DALAL MCENNA P LTD, v. DCIT 5(1),

MA 358/MUM/2011 | 2006-2007
Pronouncement Date: 25-11-2011 | Result: Dismissed

Appeal Details

RSA Number 35819924 RSA 2011
Assessee PAN AAACD1407B
Bench Mumbai
Appeal Number MA 358/MUM/2011
Duration Of Justice 4 month(s) 25 day(s)
Appellant DALAL MCENNA P LTD,
Respondent DCIT 5(1),
Appeal Type Miscellaneous Application
Pronouncement Date 25-11-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 25-11-2011
Assessment Year 2006-2007
Appeal Filed On 30-06-2011
Judgment Text
MA NO.358 OF 2011 DALAL MCENNA P LTD MUMBAI PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL 'D' BENCH MUMBAI BEFORE SHRI R.S. PADVEKAR JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH ACCOUNTANT MEMBER MA NO.358/MUM/2011 (ARISING OUT OF ITA NO. 2737/MUM/2010) (ASSESSMENT YEAR: 2006-07) M/S DALAL MCKENNA PVT. LTD DY. COMMISSIONER OF INCOME 11-21 MANI MAHAL TAX-5(1) MATHEW ROAD OPERA HOUSE MUMBAI MUMBAI 400004 VS. PAN AAACD 1407 B APPELLANT RESPONDENT APPELLANT BY: MS. ARATI VISSANJI RESPONDENT BY: MR.ABANI KANT NAYAK -DR DATE OF HEARING: 25/11/11 DATE OF PRONOUNCEMENT: 25/11/11 O R D E R PER B. RAMAKOTAIAH A.M. THIS MISCELLANEOUS APPLICATION IS PREFERRED BY THE ASSESSEE AGAINST THE ORDERS OF THE ITAT IN ITA NO.2737/MUM/2 010 DATED 27.04.2011. 2. BRIEFLY STATED THE ASSESSEE IS A COMPANY DOING BUS INESS OF MANUFACTURING OF GAS/OXYGEN MACHINES AND HAS A SIST ER CONCERN I.E. PROPRIETARY CONCERN OF MR. NITIN SANGHI DIREC TOR BY NAME SANGHI AIR PRODUCTS. DURING THE COURSE OF THE ASSES SMENT THE ASSESSING OFFICER BROUGHT TO TAX CERTAIN AMOUNT REC EIVED BY SANGHI AIR PRODUCTS AS SUPPRESSED SALES OF THE ASSESSEE AN D ADDED IT BACK TO THE TOTAL INCOME OF THE ASSESSEE. THE ASSESSEE W AS NOT SUCCESSFUL BEFORE THE CIT (A) WHO ENHANCED THE INCOME BY ADDIN G THE PROFIT OF M/S SANGHI AIR PRODUCTS TO THE INCOME OF THE ASSESS EE. THE ITAT DISPOSED OF THE GROUNDS RAISED BY THE ASSESSEE COMP ANY VIDE MA NO.358 OF 2011 DALAL MCENNA P LTD MUMBAI PAGE 2 OF 3 PARAGRAPH 14 AND 15 OF THE ORDER AND SET ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR EXAMINING THE ISSUE AF RESH. 3. THE ASSESSEE PREFERRED MISCELLANEOUS APPLICATION BY RAISING TWO ISSUES AS UNDER: 4. BEFORE THE HON'BLE TRIBUNAL IT WAS URGED THAT SINCE BOTH THE APPLICANT COMPANY AND M/S SANGHI AIR PRODU CTS ARE FALLING IN THE HIGHEST TAX BRACKET AND ARE ACCO RDINGLY PAYING TAX INDEPENDENTLY AT THE MAXIMUM LEVEL THER E COULD BE NO REASON TO DIVERT PROFIT AND FURTHER NO PROFIT WAS IN FACT WAS DIVERTED. IN THE EVENT OF IT IS FO UND CERTAIN INCOME HAS BEEN DIVERTED TO M/S SANGHI AIR PRODUCTS THE TAX PAID ON THIS INCOME BY M/S SANGHI AIR PRODUCTS SHALL BE REFUNDABLE TO THEM AND THE SAME TAX SHALL BE PAYABLE BY THE APPLICANT. THUS THE REVENUE SHALL NOT STAND TO ANY GAIN BY THIS EXERCISE. 