TaxTMI 
TaxTMI 
2022 (2) TMI 977
X X X X Extracts X X X X
X X X X Extracts X X X X
....order of the learned CIT(A) is opposed to law and facts of the case. 2. On the facts and in the circumstances of the case the learned CIT(A) erred in placing reliance on the order of the Tribunal which has recorded a finding that the loss claimed by the Assessee cannot be disallowed, as the same was not claimed as an expenditure. However the assessee has accepted/admitted that the goods were sold at lower than the cost price order to attract customers to purchase goods through e-commerce which would be in the nature of acquiring/creating intangible asset in the form of goodwill/Brand value so as to reap benefits in the later years and the loss is capital in nature. 3. The factual aspect that Assessee as a wholesaler suppli....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ts sold as part of slump sale - Rs. 3,99,89,130/- iii) Disallowance u/s. 40(a)(i) Rs. 1,14,52,590 4. Aggrieved by the order of the AO, the assessee filed an appeal before the CIT(A) against the disallowances made by the AO. 5. The CIT(A) partially allowed the appeal where he (i) Deleted the addition on account of alleged capital expenditure in favour of the assessee following the order of the ITAT in the assessee's own case for the asst. year 2015-16 on the basis that the identical facts are considered and decided in favour of the assessee. (ii) Upheld the disallowances made by the AO where the rest of the grounds raised by the assessee before CIT(A) are held against the assessee. 6. Now, the Revenue ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....pricing the AO arrived at the sale price. The difference between the actual sale price and the presumptive sale price was considered as the expenditure incurred for creating the intangible asset. The AO however treated this expenditure as capital in nature and allowed depreciation at 25%. The amount thus computed was Rs. 58,00,32,899. The AO arrived at the final disallowance taking into consideration of the fact that the entire business of the assessee was transferred to M/s. Flipkart India Pvt. Ltd. in a slump sale and hence restricted the disallowance to the difference between the purchase price (Rs. 242,48,68,773) and selling price (Rs. 213,40,40,401) i.e. Rs. 29,08,28,372. 8. The CIT(A) deleted this addition made by the AO stating th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he assess had failed to invite the attention of the Hon'ble Tribunal to the agreements entered into between the assessee and M/s. WS Retail Services Limited and by virtue of this agreement the transaction between the assessee and M/s. WS Retail Service Pvt. Ltd. cannot be said to be an uncontrolled transaction. (ii) That there was suppression of the aforesaid agreement which has influenced the findings of the Tribunal. (iii) That the existence of the above agreements indicate some hidden transactions which requires examination by the Tribunal by lifting the corporate veil. (iv) That the order of the Tribunal should be recalled and a rectification order passed adjudicating the above grounds. 13. The Tribunal....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by the Tribunal. The revenue cannot seek to raise a totally new basis of assessment in an MA and on a possibility of existence of a hidden transaction after lifting corporate veil. It cannot therefore be said that there was mistake apparent from the record which calls for rectification u/s. 254(2) of the Act. 12. The power of the Tribunal u/s. 254(2) of the Act is only to rectify mistakes apparent on the face of the record. The Tribunal does not have power to review its own orders. Power of review is not an inherent power but must be conferred by law either specifically or by necessary implication. Courts have consistently held that review proceedings imply those proceedings where a party, as of right, can apply for reconsideratio....