MAQUET MEDICAL INDIA PRIVATE LIMITED, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX 10(2)(2), MUMBAI

MA 550/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 7632 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 01-06-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 30-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KUMAR PADMA
• Keywords: FORM 26AS
• Section: 143(1); 191; 254(2)

Judgement Text

M.A 550/MUM/2019 - A.Y 2011 - 12 MAQUET MEDICAL INDIA P RIVATE LIMITED VS. DCIT 10(2)(2), MUMBAI 1 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, M UMBAI BEFORE SHRI M. BALAGANESH, AM AND SHRI RAVISH SOOD, JM M.A. NO. 550/MUM/2019 (ARISING OUT OF ITA NO.6523/MUM/2017) ( / ASSESSMENT YEAR: 2011 - 12) MAQUET MEDICAL INDIA PRIVATE LIMITED; FULCRUM B - WING, 204 2 ND FLOOR, SAHAR ROAD, NEAR HYATT HOTEL, ANDHERI (EAST), MUMBAI 400 013. / VS. DEPUTY COMMISSIONER OF INCOME - TAX 10(2)(2), AAYKAR BHAVAN, MAHARSHI KARVE ROAD, MUMBAI - 400 020 ./ ./ PAN NO.AADCM8545J ( / APPLICANT) : ( / RESPONDENT ) / APPLICANT BY : SHRI. NIRAJ SHETH, A.R / RESPONDENT BY : SHRI. KUMAR PADMAPANI BORA, D.R / DATE OF HEARING : 29.11.2019 / DATE OF PRONOUNCEMENT : 01 .06.2020 / O R D E R PER RAVISH SOOD, JM: THE PRESENT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE COMPANY ARISES FROM THE ORDER PASSED BY THE TRIBUNAL WHILE DISPOSING OFF ITS APPEAL I.E MAQUET MEDICAL INDIA PRIVATE M.A 550/MUM/2019 - A.Y 2011 - 12 MAQUET MEDICAL INDIA P RIVATE LIMITED VS. DCIT 10(2)(2), MUMBAI 2 LIMITED VS. DEPUTY COMMISSIONER OF INCOME - TAX, RANGE 10(2)(2), MUMBAI FOR ASS ESSMENT YEAR 2011 - 12. 2. IT WAS SUBMITTED BY THE LD. AUTHORISED REPRESENTATIVE (FOR SHORT A.R) THAT THE ORDER PASSED BY THE TRIBUNAL WHILE DISPOSING OFF THE AFORESAID APPEAL SUFFERED FROM A MISTAKE, WHICH BEING GLARING, PATENT, OBVIOUS AND APPARENT FROM RECORD THEREIN RENDERED IT AMENABLE FOR RECTIFICATION U/S 254(2) OF THE ACT. FACTS TO THE EXTENT RELEVANT FOR THE DISPOSAL OF THE PRESENT APPLICATION ARE VIZ. (I). THE ASSESSEE HAD CLAIMED TO HAVE DEPOSITED DIVIDEND DISTRIBUTION TAX (DDT) OF RS. 33,21,750/ - U/S 115 - O OF THE ACT, VIDE A CHALLAN DATED 17.05.2010 (AS PER FORM 26AS); (II). THAT WHILE E - FILING THE RETURN OF INCOME THE ASSESSEE DUE TO AN INADVERTENT MISTAKE HAD REPORTED AN AMOUNT OF RS. 32,44,500/ - IN THE SCHEDULE DDT OF THE ITR FORM 6 (INSTE AD OF RS. 33,21,750/ - ); (III). THAT A DEMAND OF RS. 5,47,225/ - WAS RAISED IN THE HANDS OF THE ASSESSEE WHILE PROCESSING OF ITS RETURN U/S 143(1) OF THE ACT, DATED 10.08.2010. VIZ. (A). TOWARDS SHORT DEPOSIT OF DDT : RS. 77,250/ - AND (B). INTEREST U/S 115 - P : RS. 4,69,975/ - ; AND (IV). THE A.O WHILE FRAMING THE ASSESSMENT VIDE HIS ORDER PASSED U/S 143(3), DATED 27.02.2015 WORKED OUT THE OUTSTANDING LIABILITY AT RS. 5,47,225/ - VIZ. TOWARDS DDT U/S 115 - O (RS. 77,250/ - ) AND INTEREST SEC. 115 - P (RS. 4, 69,975/ - ) . ON APPEAL, THE CIT(A) HOLDING A CONVICTION THAT THE ASSESSEE WAS SEEKING CREDIT OF DDT AGAINST ITS TAX LIABILITY ON THE TOTAL INCOME DISMISSED THE APPEAL . 3. IN THE BACKDROP OF THE AFORESAID FACTS THE ASSESSE CARRIED THE MATTER IN APPEAL BEFORE THE TRIBUNAL, WHICH VIDE ITS ORDER DATED 05.03.2019 HAD DISMISSED THE APPEAL BY OBSERVING AS UNDER: 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. ADMITTEDLY THE PRESENT APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER PASSED BY THE LD. CIT(A) IN THE QUANTUM ASSESSMENT PROCEEDINGS, WHEREIN THE ISSUE OF DIVIDEND DISTRIBUTION TAX PAYABLE U/S. 115 - O OF THE ACT DOES NOT FIND PLACE. HENCE, IN OUR VIEW, THE REMEDY AGAINST THE GRIEVANCE OF THE ASSESSEE DOES NOT ARISE IN THE PRESENT APPEAL. HOWE VER, IT IS OPEN FOR THE ASSESSEE TO SEEK REMEDY IN THE MANNER KNOWN ITA NO. 6523/MUM/2017 : 4 : TO LAW. ACCORDINGLY, WE DO NOT FIND ANY MERIT IN THE PRESENT APPEAL FILED BY THE ASSESSEE AND REJECT THE SAME. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE I S DISMISSED. IT IS SUBMITTED BY THE LD. A.R THAT THE DECLINING ON THE PART OF THE TRIBUNAL TO ADDRESS THE GRIEVANCE OF THE ASSESSEE, FOR THE REASON, THAT THE SAME DID NOT EMANATE FROM THE IMPUGNED ORDER IS PALPABLY INCORRECT AND IN FACT INCONSISTENT WITH THE JUDGMENTS OF THE HONBLE SUPREME COURT. IT WAS M.A 550/MUM/2019 - A.Y 2011 - 12 MAQUET MEDICAL INDIA P RIVATE LIMITED VS. DCIT 10(2)(2), MUMBAI 3 SUBMITTED BY THE LD. A.R THAT T O CONSTITUTE AN 'ASSESSMENT ORDER', IT IS NOT NECESSARY THAT THE COMPUTATION OF TOTAL INCOME AND TAX PAYABLE SHOULD BE DONE ON THE SAME SHEET OF PAPER. AS SUCH, IT WAS SUBMITTED BY THE LD. A.R THAT COMPUTATION/QUANTIFICATION OF THE TAX AND INTEREST LIABILITY OF AN ASSESSEE, THOUGH CARRIED OUT ON A DIFFERENT SHEET O F PAPER AND THE A.O APPROVES OF IT, EITHER IMMEDIATELY OR SOMETIME LATER, WOULD FORM PART OF THE ASSESSMENT ORDER. IN ORDER TO FORTIFY HIS AFORESAID CLAIM THE LD. A.R RELIED ON THE JUDGMENT S OF THE HON B LE SUPREME COURT IN THE CASE OF KALYANKUMAR RAY VS. CIT (1991) 191 ITR 634 (SC) AND CIT, DELHI VS. BHAGAT CONSTRUCTION CO. (P) LTD . (2015) 60 TAXMAN.COM 334 (SC). APART FROM THAT, IT WAS SUBMITTED BY THE LD. A.R THAT THE ASSESSEE WAS WELL WITHIN HIS RIGHT TO ASSAIL THE QUANTIFICATION OF TAX AND INTEREST LI ABILITY RAISED BY THE REVENUE AGAINST HIM U/SS. 115 - O AND 115 - P OF THE ACT. IN ORDER TO DRIVE HOME HIS AFORESAID CLAIM THE LD. A.R HAD DRAWN AN ANALOGY FROM THE JUDGMENT OF THE HONBLE AP E X COURT IN THE CASE OF GENPACT INDIA (P). LTD. VS. DY. CIT ( 2019) 1 11 TAXMANN.COM 402 (SC). I T WAS THE CLAIM OF THE LD. A.R , THAT AS THE AFORESAID ORDER PASSED BY THE TRIBUNAL CLEARLY MILITATED AGAINST THE AFORESAID JUDGMENTS OF THE HONBLE SUPREME COURT, THEREFORE, THE SAME WAS AMENABLE FOR RECTIFICATION. 4. PER CO NTRA, THE LD. DEPARTMENTAL REPRESENTATIVE (D.R) OBJECTED TO THE APPLICATION FILED BY THE ASSESSEE SEEKING RECTIFICATION OF THE ORDER PASSED BY THE TRIBUNAL . 5. WE HAVE HEARD THE AUTHORISED REPRESENTATIVES FOR BOTH THE PARTIES AND ALSO PERUSED THE ORDER PASSED BY THE TRIBUNAL WHILE DISPOSING OFF THE APPEAL OF THE ASSESSEE IN MAQUET MEDICAL INDIA PRIVATE LIMITED VS. DEPUTY COMMISSIONER OF INCOME - TAX, RANGE 10(2)(2), MUMBAI FOR ASSESSMENT YEAR 2011 - 12. ADMITTEDLY, THE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE TRIBUNAL, FOR THE REASON, THAT THE ISSUE AS REGARDS QUANTIFICATION OF DDT DID NOT ARISE FROM THE ORDER PASSED BY THE CIT(A). ON THE OTHER HAND, THE CIT(A) HAD DECLINED THE ASSESSES CLAIM ON THE BASIS OF A MISCONCEIVED FACT THAT THE ASSESSEE WAS SEE KING CREDIT OF DDT AGAINST ITS TAX LIABILITY ON THE TOTAL INCOME. WE HAVE GIVEN A THOUGHTFUL CONSIDERATION AND FIND SUBSTANTIAL FORCE IN THE CONTENTIONS ADVANCED BY THE LD. A.R. AS OBSERVED BY US HEREINABOVE, THE HONBLE APEX COURT HAD COURT IN THE CASE OF KALYANKUMAR RAY VS. CIT (1991) 191 ITR 634 (SC) AND CIT, DELHI VS. BHAGAT CONSTRUCTION CO. (P) LTD. (2015) 60 TAXMAN.COM 334 (SC) , HAD OBSERVED, THAT THAT M.A 550/MUM/2019 - A.Y 2011 - 12 MAQUET MEDICAL INDIA P RIVATE LIMITED VS. DCIT 10(2)(2), MUMBAI 4 COMPUTATION/QUANTIFICATION OF THE TAX AND INTEREST LIABILITY OF AN ASSESSEE, THOUGH CARRIED OU T ON A DIFFERENT SHEET OF PAPER AND THE A.O APPROVES OF IT, EITHER IMMEDIATELY OR SOMETIME LATER, WOULD FORM PART OF THE ASSESSMENT ORDER. ALSO, BY WAY OF AN ANALOGY DRAWN FROM THE JUDGMENT OF HTE HONBLE APEX COURT IN THE CASE OF GENPACT INDIA (P). LTD. VS. DY. CIT ( 2019) 111 TAXMANN.COM 402 (SC) , IT CAN SAFELY BE CONCLUDED THAT AN ASSESSEE REMAINS WELL WITHIN HIS RIGHT TO ASSAIL BY WAY OF AN APPEAL THE QUANTIFICATION OF TAX AND INTEREST LIABILITY RAISED BY THE REVENUE AGAINST IT U/SS. 115 - O AND 115 - P OF THE ACT. IN THE BACKDROP OF OUR AFORESAID OBSERVATIONS, WE ARE OF THE CONSIDERED VIEW THAT THE DECLINING ON THE PART OF THE TRIBUNAL TO ADDRESS THE G RIEVANCE OF THE ASSESSEE AS REGARDS THE RAISING OF THE DEMAND U/SS. 115 - O (TAX) AND 115 - P (INTEREST) BY OBSERVING THAT THE ISSUE AS REGARDS QUANTIFICATION OF DDT DID NOT ARISE FROM THE ORDER PASSED BY THE CIT(A), IS NOT FOUND TO BE IN CONFORMITY WITH THE S ETTLED POSITION OF LAW LAID DOWN BY THE HONBLE APEX COURT IN THE AFORE MENTIONED JUDGMENTS. AS SUCH, IN THE BACKDROP OF THE JUDGMENT OF THE HONBLE APEX COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTH STOCK EXCHANGE LTD. (2008) 305 ITR 227 (SC) , WHEREIN IT WAS OBSERVED THAT A NON - CONSIDERATION BY THE TRIBUNAL OF A JUDGMENT OF THE JURISDICTIONAL HIGH COURT OR THE HONBLE SUPREME COURT, THOUGH NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL AT THE TIME OF HEARING OF THE APPEAL WOULD CONSTITUTE A MISTAKE APPARENT F ROM RECORD WHICH COULD BE RECTIFIED UNDER SEC. 254(2) OF THE ACT. ACCORDINGLY, ON THE BASIS OF OUR AFORESAID OBSERVATIONS, THE ORDER PASSED BY THE TRIBUNAL WHILE DISPOSING OFF THE APPEAL OF THE ASSESSEE IS RECTIFIED. WE HEREIN RESTORE THE MATTER TO THE FI LE OF THE A.O, WHO IS HEREIN DIRECTED TO VERIFY THE CLAIM OF THE ASSESSEE THAT THOUGH IT HAD DEPOSITED DDT OF RS. 33,21,750/ - U/S 115 - O OF THE ACT, VIDE A CHALLAN DATED 17.05.2010 (AS PER FORM 26AS), HOWEVER, CREDIT HAS BEEN ALLOWED ONLY TO THE EXTENT OF RS. 32,44,500/ - . RESULTANTLY, THE IMPUGNED DEMAND TOWARDS SUCH SHORT/DEFICIT CREDIT OF DDT OF RS. 77,250/ - U/S 115 - O AND INTEREST U/S 115 - P OF RS. 4,69,975/ - HAD BEEN RAISED BY THE REVENUE. IN CASE THE AFORESAID CLAIM OF THE ASSESSES IS FOUND TO BE IN ORD ER THEN THE A.O SHALL GIVE CONSEQUENTIAL EFFECT TO OUR AFORESAID DIRECTIONS AND VACATE THE DEMAND RAISED IN THE HANDS OF THE ASSESSEE. 5. THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. M.A 550/MUM/2019 - A.Y 2011 - 12 MAQUET MEDICAL INDIA P RIVATE LIMITED VS. DCIT 10(2)(2), MUMBAI 5 ORDER PRONOUNCED UNDER RULE 34(4) OF THE INCOME TAX (A PPELLATE TRIBUNAL) RULES, 1962, BY PLACING THE DETAILS ON THE NOTICE BOARD. SD/ - SD/ - ( M. BALAGANESH ) (RAVISH SOOD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; 01 . 06.2020 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI