Appeal details
Counselvise Citation
[2019] 116 COUNSELVISE.COM (IT) 5449 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
6 month(s) 23 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
22-08-2019
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
G
Assessment Year
2011-2012
Appeal Filed On
30-01-2019
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL G BENCH, MUMBAI , , BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM M.A. NO. 66/MUM/2019 [ARISING OUT OF ITA NO. 5781/MUM/2016] & M.A. NO. 114/MUM/2019 [ARISING OUT OF ITA NO. 5707/MUM/2016] ( / ASSESSMENT YEAR: 2011-12) SODEXO FOOD SOLUTIONS INDIA PRIVATE LIMITED 1 ST FLOOR, GEMSTAR COMMERCIAL COMPLEX RAMCHANDRA LANE EXTENSION KANCHPADA, MALAD(W) MUMBAI-400 064 / VS. ASSISTANT COMMISSIONER OF INCOME TAX-13(2)(1) ROOM NO.146, 1 ST FLOOR AAYKARBHAVAN, M.K.ROAD MUMBAI -400 020 ./PAN : AAACR-2547-Q ( /APPELLANT ) : ( ! / RESPONDENT ) A SSESSEE BY : SHRI NIMESH VORA, LD. AR RE VENUE BY : SHRI NISHANT SAMAIYA-LD. DR / DATE OF HEARING : 14/06/2019 / DATE OF PRONOUNCEMENT : 22/08/2019 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. BY WAY OF THESE APPLICATIONS, THE ASSESSEE SEEKS CORRECTION OF CERTAIN ERRORS / FACTS THAT ARE STATED TO HAVE BEEN CREPT IN TRIBUNALS ORDER FOR AY 2011-12 WHICH HAS DISPOSED-OFF THE CRO SS-APPEALS. 2 MA NO. 66/MUM/2019 2.1 ALL THE PLEADING UNDER APPLICATION ARE WITH RES PECT TO GROUND NO.3 OF REVENUES APPEAL ITA NO. 5781/MUM/2016. THE FIRS T ERROR POINTED OUT IS STATED TO BE IN PARA 7.3 OF THE ORDER WHEREIN IT HAS BEEN OBSERVED THAT THE ENTITY NAMELY RADHAKRISHNA HOSPITALITY SERVICES PRIVATE LIMITED WAS TAKEN OVER BY THE ASSESSEE COMPANY. THE ATTENTION H AS BEEN DRAWN TO THE FACT THAT THE STATED ENTITY, IN FACT, WAS RENAM ED AS SODEXO FOOD SOLUTIONS INDIA PRIVATE LIMITED (ASSESSEE) AND WAS TAKEN OVER BY SODEXO SA. WE CONCUR WITH THE SAME SINCE THE CORREC T FACTS HAVE ALREADY BEEN NOTED IN PARA 7.4 OF THE ORDER. THE IN ADVERTENT ERROR WHICH HAS CREPT IN PARAS 7.1 & 7.3 STAND CORRECTED TO THA T EXTENT. 2.2 THE SECOND PLEA RAISED IN THE APPLICATION IS TH AT EVEN IF THE PAYMENT TO SHRI RAJU SHETE WAS HELD TO BE ON ACCOUNT OF NON-COMPETE FEES, THE SAME WOULD STILL BE ALLOWABLE AS REVENUE EXPENDITURE U/S 37(1) OF THE ACT. RELIANCE WAS PLACED ON SEVERAL JUDICIAL PRONOUNCEMENTS AS CITED DURING THE HEARING OF THE APPEAL. IT HAS BEEN SUBMITTED THAT THOSE ARGUMENTS HAVE NOT BEEN CONSIDERED BY THE TRIBUNAL WHILE ADJUDICATING THE ISSUE. UPON CAREFUL CONSIDERATION, IT IS OBSERV ED THAT ISSUE OF DEDUCTION U/S 37(1) HAS ALREADY BEEN CONSIDERED IN PARAS 7.4 & 7.5 OF THE ORDER AND THE MATTER HAS BEEN RESTORED BACK TO THE FILE OF LD. AO FOR RE-ADJUDICATION IN THE LIGHT OF ACQUISITION AGREEME NT DATED 10/03/2009. NEEDLESS TO ADD THAT THE ASSESSEE, WHILE PLEADING F OR ADMISSIBILITY OF THE EXPENDITURE U/S 37(1), IS FREE TO RELY ON THESE DEC ISIONS IN THE SET-ASIDE PROCEEDINGS. THEREFORE, THE ORDER WOULD REQUIRE NO INTERFERENCE, IN THIS REGARD. 3 2.3 THE LD. AR, AT THE TIME OF HEARING, VIDE LETTER DATED 24/06/2019, PLACED ON RECORD THE EVIDENCE FOR PAYMENT MADE BY S ODEXO SA TO SHRI RAJU SHETE TOWARDS NON-COMPETE FEES OF USD 6 LACS P URSUANT TO CLAUSE 8.5 OF THE AGREEMENT DATED 10/03/2009. SINCE THIS DOCUMENT HAS BEEN PRODUCED FOR THE FIRST TIME, THE SAME MAY ALSO BE CONSIDERED BY LD. AO IN THE SET-ASIDE PROCEEDINGS. 2.4 THE LAST PLEA RAISED BY THE ASSESSEE IS THE FAC T THAT ADDITIONAL ALTERNATIVE GROUND RAISED FOR ALLOWABILITY OF DEPRE CIATION U/S 32 ON NON- COMPETE FEES HAS NOT BEEN ADJUDICATED. WE FIND THAT THIS ALTERNATIVE GROUND WAS NOT BROUGHT TO THE ATTENTION OF THE BENC H DURING HEARING OF THE APPEAL. NEVERTHELESS, THE ASSESSEE IS FREE TO R AISE THE SAME IN THE SET-ASIDE PROCEEDINGS. NO PREJUDICE, IN OUR OPINION , WOULD BE CAUSED TO THE ASSESSEE, ON THIS ACCOUNT SINCE THE MATTER IS A LREADY IN THE DOMAIN OF LD. AO. THEREFORE, THE ORDER WOULD REQUIRE NO IN TERFERENCE, IN THIS REGARD. 2.5 THE APPLICATION STANDS PARTLY ALLOWED TO THE EX TENT INDICATED HEREINABOVE. MA NO. 114/MUM/2019 3. THIS APPLICATION IS MERE REPETITION OF LAST PLEA RAISED IN MA NO. 66/MUM/2019 AND THE ASSESSEE SEEKS RECALL OF THE OR DER TO THE EXTENT OF RE-ADJUDICATING THE SAME. HOWEVER, OUR OBSERVATION ON THE SAME HAS ALREADY BEEN GIVEN IN PRECEDING PARA 2.4 ABOVE. THE REFORE, THE APPLICATION STAND DISMISSED. CONCLUSION 4. MA NO. 66/MUM/2019 STAND PARTLY ALLOWED WHEREAS MA NO. 114/MUM/2019 STANDS DISMISSED. 4 ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND AUGUST, 2019. SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AG GARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 22/08/2019 SR.PS:-JAISY VARGHESE / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. ! / THE RESPONDENT 3. (( ( ) / THE CIT(A) 4. (( / CIT CONCERNED 5. ) * + , ( + , / DR, ITAT, MUMBAI 6. * ,-. / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.
