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Income Tax Appellate Tribunal, MUMBAI BENCH “G” MUMBAI
Before: SHRI OM PRAKASH KANT & MS. KAVITHA RAJAGOPAL
This appeal has arisen on account of order of the Tribunal dated 09.02.2023 in Miscellaneous Application No. 133/Mum/2020 wherein order passed by the Tribunal dated 19.08.2019 has been recalled. The relevant finding of the Tribunal in order dated 09.02.2023 is reproduced as under:
“5. On careful consideration, we find that there was a revenue audit objection in the case, which is accepted by the Department and remedial action has been M/s Suparna Chemicals Ltd. M/s Suparna Chemicals Ltd. 2 ITA No. No. 7914/M/2011 initiated under Section 148 of the Act. The letter dated initiated under Section 148 of the Act. The letter dated initiated under Section 148 of the Act. The letter dated 29th October, 2007, by ITO, Technical 29th October, 2007, by ITO, Technical-3, Mumbai, 3, Mumbai, addressed to the learned Assessing Officer also addressed to the learned Assessing Officer also addressed to the learned Assessing Officer also confirmed the same. Therefore, this appeal of the confirmed the same. Therefore, this appeal of the confirmed the same. Therefore, this appeal of the learned Assessing Officer co learned Assessing Officer could not have been disposed uld not have been disposed off on account of low tax effect in view of Para 10(c) of off on account of low tax effect in view of Para 10(c) of off on account of low tax effect in view of Para 10(c) of CBDT circular no.3 of 2018 amended on 20th August, CBDT circular no.3 of 2018 amended on 20th August, CBDT circular no.3 of 2018 amended on 20th August, 2018. In view of this, the order passed by the co 2018. In view of this, the order passed by the co 2018. In view of this, the order passed by the co- ordinate Bench in A.Y. ordinate Bench in for A.Y. ordinate Bench in ITA No.7914/Mum/2011 for A.Y. 2004-05 dated 19th Aug 05 dated 19th August, 2019, suffers from ust, 2019, suffers from mistake, hence, is recalled. The registry is directed to fix mistake, hence, is recalled. The registry is directed to fix mistake, hence, is recalled. The registry is directed to fix the appeal accordingly. the appeal accordingly.”
On further perusal of the record, we find that in the case, the perusal of the record, we find that in the case, the perusal of the record, we find that in the case, the appeal was heard for the first time by the Tribunal on 28.02.2017 appeal was heard for the first time by the Tribunal on 28.02.2017 appeal was heard for the first time by the Tribunal on 28.02.2017 and order was passed on 19.04.2017 dismissing the appeal filed by passed on 19.04.2017 dismissing the appeal filed by passed on 19.04.2017 dismissing the appeal filed by the Revenue. Against said order, the Revenue had preferred the Revenue. Against said order, the Revenue ha the Revenue. Against said order, the Revenue ha Miscellaneous Application in respect of Ground No. 1 decided by the Miscellaneous Application in respect of Ground No. 1 decided by the Miscellaneous Application in respect of Ground No. 1 decided by the Tribunal and submitted that assessee was allowed deduction in Tribunal and submitted that assessee was allowed deduction in Tribunal and submitted that assessee was allowed deduction in respect of technical knowhow under both the sections i.e. section hnical knowhow under both the sections i.e. section hnical knowhow under both the sections i.e. section 35AB and section 37(1) of the Act simultaneously. In view of the 35AB and section 37(1) of the Act simultaneously. In view of the 35AB and section 37(1) of the Act simultaneously. In view of the mistake apparent from record, the Tribunal recalled the appeal to mistake apparent from record, the Tribunal recalled the appeal to mistake apparent from record, the Tribunal recalled the appeal to the extent of deciding the ground No. 1 of the appeal. This recalled the extent of deciding the ground No. 1 of the appeal. the extent of deciding the ground No. 1 of the appeal. appeal was dismissed by the Tribunal on 19/08/2019 under tax al was dismissed by the Tribunal on 19/08/2019 under tax al was dismissed by the Tribunal on 19/08/2019 under tax effect Circular of CBDT but recalled by the Tribunal being falling effect Circular of CBDT but recalled by the Tribunal being falling effect Circular of CBDT but recalled by the Tribunal being falling under the exception to the CBDT tax effect circular. under the exception to the CBDT tax effect circular. under the exception to the CBDT tax effect circular.
2.1 In view of above facts and circumstances in the present appeal In view of above facts and circumstances in the present appeal In view of above facts and circumstances in the present appeal before us, the issue is in respect of adjudication of the ground No. 1 before us, the issue is in respect of adjudication of the ground No. 1 before us, the issue is in respect of adjudication of the ground No. 1 of the appeal of the Revenue. of the appeal of the Revenue.
M/s Suparna Chemicals Ltd. M/s Suparna Chemicals Ltd. 3 ITA No. No. 7914/M/2011
Before us, none e represented on behalf of the assessee despite represented on behalf of the assessee despite notifying through register notifying through registered post as well as through the Income ed post as well as through the Income-tax Department. On behalf of the assessee n behalf of the assessee, a written submission has a written submission has been filed wherein assessee has submitted that matter may be been filed wherein assessee has submitted that matter may be been filed wherein assessee has submitted that matter may be remitted back to the file of the Assessing Officer for the purpose of remitted back to the file of the Assessing Officer for the purpose of remitted back to the file of the Assessing Officer for the purpose of the examination of double deduction by the assessee double deduction by the assessee double deduction by the assessee because in view of old matter relevant records were not read view of old matter relevant records were not readily traceable. traceable.
On the other hand, the Ld. Departmental Representative (DR) On the other hand, the Ld. Departmental Representative (DR) On the other hand, the Ld. Departmental Representative (DR) submitted that assessee could submitted that assessee could not rebut the claim of the revenue rebut the claim of the revenue that the assessee h that the assessee has claimed deduction in respect of technical as claimed deduction in respect of technical know-how, twice, first firstly under the section 35AB considering the under the section 35AB considering the expenses as capital capital expenditure expenditure and and, secondly secondly u/s u/s 37(1) 37(1) considering the same as revenue expenditure. considering the same as revenue expenditure.
5. We find that the miscellaneous applicatio We find that the miscellaneous application proceedings also n proceedings also was decided ex-parte qua the assessee. In our opinion, parte qua the assessee. In our opinion, parte qua the assessee. In our opinion, this issue is of subject matter of the verification by the Assessing Officer from subject matter of the verification by the Assessing Officer from subject matter of the verification by the Assessing Officer from the details of financial statement of the assessee vis the details of financial statement of the assessee vis- -à-vis the return of income and therefore of income and therefore, we feel it appropriate to restore this issue feel it appropriate to restore this issue back to the file of the Assessing Officer. The assessee is directed to back to the file of the Assessing Officer. The assessee is directed to back to the file of the Assessing Officer. The assessee is directed to provide all the necessary documents which will be considered by provide all the necessary documents which will be considered by provide all the necessary documents which will be considered by the Assessing Officer in accordance with law. If the assessee fails to the Assessing Officer in accordance with law. If the assessee fails to the Assessing Officer in accordance with law. If the assessee fails to provide necessary documents for verification by the Assessing necessary documents for verification by the Assessing necessary documents for verification by the Assessing Officer, the Assessing Officer is it liberty to decide the issue as per Officer, the Assessing Officer is it liberty to decide the issue as per Officer, the Assessing Officer is it liberty to decide the issue as per the provisions of the Act. the provisions of the Act.
M/s Suparna Chemicals Ltd. M/s Suparna Chemicals Ltd. 4 ITA No. No. 7914/M/2011
In the result, the appeal of the In the result, the appeal of the Revenue on ground No. 1 is on ground No. 1 is allowed for statistical purposes. allowed for statistical purposes.