OTIS ILVETOR CO. INDIA LTD, V. DCIT SP RG 16,

MA 817/MUM/2009

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 3793 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-06-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 1996-1997
• Appeal Filed On: 03-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHAMMED USMAN
• Assessee Lawyers: FIROZE ANDHYARUJINA
• Section: 143(3); 37

Judgement Text

`IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH I MUMBAI BEFORE SHRI RAJENDRA SINGH (AM) AND SMT. ASHA VIJA YARAGHAVAN (JM) M.A. NO. 817/MUM/2009 (ARISING OUT OF ITA NO.379/MUM/2000) ASSESSMENT YEAR-1996-97 OTIS ELEVATOR COMPANY (I) LTD., 9 TH FLOOR, MAGNUS TOWERS, MINDSPACE, LINK ROAD, MALAD (W), MUMBAI-400 064 PAN - AAACO 0481E VS. THE DCIT, SPECIAL RANGE-16, MUMBAI (APP LICANT ) (RESPONDENT) APP LICANT BY: SHRI FIROZE ANDHYARUJINA RESPONDENT BY: SHRI MOHAMMED USMAN O R D E R PER SMT. ASHA VIJAYARAGHAVAN (JM) BY THIS MISCELLANEOUS APPLICATION, THE APPLICANT SU BMITTED AS UNDER: 1. THE APPELLANT HAD FILED AN APPEAL BEFORE THE ITA T IN ITA NO. 379/M/2000 ON JANUARY 20,2000 AGAINST THE ORDER OF THE LD. CIT(A)-XXXIII, MUMBAI DT. OCTOBER 27,1999 CONSE QUENT TO THE ORDER PASSED BY THE AO U/S. 143(3) OF THE I.T. ACT, 1961 (THE ACT) DT. JANUARY 5, 1999 FOR A.Y. 1996-97. 2. THE SAID APPEAL WAS DISPOSED OFF BY THE ITAT MUM BAI I BENCH VIDE ORDER DT. 24 TH FEB. 2006, WHICH WAS SERVED UPON THE APPLICANT ON MARCH, 27,2006. 3. THE SAID ORDER OF THE ITAT WAS A CONSOLIDATED OR DER DISPOSING OFF THE APPEALS OF THE ASSESSEE FOR A.YRS 1990-91 TO 1993-94, 1995-96 AND 1996-97. 4. THE ITAT WHILE PASSING THE CONSOLIDATED ORDER FO R A.Y. 1990-91 TO 1996-97 HAS OMITTED TO GIVE DIRECTION WI TH RESPECT TO GROUND NO. 4 OF ITA NO. 379/M/00 PERTAINING TO A .Y. 1996- 97,. THE GROUND NO. 4 RAISED BY THE APPELLANT BEFO RE THE HONBLE TRIBUNAL IS AS FOLLOWS: M.A. NO. 817/M/09 2 5.1 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) ERRED IN LAW IN HOLDING THAT DEDUCTION CANNOT BE ALLOWED IN RESPECT OF EX- GRATIA PAYABLE FOR TWO DIFFERENCE ASSESSMENT YEARS EVEN THOUGH ONE WAS ON ACTUAL PAYMENT AND THE OTHER ON THE BASIS OF THE PROVISION. 5.2 THE CIT(A) ERRED IN LAW BY HOLDING THAT THE PROVISION FOR E-GRATIA MADE IN THE ACCOUNTS BY THE APPELLANT COULD NOT BE ALLOWED AS A DEDUCTION U/S. 37 OF THE ACT AS LIABILITY TO PAY SUCH EX- GRATIA HAD ARISEN ONLY IN THE NEXT ACCOUNTING YEAR. 5.3 THE CIT(A) OUGHT TO HAVE APPRECIATED THAT THOUGH THE SUM OF RS. 395.60 LAKHS PERTAINING TO ASSESSMENT YEAR 1995-96 WAS TO BE ALLOWED AS DEDUCTION ON PAYMENT BASIS IN THE CURRENT YEAR, EVEN THE SUM OF RS. 490 LAKHS BEING PROVISION MADE IN THE ACCOUNT FOR THE FINANCIAL YEAR 1995- 96 (RELEVANT TO A.Y. 1996-97) OUGHT TO BE ALLOWED IN THE CURRENT YEAR ON ACCRUAL BASIS. 4. THE APPLICANT HAS PRESENTED THIS APPLICATION FOR RECTIFICATION OF A MISTAKE WHICH IS APPARENT FROM THE RECORD IN THE ABOVE REFERRED ORDER OF THE HONBLE TRIBUNAL. 2. SINCE GROUND NO. 4 HAS NOT BEEN ADJUDICATED BY T HE HONBLE TRIBUNAL, WE RECALL OUR ORDER DT.24 TH FEB. 2006 AND DIRECT THE REGISTRY TO FIX THE HEARING. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON THIS 18 TH DAY OF JUNE, 2010 SD/- SD/- (RAJENDRA SINGH) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 18 TH JUNE, 2010 RJ M.A. NO. 817/M/09 3 COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT-CONCERNED 4. THE CIT(A)-CONCERNED 5. THE DR I BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, I.T.A.T, MUMBAI M.A. NO. 817/M/09 4 DATE INITIALS 1 DRAFT DICTATED ON: 15.6.2010 SR. PS/PS 2. DRAFT PLACED BEFORE AUTHOR: 1 6 . 6 .2010 ______ SR. PS/PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER: _________ ______ JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER: _________ ______ JM/AM 5. APPROVED DRAFT COMES TO THE SR. PS/PS: _________ ______ SR. PS/PS 6. KEPT FOR PRONOUNCEMENT ON: _________ ______ SR. PS/ PS 7. FILE SENT TO THE BENCH CLERK: _________ ______ SR. PS/PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK: _________ ______ 9. DATE OF DISPATCH OF ORDER: _________ ______