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Whirlpool of India Ltd., Plot No. 40, Whirlpool House, Sector-44, Gurgaon-122002, Haryana vs. Asstt. Commissioner of Income Tax, Circle-1, LTU, Delhi
October, 18th 2019

Referred Sections:
Section 254(2) of the Act
Section 254(4) of the Act,

Referred Cases / Judgments:
High Court of Delhi in the case of T&T Motors Ltd. vs. ACIT (2012) 247 CTR (Delhi) 384,
High Court in the case of T&T Motors Ltd. Vs ACIT
High Court of Delhi in the case of T&T Motors Ltd. Vs ACIT (supra),
Delhi High Court in the case of T&T Motors Vs ACIT

 

       IN THE INCOME TAX APPELLATE TRIBUNAL
             DELHI BENCH `G', NEW DELHI
           Before Sh. Amit Shukla, Judicial Member
            Dr. B. R. R. Kumar, Accountant Member

       ITA No. 5956/Del/2016 : Asstt. Year : 2007-08
       ITA No. 5957/Del/2016 : Asstt. Year : 2008-09
       ITA No. 5958/Del/2016 : Asstt. Year : 2009-10
Whirlpool of India Ltd.,           Vs     Asstt. Commissioner of Income
Plot No. 40, Whirlpool House,             Tax, Circle-1, LTU,
Sector-44, Gurgaon-122002,                Delhi
Haryana
(APPELLANT)                               (RESPONDENT)
PAN No. AAACW1336L
                   Assessee by : Sh. Tapas Mishra, Adv.
                   Revenue by : Sh. N. K. Bansal, Sr. DR
Date of Hearing: 29.08.2019             Date of Pronouncement: 17.10.2019


                                        ORDER

Per Dr. B. R. R. Kumar, Accountant Member:

     The    present     appeal s       have    been    fil ed   by    the   assessee
agai nst   the   orde rs   of    the    l d.   CIT(A)-22,       New    Del hi   dated
01.09.2016.


2.   Si nce,     the   i ssues    i nvol ved     in   all   these     appeal s    are
common, they were heard togeth er and are bei ng di sposed off
by common orde r.


3.   In ITA No. 5956/Del /2016, foll owi ng grounds have been
rai sed by the revenue:
     " 1. That on the facts and in the circumstances of th e
     case, the impugned orde r of Com missioner of Income-
     tax(A)-22, New Delhi, (hereinafter referred to a s
     ` CIT(A) ' ) di smissing the appeal of the Appellant and
                                      2                ITA Nos. 5956 to 5958/Del/2016
                                                                Whirlpool of India Ltd.






         confirming the order dated 30.09.2015 passed by the
         Ld. Assessing Officer (hereinafter referred to as ` the
         Ld. AO ' ) u/s 115WE(3) r.w.s. 25 4 of the Income-tax
         Act, 1961 (hereinafter referred to as ` the Act ' ), i s
         clearly contra ry to the binding de cision of the Hon ' bl e
         Tribunal, bad in law and void ab initio.

         2. That on the facts and in the circumstances of the
         case, the CIT(A) erred on facts a nd in law in holding
         that the order unde r secti on 254(2) of the Act date d
         06.01.2016 passed by the H on ' ble Income Ta x
         Appellate       T ribunal  (hereinafter referred  to  as
         ` Tribunal ' ) is applicable only to the assessment year
         2007-08 and not to the assessment years 2008-09 an d
         2009-10, even though the original orde r which was t o
         be rectified was a consolidate d order for all the three
         years.

         3. That on the facts and in the circumstances of the
         case, the CIT(A) erred on facts and in law in
         exceeding jurisdi ction by a cting contra ry to section
         254(4) of the Act, and in re- adjudicating the
         Appellant ' s claim on merits to reach a conclusion
         contra ry to the decision of the Hon ' ble Tribunal in the
         very same case.

