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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


             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
(APPELLANT)                               (RESPONDENT)
                   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


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

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

         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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