ASST CIT 1(1), MUMBAI v. BIRLA SANLIFE DISTRIBUTION CO. LTD, MUMBAI

MA 418/MUM/2011 | 2003-2004
Pronouncement Date: 22-02-2012 | Result: Allowed

Appeal Details

RSA Number 41819924 RSA 2011
Assessee PAN AAACB8843M
Bench Mumbai
Appeal Number MA 418/MUM/2011
Duration Of Justice 6 month(s) 17 day(s)
Appellant ASST CIT 1(1), MUMBAI
Respondent BIRLA SANLIFE DISTRIBUTION CO. LTD, MUMBAI
Appeal Type Miscellaneous Application
Pronouncement Date 22-02-2012
Appeal Filed By Department
Order Result Allowed
Bench Allotted B
Tribunal Order Date 22-02-2012
Assessment Year 2003-2004
Appeal Filed On 05-08-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B MUMBAI BEFORE SHRI R.S.SYAL AM AND SHRI D.K.AGARWAL JM M.A.NO.418/MUM/2011 (ARISING OUT OF ITA NO.1197/MUM/2007 : ASST. YEAR 2 003-2004) THE ASSTT.COMMISSIONER OF INCOME-TAX CIRCLE 1(1) MUMBAI. M/S.BIRLA SUNLIFE DISTRIBUTION CO.LTD. INDUSTRY HOUSE 1 ST FLOOR 159 CHURCHGATE RECLAMATION ROAD MUMBAI 400 020. PAN :AAACB8843M. (APPLICANT) VS. (RESPONDENT) APPLICANT BY : SHRI JITENDRA YADAV RESPONDENT BY : SHRI J.D.MISTRY DATE OF HEARING : 17.02.2012 DATE OF PRONOUNCEMENT : 22.02.2012 O R D E R PER R.S.SYAL AM : THIS MISCELLANEOUS APPLICATION U/S.254(2) OF THE IN COME-TAX ACT 1961 HAS BEEN MOVED BY THE REVENUE PRAYING FOR THE RECTIFICA TION OF THE ORDER OF THE TRIBUNAL DATED 22 ND DECEMBER 2008 IN ITA NO.1197/MUM/2007 FOR THE A.Y . 2003-04. 2. AS PER THIS MISCELLANEOUS APPLICATION THE REVEN UE FILED ADDITIONAL GROUND OF APPEAL BEFORE THE TRIBUNAL ON 08.11.2007 AND IN ITS ORDER PASSED ON 16.12.2008 THE SAID ADDITIONAL GROUND WAS OMITTED TO BE DISPOSED O FF. IN SUPPORT OF THE CONTENTION THAT THE ADDITIONAL GROUND WAS RAISED AND ALSO ARGU ED SHRI PITAMBAR DAS ADDITIONAL COMMISSIONER OF INCOME-TAX HAS FILED A L ETTER CONFIRMING THAT THE CASE WAS ARGUED BY HIM AS THE SENIOR DEPARTMENTAL REPRES ENTATIVE AND THE ADDITIONAL GROUND WAS ALSO ARGUED BEFORE THE MEMBERS. IN SUPPO RT OF THE MISCELLANEOUS APPLICATION THE LEARNED DEPARTMENTAL REPRESENTATIV E SUBMITTED THAT THE TRIBUNAL ORDER BE RECALLED TO THE EXTENT OF NON-DISPOSAL OF ADDITIONAL GROUND. MA NO.418/MUM/2011 M/S.BIRLA SUNLIFE DISTRIBUTION CO. LIMITED. 2 3. IN THE OPPOSITION SHRI J.D.MISTRY THE LEARN ED SENIOR AR CONTENDED THAT THE COUNSEL WHO ARGUED THE APPEAL BEFORE THE TRIBUNAL H AS FILED AN AFFIDAVIT TO THE EFFECT THAT : THE LEARNED DEPARTMENTAL REPRESENTAT IVE DID NOT MENTION THAT THE INCOME-TAX DEPARTMENT HAS FILED ANY ADDITIONAL GROU ND. THE LEARNED SR. A.R. ALSO ARGUED THAT THE PRESENT MISCELLANEOUS APPLICATION H AS BEEN FILED BY THE REVENUE IN 2011 AS AGAINST THE ORDER PASSED BY THE TRIBUNAL DA TED 22.12.2008 WHICH BELIES THE REVENUES CONTENTION THAT ANY SUCH ADDITIONAL GROUN D WAS RAISED OR ARGUED BEFORE THE TRIBUNAL. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. ACCORDING TO THE DEPARTMENT THE FOLLOWING ADDITIONAL GROUND WAS RAISED BEFORE THE TRIBUNAL ON 8.11.2007:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN DIN LAW THE LD.CIT(A) ERRED IN DELETING THE ADDITION MADE ON AC COUNT OF DISALLOWANCE OF DEPRECIATION ON INTANGIBLE ASSETS A S THE ASSETS CLAIMED AS INTANGIBLE ASSETS ARE NOT ASSETS BUT IN THE NATURE OF GOODWILL AND NON COMPETE FEES. 5. FIRSTLY IT IS NOTICED THAT THIS GROUND ARISES VE RY MUCH FROM THE ORDER PASSED BY THE LEARNED CIT(A). SECONDLY A LETTER DATED 08.1 1.2007 ADDRESSED TO THE REGISTRY I.T.A.T BY SHRI PANKAJ KUMAR ACIT CIRC LE 1(1) MUMBAI IS THERE ON RECORD CONTAINING THE DIRECTION OF THE CIT TO FILE ADDITIONAL GROUND AGAINST THE ORDER OF THE CIT(A) IN THE INSTANT APPEAL. ACCOMPAN IED WITH THIS LETTER IS THE COPY OF ADDITIONAL GROUND WHICH HAS BEEN SIGNED AND VERI FIED BY SHRI PANKAJ KUMAR ACIT ON 8 TH NOVEMBER 2007. IT IS A DIFFERENT MATTER THAT WHIL E MOVING THIS RECTIFICATION APPLICATION SHRI P.S.WALIA ACIT CIR CLE 1(1) HAS ALSO FILED SIMULTANEOUSLY FORM NO.36 DATED 3 RD AUGUST 2011 WITH THE IDENTICAL ADDITIONAL GROUND OF APPEAL. THE FACT THAT THE ADDITIONAL GROU ND WAS RAISED BY THE REVENUE ON 8 TH NOVEMBER 2007 IS BORNE OUT FROM THE RECORD OF THE TRIBUNAL IN THE FORM OF MA NO.418/MUM/2011 M/S.BIRLA SUNLIFE DISTRIBUTION CO. LIMITED. 3 AVAILABILITY OF SUCH LETTER OF SHRI PANKAJ KUMAR T HE THEN ACIT CIRCLE 1(1) MUMBAI. SIMPLY BECAUSE THE DEPARTMENT AT THE TIME OF FILING MISCELLANEOUS APPLICATION ALSO ONCE AGAIN FILED ADDITIONAL GROUND WITH THE CURRENT DATE CANNOT OBLITERATE THE LETTER OF THE DEPARTMENT RAISING SUC H GROUND IN THE YEAR 2007 WELL BEFORE THE CONCLUSION OF HEARING AND THE CONSEQUENT IAL PASSING OF ORDER. IT CLEARLY PROVES THAT THE ADDITIONAL GROUND WAS TAKEN UP BEFO RE THE TRIBUNAL. IT IS FURTHER RELEVANT TO CONSIDER THAT THE ORDER SHEET OF THE TR IBUNAL IN THE ORIGINAL APPEAL FILE HAS FOLLOWING NOTING:- 'LETTER DT. 8.11.07 RECEIVED FROM A.C.I.T.(1) MBAI FILING 3 COPIES OF ADDITIONAL GROUNDS OF APPEAL. MAY BE CONSIDER BY TH E HONBLE BENCH AT THE TIME OF HEARING & ONE COPY OF ADDITIONAL GRO UND OF APPEAL MAY BE SENT TO RESPONDENT A/W HEARING NOTICE. 6. FROM THE ABOVE NOTING IN THE ORDER SHEET OF THE TRIBUNAL ALONG WITH AVAILABILITY OF THE DEPARTMENTAL LETTER DATED 8 TH NOVEMBER 2007 RAISING ADDITIONAL GROUND BEFORE THE TRIBUNAL LEAVES NOTHING TO DOUBT THAT THE SAID GROUND WAS IN FACT RAISED. THE NON-DISPOSAL OF SUCH ADDITIONAL GROUND IN THE ORDER OF THE TRIBUNAL IN OUR CONSIDERED OPINION CONSTITUTES A MISTAKE APPAR ENT FROM RECORD REQUIRING RECTIFICATION. 7. THE CONTENTION OF THE LEARNED SR.AR TO THE E FFECT THAT THE REVENUE MOVED RECTIFICATION APPLICATION IN THE YEAR 2011 I.E. AFT ER AROUND 3 YEARS FROM THE DATE OF PASSING OF THE TRIBUNAL ORDER U/S 254(1) BELIES T HE REVENUES STAND OF SUCH GROUND HAVING BEEN IN FACT TAKEN IS WITHOUT ANY FO RCE. WHEN SECTION 254(2) PROVIDES A PERIOD OF LIMITATION OF FOUR YEARS FROM THE DATE OF PASSING OF THE ORDER IT IMPLIES THAT ANY RECTIFICATION APPLICATION MOVED WI THIN THIS STATUTORY PERIOD OF FOUR YEARS REQUIRES CONSIDERATION. AS THE INSTANT APPLIC ATION U/S.254(2) IS WELL WITHIN THE STIPULATED PERIOD IN OUR CONSIDERED OPINION THERE IS NO JUSTIFICATION IN NOT ACCEPTING IT. MA NO.418/MUM/2011 M/S.BIRLA SUNLIFE DISTRIBUTION CO. LIMITED. 4 8. WE THEREFORE RECALL THE ORIGINAL ORDER OF TH E TRIBUNAL IN ITA NO.1197/MUM/2007 FOR THE LIMITED PURPOSE OF DISPOSA L OF THE ADDITIONAL GROUND ON MERITS AFTER ALLOWING OPPORTUNITY OF HEARING TO BOT H THE SIDES. THE REGISTRY IS DIRECTED TO FIX THIS APPEAL FOR HEARING ON ANY CONV ENIENT DATE IN MAY 2012. 9. IN THE RESULT THE MISCELLANEOUS APPLICATION IS ALLOWED. ORDER PRONOUNCED ON THIS 22 ND DAY OF FEBRUARY 2012. SD/- SD/- (D.K.AGARWAL) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 22 ND FEBRUARY 2012. DEVDAS* COPY TO : 1. THE APPLICANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) VIII MUMBAI. 5. THE DR/ITAT MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI.