CIPLA LTD, V. DCIT CEN CIR-2,

MA 543/MUM/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9732 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2007-2008
• Appeal Filed On: 17-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: D P BAPAT

Judgement Text

MA NOS.542 & 543 OF 2011 CIPLA LIMITED MUMBAI PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL 'C' BENCH, MUMBAI BEFORE SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER & SHRI VIVEK VARMA, JUDICIAL MEMBER M.A.NOS.542 & 543/MUM/2011 (ARISING OUT OF ITA NOS.4908/MUM/2009 & 2666/MUM/20 11) (ASSESSMENT YEARS: 2006-07 & 2007-08) M/S CIPLA LIMITED, MUMBAI CENTRAL MUMBAI 400008 PAN: AAACC 1450 B VS. DCIT-2, CGO BUILDING, 9 TH FLOOR, M.K. MARG, MUMBAI 400020 (APPELLANT) (RESPONDENT) ASSESSEE BY: SHRI D.P. BAPAT DEPARTMENT BY: MS. NEERAJA PRADHAN, DR DATE OF HEARING: 23/11/2012 DATE OF PRONOUNCEMENT: 05/12/2012 O R D E R PER B. RAMAKOTAIAH, A.M. THESE MISCELLANEOUS APPLICATIONS ARISE OUT OF THE TRIBUNAL ORDER DATED 6.7.2011 IN ITA NOS.4908/MUM/2009 & 266 6/MUM/ 2011, WITH REFERENCE TO THE FRINGE BENEFIT TAX. ASS ESSEE HAS RAISED TWO GROUNDS IN BOTH THE YEARS COMMONLY AND THESE AR E ADJUDICATED BY THE ABOVE ORDER. IT WAS THE SUBMISSION BY ASSESS EE THAT WHILE ARGUING GROUND NO.1, HE WAS DENIED OPPORTUNITY TO B E HEARD ON THE LEGAL MERITS OF THE CONTENTIONS WITH REFERENCE TO T HE BOARD CIRCULAR AND FILED A DETAILED AFFIDAVIT WITH REFERENCE TO TH E RELIANCE ON THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CA SE OF NIRMAL MEHTA, 269 ITR 1 AND THE DECISION OF THE TRIBUNAL I N THE CASE OF OKASA PVT LTD IN ITA NO.5428/M/2009 DATED 29 TH OCTOBER, 2010 TO SUBMIT THAT ASSESSEE CAN RAISE ARGUMENTS OR ADDITIO NAL CLAIMS IN THE COURSE OF APPEAL. FURTHER IT WAS ALSO SUBMITTED THAT THE LEGAL MA NOS.542 & 543 OF 2011 CIPLA LIMITED MUMBAI PAGE 2 OF 3 MERITS ON THE APPLICABILITY OF PROVISIONS OF SECTIO N 115WB(2) TO THE IMPUGNED EXPENSES INDEPENDENT OF THE BOARD CIRCULAR WAS NOT ALLOWED TO BE ARGUED AS THE LOWER AUTHORITIES HAS N OT RENDERED ANY FINDINGS THEREON. 2. WITH REFERENCE TO GROUND NO.2 IT WAS THE SUBMISSION THAT THE DECISION OF THE COORDINATE BENCH OF ITAT IN THE CAS E OF GODREJ PROPERTIES LTD IN ITA NO.840/M/2010 WHICH WAS QUOTE D WERE NOT CONSIDERED WHEREIN THE FBT WILL NOT BE PAYABLE EVEN WHERE THE MEDICAL REIMBURSEMENT IS EXEMPT IN THE HANDS OF THE EMPLOYEES. 3. THE LEARNED COUNSEL HAS FILED AN AFFIDAVIT DATED 14 .10.2011 IN SUPPORT OF THE ABOVE CONTENTIONS. 4. AS FAR AS GROUND NO.1 IS CONCERNED, AS SEEN FROM OU R NOTES AT THE TIME OF ARGUMENTS, ASSESSEE COUNSEL RELIED ON T HE DECISION IN THE CASE OF CIT VS. OKASA PVT. LTD. FURTHER THE DEC ISION OF THE SUPREME COURT IN THE CASE OF GREENWORLD CORPORATION , 314 ITR 81, THAT THE CIRCULAR IS NOT BINDING ON THE CIT (A) WAS ALSO RELIED UPON. 5. WITH REFERENCE TO GROUND NO.2 THE COORDINATE BENCH DECISION IN THE CASE OF GODREJ PROPERTIES IN ITA NO.840/M/20 10 WAS RELIED UPON ALONG WITH THE DECISION IN THE CASE OF UNION O F INDIA VS. AZAD BACHAO ANDOLAN IN 263 ITR 265 WITH REFERENCE TO LIA BILITY OF TAX ON AN EXEMPT AMOUNT. ASSESSEE ALSO RAISED ADDITIONAL G ROUND IN AY 2007-08 WITH REFERENCE TO THE CHARGE OF FBT IN RESP ECT OF ALLOWANCE PROVIDED TO THE EMPLOYEES FOR JOURNEYS BETWEEN THEI R PLACE OF RESIDENCE AND PLACE OF WORK. 6. THERE SEEMS TO BE NON-CONSIDERATION OF SOME OF THE ISSUES RAISED IN GROUND NOS. 1 & 2 WHILE ADJUDICATING THE APPEAL AND ADDITIONAL GROUND. THE DECISIONS RELIED UPON WERE N OT CONSIDERED. IN VIEW OF THIS, ACCEPTING THE LEARNED COUNSELS AF FIDAVIT AND MA, WE MA NOS.542 & 543 OF 2011 CIPLA LIMITED MUMBAI PAGE 3 OF 3 RECALL THE ORDERS IN THE ABOVE TWO APPEALS (ITA NOS . 4908/MUM/2009 & 2666/MUM/2011) FOR FRESH HEARING BY GIVING DUE OPPOTTUNITY TO BOTH THE PARTIES. 7. REGISTRY IS DIRECTED TO POST THE CASES IN DUE COURS E. 8. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIONS FILED BY ASSESSEE ARE CONSIDERED ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 5 TH DECEMBER, 2012. SD/- SD/- (VIVEK VARMA) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 5 TH DECEMBER, 2012. VNODAN/SPS COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, C BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI