DCIT (LTU) 2, MUMBAI V. TATA AUTOCOMP SYSTEMS LTD., MUMBAI

MA 551/MUM/2019

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 5979 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-09-2020
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: K
• Assessment Year: 2010-2011
• Appeal Filed On: 30-09-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 254(2); 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J , MUMBAI BEFORE S HRI S. RIFAUR RAHMAN (AM) AND SHRI RAM LAL NEGI (JM) M .A. N O. 551 / MUM /2019 ( ARISING OUT OF IT A NO. 751 /MUM /201 5 ) ( ASSESSMENT YEAR : 2010 11 ) M.A. NO. 552/ MUM /2019 ( ARISING OUT OF IT A NO.1666/MUM /201 5 ) ( ASSESSMENT YEAR : 2010 11 ) THE ASSTT. COMMISSIONER OF INCOME TAX, LTU 2, CENTRE - 1, 29 TH FLOOR, WORLD TRADE CENTRE, CUFFE PARADE, MUMBAI - 400005 VS. M/S TATA AUTOCOMP SYSTEMS LTD., BOMBAY HOUSE, 24, HOMI MODI STREET, MUMBAI - 400001 PAN: AAACT1848E (APPELLANT) (RESPONDENT) REVENUE BY : SMT. JOTHILAKSHMI NAYAK ( DR) ASSESSEE BY : MS. AARTI SATHE (AR ) DATE OF HEARING : 13/12 /20 19 DATE OF PRONOUNCEMENT: 10 / 0 9 /2020 O R D E R PER RAM LAL NEGI, JM THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS APPLICATION S FOR RECTIFICATION OF COMMON ORDER DATED 18.03.2019 PASSED BY THE J BENCH OF THE ITAT IN CROSS APPEALS ITA NO . 751 AND 1666 /M UM/2015 FILED BY THE ASSESSEE AND THE REVE NUE RESPECTIVELY PERTAINING TO THE ASSESSMENT YEAR 2010 - 11 . 2. BEFORE US, T HE L D. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT IN THE ASSESSEE S APPEAL ITA NO. 1666/MUM/2015 THE TRIBUNAL FOLLOWING THE ORDER OF COORDINATE BENCH IN THE ASSESSEES OWN CASE FOR THE AY 2009 - 10 SET ASIDE THE GROUND NO . 8 TO THE FILE OF AO FOR DECIDING THE SAME AFRESH. T HE LD. DR POINTED OUT THAT THE TRIBUNAL HAD SET ASIDE THE IDENTICAL ISSUE TO THE FILE OF TPO , 2 M.A. NO S . 551 & 552 / MUM/2019 ASSESSMENT YEAR: 2010 - 11 HOWEVER , IN THE PRESENT CASE, THE TRIBUNAL HAS SET ASIDE THE ISSUE TO T HE FILE OF AO WHICH IS MISTAKE APPARENT ON RECORD AND THE SAME REQUIRES RECTIFICATION. 3. ON THE OTHER HAND, THE LD. COUNSEL FOR THE RESPONDENT/ASSESSEE DID NOT OPPOSE THE ISSUE RAISED BY THE LD DR. 3. WE HAVE GONE THROUGH THE RECORD AND NOTICE D THAT ISSU E RAISED VIDE GROUND NO.8 . V IDE ORDER DATED 18.03.2019, WE HAVE SET ASIDE THE MATTER TO THE FILE OF AO AS THE FINAL ORDER IS PASSED BY THE AO AS PER ALP DETERMINED BY THE TPO. HOWEVER, SINCE THE REVENUE HAS RAISED THE SPECIFIC GROUND IN THIS MA, WE MODIFY THE DIRECTION GIVEN IN THE ORDER. HENCE , PARA NO. 10 OF THE ORDER MAY BE READ AS UNDER: - 10. SINCE, THE COORDINATE BENCH HAS DEALT WITH THE IDENTICAL ISSUE IN THE ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2009 - 10 AND REMITTED ISSUE TO THE FILE OF AO FO R DECIDING AFRESH AFTER TAKING INTO CONSIDERATION ALL THE DETAILS AND DOCUMENTS SUBMITTED BY THE AO, WE RESPECTFULLY FOLLOWING THE ORDER OF THE COORDINATE BENCH,, SET ASIDE THIS ISSUE TO THE FILE OF THE TPO/AO FOR DECIDING THE SAME AFRESH AFTER GIVING OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE. HENCE, THIS GROUND OF APPEAL IS ALLOWED FOR THE STATISTICAL PURPOSES. 4. THE LD. DR FURTHER POINTED OUT THAT IN THE REVENUES APPEAL ITA NO 1666/MUM/2015, GROUND NO. 2 PERTAIN ED TO ADDITION U/S 36(1) (III) AMOUNTIN G TO RS. 3,65,37,000/ - . THE ITAT DISMISSED THIS GROUND FOR THE REASON THAT THE LD. DRP HAS DELETE D THE ADDITION MADE U/S 36(1) (III) BY FOLLOWING THE ORDER OF THE LD. DRP ISSUED IN ASSESSEES OWN CASE FOR THE AY 2009 - 10. THE LD. DR SUBMITTED THAT IN THE AS SESSMENT YEAR 2009 - 10, THE REVENUE HAD RAISED SPECIFIC GROUNDS AGAINST THE DECISION OF THE LD. DRP DIRECTING TO DELETE THE DISALLOWANCE MADE U/S 36(1)(III), HOWEVER, WHILE DECIDING THE APPEAL, THE TRIBUNAL OMITTED TO ADJUDICATE THE SAID GROUND. THE LD. DR ACCORDINGLY SUBMITTED THAT THE MISTAKE APPARENT FROM THE RECORD MAY BE RECTIFIED U/S 254(2) OF THE ACT . 