M/s Herbalife International India Private Limited , Bangalore V. Assistant Commissioner of Income Tax Circle-3(1)(2), Bangalore

MA 92/BANG/2022

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2723 (ITAT-BANGALORE)
• Duration Of Justice: 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-09-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 15-09-2022
• Assessment Year: 2015-2016
• Appeal Filed On: 25-08-2022
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 254(2)

Judgement Text

M.P. Nos.91 & 92/Bang/2022 Herbalife International India Pvt. Ltd., Bangalore IN THE INCOME TAX APPELLATE TRIBUNAL “A’’ BENCH: BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENT AND SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER M.P. Nos.91 & 92/Bang/2022 ITA No.2219/Bang/2017 & ITA No.3168/Bang/2018 Assessment Years: 2013-14 & 2015-16 M/s. Herbalife International India Pvt. Ltd. RMZ Pinnacle, No.15 Commissariat Road Bangalore 560 025 Karnataka PAN NO : AAACH8025R Vs. ACIT Circle-3(1)(2) Bangalore APPELLANT RESPONDENT Appellant by : Shri Nageshwar Rao, A.R. Respondent by : Shri Sankar K. Ganeshan, D.R. Date of Hearing : 16.09.2022 Date of Pronouncement : 16.09.2022 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: By these two miscellaneous petitions, assessee seeks rectification of the order of the Tribunal in ITA No.2219/Bang/2017 & ITA No.3168/Bang/2018 dated 9.2.2022. The Ld. A.R. submitted that the Tribunal has wrongly recorded in para 51.1 of its order as follows:- “51.1 The assessee raised one more ground that CIT(A) erred in not giving direction to allow the provisions in the subsequent year in which the loss has crystalized. In our opinion, the AO while M.P. Nos.91 & 92/Bang/2022 Herbalife International India Pvt. Ltd., Bangalore Page 2 of 4 computing disallowance on account of provision for sales returns has considered only the net closing provision or closing provision less opening provision and he allowed the utilization amount in each assessment yar under consideration. Thus, it means the AO allowed the actual sales returns made in each assessment year under consideration and there is no question of allowing further deduction on this count, which amounts to double deduction. 2. The Ld. A.R. submitted that in this context, reference is invited to Page 16 and Page 17 of the order where the details of the provision for sales return including the utilisation of sales return along with opening and closing provision and the amounts disallowed by the tax authorities are tabulated. Further, Page no. 6 of Assessment order of AY 2013-14 clearly demonstrates that the Learned AO has disallowed the closing provision i.e., INR 4,63,85,108 instead of the net provision of INR 3,39,01,544 (i.e. closing provision of INR 4,63,85,108 less [-] opening provision of INR 1,24,83,5641= INR 3,39,01,544) as extracted in table of Page 17. AO has disallowed closing provision instead of net provision. The same being not in line with the observations/ conclusion of the Tribunal in Paragraph 51.1 and accordingly, this constitutes a mistake apparent from record. 2.1 The Ld. A.R. submitted that in view of the above mistake apparent from record, without prejudice to legality and lawfulness of disallowance of utilisation of provision, Tribunal may be pleased to appropriately modify the order and grant the relief to the extent of INR 1,24,83,564 (i.e. INR 4,63,85,108-INR 3,39,01,544) to be consistent with reasoning as also in the larger interest of justice and to prevent inadvertent miscarriage of justice. 3 M.P. Nos.91 & 92/Bang/2022 Herbalife International India Pvt. Ltd., Bangalore Page 3 of 4 Legal Submission by Ld. A.R.:- 2.2 At the outset, the Courts have laid down that in a scenario wherein incorrect observation/finding has been given by Tribunal the same constitutes a mistake apparent from record and the order of the Tribunal needs to be rectified. 2.3 For this purpose, reliance is placed by the Ld. A.R. on the decision of Hon'ble Supreme Court in case of Honda Siel Power Product Ltd v CIT (295 ITR 466) wherein the principle was laid down by Hon'ble Supreme Court that in a case where prejudice had resulted to the party, which prejudice is attributable to the Tribunal's mistake, error or omission and which error is manifest error then the Tribunal would be justified in rectifying its mistake. 2.4 Further, incorrect finding or omission to give a finding on any disputed issue constitutes a mistake which is apparent from record and the same needs to be rectified. 2.5 Thus, in view of the factual and legal submissions made above, Ld. A.R. prayed that the Tribunal may correct the mistakes apparent from the record after verification. 2.6 The Ld. A.R. requested to give an opportunity of personal hearing in this matter. The Ld. A.R. further submitted that it has not filed any other Miscellaneous Application under Section 254(2) of the Act against this Tribunal's order dated 09.02.2022. 3. The Ld. D.R. submitted that consideration of miscellaneous petitions filed by the assessee amount to review of the earlier order of the Tribunal, for which Tribunal have no power. 4. We have heard the rival submissions and perused the materials available on record. In this case, Tribunal has taken a conscious M.P. Nos.91 & 92/Bang/2022 Herbalife International India Pvt. Ltd., Bangalore Page 4 of 4 decision and given a finding in para 51.1 of the order cited (supra). Now the Ld. A.R. wanted to review the earlier order of the Tribunal, for which Tribunal have no power. Accordingly, we find no merit in the above plea of the assessee in the aforesaid petitions. Accordingly, both the miscellaneous petitions filed by the assessee are dismissed. 5. In the result, the miscellaneous petitions filed by the assessee are dismissed. Order pronounced in the open court on 16 th Sept, 2022. Sd/- (N.V. Vasudevan ) Vice President Sd/- (Chandra Poojari) Accountant Member Bangalore, Dated 16 th Sept, 2022. VG/SPS Copy to: 1. The Applicant 2. The Respondent 3. The CIT 4. The CIT(A) 5. The DR, ITAT, Bangalore. 6. Guard file By order Asst. Registrar, ITAT, Bangalore.