         4. That on the facts and in the circumstances of the
         case, the CIT(A) erred on facts a nd in law in holding
         that the decision of Hon ' ble High Court of Delhi in the
         case of T&T Mot ors Ltd. vs. AC IT (2012) 247 CTR
         (Delhi) 384, was not applicable to the facts of the
         Appellant ' s case even though the Hon ' ble Tribunal had
         categori cally found that the said decision squa rely
         covered the Appellant ' s case. "

4.       Facts as per record are as under:
     ·   In ITA No. 2006/Del /2011 for assessment year 2007-08,
         the assessee at poi nt no. 2 rai sed the foll owi ng grounds:
           " 2. That on facts and circumstances of the case, the
           CIT(A) erred on facts an d in la w in confirming the
           Fringe Benefit Tax (FBT) a ssessment orde r on the
           ground that a ppellant had n ot made a claim by
                                              3                       ITA Nos. 5956 to 5958/Del/2016
                                                                               Whirlpool of India Ltd.

      revising the return and hence the Assessing Office r
      had rightly rejected the appellant ' s claim. "

·   Thus, the grounds i nvol ve addi ti on made on me ri ts as well
    as not al l owed by the revenue as the assessee has n ot
    made the cl aim by revi si ng the return.
·   The ITAT vi de a common orde r f or the assessment years
    2007-08, 2008-09 and 2009-10 taking the grounds for th e
    A.Y. 2007-08 as l ead case hel d that the di scounts and
    rebate a re not l i abl e to FBT and found i t just and prope r
    that a cl ai m for deducti on of the assessee i s all owabl e
    (para 13 of the ITAT order). Thi s settl es the i ssue on
    meri ts.
· Further, the ITAT al so hel d that the cl ai m cannot be deni ed merel y on techni cal grounds i n the absence of revi sed return. Hence, ITAT found i t appropri ate that the " cl ai m of deducti on " requi res exami nati on at the end of th e Assessi ng Offi cer and referred t he matter to the fil e of Assessi ng Offi cer to exami ne and veri fy the cl ai m. · Whil e di recti ng so, the ITAT hel d that " wi th these di recti ons, enti re controversy and all i ssues are restored t o the fil e of Assessing Offi cer " . · Later, the assessee fil ed a Mi scellaneous Appl i cati on, as a resul t of whi ch the above sentence was modi fi ed whi ch reads " wi th these di recti ons the enti re controversy is restored to the fil e of the Assessi ng Offi cer " , thus, omi tti ng the words " and all i ssues " . · From the above, we hol d that the ITAT has adjudi cated on two i ssues, namel y 4 ITA Nos. 5956 to 5958/Del/2016 Whirlpool of India Ltd. a) the restorati on of the i ssue pertai ns to exami nati on of the FBT cl ai m whi ch was hi ther to n ot fi led wi th the return of the i ncome. b) On meri ts, the i ssue of cl ai m of the assessee regardi ng the di scounts and rebate, i t was adjudi cated to th e effect that the cl ai m for deducti on i s all owabl e for all years. 5. Duri ng the heari ng before us, the assessee a ggri eved wi th the re-exami nati on of the i ssue on meri ts of all owabili ty of expenses i n FBT return argued that the Tri bunal never i ntended to refer the matter to a djudi cate on meri ts as the i ssue of all owabili ty stands all owabl e vi de para no. 13 of the ITAT order. 6. The l d. DR reli ed on the order of the l d. CIT (A). 7. Heard the a rguments of both the parti es and perused the materi al avail abl e on record. We find that the ITAT vi de orde r dated 17.04.2014, after exami ning the Ci rcul ar No. 8 of 2005 dated 28.09.2005 of the CBDT and the judgment of Hon ' bl e Juri sdi cti onal Hi gh Court i n the case of T&T Motors Ltd. Vs ACIT has unequi vocal hel d that the expenses are all owabl e. The rel evant porti on of the order i s as under: " Therefore, respectfully following the decisi on of Hon ' ble Jurisdictional High C ourt of Delhi in the case of T&T Mot ors Lt d. Vs ACIT (supra), we hold that a s per CBDT Circular No. 8 of 200 5 dated 28.9.2005 , question no. 60 clarifies that discount or rebates are not liable t o FBT and pre sent case of the assessee falls within four corners of above decision of Hon ' ble Delhi High Court in the case of T&T Mot ors Vs ACIT (supra) and CBDT Circula r No. 8 of 2005. Therefore, we find it just and proper that the claim for deduction of the assessee is allowable. " 5 ITA Nos. 5956 to 5958/Del/2016 Whirlpool of India Ltd. 8. Hence, we hereby hol d that the acti on of the revenue on re-exami nati on of the settled and adjudi cated matter cannot be hel d to be vali d in the eyes of l aw. 9. In the resul t, all the appeal s of the assessee are al l owed. Orde r Pronounced i n the Open Court on 17/10/2019. Sd/- Sd/- (Amit Shukla) (Dr. B. R. R. Kumar) Judicial Member Accountant Member Dated: 17/10/2019 *Subodh* Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR
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