Income Tax Appellate Tribunal - Mumbai
Merck Limited, Mumbai vs Deputy Commissioner Of Income Tax Range ... on 27 November, 2018
IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH "J", MUMBAI
BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND
SHRI PAWAN SINGH, JUDICIAL MEMBER
M.A No. 292/Mum/2017 in ITA No.1946/Mum/2014 for Assessment Year: 2009-10
Merck Limited, The Dy. CIT,
Shivasagar Estate 'A', Range - 6 (3)
Dr. Annie Besant Road, Worli, Vs. Mumbai.
Mumbai - 400 018
PAN: AAACE2616F
(Appellant) (Respondent)
M.A No. 293/Mum/2017 in ITA No.1222/Mum/2017 for Assessment Year: 2010-11
Merck Limited, The Dy. CIT,
Shivasagar Estate 'A', Range - 7(2)(1)
Dr. Annie Besant Road, Worli, Vs. Mumbai.
Mumbai - 400 018
PAN: AAACE2616F
(Appellant) (Respondent)
Assessee by : Ms. Arati Vissanji(AR)
Revenue by : Dr. Shanteshar Swami (DR)
Date of hearing : 16.11.2018
Date of Pronouncement : 27.11.2018
Order under section 254(2) of Income-tax Act
PER PAWAN SINGH, JUDICIAL MEMBER:
1. These two Miscellaneous Applications (MAs) are filed by assessee for seeking rectification of alleged mistakes in common order dated 31.03.2016 passed in ITA No. 1946/Mum/2014, and 1222/Mum/2015 for Assessment Years 2009-10 and 2010-11 respectively.
2. In the M.A. No. 292/Mum/2017 the applicant / assessee contended that while passing the order dated 31.03.2016, in para 14 of the order it was directed to quantitative filter of 20 k.g is not practically workable. The LD. AR of the 1 2 M.As.No. 292 & 293/Mum/2017- Merck Limited assessee submits that the single comparable instance is the sale of 1 k.g of bisoprolol by Unichem in the domestic market, was furnished as per details of provided as per page No. 884 of the paper book. The Ld. AR submits that the direction in the order may be modified to Asian Markets or CUP method may be applied in the case of assessee.
3. The second contention of the ld. AR of the assessee is with regard to Ground No. 3, which relates to distribution of sample and stock. The Tribunal while deciding the appeal set aside the issue to the file of the assessing officer on the basis of decision of Tribunal in the A.Y 2007-08. The Ld. AR of the assessee submits that during the course of hearing it was pointed out in the case of Jonson & Jonson in ITA No. 83/Mum/2011 the Co-ordinate Bench of Tribunal disallowed only 2% of cost of sample distributed to the physicians, copy of the order was also furnished vide page No. 154 to 157 of the paper book. The Ld. AR further submits that full details of sample distributed were provided. The matter was restored in assessment year 2003-04 and 2007-08 as no complete data was furnished. The Tribunal has not considered the factual differences in the year under consideration. The Ld. AR of the assessee prayed for modification of direction in respect of Ground No. 2.2 and Ground No. 3.
4. On the other hand the Ld. DR for the Revenue submits that the contention raised in the MA and the submissions made by the Ld. AR of the assessee are beyond the scope of Sec. 254(2) of the Act.
5. We have considered the rival submissions of both the parties and have perused the order dated 31.03.2016. Perusal of order dated 31.03.2016 shows that the order was passed after considering the submission, the material available on 3 M.As.No. 292 & 293/Mum/2017- Merck Limited record and on the basis order of Tribunal in earlier years. The submissions made by Ld. AR of the assessee are beyond the scope of Sec. 254(2) of the Act. The power of Tribunal u/s 254(2) is restricted to the mistake apparent on record. In our view, the ld. AR of the assessee failed to bring in our notice the mistake apparent which may be considered as mistake apparent on record. Under the garb of application for rectification, we cannot substitute the finding of the order. Therefore, the contention raised in the application is dismissed. In MA No. 293/Mum/2017 in ITA No. 1222/Mum/2015
6. The assessee has raised the contention with record to distribution of free sample. We have noted that the assessee has raised similar contention in MA 292/Mum/2017, which we have already rejected, therefore, considering the principle of accountancy the contention raised in this application also rejected. In the result both the MAs filed by the assessee are dismissed.
Order pronounced in the open court on this 27th November 2018 Sd/- Sd/-
(R.C. SHARMA) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER मुंबई Mumbai; दनांक Dated 27/11/2018 S.K.PS
आदेशक ितिलिपअ िे षत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. यथ / The Respondent.
3. आयकरआयु (अपील) / The CIT(A), Mumbai.
4. आयकरआयु / CIT
5. िवभागीय ितिनिध,आयकरअपीलीयअिधकरण,मुंबई/ DR, ITAT, Mumbai
6. गाड फाईल / Guard file.
स यािपत ित //True Copy/ आदेशानुसार /BY ORDER, / उप सहायकपंजीकार (Asstt.Registrar) आयकरअपीलीयअिधकरण,मुंबई / ITAT, Mumbai