M/S LUPIN LTD., MUMBAI V. ACIT -3(4), MUMBAI

MA 75/MUM/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 7057 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-05-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 25-04-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 26-03-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence; Set aside
• Section: 10B; 73

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL Mumbai “A” Bench, Mumbai. Before Shri B.R. Baskaran (AM) & Shri Pavan Kumar Gadale (JM) M.A. No. 73/Mum/2024 in I.T.A. No. 1923/Mum/2020 (A.Y. 2012-13) M.A. No. 74/Mum/2024 in I.T.A. No. 1922/Mum/2020 (A.Y. 2011-12) M.A. No. 75/Mum/2024 in I.T.A. No. 456/Mum/2021 (A.Y. 2011-12) M.A. No. 76/Mum/2024 in I.T.A. No. 394/Mum/2021 (A.Y. 2010-11) M.A. No. 77/Mum/2024 in I.T.A. No. 1921/Mum/2020 (A.Y. 2010-11) M.A. No. 78/Mum/2024 in I.T.A. No. 455/Mum/2021 (A.Y. 2012-13) M/s. Lupin Limited 7 th Floor, Kalpataru Inspire, Off Western Express Highway Santacruz East Mumbai-400 055. Vs. DCIT, Circle-3(4) 29 th Floor Center 1, World Trade Centre Cuffe Parade Mumbai-400 005. (Appellant) (Respondent) PAN : AAACL1069K Assessee by Shri Rajan Vora & Shri Pranay Gandhi Department by Shri Manoj Kumar Sinha Date of Hearing 26.04.2024 Date of Pronouncement 27.05.2024 O R D E R Per B.R. Baskaran (AM): - The assessee has filed these Miscellaneous Applications submitting that there are mistakes apparent from record in the common order dated 25.01.2024 passed by the Tribunal for A.Ys. 2010-11 to 2012-13. M/s. Lupin Limited M.A.Nos. 73 to 78 2 M.A NO. 76 & 77/MUM/2024 (ASST. YEAR 2010-11) 2. The assessee has filed miscellaneous application against the orders passed on the appeals filed both by the assessee and department for assessment year 2010-11. (A) M.A No.77/Mum/2024 arising in Assessee’s Appeal no.1921/Mum/2020 We shall first take up the petition filed in assessee’s appeal. It is stated that the assessee has raised additional grounds No. 7 & 9 before the Tribunal. However, the Tribunal did not adjudicate both these grounds on the reasoning that they are alternative grounds and are not being pressed. The Learned AR submitted that both these grounds are not alternative grounds as observed by the Tribunal and hence they require adjudication. He submitted that non-adjudication of these grounds has resulted in a mistake apparent from record. Accordingly, he prayed that these mistakes may kindly be corrected. 3. We heard Ld D.R and perused the record. We find merit in the in the submissions of the assessee. Accordingly, the Paragraph 9 in the impugned order of the Tribunal is substituted by the following paragraphs:- “9. The assessee has raised three additional grounds numbered as no. 7, 8 & 9. The ground no.8 is an alternative ground and it does not require adjudication. The Ground no.7 pertains to the addition relating to unverified purchases. It is the submission of the assessee that it had agreed for an addition of Rs.2.64 crores towards unverified purchases. Subsequently, it could locate documentary evidences for an amount of Rs.1,28,91,808/- pertaining to purchases made from M/s Bhavana Enterprise and M/s JMD Organics P Ltd amounting to Rs.84,35,723/- and Rs.44,56,085/-. It is stated that the assessee has furnished those documents as additional evidences. Accordingly, it is prayed that the additional evidences be accepted and the addition to the above said extent may be deleted. 9.1 Since the assessee is a raising new claim with furnishing of additional evidences, we are of the view that this claim of the assessee requires examination at the end of the assessing officer. Accordingly, we M/s. Lupin Limited M.A.Nos. 73 to 78 3 restore this issue to the file of the AO for examining the claim of the assessee. 9.2 The Ground no.9 relates to the deduction claimed u/s 10B of the Act. It is the contention of the assessee that the deduction u/s 10B should be computed on commercial profits. The ld A.R submitted that an identical claim made in AY 2013-14 by the assessee has been restored to the file of the assessing officer in ITA No.77/Mum/2021 for deciding the issue in the light of decision rendered by the Tribunal in the case of Reliance Industries Ltd. 9.3 We heard the parties on this issue and perused the record. Following the decision rendered by the Tribunal in the assessee’s own case in AY 2013-14, we restore this issue to the file of the AO for examining it in the light of decision rendered in the case of Reliance Industries Ltd and also in accordance with law.” 4. Accordingly, we allow this miscellaneous petition of the assessee. (B) M.A No.76/Mum/2024 arising in Revenue’s Appeal no.394/Mum/2021 5. In this miscellaneous petition, the assessee submits that the Tribunal has restored the issue relating to weighted deduction claimed u/s 35(2AB) of the Act to the file of the assessing officer, following the decision rendered by the co-ordinate bench in AY 2009-10, with the direction to examine the issue and decide upon the claim of the assessee in accordance with the legal position