LINTAS INIDA P.LTD, v. DCIT 3(2),

MA 755/MUM/2009 | 2004-2005
Pronouncement Date: 24-03-2010 | Result: Dismissed

Appeal Details

RSA Number 75519924 RSA 2009
Assessee PAN AAACL0124F
Bench Mumbai
Appeal Number MA 755/MUM/2009
Duration Of Justice 4 month(s) 7 day(s)
Appellant LINTAS INIDA P.LTD,
Respondent DCIT 3(2),
Appeal Type Miscellaneous Application
Pronouncement Date 24-03-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 30-03-2010
Assessment Year 2004-2005
Appeal Filed On 16-11-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A: MUMBAI BEFORE SHRI R K GUPTA JUDICIAL MEMBER AND SHRI RAJENRA SINGH ACCOUNTANT MEMBER MISCELLANEOUS APPLICATION NO.755/MUM/2009 ARISING OUT OF ITA 2308/MUM/2008 FOR AY 2004-05 LINTAS INDIA PVT LTD 15TH FLOOR EXPRESS TOWERS NARIMAN POINT MUMBAI -400 021 PAN: AAACL 0124 F VS DY COMMISSIONER OF INCOME-TAX - 3(2) ROOM NO.608 6TH FLOOR AAYAKAR BHAVAN M K ROAD MUMBAI- 400 020 (APPLICANT) (RESPONDENT) FOR APPLICANT: SHRI PRAKASH K JOTWANI FOR RESPONDENT: SHRI K SINGH ORDER PER RAJENRA SINGH AM 1. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED B Y THE ASSESSEE REQUESTING FOR RECALL OF THE ORDER DATED 5 .8.2009 OF THE TRIBUNAL IN ITA NO.2308/MUM/2008 POINTING OUT SOME APPARENT MISTAKES. 2. THE FACTS OF THE CASE ARE THAT A DISPUTE HAD B EEN RAISED BY THE ASSESSEE REGARDING ADDITION OF RS 1 49 42 40 2/- ON ACCOUNT OF UNCLAIMED LIABILITIES WHICH HAD BEEN WRITTEN BACK B Y THE ASSESSEE UNILATERALLY. THE ADDITION HAS BEEN CONFIRMED BY T HE CIT (A) AGAINST WHICH THE ASSESSEE WAS IN APPEAL BEFORE THE TRIBUNA L. AT THE TIME OF HEARING THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THE ISSUE WAS COVERED BY DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 1992-93 IN ITA NO.3540/MUM/1996. WHEREAS THE LEARNED DEPARTMENTA L LINTAS INDIA PVT LTD MAS 755/M/2009 2 REPRESENTATIVE PLACED RELIANCE ON THE ORDERS OF THE AUTHORITIES BELOW. THE TRIBUNAL NOTED THAT IN THE ASSESSMENT YEAR 1992 -93 THE TRIBUNAL FOLLOWING THE JUDGMENT OF HONBLE SUPREME COURT IN CASE OF SUGAULI SUGAR WORKS PVT LTD (236 ITR 518) HELD THAT THE LIA BILITY WRITTEN BACK COULD NOT BE ASSESSED AS INCOME OF THE ASSESSEE UND ER SECTION 41 OF THE INCOME-TAX ACT. THE LIABILITIES COULD NOT BE T AKEN AS CEASED TO EXCEED ONLY ON THE GROUND OF UNILATERAL WRITE BACK BY THE ASSESSEE. THE TRIBUNAL HOWEVER NOTED THAT IN THE ASSESSMENT YEAR 2004-05 THE LAW HAD CHANGED AND IN VIEW OF THE EXPLANATION 1 TO SECTION 41 EFFECTIVE FROM ASSESSMENT YEAR 1997-98 UNILATERAL ACT OF WRITE BACK OF THE LIABILITY ALSO AMOUNTED TO REMISSION OR CESSAT ION OF LIABILITY. THE TRIBUNAL ACCORDINGLY CONFIRMED THE ORDERS OF AUTH ORITIES BELOW. THE ASSESSEE FILED MISCELLANEOUS APPLICATION AND POINTE D OUT THAT AT THE TIME OF HEARING OF APPEAL THE ISSUE HAD BEEN TAKEN AS COVERED AND THEREFORE THERE WAS NO DETAILED DISCUSSION IN THE MATTER AND THE ASSESSEE HAD NO OPPORTUNITY TO ADVANCE ANY ARGUMENT ON MERIT. IT HAS BEEN POINTED OUT THAT THE LIABILITY IN THE PRES ENT YEAR WAS NOT A TRADING LIABILITY AND THEREFORE THE ISSUE COULD NO T BE COVERED BY EXPLANATION 1 TO SECTION 41. THE LEARNED AUTHORISE D REPRESENTATIVE THEREFORE ARGUED THAT THE MATTER MAY BE RECALLED FO R FRESH HEARING. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE OTH ER HAND PLACED RELIANCE ON THE ORDER OF THE TRIBUNAL. 3. WE HAVE PERUSED THE RECORDS AND CONSIDERED THE MATTER CAREFULLY. WE FIND THAT AT THE TIME OF HEARING OF THE APPEAL THE TRIBUNAL HAD NOT PRONOUNCED THAT THE CASE WAS COVER ED BY THE EARLIER DECISION IN ASSESSMENT YEAR 1992-93. THE LEARNED A UTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAD ONLY ARGUED THA T THE CASE WAS COVERED BY THE DECISION IN ASSESSMENT YEAR 1992-93. ONCE IT WAS ARGUED THAT THE CASE WAS COVERED BY THE FACTS OF CA SE IN ASSESSMENT YEAR 1992-93 IT COULD NOT BE NOW SAID THAT LIABILI TIES ARE NOT TRADING LIABILITIES AS THE ISSUE IN ASSESSMENT YEAR 1992-93 RELATING TO TRADING LINTAS INDIA PVT LTD MAS 755/M/2009 3 LIABILITIES. EVEN AT THIS STAGE NO EVIDENCE HAS B EEN PRODUCED TO SHOW THAT LIABILITIES IN AY 2004-05 ARE NOT TRADING LIA BILITIES. THERE IS THEREFORE NO FACTUAL ERROR IN THE ORDER OF THE TRIB UNAL. AS REGARDS THE LEGAL POSITION THE CASE COULD NOT BE TAKEN AS COVE RED BY THE CASE IN ASSESSMENT YEAR 1992-93 AS LEGAL POSITION HAD CHANG ED IN THE RELEVANT YEAR AS PER WHICH EVENT THE UNILATERAL WRI TE BACK OF LIABILITIES HAS TO BE TREATED AS CESSATION OF LIABILITIES. THE TRIBUNAL THUS HAD DECIDED THE CASE BASED ON FACTS GIVEN BY THE ASSESS EE AND ON THE BASIS OF CORRECT PROVISIONS OF LAW. WE DO NOT SEE ANY PURPOSE BEING SERVED BY RECALLING THE ORDER WHEN THERE IS NO APPA RENT MISTAKE IN THE ORDER. MERELY BECAUSE THE ASSESSEE HAD OFFERED THE SAME INCOME IN THE SUBSEQUENT YEAR CANNOT BE THE BASIS FOR RECALLI NG THE ORDER WHEN THE AMOUNT HAS BEEN CORRECTLY ASSESSED IN ASSESSMEN T YEAR 2004-05. WE SEE NO MERITS IN THE MISCELLANEOUS APPLICATION F ILED BY THE ASSESSEE AND SAME IS THEREFORE REJECTED. 4. IN THE RESULT MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE STANDS REJECTED. ORDER PRONOUNCED ON 30TH DAY OF MARCH 2010. SD/- SD/- (R K GUPTA) (RAJENRA SINGH) JUDICIAL MEMBER AC COUNTANT MEMBER MUMBAI DATE: 30TH MARCH 2010 . COPY TO 1. THE APPELLANT. 2. THE RESPONDENT 4. CIT(A)-III MUMBAI. 5. CIT CITY-III MUMBAI. 6. D R A BENCH MUMBAI. 7. GUARD FILE. BY ORDER / / TRUE COPY / / ASST. REGISTRAR ITAT MUMBAI BENCHES MUMBAI *CHAVAN/- LINTAS INDIA PVT LTD MAS 755/M/2009 4 SNO DATE INITIALS 1 DRAFT DICTATED ON 19-03-2010 SR.P.S 2. DRAFT PLACED BEFORE AUTHOR 25-03-2010 SR.P.S 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER V.P. 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER A.M 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.P.S 6. KEPT FOR PRONOUNCEMENT ON SR.P.S 7. FILE SENT TO THE BENCH CLERK SR.P.S 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER DOH 19.3.2010 DOD:19.3.2010 DOS: 24.3.2010