VOSSLOH BEEKAY CASTINGS LTD., NEW DELHI v. ACIT, CIRCLE- 26(2), NEW DELHI

MA 13/DEL/2021 | 2013-2014
Pronouncement Date: 11-03-2021 | Result: Dismissed

Appeal Details

RSA Number 1320124 RSA 2021
Bench Delhi
Appeal Number MA 13/DEL/2021
Duration Of Justice 2 month(s) 2 day(s)
Appellant VOSSLOH BEEKAY CASTINGS LTD., NEW DELHI
Respondent ACIT, CIRCLE- 26(2), NEW DELHI
Appeal Type Miscellaneous Application
Pronouncement Date 11-03-2021
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted I2
Tribunal Order Date 11-03-2021
Assessment Year 2013-2014
Appeal Filed On 08-01-2021
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: FRIDAY NEW DELHI BEFORE SHRI SUDHANSHU SRIVASTAVA JUDICIAL MEMBER AND SHRI O.P. KANT ACCOUNTANT MEMBER [THROUGH VIDEO CONFERENCING] M.A. NO.13/DEL./2021 [ARISING OUT OF ITA NO.5618/DEL./2017] ASSESSMENT YEAR: 2013-14 VOSSLOH BEEKAY CASTINGS LTD UNIT NO. 5 12 TH FLOOR EROS CORPORATE TOWER NEHRU PLACE NEW DELHI VS. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE-26(2) NEW DELHI PAN : AAACB40941K (APPELLANT) (RESPONDENT) ORDER PER O.P. KANT AM: BY WAY OF THIS MISCELLANEOUS APPLICATION UNDER SECT ION 254(2) OF THE INCOME-TAX ACT 1961 (IN SHORT THE A CT) THE ASSESSEE IS SEEKING RECALL OF THE ORDER OF THE INCO ME-TAX APPELLATE TRIBUNAL (IN SHORT THE TRIBUNAL) DATED 18/02/2020 PASSED IN ITA NO.5618/DEL./2017 FOR ASSESSMENT YEAR 2013-14. APPELLANT BY SHRI HIMANSHU SINHA ADV. SHIR BHUVAN DHOOPAR RESPONDENT BY SHRI FARHAT KHAN SR.DR DATE OF HEARING 26.02.2021 DATE OF PRONOUNCEMENT 11.03.2021 2 M.A. NO.13/DEL./2021 2. THE LEARNED COUNSEL OF THE ASSESSEE REFERRED TO TH E APPLICATION FILED BY THE ASSESSEE AND SUBMITTED THA T ASSESSEE SEEKS RECALL OF GROUNDS NO. 4 & 5 OF THE APPEAL. RE GARDING GROUND NO. 4 THE LEARNED COUNSEL SUBMITTED THAT THE TRIBU NAL FAILED TO CONSIDER THE DOCUMENTS AND OTHER MATERIALS INCLUDIN G MASTER AGREEMENT DATED 06/09/2004 AGENCY AGREEMENT DATED 15/07/2012 EMAIL COMMUNICATION BETWEEN THE ASSESSE E AND MR. PANDEY INVOICE RAISED BY MR. PANDEY AND CV OF MR. PANDEY FURNISHED BY THE ASSESSEE AND ARRIVED AT CONCLUSION S CONTRARY TO THE FACTS AND MATERIAL ON RECORD. THE LEARNED COUNS EL FURTHER SUBMITTED THAT WHILE ADJUDICATING THE GROUND NO. 4 THE TRIBUNAL ERRED IN NOT FOLLOWING THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS CONIMETERS ELECTRICALS (PVT.) LTD IN ITA NO. 1401 OF 2008 (ORDER DATED AUGUST 20 2009). REGARDI NG THE GROUND NO. 5 THE LEARNED COUNSEL SUBMITTED THAT AS SESSMENT ORDERS AND FINANCIALS OF MR. PANDEY FOR ASSESSMENT YEAR 2012-13 HAS NOT BEEN CONSIDERED. 3. ACCORDING TO THE LEARNED COUNSEL WRONG CONSIDERAT ION OF THE FACTS OR IF THERE IS A FAILURE TO CONSIDER THE RELEVANT MATERIAL ON RECORD WILL TANTAMOUNT TO AN ERROR APPARENT FRO M THE RECORD AMENABLE UNDER SECTION 254(2)(B) OF THE ACT. HE SUP PORTED HIS CONTENTION RELYING ON THE DECISION OF THE HONBLE H ONBLE SUPREME COURT IN THE CASE OF HONDA SEIL POWER PRODUCTS LTD VS CIT (2007) 165 TAXMAN 307. 4. THE LEARNED DR ON THE OTHER HAND SUBMITTED THAT T HE TRIBUNAL HAS CONSIDERED ALL THE DOCUMENTS FURNISHED BY THE ASSESSEE AND THEREAFTER ARRIVED AT A DECISION AND T HEREFORE THERE IS NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL AND RECALLING 3 M.A. NO.13/DEL./2021 THE DECISION WILL AMOUNT TO REVIEW OF THE ORDER WH ICH THE TRIBUNAL IS NOT AUTHORIZED TO DO SO. HE ACCORDINGL Y SUBMITTED THAT MISCELLANEOUS APPLICATION FILED BY THE ASSESSE E MIGHT BE REJECTED. 5. WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES ON T HE ISSUE IN DISPUTE AND PERUSED THE RELEVANT MATERIAL ON REC ORD INCLUDING THE IMPUGNED ORDER AND THE PAPER-BOOK AND OTHER DOC UMENTS FILED BY THE ASSESSEE DURING HEARING OF THE APPEAL IN ITA NO. 5618/DEL/2017. WE FIND THAT IN GROUND NO. 4 & 5 OF THE APPEAL THE ASSESSEE HAS RAISED THE ISSUE OF DISALLOWANCE O F COMMISSION EXPENSES 49 54 459/- PAID TO SH. DN PANDEY CLAIMED AS FOR ADMINISTRATIVE AND PROFESSIONALS SUPPORT IN RELATIO N TO RAILWAY CONTRACTS. THE TRIBUNAL IN PARA 4.1 TO 4.3 HAS MENT IONED BRIEF FACTS QUA THE ISSUE IN DISPUTE. IN PARA 4.4 AND 4.5 THE TRIBUNAL HAS SUMMARIZED THE ARGUMENTS OF LEARNED COUNSEL OF THE ASSESSEE AND ARGUMENTS OF THE LEARNED DR RESPECTIVE LY. IN PARA 4.6 THE TRIBUNAL HAS MENTIONED THE FACT OF PERUSAL OF RELEVANT MATERIAL ON RECORD WHICH INCLUDED DOCUMENTS FILED B Y THE ASSESSEE INCLUDING PAPER-BOOK. THE TRIBUNAL HAS PAR TICULARLY TAKEN NOTE OF THE EMAIL EXCHANGED BETWEEN THE ASSES SEE AND SH. PANDEY. THE FINDINGS OF THE TRIBUNAL ARE REPRODUCED AS UNDER: 4.6 WE HAVE HEARD RIVAL SUBMISSION OF THE PARTIES AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT THE A SSESSEE HAS FAILED TO PRODUCE DOCUMENTARY EVIDENCE TO SUPPORT THAT MR. PANDEY PROVIDED ANY KIND OF SERVICES TO THE ASSESSEE. MERE LY PROVIDING SOME EMAIL EXCHANGE BETWEEN HIM AND THE ASSESSEE IS NOT SUFFICIENT TO SUPPORT THAT MR. PANDEY PROVIDED ANY KIND OF SER VICES IN RELATION TO THE CONTRACTS FOR WHICH HE HAS BEEN PAID COMMISS ION EXPENSES. FURTHER DURING THE COURSE OF THE HEARING THE LEARN ED COUNSEL OF THE ASSESSEE WAS ASKED WHETHER SIMILAR COMMISSIONS HAVE BEEN GIVEN IN CASE OF THE CONTRACTS RECEIVED FROM PRIVATE PART IES HE CLEARLY 4 M.A. NO.13/DEL./2021 ADMITTED THAT NO SUCH COMMISSION EXPENSES HAVE BEEN PAID FOR EXECUTING THE CONTRACT OF THE PRIVATE PARTIES. THIS FACT ALSO SUPPORT THE FINDING OF THE ASSESSING OFFICER THAT THE COMMI SSION WAS GIVEN ONLY FOR PROCURING CONTRACTS FROM THE RAILWAY AND S UCH KIND OF COMMISSION FOR PROCURING CONTRACTS FROM GOVERNMENT IS NOT PERMISSIBLE AS PER THE GOVERNMENT RULES. IN VIEW OF NO DOCUMENTARY EVIDENCES TO SUPPORT THE SERVICE RENDERED BY MR. PA NDEY THE RELIANCE PLACED ON THE DECISION IN THE CASE OF CIT VS. CONIMETERS ELECTRICALS (P) LTD. IS OF NO HELP TO THE ASSESSEE. 6.1 THE TRIBUNAL HAS ALSO TAKEN DUE NOTE OF THE DECISI ON OF THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS CONIM ETERS ELECTRICALS (P) LTD. (SUPRA). THE DOCUMENTARY EVIDE NCES IN SUPPORT OF GROUND NO. 5 HAVE ALSO BEEN DULY TAKEN INTO CONS IDERATION BY THE TRIBUNAL HOWEVER DECISION HAS BEEN MADE BASED ON THE EVIDENCES RELEVANT TO THE YEAR UNDER CONSIDERATION. IN VIEW OF THE FACT THAT ALL MATERIALS SUBMITTED DURING THE APPEAL PROCEEDINGS HAVE BEEN DULY CONSIDERED THE CONTENTION RAISED BY THE LEARNED COUNSEL ARE INCORRECT AND THERE IS NO MISTAKE APPAR ENT FROM RECORD. IN SUCH CIRCUMSTANCES RECALLING THE ORDER WILL AMOUNT TO REVIEW OF THE ORDER WHICH WE ARE NOT PERMITTED TO DO SO THEREFORE WE REJECT THE CONTENTION OF THE LEARNED COUNSEL OF THE ASSESSEE IN THE MISCELLANEOUS APPLICATION FILED. 7. IN THE RESULT THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 11 TH MARCH 2021 SD/- SD/- ( SUDHANSHU SRIVASTAVA ) ( O.P. KANT ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 11 TH MARCH 2021. RK/- (DTDS) COPY FORWARDED TO: 5 M.A. NO.13/DEL./2021 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR ITAT NEW DELHI