M/s.Appollo Tyres, Ernakulam V. The ACIT, Cochin

MA 8/COCH/2014

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1826 (ITAT-COCHIN)
• Duration Of Justice: 3 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-04-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 11-04-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 20-01-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K K JOHN
• Assessee Lawyers: SATHYANARAYANAN

Judgement Text

1 MA NO.08/COCH/2014 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) M.P. NO.08.COCH/2014 (ARISING OUT OF I.T.A NO. 616/COCH/2011) (ASSESSMENT YEAR 2007-08) M/S APOLLO TYRES LTD VS THE ACIT, CIR.1 SHANMUGHAM ROAD RANGE-1, KOCHI ERNAKULAM 37 PAN : AAACA6990Q (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI SATHYANARAYANAN RESPONDENT BY : SHRI K.K. JOHN DATE OF HEARING : 11-04-2014 DATE OF PRONOUNCEMENT : 25-04-2014 O R D E R PER N.R.S. GANESAN (JM) THE ASSESSEE FILED THE PRESENT MISCELLANEOUS PETIT ION ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNA L DATED 20-12-2013. 2. SHRI SATHYANARAYANAN, THE LD.REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT IN RESPECT OF FEES PAID TO THE REGIS TRAR OF COMPANIES, THIS TRIBUNAL REMANDED BACK THE MATTER TO THE FILE OF TH E ASSESSING OFFICER ON 2 MA NO.08/COCH/2014 THE GROUND THAT THE ASSESSING OFFICER AND THE DRP H AD NO OCCASION TO EXAMINE THIS ISSUE. ACCORDING TO THE LD.REPRESENTA TIVE, THE ASSESSEE HAS SPECIFICALLY RAISED THIS ISSUE WITH REGARD TO PAYME NT OF FEES TO REGISTRAR OF COMPANIES AND THE SAME WAS REJECTED BY THE ASSESSIN G OFFICER AS ALSO THE DRP. THEREFORE, THE OBSERVATION MADE BY THIS TRIBU NAL THAT THE ASSESSING OFFICER AND THE DRP HAD NO OCCASION TO LOOK INTO TH E ISSUE IS NOT BORNE OUT OF RECORDS. WE HEARD SHRI K.K. JOHN, THE LD.DR ALS O. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND ALSO PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS TR UE THAT THE ASSESSEE HAD RAISED A SPECIFIC ISSUE WITH REGARD TO FEES PAID TO THE REGISTRAR OF COMPANIES AND THE EXPENDITURE INCURRED FOR ISSUING SHARES TO THE QUALIFIED INSTITUTIONAL BUYERS. THOUGH THE ASSESSEE HAS RAIS ED A GROUND BEFORE THE DRP, THE ARGUMENT OF THE ASSESSEE BEFORE THE DRP WA S THAT ADDITIONAL CAPITAL WAS RAISED FOR AUGMENTING THE WORKING CAPIT AL, THEREFORE, THE EXPENDITURE INCURRED BY THE ASSESSEE WAS IN THE REV ENUE FIELD. THE ASSESSEE NEVER CONTENDED BEFORE THE ASSESSING OFFIC ER AND THE DRP THAT THE EXPENDITURE WAS INCURRED FOR ISSUING SHARES TO THE QUALIFIED INSTITUTIONAL BUYERS AND THE FEES PAID TO THE REGISTRAR OF COMPAN IES. THEREFORE, THE CONTENTION OF THE ASSESSEE NOW BEFORE THE TRIBUNAL THAT THE EXPENDITURE WAS INCURRED FOR ISSUING SHARES TO THE QUALIFIED IN STITUTIONAL BUYERS AND THE FEES PAID TO THE REGISTRAR OF COMPANIES WAS NOT EXA MINED BY THE LOWER 3 MA NO.08/COCH/2014 AUTHORITIES. THIS WAS EXACTLY THE TRIBUNAL HELD IN THE ORDER DATED 20-12- 2013. SINCE THE LOWER AUTHORITIES HAD NOT EXAMINED THE CLAIM OF THE ASSESSEE THAT THE FEE WAS PAID TO REGISTRAR OF COMP ANIES AND THE EXPENDITURE WAS INCURRED FOR ISSUE OF SHARES TO THE QUALIFIED INSTITUTIONAL BUYERS, THIS TRIBUNAL WAS OF THE CONSIDERED OPINION THAT THE MATTER NEEDS TO BE CONSIDERED BY THE ASSESSING OFFICER AT THE FI RST INSTANCE. THE ASSESSING OFFICER AND THE DRP HAVE CONSIDERED THE I SSUE ON THE IMPRESSION THAT THE EXPENDITURE WAS INCURRED FOR AU GMENTATION OF WORKING CAPITAL. THEREFORE, THIS TRIBUNAL IS OF THE CONSID ERED OPINION THAT THE TRIBUNAL HAS CONSCIOUSLY REMANDED BACK THE MATTER T O THE FILE OF THE ASSESSING OFFICER TO CONSIDER THE ISSUE THAT THE EX PENDITURE WAS INCURRED FOR ISSUE OF SHARES TO THE QUALIFIED INSTITUTIONAL BUYERS AND FEE PAID TO REGISTRAR OF COMPANIES WHICH WAS NOT CONSIDERED EAR LIER BY THE ASSESSING OFFICER AND THE DRP. THEREFORE, THERE IS NO ERROR, MUCH LESS A PRIMA FACIE ERROR, IN THE ORDER OF THIS TRIBUNAL. 4. THE NEXT GROUND IN THE MISCELLANEOUS PETITION IS WITH REGARD TO THE CLAIM OF DEDUCTION U/S 80IA OF THE ACT. 5. ACCORDING TO THE LD.REPRESENTATIVE FOR THE ASSES SEE, THIS TRIBUNAL REMANDED BACK THE MATTER TO THE FILE OF THE ASSESSI NG OFFICER BY FOLLOWING ITS EARLIER ORDER IN THE ASSESSEES OWN CASE. ACCO RDING TO THE 4 MA NO.08/COCH/2014 LD.REPRESENTATIVE, IN RESPECT OF EARLIER YEAR, THE ISSUE WAS NOT RAISED BEFORE THE ASSESSING OFFICER IN THE RETURN OF INCOME, HOWE VER, THE SAME WAS RAISED BEFORE CIT(A) AND THE TRIBUNAL, BY WAY OF AN ADDITIONAL GROUND. THEREFORE, FOR ASSESSMENT YEAR 2005-06, THIS TRIBUN AL REMANDED BACK THE MATTER TO THE FILE OF THE ASSESSING OFFICER BY FOLL OWING ITS EARLIER ORDER FOR THE ASSESSMENT YEAR 2002-03. IN THE YEAR UNDER CON SIDERATION, ACCORDING TO THE LD.REPRESENTATIVE, THE CLAIM WAS MADE IN THE RETURN OF INCOME AND THE ASSESSING OFFICER HAS REJECTED THE SAME, THEREF ORE, REMANDING THE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER BY FOLLOWING THE EARLIER ORDER OF THIS TRIBUNAL MAY NOT BE CORRECT. WE HEARD, SHR I K.K. JOHN, THE LD.DR ALSO. 6. THE ISSUE WITH REGARD TO DEDUCTION U/S 80IA IN R ESPECT OF GAS TURBINE POWER GENERATION UNIT FOR THE ASSESSMENT YE AR 2005-06 WAS REMANDED BACK TO THE FILE OF THE ASSESSING OFFICER FOR RECONSIDERATION AS THE SAME WAS RAISED BEFORE THE CIT(A) AND THE TRIBU NAL; BY WAY OF ADDITIONAL GROUND. THE CLAIM OF THE ASSESSEE FOR T HE ASSESSMENT YEAR UNDER CONSIDERATION IS THAT THE ISSUE IN RESPECT OF GAS TURBINE POWER GENERATION UNIT WAS RAISED IN THE RETURN OF INCOME AND THE ASSESSING OFFICER REJECTED THE CLAIM OF THE ASSESSEE, THEREFO RE, IT CANNOT BE JUSTIFIED IN REMANDING BACK THE MATTER. ADMITTEDLY, IN RESPECT OF THE VERY SAME ISSUE I.E. DEDUCTION U/S 80IA IN RESPECT OF GAS TURBINE P OWER GENERATION UNIT 5 MA NO.08/COCH/2014 FOR THE ASSESSMENT YEAR 2005-06 WAS REMANDED BACK T O THE FILE OF THE ASSESSING OFFICER FOR RECONSIDERATION. THE ASSESSI NG OFFICER HAS NOT EXPRESSED ANY OPINION ON THIS ISSUE SO FAR. FOR TH E YEAR UNDER CONSIDERATION, THE ASSESSING OFFICER REJECTED THE C LAIM OF THE ASSESSEE. SINCE THE VERY SAME ISSUE IS PENDING BEFORE THE ASS ESSING OFFICER FOR EARLIER ASSESSMENT YEAR, EXPRESSING ANY OPINION BY THIS TRIBUNAL ON THIS ISSUE FOR THE YEAR UNDER CONSIDERATION MAY INFLUENC E THE MIND OF THE ASSESSING OFFICER IN RESPECT OF THE VERY SAME ISSUE PENDING BEFORE HIM FOR EARLIER ASSESSMENT YEAR. THEREFORE, THE VERY PURPO SE OF REMANDING BACK THE MATTER TO THE ASSESSING OFFICER FOR THE EARLIER ASSESSMENT YEAR WOULD BE DEFEATED. KEEPING THIS IN MIND AND FOR THE SAKE OF CONSISTENCY, THIS TRIBUNAL REMANDED THE MATTER BACK TO THE FILE OF TH E ASSESSING OFFICER FOR RECONSIDERATION. THEREFORE, THIS TRIBUNAL IS OF TH E CONSIDERED OPINION THAT WHEN A CONSCIOUS DECISION WAS TAKEN TO REMAND BACK THE MATTER TO THE FILE OF THE ASSESSING OFFICER AS THE VERY SAME ISSUE WAS REMANDED BACK TO THE FILE OF THE ASSESSMENT OFFICER FOR THE EARLIER ASSE SSMENT YEAR THERE IS NO ERROR, MUCH LESS A PRIMA FACIE ERROR, IN THE ORDER OF THIS TRIBUNAL. ACCORDINGLY, THIS TRIBUNAL DO NOT FIND ANY MERIT IN THE CONTENTION OF THE ASSESSEE. ACCORDINGLY, THE SAME IS DISMISSED AS DE VOID OF MERIT. 7. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DISMISSED. 6 MA NO.08/COCH/2014 ORDER PRONOUNCED IN THE OPEN COURT ON THIS 06 TH APRIL, 2014. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 06 TH APRIL, 2014 PK/- COPY TO: 1. M/S APOLLO TYRES LTD, SHANMUGHAM ROAD, ERNAKULAM -37 2. THE A.C.I.T., CIR.1, RANGE-1, KOCHI 3. THE COMMISSIONER OF INCOME-TAX, KOCHI 4. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH