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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