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2021 (10) TMI 1318 - AT - Income TaxRectification of mistake u/s 254 - mistake apparent from record - disallowance on service charges expenses - HELD THAT - Nowhere the Ld. CIT(Appeal) has held the service charges is not allowable for want of furnishing of documentary evidences etc. The only reason for disallowing 25% of service charges expenses is that benefit must have accrued to other parties than the assessee i.e. third parties/bottlers. In this issue of service charges expenses , we have examined that one part of finding by the Tribunal is incorrect to the extent that Sub-ordinate Authorities has not disallowed the service charges expenses for want of vouchers/details etc. The other part of finding of the Tribunal wherein it has held that benefit may have accrued to the third parties and hence the disallowance, though it is correct but because of wrong finding of fact on the issue of non-filing of documentary evidences/vouchers, mistake apparent from record has crept in while deciding this issue which makes the entire findings on this issue as incorrect and such findings is thus vitiated. When we had asked the Ld. DR regarding the basis for enhancement of disallowance at 40% from 25% of service charges as evident from the impugned order of the Tribunal vide Para 128 and to this query, DR fairly conceded that there has been no basis given for such enhancement of disallowance at 40% of the service charges. On this count also, a mistake apparent from record has crept in the findings of the Tribunal on the issue of service charges expenses. We are of the considered view that there is a mistake apparent from record which has crept in the impugned order of the Tribunal while deciding the issue of service charges expenses and hence, the grounds only pertaining to service charges expenses for the relevant assessment years involved is recalled for fresh adjudication. Depreciation on coolers - Tribunal suo-moto had gone into establishing whether the assessee was owner of the coolers or not and asking the assessee to justify their ownership over the coolers which as a matter of fact was never a point of dispute for adjudication. The other part of the discussion whether the said assets i.e. coolers were used for the purpose of business of the assessee, the Tribunal has given its justification for its findings and that part is not disputed by the assessee. That the finding of the Tribunal, once again asking the assessee to establish its ownership on the coolers which was already accepted by the Department was in fact going beyond the scope of grounds of appeal filed before the Tribunal and hence, travelling beyond the jurisdiction as held in the case of Pokhraj Hirachand 1962 (9) TMI 68 - BOMBAY HIGH COURT wherein held that the ITAT has to confine itself to the subject matter of appeal i.e. grounds of appeal. Therefore, mistake apparent from record has crept in while deciding the issue of depreciation on coolers. That further, when we observe that a part finding of the Tribunal whether such business assets were used for the purpose of business of the assessee, the Tribunal has given its own analysis, though this part is not disputed by the assessee but because of the fact that on the issue of establishing ownership, the Tribunal has exceeded its jurisdiction, in such scenario, therefore, taking guidance from the decision of Daulat Ram Rawatmull 1972 (9) TMI 9 - SUPREME COURT the entire findings on this issue gets vitiated and has to be held as incorrect. Therefore, in our considered view, mistake apparent from record has crept in while deciding the issue of depreciation on coolers and therefore, grounds pertaining to depreciation on coolers for the relevant assessment years involved is recalled for fresh adjudication.
Issues Involved:
1. Disallowance of service charges expenses. 2. Depreciation on coolers. Detailed Analysis: Disallowance of Service Charges Expenses: 1. Background: The assessee filed Miscellaneous Applications for assessment years 1998-99 to 2004-05, arguing that the Tribunal's order dated 22.08.2019 contained a mistake apparent from the record regarding the disallowance of service charges expenses. 2. Assessee's Argument: - The Tribunal incorrectly recorded that the CIT(A) disallowed service charges for want of vouchers, while the actual disallowance was due to benefits accruing to third parties/bottlers. - The CIT(A) had examined and verified the vouchers/details submitted by the assessee. - The Tribunal's finding that the disallowance was due to non-furnishing of vouchers/details was erroneous. - The assessee highlighted that the Tribunal's decision in the first round of litigation was based on the available materials and that the Assessing Officer had accepted the relevant details provided by the assessee in the consequential order. 3. Tribunal's Findings: - The Tribunal noted that the CIT(A) disallowed 25% of service charges because the services benefitted third parties, not for lack of vouchers. - The Tribunal's order erroneously stated that the disallowance was due to non-furnishing of vouchers/details. - The Tribunal's enhancement of disallowance to 40% lacked a basis. 4. Conclusion: - The Tribunal acknowledged the mistake apparent from the record regarding the disallowance of service charges expenses. - The Tribunal's findings on this issue were influenced by incorrect facts, thereby vitiating the entire decision. - The grounds pertaining to service charges expenses were recalled for fresh adjudication. Depreciation on Coolers: 1. Background: The issue of depreciation on coolers arose from the assessment year 2000-01. The CIT(A) disallowed depreciation on the grounds that the coolers, although owned by the assessee, were used by third parties and not exclusively for the assessee's business. 2. Assessee's Argument: - The ownership of the coolers was already accepted by the Department. - The Tribunal went beyond the scope of the appeal by questioning the ownership of the coolers, which was not a point of dispute. - The Tribunal should have confined itself to the subject matter of the appeal, i.e., the grounds of appeal. 3. Tribunal's Findings: - The Tribunal noted that both the Assessing Officer and the CIT(A) had accepted the ownership of the coolers but denied depreciation because the coolers were used by third parties. - The Tribunal's decision to question the ownership of the coolers was beyond the scope of the appeal. - The Tribunal's findings on whether the coolers were used for the assessee's business were not disputed by the assessee. 4. Conclusion: - The Tribunal exceeded its jurisdiction by questioning the ownership of the coolers. - The Tribunal's findings on this issue were influenced by incorrect facts, thereby vitiating the entire decision. - The grounds pertaining to depreciation on coolers were recalled for fresh adjudication. Final Order: - The Tribunal concluded that there were mistakes apparent from the record in its order dated 22.08.2019 regarding the issues of service charges expenses and depreciation on coolers. - The grounds related to these issues were recalled for fresh adjudication. - The rest of the Tribunal's order dated 22.08.2019 remained unaltered. - The Registry was directed to list the appeal for hearing in due course and issue notice accordingly. - The Miscellaneous Applications filed by the assessee were partly allowed.
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