5 . ON THE OTHER HAND, THE LD. COUNSEL FOR THE ASSESSEE OPPOSED SUBMISSIONS MADE BY THE REVENUE ON THE GROUND THAT SINCE THE REVENUE HAD NOT FILED ANY MI SCELLANEOUS APPLICATION FOR RECTIFICATION THE ORDER PASSED BY THE 3 M.A. NO S . 551 & 552 / MUM/2019 ASSESSMENT YEAR: 2010 - 11 COORDINATE BENCH T HE TRIBUNAL HAS DECIDED THE ISSUE AND DELETED THE ADDITION. NOW, AT THIS STAGE, THE REVENUE CANNOT ASK THE TRIBUNAL TO RECTIFY THE ORDER IN QUESTION BY DECIDING THE ISSUE A FRESH . THE LD. COUNSEL FURTHER POINTED OUT THAT IN CASE THIS ISSUE IS DECIDED AFRESH IT WILL AMOUNT TO REVIEW OF ITS ORDER BY THE TRIBUNAL, WHICH IS NOT PERMISSIBLE UNDER LAW . 6. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTIES AND PERUSED THE MATERIA L ON RECORD. AS ALLEGED BY THE LD. DR IN THE ASSESSMENT YEAR 2009 - 10, THE REVENUE CHALLENGED THE ORDER OF THE LD DRP, HOWEVER, THE TRIBUNAL DID NOT ADJUDICATE THE SAID GROUND. WE FURTHER NOTICE THAT THE REVENUE HAS NOT FILED ANY APPLICATION U/S 254(2) OF T HE ACT, FOR ADJUDICATING THE SAID GROUND. IN THE PRESENT CASE, THE TRIBUNAL HAS DISMISSED GROUND NO. 2 OF THE REVENUES APPEAL HOLDING AS UNDER: - AO HAS DELETED THE ADDITION MADE U/S 36(1)(III) AS PER DIRECTION ISSUED BY THE DRP WHICH IS BASED ON THE DI RECTION OF THE LD. DRP FOR THE ASSESSMENT YEAR 2009 - 10. SINCE, THE DEPARTMENT HAS NOT CHALLENGED THE DIRECTION OF THE LD. DRP PASSED IN THE ASSESSMENT YEAR 2009 - 10 AND SINCE THERE IS NO CHANGE OF MATERIAL FACTS IN THIS YEAR, WE DO NOT FIND ANY REASON TO IN TERFERE WITH THE ORDER PASSED BY THE AO ON THE DIRECTION OF DRP IN THIS YEAR. HENCE, WE DISMISS THIS GROUND OF APPEAL OF THE REVENUE. 7. AS POINTED OUT BY THE LD. DR, THE REVENUE HAD CHALLENGED THE ACTION OF THE LD. DRP IN DIRECTING THE AO TO DELETE THE ADDITION MADE U/S 36(1)(III) OF THE ACT IN ITS APPEAL FOR THE ASSESSMENT YEAR 2009 - 10, BUT THIS GROUND WAS NOT ADJUDICATED BY THE TRIBUNAL AS WELL AS IN THE ORDER PASSED FOR AY 2010 - 11 . IN THE LIGHT OF THE SAID FACTS, THE ABOVE OBSERVATIONS OF THE TRIBUNAL ARE ERRONEOUS AND REQUIRE RECTIFICATION . W E ARE THEREFORE, OF THE CONSIDERED VIEW THAT THE ISSUE POINTED OUT BY THE LD. DR IS A MISTAKE APPARENT FROM THE RECORD WITHIN THE MEANING OF SECTION 254 (2) OF THE ACT , WHICH REQUIRES RECTIFICATION. HENCE, WE RECA LL THE ORDER DATED 18.03.2019 PERTAINING TO THE REVENUES APPEAL ITA NO. 751/MUM/2015 FOR THE AY 2010 - 11 FOR A LIMITED PURPOSE OF DECIDING GROUND NO. 2 OF ITS APPEAL. ACCORDINGLY, WE DIRECT THE REGISTRY TO POST THIS APPEAL 4 M.A. NO S . 551 & 552 / MUM/2019 ASSESSMENT YEAR: 2010 - 11 BEFORE A REGULAR BENCH FOR ADJUDI CATING GROUND NO. 2 OF THE REVENUES APPEAL ITA NO. 751/MUM/2015 . IN THE RESULT, MISC. APPLICATION S FILED BY THE REVENUE FOR A SSESSMENT YEAR 2010 - 11 ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN CO U RT ON 10 TH SEPTEMBER , 2020 UNDER RULE 34 (4) OF THE INCOME TAX APPELLATE TRIBUNAL RULES, 1963 . SD/ - SD/ - ( S. RIFAUR RAHMAN ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED : 10 / 09 / 2020 ALINDRA, PS / 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 . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI