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Income Tax Appellate Tribunal, G Bench, Mumbai
Before: Shri B.R. Baskaran & Shri Ravish Sood
Both the appeals filed by the assessees are directed against the very same order dated 16-05-2016 passed by Ld CIT(A)-Aurangabad and they relate to the assessment year 2009-10.
The facts leading to filing of two different appeals against the same order passed by Ld CIT(A) are set out in brief. The Ld CIT(A), Aurangabad has passed the above said order in the hands of the assessee named “M/s
2 & 4872/Mum/2016 SAB Miller Breweries P. Ltd. & SAB Miller India Ltd. Sabmiller Breweries P Ltd” (herein after referred to as “M/s Sabmiller, Aurangabad”). Hence the appeal numbered as 1750/Pun/2016 was filed before the Pune bench of Tribunal in the name of “M/s Sabmiller Breweries P Ltd”.
The assessee submits that “M/s Sabmiller, Aurangabad” has since been merged with M/s SABMiller India Ltd (hereinafter referred as “M/s SABMiller, MumbI”) with retrospective effect from 31-03-2009, vide order dated 29-03-2012 passed by Hon’ble High Court of Bombay. The assessee further submits that the Paragraph 6.1 of the order passed by Hon’ble Bombay High Court reads as under:-
“6.1 Upon the Scheme being effective, all legal, taxation or other proceedings, suits, claims, actions before any statutory or quasi- judicial authority or tribunal of whatsoever nature, pertaining to the Undertaking, by or against the Demerged Company pending and/or arising on or before the date on which this scheme shall finally take effect or at the Appointed date, shall be continued and enforced by or against the Resulting Company only, to the exclusion of the Demerged Company in the manner and to the same extent as would have been continued and enforced by or from the Effective Date, the Resulting Company shall and may, if required, initiate any legal proceedings in relation to the relevant matters pertaining to the Demerged company in the same manner and to the same extent as would or might have been initiated by the Demerged Company. Except as otherwise provided herein, the Demerged Company shall in no event be responsible or liable in relation to any such legal, taxation or other proceedings against the Resulting Company. The Resulting company shall be replaced/added as party to such proceedings and shall prosecute or defend such proceedings at its own cost, in co- operation with the Demerged company.” The Ld A.R submitted that the “Demerged company” would mean “M/s SABMiller, Aurangabad” and the “Resulting company” would mean “M/s SABMiller, Bombay.” He submitted that, as per order passed by Hon’ble High Court of Bombay, the Ld CIT(A), Aurangabad should have passed the order in the name of “M/s SABMiller, Bombay” only, since the effective date of merger is 31.03.2009,. However, since the Ld CIT(A), Aurangabad has passed the order in the name of “M/s SABMiller, Aurangabad”, an appeal has been preferred before the Pune bench of Tribunal in the name
3 & 4872/Mum/2016 SAB Miller Breweries P. Ltd. & SAB Miller India Ltd. of demerged company. However, since “M/s SABMiller, Bombay” is entitled to prosecute the matter as per the merger order passed by Hon’ble High Court of Bombay, one more appeal has been preferred before Mumbai bench of Tribunal by “M/s SABMiller, Bombay” challenging the very same order passed by Ld CIT(A), Aurangabad in the name of “M/s SABMiller, Aurangabad”. Thus a safer path was followed by the assessee in this matter by filing two different appeals against the very same order.
The Ld A.R further submitted that the Hon’ble President of Tribunal has since transferred the appeal filed before the Pune bench to Mumbai benches. Accordingly both the impugned appeals have been consolidated and posted before this bench.
The Ld A.R submitted that the order passed by Ld CIT(A) in the name of “M/s SABMiller, Aurangabad” is not correct, since “M/s SABMiller, Aurangabad” no longer exists after the order of Hon’ble Bombay High Court. He submitted that the Ld CIT(A) should have passed the order in the name of “M/s SABMiller, Bombay”, as the said assessee is the assessee which was entitled to prosecute the appeal as per the order passed by Hon’ble High Court of Bombay.
At this juncture, the bench suggested that the issues contested in the present appeals may be restored to the file of concerned Ld CIT(A), Mumbai for examining them, as the order passed by Ld CIT(A), Aurangabad is contrary to the orders passed by Hon’ble High Court of Bombay. Both the parties agreed to the same. The Ld A.R, however, submitted that the issue contested on merits is covered by the order passed by the AO in 2008-09 and also the orders passed by the AO in other years in the hands of demerged company and resulting company. Accordingly he prayed that the Tribunal may fix a time limit to Ld CIT(A) for passing the order.
Having heard rival submissions, we are of the view that the order passed by Ld CIT(A), Aurangabad needs to be set aside, as he has passed his order in the hands of non-existent assessee. In that case, in the interest of natural justice, the assessee, i.e., “M/s SABMiller, Bombay”,
4 & 4872/Mum/2016 SAB Miller Breweries P. Ltd. & SAB Miller India Ltd. should be given an opportunity to contest the impugned additions made by the AO. Accordingly, in respect of appeal filed by “M/s SABMiller, Bombay”, we restore all the issues to the file of concerned Ld CIT(A), Mumbai for adjudicating all the issues afresh.
The Ld A.R submitted that the AO did not make any such disallowance in AY 2007-08 and 2008-09, even though identical payments were made in those two years. The Ld A.R further submitted that the assessee “M/s SABMiller, Bombay” has also made identical payments and the same has been allowed in its hands in the set aside proceedings after the order passed by the Tribunal. Accordingly, it was contended by Ld A.R that this issue is, in a way, covered in favour of the assessee. Accordingly it was prayed that a time limit may be prescribed to Ld CIT(A) for disposing of this appeal.
We find merit in the submissions so made by Ld A.R. Accordingly, we fix a time limit of three months from the date of receipt of this order by Ld CIT(A) for disposing of the appeal of the assessee now restored to his file. We shall also direct the assessee not to seek adjournment before Ld CIT(A), failing which the period of delay caused by the action of the assessee shall be added to the above said time limit of three months.
In the result, the appeal filed under is treated as dismissed and the appeal filed under is treated as allowed, for statistical purposes.