TMI Blog2014 (11) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision in accordance with law – Decided in favour of assessee. - Writ Petition No. 3650 of 2014 - - - Dated:- 14-8-2014 - S. C. Dharmadhikari And B. P. Colabawalla,JJ. For the Petitioner : Mr S E Dastur, Sr. Counsel Mr R Murlidhar, Arun S Amarchand Mangaldas S A Shroff Co For the Respondents : Mr Vimal Gupta Sr. Counsel, Mr Sham Walwe Ms Padma Divakar JUDGMENT P. C. 1] Rule. 2] The respondents waive service. By consent, Rule made returnable forthwith. 3] This Writ Petition under Article 226 of the Constitution of India is directed against the order passed by Income Tax Appellate Tribunal, Bench at Pune, on 6th December, 2013 in a Misc. Application styled as M.A. No.150/PN/2010 arising out of Income Tax Appeal Nos.1258/PN/2003, 182 610/PN/2004, 256 and 144/PN/2007, 1103/PN/2005 and 896/PN/2008. The assessment years in question are 1998-99 to 2004-05. 4] The few facts which are referred for the purpose of this Writ Petition are that the petitioner before us is a company incorporated under the Companies Act, 1956. It has its registered office at the address mentioned in the cause title of this Writ Petition. The petitioner had approached t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any assistance to the petitioner-assessee and this claim is, therefore, required to be decided without making any reference leave alone following the earlier findings. 8] The petitioner submitted before the Tribunal that the issue should be decided on the basis of this available material and the submissions recorded in the Tribunal's order. However, when the petitioner received the final order of the Tribunal, it noticed that the Tribunal has erroneously observed that there was no record and factual data before the Assessing Officer. Therefore, without making any reference to the record before the Commissioner of Income Tax (Appeals), the Tribunal remanded the matter to the file of the Assessing Officer and that was with the following direction: We find the reasons given by the learned DR not to follow the decision of the Tribunal order for the assessment year 1997-98 are not at all convincing in view of the point wise counter reply given by the learned counsel for the assessee to prove that those objections given by the learned DR to deviate from the decision of the Tribunal for the assessment year 1997-98 have been replied by the learned senior counsel for the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter for assessment year 1999-2000 to 2004-05 back to him. The petitioners case was that the dispute before the Tribunal was only as to whether expenditure on service charges which leads to incidental benefit to third parties such as the bottlers and TCC can be said to be whole and exclusively incurred for the business purpose of the petitioner-assessee. This issue was thoroughly considered by the Tribunal in assessment year 1997-98 and it was decided in favour of the assessee. There were clear findings recorded for the assessment years 1997-98 and 1998-99. Therefore, it was an apparent mistake and to hold that firstly there were lack of details in full before the Assessing Officer. To that the finding was given in para 8.1 of the order of the Commissioner of Income Tax (Appeals) but the finding that were rendered by him on the basis of the record before him were not complete so as to enable the Tribunal to deal with the legal issue. The petitioner pointed out that this observation and conclusion of the Tribunal was vitiated by an apparent mistake inasmuch as the Tribunal failed to note that the facts were same. There was evidence before the Commissioner and from 1999 onwards ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Commissioner and relying on that record, was the issue in Question. Once the Tribunal had before it the necessary and requisite material to deal with the issue of service charges including traveling expenses, the direction in para-76 of the order dated 31st March, 2010 was an obvious mistake. The mistake was so apparent and for which no elaborate exercise of going behind the order in entirety or to consider any claim or submission by going through the entire record was necessary. In fact, in para-76, the Tribunal observed that as regards service charges undoubtedly the assessee has not furnished the full details before the Assessing Officer except the copy of the service agreement and the debit notes. This finding was erroneous and apparently because there was voluminous record before the Commissioner and which included a report of the remand by the Commissioner to the Assessing Officer. If the Assessing Officer had to submit a report after such remand and for scrutiny of the relevant documents, then, definitely the finding of the Tribunal that the Assessing Officer did not have the full details is incorrect. Alternatively and without prejudice, even if, there were not full ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd, then, the remedy of the petitioner was to file an appeal and not a Misc. Application. The remedy chosen was misconceived. That it is misconceived, is clear from the fact that the Tribunal is required to pass another order assigning further reasons. In these circumstances, the ploy of the petitioner-assessee is to some how derive benefit from the conclusion reached by the Tribunal pertaining to the same claim for the assessment year 1997-98. However, the position has undergone a change and, therefore, the petitioner-assessee cannot derive any benefit from these earlier findings and conclusions. This being the position, the petitioner-assessee cannot prevail upon the Tribunal to modify its original order and force it to follow the findings and conclusions for prior assessment years. This attempt of the petitioner-assessee is apparent and, therefore, this Writ Petition should not be entertained but dismissed. 16] We have with the assistance of the learned counsel appearing for parties, perused the relevant part of the original order, the Misc. Application to the extent it raises the claim/disallowability of service charges including traveling expenses and the order on Misc. App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further elaboration is required in relation to certain materials. Therefore, he remanded the issue to the Assessing Officer and called for a report from him after such remand. After the report was received from the Assessing Officer the Commissioner dealt with the claim/allowance and in a detailed order concluded that not only the disallowance was justified but it could not have been restricted only to 10% and deserves to be enhanced to 25%. He adverted to the entire material in the form of not just oral submissions of parties but documents which were placed by the assessee, inter alia, all vouchers and available in about 19 box files. With such elaborate material before him, he enhanced the disallowance. If the petitioner is aggrieved by such an exercise of the Commissioner and preferred the further appeal to the Tribunal, then, the least that was expected of the Tribunal was to decide the issue. It noted the rival contentions but failed to decide the issue one way or the other as is apparent from the reasons that it assigned in para-76 of its original order. We find that once the Tribunal concluded that considering the totality of the facts of the case and following the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd abide by it even for this later assessment year. If the same claim and which was dealt with by the Court earlier and for which the note of caution was issued, then, the Tribunal was bound in law to take due note of the same and follow the course for the later assessment years. We are of the view that the refusal of the Tribunal to follow the order of this Court and equally to correct its obvious and apparent mistake is vitiated as above. It is vitiated by a serious error of law apparent on the face of the record. We find much substance in the contention of Shri Dastur that the Tribunal has misdirected itself completely and in law in refusing to decide and consider the claim in relation to service charges. 19] We are also aware of the apprehension that Mr. Vimal Gupta voiced and namely that if the matter goes back to the Tribunal and that too for the purpose of abiding by this Court's order and direction including in the earlier Writ Petition that would mean that the Tribunal is obliged to follow its view taken for the prior assessment year 1997-98 and apply it in the later assessment years. We have taken note of this apprehension but we are of the opinion that once Mr. Da ..... X X X X Extracts X X X X X X X X Extracts X X X X
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