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06-11-2019, Dorf Ketal Chemicals India, Section 251, 35(1)(iv), Tribunal Mumbai

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5 days 3 hours ago #11342 by amit
Section - 251, 35(1)(iv), 139(1), 153A
Order Date - 06-11-2019
Favouring - Assessee
Court - Tribunal Mumbai
Appellant - Dorf Ketal Chemicals India Private Limited
Respondent - CIT
Justice - M.BALAGANESH, AM & AMARJIT SINGH, JM
Citation - 1119Taxpundit78
Appeal No. - ITA No.4483/Mum/2018
Asstt. Year - 2006-07

Order

PER : M. BALAGANESH (A.M):

This appeal in ITA No.4483/Mum/2018 for A.Y.2006-07 arises out of the order by the ld. Commissioner of Income Tax (Appeals)-50 in appeal No.CIT(A)-50/IT-376/2010-11 dated 25/04/2018 (ld. CIT(A) in short) against the order of assessment passed u/s.143(3) r.w.s. 153A of the Income Tax Act, 1961 (hereinafter referred to as Act) dated 30/12/2010 by the ld. Dy. Commissioner of Income Tax, Central Circle - 45, Mumbai (hereinafter referred to as ld. AO).

2. The assessee has raised the following grounds of appeal:

“Based on the facts and in the circumstances of the case, Dorf Ketal Chemicals India Private Limited (The Appellant') respectfully submits that the Commissioner of Income Tax (Appeals) 50, Mumbai [Learned CIT(A)] has erred in passing order under section 251 of the Income-tax Act, 1961 ('Act') for case remanded back for adjudication of the matter by Honourable Income Tax Appellant Tribunal, Mumbai vide order dated 10th February 2017 bearing ITA No. 3736/Mum/2012 for AY 2006-07 on the following grounds:

Ground 1

The Learned CIT(A) erred in dismissing the appeal of the Appellant on the ground that in case of completed assessment, the assessment u/s 153A has to be made on originally assessed/declared income and no alteration to the total income can be made. The Learned CIT(A) failed to appreciate the facts of the matter in case of Appellant is different and Honourable Income Tax Appellant Tribunal, Mumbai vide order dated 10th February 2017 has already decided the matter on admissibility of claim of the Appellant that egally admissible claim could be entertained while framing the assessment u/s 153A of the Act.

Ground 2

The Learned CIT(A) has grossly erred in ignoring the direction given by Honourable ITAT Mumbai while passing the Order. The Learned CIT(A) failed to apply the Principle of Judicial discipline that the Order of higher appellant authorities should be followed unreservedly by subordinate authorities. Therefore, Order passed by Learned CIT(A) is void and without proper jurisdiction.

Ground 3

The Learned CIT(A) has grossly erred in not adjudicating the matter on merits of the case and thereby rejecting the Appellant's bonafide claim of Rs.47,54,350/- of dividend received from its Brazilian Subsidiary which is claimed as exempt in India under the beneficial provisions of India-Brazil Double Taxation Avoidance Agreement (DTAA).

General

All above grounds are mutually exclusive and without prejudice to each other.

The Appellant craves leave to add, alter, omit or substitute any or all of the above grounds of appeal, at any time before or at the time of the appeal, so to enable the Hon'ble Commissioner of Income-tax (Appeals) to decide the appeal on merits and according to law.”

3. We have heard the rival submissions and perused the materials available on record. We find that this is the second round of appellate proceedings before this Tribunal. It would be necessary to address primary facts involved in this case as under:-

a) The assessee had filed original return of income on 30.11.2006 for the captioned AY declaring a total income of Rs. 7,35,92,087/- and claiming exempt income of dividend amounting to Rs. 3,23,034/-.

b) The search was conducted u/s 132(1) of the Act on 30.05.2008 in the business premises of Dorf Ketal Group and the notice dated 14.11.2008 was issued u/s 153A of the Act. In response to the said notice, a return of income was filed u/s 153A of the Act along with the computation of income on 12.02.2009.

c) In the said return of income filed u/s 153A of the Act, following were the differences from the return filed originally:-

d) The aforesaid additional claims amounting to Rs. 1,19,03,847/- made by the assessee in the return filed u/s 153A of the Act was not allowed as per the assessment order dated 30.12.2010 passed u/s 143(3) r.w.s 153A of the Act by then Deputy Commissioner of Income-tax, Central Circle-45, Mumbai.

e) Against the aforesaid disallowances made by the then AO, the assessee filed an appeal before the erstwhile Commissioner of Incometax (Appeals) - 38, Mumbai. The erstwhile CIT(A) vide order dated 29.02.2012 confirmed the addition merely on the technical ground that fresh claim cannot be made in return filed u/s 153A of the Act by placing reliance on decision of Hon'ble Supreme Court in the case of Sun Engineering Works Pvt. Ltd. (1992) 198 ITR 297.

f) The assessee then filed an appeal on 23.05.2012 before this tribunal against the said order passed by the erstwhile CIT(A). In the aforesaid appeal before tribunal, the assessee pressed the ground on addition confirmed by erstwhile CIT(A) of Rs.47,54,308/- on account of exempt dividend income earned during the captioned year.

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