DCIT 1(3), v. GIVA UTAH FLAVOURS P. LTD,

MA 717/MUM/2009 | 2002-2003
Pronouncement Date: 19-01-2010 | Result: Dismissed

Appeal Details

RSA Number 71719924 RSA 2009
Assessee PAN AAACL1013D
Bench Mumbai
Appeal Number MA 717/MUM/2009
Duration Of Justice 2 month(s) 20 day(s)
Appellant DCIT 1(3),
Respondent GIVA UTAH FLAVOURS P. LTD,
Appeal Type Miscellaneous Application
Pronouncement Date 19-01-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted I
Tribunal Order Date 19-01-2010
Assessment Year 2002-2003
Appeal Filed On 29-10-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH MUMBAI BEFORE SHRI D. K. AGARWAL JM & SHRI R.K. PANDA AM M.A. NO. 717/MUM/2009 ARISING OUT OF I.T.A. NO. 5959/MUM/05 (ASSESSMENT YEAR 2002-03) DCIT 1(3) AAYAKAR BHAVAN 5 TH FLOOR M.K. ROAD MUMBAI-400 020 VS. M/S. GIVAUDAN FLAVOURS INDIA PVT. LTD. (FORMERLY M/S. QUEST INTERNATIONAL INDIA LTD.) 401 AKRUTI CENTRE POINT 4 TH FLOOR MIDC CENTRE ROAD MIDC ANDHERI (EAST) MUMBAI-400 093 PAN:AAACL1013D APPELLANT RESPONDENT APPELLANT BY: SHRI VIRENDRA OJHA RESPONDENT BY: SHRI PARAG VYAS O R D E R DATE OF HEARING: 15.01.2010 DATE OF ORDER: 19.01.2010 PER R.K. PANDA AM: THE REVENUE THROUGH THIS MISCELLANEOUS APPLICATION (MA) REQUESTS THE TRIBUNAL TO RECALL ITS ORDER PASSED IN I.T.A. NO. 5959/ MUM/05 DATED 29 TH AUGUST 2008 AND REJECT THE GROUND NO. 2 OF THE ASSESSEE COMPANY AS THERE IS NO PROVISION OF GRANTI NG CREDIT FOR TAX PAID IN A.Y. 2002-03 U/S. 115JB TO BE ALLOWED AGAIN ST THE NORMAL TAXES TO BE PAYABLE FOR FUTURE YEARS. 2. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSING OFFICER FOUND THAT WHILE WORKING OUT THE TOTAL INCOME AS PE R THE PROVISIONS OF THE I.T. ACT (COMPUTED AT NIL) THE A SSESSEE HAS REDUCED THE AMOUNT OF RS. 1 97 71 714/- FROM THE NE T PROFIT AS PER THE P & L A/C. IN RESPONSE TO OPPORTUNITY GIVE N THE ASSESSEE SUBMITTED VIDE LETTER DT. 1.3.2005 THAT TH E SCHEME OF INCOME-TAX ACT 1961 ENVISAGES A CLAIM FOR DEDUCTIO N OF M.A. NO. 717/MUM/09 M/S. GIVAUDAN FLAVOURS INDIA PVT. LTD. ========================== 2 DEPRECIATION ALLOWANCE ONLY ON INCOME WHICH HAS NOT ALREADY SUFFERED TAX DURING THE PREVIOUS YEAR. IT WAS STAT ED BEFORE THE A.O. THAT THE ASSESSEE PAID TAX U/S. 115JB AMOUNTIN G TO RS. 78 58 502/- WHICH TRANSLATES TO A TAXABLE INCOME OF RS.1 97 77 714/- AND THAT THIS AMOUNT HAVING ALREAD Y SUFFERED TAX HAS BEEN REDUCED FROM THE BOOK PROFITS TO ARRIV E AT THE TAXABLE PROFITS AND THEREBY DETERMINED THE ELIGIBLE DEPRECIATION ALLOWANCE. THE A.O. OBSERVED THAT NO SPECIFIC PROV ISION OF LAW WAS STATED IN THE ASSESSEES SUBMISSION FOR THE ADJ USTMENT IN QUESTION. THE A.O. HELD THAT THERE BEING NO PROVISI ON IN THE INCOME-TAX ACT FOR SUCH ADJUSTMENTS WHILE ARRIVING AT THE PROFITS AND GAINS OF BUSINESS AND NO COGENT EXPLANATION TO SUBSTANTIATE THE DEDUCTION IS SUPPORTED BY PROVISION OF LAW ASS ESSEES CLAIM ON THIS ACCOUNT IS DISALLOWED. 3. IN APPEAL THE LEARNED CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER BY RELYING ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF KARNATAKA SMALL SCALE INDUSTRI ES DEVELOPMENT CORPORATION VS. CIT REPORTED IN 258 ITR 770. WHEN THE MATTER TRAVELLED UP TO THE TRIBUNAL THE TRIBUNAL CONSIDER ED THE ALTERNATE CONTENTION OF THE ASSESSEE AND RESTORED THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO CONSIDER THE ISSUE OF GIVING TAX CREDIT U/S. 115JAA OF THE ACT FOR TAX PAID ON T HE DEEMED INCOME IN ACCORDANCE WITH LAW. 4. THE REVENUE THROUGH THIS MA HAS STATED THAT AS PER SUBSECTION (1A) OF SECTION 115JAA WHICH HAS BEEN BR OUGHT TO THE STATUTE BOOK WITH EFFECT FROM 1.4.2006 TAX CREDIT P AID UNDER MAT U/S. 115JB CAN BE GRANTED ONLY WHEN SUCH TAXES ARE PAID AFTER 1.4.2006. THEREFORE THE TRIBUNAL INSTEAD OF REJEC TING THE GROUNDS OF APPEAL BY THE ASSESSEE ALLOWED THE ALTERNATE CONTEN TION OF THE LEARNED COUNSEL FOR THE ASSESSEE AND RESTORED THE M ATTER BACK TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE ISSUE I N ACCORDANCE WITH LAW. M.A. NO. 717/MUM/09 M/S. GIVAUDAN FLAVOURS INDIA PVT. LTD. ========================== 3 5. THE LEARNED COUNSEL FOR THE ASSESSEE FILED A COPY O F THE ORDER PASSED U/S. 143(3) R.W.S. 254 OF THE ACT DATED 8 TH DECEMBER 2009 AND SUBMITTED THAT THE ASSESSING OFFICER AFTER CONS IDERING THE PROVISIONS OF SECTION 115JAA (1A) HAS REJECTED THE CONTENTION OF THE ASSESSEE AND HELD THAT THE ASSESSEE WAS NOT ELIGIBL E TO AVAIL THE CREDIT IN THE FUTURE YEARS FOR THE TAXES PAID U/S. 115JB IN A.Y. 2002- 03. IN VIEW OF THE ABOVE ORDER OF THE ASSESSING OF FICER SUBSEQUENT TO THE DECISION OF THE TRIBUNAL THE MA FILED BY TH E REVENUE BECOMES INFRUCTUOUS AND THE SAME IS LIABLE TO BE DISMISSED. 6. THE LEARNED DR ON THE OTHER HAND WHILE RELYING ON THE MA FILED BY THE REVENUE CONCEDED THAT IN VIEW OF THE ORDER OF THE ASSESSING OFFICER SUBSEQUENT TO THE DIRECTION BY TH E TRIBUNAL THE MA FILED BY THE REVENUE BECOMES INFRUCTUOUS. 7. AFTER HEARING BOTH THE SIDES WE FIND THE ASSESSING OFFICER IN PURSUANCE OF THE DIRECTION OF THE TRIBUNAL HAS DECI DED THE ISSUE AND HELD THAT THE ASSESSEE IS NOT ELIGIBLE TO AVAIL THE CREDIT IN THE FUTURE YEARS FOR THE TAXES PAID U/S. 115JB IN A.Y. 2002-03 . THEREFORE WE ARE OF THE CONSIDERED OPINION THAT THE MA FILED BY THE REVENUE BECOMES INFRUCTUOUS AS THE GRIEVANCE OF THE REVENUE HAS ALREADY BEEN TAKEN CARE OF BY THE ASSESSING OFFICER IN PURS UANCE TO THE DIRECTIONS GIVEN BY THE TRIBUNAL. THE MA FILED BY THE REVENUE THEREFORE BECOMES INFRUCTUOUS AND THE SAME IS ACCO RDINGLY DISMISSED. 8. IN THE RESULT THE MA FILED BY THE REVENUE IS DISMI SSED. ORDER PRONOUNCED ON 19.01.2010. SD/- (D.K. AGARWAL) JUDICIAL MEMBER SD/- (R.K. PANDA) ACCOUNTANT MEMBER MUMBAI DATED 19.1.2010 M.A. NO. 717/MUM/09 M/S. GIVAUDAN FLAVOURS INDIA PVT. LTD. ========================== 4 COPY TO: (1) THE APPELLANT (2) THE RESPONDENT (3) THE CIT(A)-XXI MUMBAI (4) THE CIT-1 MUMBAI (5) THE DR I BENCH ITAT MUMBAI. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI TPRAO