discussed in the Tribunal order. According to the assessee, it has furnished break-up details of expenses before the AO and Ld CIT(A) and the first appellate authority has allowed the claim after verifying the relevant expenses. Accordingly, it is submitted that the Tribunal should have upheld the view taken by the Ld CIT(A) and hence restoration of the issue to the file of the AO shall constitute mistake apparent from record. It is further submitted that the Tribunal has upheld the decision taken by Ld CIT(A) on an identical issue in AY 2013-14. Accordingly, it is prayed that the order passed by the Tribunal on this issue in AY 2010-11 may be corrected. M/s. Lupin Limited M.A.Nos. 73 to 78 4 6. We heard Ld D.R and perused the record. We notice that the Tribunal has taken a particular view while deciding this issue in this year and the view so taken cannot be termed as mistake apparent from record within the meaning of sec.254(2) of the Act. Accordingly, we reject this miscellaneous petition of the assessee. M.A NO. 74 & 75/MUM/2024 (ASST. YEAR 2011-12) 7. The assessee has filed miscellaneous application against the orders passed on the appeals filed both by the assessee and department for assessment year 2011-12. (A) M.A No.74/Mum/2024 arising in Assessee’s Appeal no.1922/Mum/2020 8. The first mistake pointed out by the assessee relates to the disallowance of bogus expenses. In paragraphs 17 and 17.1 of the order, the Tribunal has adjudicated the issue relating to disallowance of bogus expenses of R.1.97 crores and in paragraph 17.1 of the order, the Tribunal has restored the issue to the file of the AO after mentioning that it is following the decision rendered by the Tribunal in AY 2009-10 and 2010-11. It is submitted that in both the earlier years, the Tribunal has deleted the addition. Accordingly, it is submitted there is mistake apparent from record in not following the decision of earlier years in correct perspective. 9. We heard the parties on this issue. We find merit in the submission made by the assessee. Accordingly, paragraph 17.1 is substituted by the following paragraph:- “17.1 The facts relating to the above said disallowance are identical with the identical disallowances made in AY 2009-10 and 2010-11. In paragraph 4 (supra), we have dealt with an identical disallowance made in AY 2010-11 and the same was deleted, following the decision rendered in AY 2009-10. Consistent with the view taken in AY 2009-10 and 2010-11, M/s. Lupin Limited M.A.Nos. 73 to 78 5 we set aside the order passed by Ld CIT(A) on this issue and direct the AO to delete the disallowance of Rs.1,97,10,224/-” 10. The next mistake pointed out by the assessee is with regard to non- adjudication of Ground no.8 raised by way of additional ground. We notice that the ground no.8 was relating to deduction claimed u/s 10B of the Act and the same has not been adjudicated. Hence it constitutes mistake apparent from record. Accordingly, we adjudicate ground no.8 by inserting following paragraphs before paragraph no.22:- “21. The Ground no.8 relates to the deduction claimed u/s 10B of the Act. It is the claim of the assessee that the deduction u/s 10B should be allowed on the commercial profits. The ld A.R submitted that an identical claim made in AY 2013-14 by the assessee has been restored to the file of the assessing officer in ITA No.77/Mum/2021 to decide the issue in the light of decision rendered by the Tribunal in the case of Reliance Industries Ltd. 21.1 We heard the parties on this issue and perused the record. Following the decision rendered by the Tribunal in the assessee’s own case in AY 2013-14, we restore this issue to the file of the AO for examining it in the light of decision rendered in the case of Reliance Industries Ltd and also in accordance with law.” 11. Accordingly, we allow this miscellaneous application of the assessee. (B) M.A No.75/Mum/2024 arising in Revenue’s Appeal no.456/Mum/2021 12. In this miscellaneous petition, the assessee submits that the Tribunal has restored the issue relating to weighted deduction claimed u/s 35(2AB) of the Act to the file of the assessing officer by following the decision rendered by the co-ordinate bench in AY 2009-10 with the direction to examine the issue and decide upon the claim of the assessee in accordance with the legal position discussed in the Tribunal order. According to the assessee, it has furnished break-up details of expenses before the AO and Ld CIT(A) and the first appellate authority has allowed the claim after verifying the relevant M/s. Lupin Limited M.A.Nos. 73 to 78 6 expenses. Accordingly, it is submitted that the Tribunal should have upheld the view taken by the Ld CIT(A) and hence, restoration of the issue to the file of the AO shall constitute mistake apparent from record. It is further submitted that the Tribunal has upheld the decision taken by Ld CIT(A) on an identical issue in AY 2013-14. Accordingly, it is prayed that the order passed by the Tribunal on this issue in AY 2011-12 may be corrected. 13. We heard Ld D.R and perused the record. We notice that the Tribunal has taken a particular view while deciding this issue in this year and the view so taken cannot be termed as mistake apparent from record within the meaning of sec.254(2) of the Act. Accordingly, we reject this miscellaneous petition of the assessee. M.A NO. 73 & 78/MUM/2024 (ASST. YEAR 2012-13) 14. The assessee has filed miscellaneous applications against the orders passed on the appeals filed both by the assessee and department for assessment year 2012-13. (A) M.A No.73/Mum/2024 arising in Assessee’s Appeal no.1923/Mum/2020 15. The first mistake pointed out by the assessee relates to the disallowance of bogus expenses. In paragraphs 29 and 29.1 of the order, the Tribunal has adjudicated the issue relating to disallowance of bogus expenses of Rs.99.20 lakhs and in paragraph 29.1 of the order, the Tribunal has restored the issue to the file of the AO after mentioning that it is following the decision rendered by the Tribunal in AY 2009-10 and 2010-11. It is submitted that in both the earlier years, the Tribunal has deleted the addition. Accordingly, it is submitted there is mistake apparent from record in not following the decision of earlier years in correct perspective. M/s. Lupin Limited M.A.Nos. 73 to 78 7 16. We heard the parties on this issue. We find merit in the submission made by the assessee. Accordingly, paragraph 29.1 is substituted by the following paragraph:- “29.1 The facts relating to the above said disallowance are identical with the identical disallowances made in AY 2009-10 and 2010-11. In paragraph 4 (supra), we have dealt with identical disallowance made in AY 2010-11 and the same was deleted following the decision rendered in AY 2009-10. Consistent with the view taken in AY 2009-10 and 2010-11, we set aside the order passed by Ld CIT(A) on this issue and direct the AO to delete the disallowance of Rs.99,20,153/-.” 17. The next mistake pointed out by the assessee is with regard to non- adjudication of Ground no.7 raised by way of additional ground. We notice that the ground no.7 relating to deduction claimed u/s 10B of the Act has not been adjudicated and it constitutes mistake apparent from record. Accordingly, we adjudicate ground no.7 by inserting following paragraphs after paragraph no.33:- “33A. The Ground no.8 relates to the deduction claimed u/s 10B of the Act. It is the claim of the assessee that the deduction u/s 10B should be allowed on the commercial profits. The ld A.R submitted that an identical claim made in AY 2013-14 by the assessee has been restored to the file of the assessing officer in ITA No.77/Mum/2021 to decide the issue in the light of decision rendered by the Tribunal in the case of Reliance Industries Ltd. 33A.1 We heard the parties on this issue and perused the record. Following the decision rendered by the Tribunal in the assessee’s own case in AY 2013-14, we restore this issue to the file of the AO for examining it in the light of decision rendered in the case of Reliance Industries Ltd and also in accordance with law.” 18. Accordingly, we allow this miscellaneous application of the assessee. (B) M.A No.78/Mum/2024 arising in Revenue’s Appeal no.455/Mum/2021 19. In this miscellaneous petition, the assessee submits that the Tribunal has restored the issue relating to weighted deduction claimed u/s 35(2AB) of M/s. Lupin Limited M.A.Nos. 73 to 78 8 the Act to the file of the assessing officer by following the decision rendered by the co-ordinate bench in AY 2009-10 with the direction to verify the claim and examine the issue and decide upon the claim of the assessee in accordance with the legal position discussed in the Tribunal order. According to the assessee, it has furnished break-up details of expenses before the AO and Ld CIT(A) and the first appellate authority has allowed the claim after verifying the relevant expenses. Accordingly, it is submitted that the Tribunal should have upheld the view taken by the Ld CIT(A) and restoration of the issue to the file of the AO shall constitute mistake apparent from record. It is further submitted that the Tribunal has upheld the decision taken by Ld CIT(A) on an identical issue in AY 2013-14. Accordingly, it is prayed that the order passed by the Tribunal on this issue in AY 2011-12 may be corrected. 20. We heard Ld D.R and perused the record. We notice that the Tribunal has taken a particular view while deciding this issue in this year and the view so taken cannot be termed as mistake apparent from record within the meaning of sec.254(2) of the Act. Accordingly, we reject this miscellaneous petition of the assessee. 21. In the result, (a) the miscellaneous applications no.73, 74 and 77/Mum/2024 are allowed and (b) the miscellaneous applications no. 75, 76 and 78/Mum/2024 are dismissed. Pronounced accordingly on 27.05.2024. Sd/- Sd/- (Pavan Kumar Gadale) (B.R. Baskaran) Judicial Member Accountant Member Mumbai.; Dated : 27/05/2024 M/s. Lupin Limited M.A.Nos. 73 to 78 9 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// (Assistant Registrar) PS ITAT, Mumbai