5. THE APPLICANT SUBMITS THAT THE HON'BLE TRIBUNAL HAS OVERLOOKED THE ABOVE SAID CONTENTION MADE BY THE APPLICANT. 6. SECONDLY WITHOUT PREJUDICE WHILE SETTING ASIDE THE MATTER THE HON'BLE TRIBUNAL HAS OMITTED TO GIVE APPROPRIATE DIRECTION TO THE ASSESSING OFFICER TO RECOMPUTED THE ASSESSABLE INCOME OF NITIN SANGHI (PROPRIETOR OF SANGHI AIR PRODUCTS) BY DELETING THE INCOME WHICH IS BROUGHT TO TAX IN THE HANDS OF APPLICANT COMPANY IN THE EVENT ANY PART OF SANGHI AIR PRODUC TS INCOME IS TO BE INCLUDED IN THE HANDS OF THE APPLIC ANT AND GIVE CONSEQUENTIAL EFFECT OF SUCH ACTION BY GRANTI NG CREDIT OF TAXES PAID BY SANGHI AIR PRODUCTS ON SUCH INCOME TO THE APPLICANT COMPANY. 4. WE HAVE HEARD THE LEARNED COUNSEL AND THE LEARNED DEPARTMENTAL REPRESENTATIVE. AS FAR AS THE ISSUE RA ISED IN PARA 4 IS CONCERNED THE ITAT HAS RECORDED THE ARGUMENTS VIDE THE LAST SENTENCE IN PARA 7 OF THE ORDER. SO THERE IS NO QUE STION OF OVERLOOKING THE ABOVE CONTENTION. SO THE MISCELLANE OUS APPLICATION THAT THE CONTENTION RAISED WAS NOT CONSIDERED DOES NOT ARISE. WITH REGARD TO THE ISSUE RAISED IN PARA 6 WE ARE OF THE OPINION THAT THE ITAT HAS CONSIDERED THE ISSUES BEFORE IT AND RESTOR ED THE MATTER TO THE FILE OF THE ASSESSING OFFICER VIDE PARA 14 AND 15 OF THE ORDER AND THEREFORE NO PREJUDICE CAN BE CAUSED TO THE ASSESS EE AS NO MA NO.358 OF 2011 DALAL MCENNA P LTD MUMBAI PAGE 3 OF 3 FINDINGS WERE GIVEN WITH REFERENCE TO THE ADDITIONS MADE AND THE MATTER IN ITS ENTIRETY WAS SET ASIDE TO THE ASSESSI NG OFFICER FOR FRESH CONSIDERATION. NOT ONLY THAT THE TRIBUNAL CANNOT G IVE ANY DIRECTION TO RE-COMPUTE THE ASSESSABLE INCOME OF MR. NITIN SA NGHI (PROPRIETOR OF SANGHI AIR PRODUCTS) AS THAT CASE WAS NOT BEFORE THE ITAT. IN FACT THIS ARGUMENT WAS ALSO NOT RAISED AT THE TIME OF OR IGINAL HEARING. WHATEVER ARGUMENTS MADE REGARDING M/S SANGHI AIR PR ODUCTS HAVE BEEN RECORDED IN PARA 9 AND 10 OF THE ORDER INCLUDI NG THE ENQUIRY MADE BY THE BENCH. IN THESE CIRCUMSTANCES QUESTION OF GIVING ANY DIRECTION WITH REFERENCE TO CONSEQUENTIAL EFFECT OF ASSESSING OFFICERS ACTION DOES NOT ARISE WHICH MAY HAVE TO BE TAKEN B EFORE THE ASSESSING OFFICER AFTER HE COMES TO THE CONCLUSION ON THE ISSUE REMITTED TO HIS FILE BY THE ABOVE ORDER. FOR THESE REASONS WE FIND THAT THERE IS NO MERIT IN THE M.A. FILED BY THE ASS ESSEE. 5. IN THE RESULT MISCELLANEOUS APPLICATION FILED BY T HE ASSESSEE APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH NOVEMBER 2011. SD/- SD/- (R.S. PADVEKAR) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER VNODAN/SPS MUMBAI DATED 25 TH NOVEMBER 2011. COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR D BENCH ITAT MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES MUMBAI