OF THE A.O. FOR DECIDING THE SAME AFRESH IN 3 MA 543/M/2010 M/S VISVESVARASYA IND. RESEARCH & DEV. CENTRE THE LIGHT OF CONFIRMATION OF THE CONCERNED CREDITOR S FILED BY THE ASSESSEE, IT IS OBSERVED THAT NO SUCH CONFIRMATIONS WERE ACTUALLY FILED BY T HE ASSESSEE AT THE TIME OF HEARING BEFORE THE TRIBUNAL AND THE SAME WERE FILED ONLY SU BSEQUENTLY AND THAT TOO WITHOUT SEEKING PERMISSION OF THE TRIBUNAL AND WITHOUT THER E BEING ANY DIRECTION BY THE TRIBUNAL TO FILE THE SAME. THE SAID CONFIRMATIONS CLAIMED T O BE FILED BY THE ASSESSEE THUS HAVE NOT BEEN TAKEN ON RECORD BY THE TRIBUNAL AND THIS BEING SO, WE FIND NO MISTAKE MUCH LESS A MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TR IBUNAL IN NOT RESTORING THE ISSUE RELATING TO ADDITION OF ` 42,87,047/- U/S 68 TO THE FILE OF THE A.O. AS ALLE GED BY THE ASSESSEE IN THE PRESENT MISC. APPLICATION. 4. IN THE RESULT, THE M.A. OF THE ASSESSEE IS TREATED AS PARTLY ALLOWED. ORDER PRONOUNCED ON 30 TH NOVEMBER, 2010. SD/- S D/- (R.S. PADVEKAR) (P.M. JAGTAP) JUDICIAL MEMBER ACCO UNTANT MEMBER MUMBAI, DATED 30 TH NOVEMBER , 2010. RK COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XII, MUMBAI 4. THE CIT- XII MUMBAI 5. THE DR BENCH, F 6. MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI 4 MA 543/M/2010 M/S VISVESVARASYA IND. RESEARCH & DEV. CENTRE DATE INITIALS 1. DRAFT DICTATED 19.11.2010 SR.P.S./P.S. 2. DRAFT PLACED BEFORE AUTHOR 19.11.2010 SR.P.S./P.S. 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER. - J.M./A.M. 4.DRAFT DISCUSSED/ APPROVED BY SECOND MEMBER. J.M./A.M. 5. APPROVED DRAFT COMES TO THE SR.P.S./P.S. SR.P.S./P.S. 6. KEPT FOR PRONOUNCEMENT ON SR.P.S./P.S. 7. FILE SENT TO THE BENCH CLERK SR.P.S./P.S. 8. DATE OF WHICH FILE GOES TO THE HEAD CLERK. 9. DATE OF DISPATCH OF ORDER.