Lalit Narayan Tak & Party, UDAIPUR V. ACIT, UDAIPUR

CO 22/JODH/2012

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 8111 (ITAT-JODHPUR)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 03-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 03-12-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 22-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K KHANDELWAL
• Keywords: Period of limitation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER C.O. NO.22/JU/2012 (IN ITA NO. 259/JODH/2012 ASSESSMENT YEAR : 2005-06 SHRI LALIT NARAYAN TAX & PARTY, VS THE ACIT, CIRCLE -2, SHRI SUDHIR MEHTA, UDAIPUR C/O M/S SAMPATI LAL BOHRA & CO, UDAIPUR PAN NO. AAAAL1356M (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI A.K.KHANDELWAL DATE OF HEARING : 03.12.2012 DATE OF PRONOUNCEMENT : 03.12.2012 ORDER PER N.K.SAINI, A.M. THIS CROSS OBJECTION FILED BY THE ASSESSEE ARISIN G OUT OF ITA NO.259/JODH/2012 OF THE DEPARTMENT IS DIRECTED AGAI NST THE ORDER DATED 20.3.2012 OF THE CIT(APPEALS), UDAIPUR. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. THE LD CIT(A), UDAIPUR WAS JUSTIFIED IN REDUCING THE DISALLOWANCE OF INTEREST FROM RS. 1529231 TO RS. 46 2133 IN VIEW OF THE NON-INTEREST BEARING FUNDS AVAILABLE WITH THE ASSESSEE AOP. 2. THAT THE LD CIT(A), UDAIPUR WAS JUSTIFIED IN RED UCING THE DISALLOWANCE ON THE BASIS OF REMAND REPORT OF LD AC IT, CIRCLE-2, UDAIPUR VIDE OFFICE LETTER NO.1388 DATED 21.10.2011, IN WHICH THE LD ACIT, CIRCLE-2, UDAIPUR 2 HIMSELF ADMITTED THE ABOVE FACTS, THE RELEVANT PART OF THE REMAND REPORT ARE AS UNDER (MENTIONED AT PAGE 7 OF THE CIT(A) ORDER) AFTER VERIFICATION OF CAPITAL ACCOUNT AND CASH BOOK OF THE ASSESSEE AOP, IT IS FOUND THAT THE SURPLUS FIND OF RS. 107204284 WERE AVAILABLE TO THE ASSESSEE AOP FOR GI VING ADVANCES FOR WHICH NO INTEREST IS LIABLE, INSTEAD O F RS. 129362606 WHICH SHOWN IN THE APPELLATE ORDER. ON EXAMINATION OF INTEREST CALCULATION SHEET WHICH HAS PRODUCED BEFORE YOUR GOOD SELF, IT IS CLEAR THAT IN TEREST AMOUNT FOR INTEREST BEARING FUND IS RS. 462133 WHER EAS ASSESSEES CLAIMED IN HIS REPLY RS. 174018 /- 3. THE LD ACIT, CIRCLE-2, UDAIPUR FURTHER SUBMITTED INSTANCES OF INTEREST BEARING FUNDS VIDE AFTER EXAM INATION OF ASSESSEE BOOKS OF ACCOUNT VIDE OFFICE LETTER NO . 2088 DATED 24.2.2012. HENCE, THE ACTION OF THE LD CIT(A) , UDAIPUR WAS JUSTIFIED. 4. THE RESPONDENT PRAYS JUSTICE AND CROSS OBJECTION S DESERVES TO BE ALLOWED. 3. FROM THE ABOVE GROUNDS, IT IS NOTICED THAT TH E ASSESSEE HAS SUPPORTED THE ORDER OF THE LD. CIT(A) AND NO RELIEF HAS BEEN SOUGHT. IN VIEW OF THE ABOVE, WE ARE OF THE OPINION THAT THE C ROSS OBJECTION BECOMES INFRUCTUOUS SINCE NO SPECIFIC RELIEF HAD BE EN SOUGHT FOR. 4. FOR THE AFORESAID VIEW, WE ARE FORTIFIED BY THE JUD GMENT OF HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. SU NDARAM CLAYTON LTD. (1982) 136 ITR 315 WHEREIN THEIR LORDSHIPS AT PAGE 322 HAD OBSERVED AS UNDER:- A CROSS-OBJECTION IS ONLY IN THE NATURE OF AN APPE AL. A PERSON WHO HAS SUBSTANTIALLY SUCCEEDED IN A FORUM MAY NOT THINK IT NECESSARY TO FILE AN APPEAL; BUT WHEN AN APPEAL IS ACTUALLY FILED, HE MAY TAKE ADVANTAGE OF THE FILING OF THE A PPEAL BY THE OTHER SIDE SO AS TO FILE CROSS-OBJECTIONS TO GET RI D OF THE ORDER 3 IN SO FAR AS IT IS ADVERSE TO HIM, AS THE PERIOD OF LIMITATION FOR THE FILING OF THE CROSS-OBJECTIONS IS CALCULATED FR OM THE DATE OF THE SERVICE OF THE APPELLATE GROUNDS. IN EFFECT, IN SUCH A CASE, A PARTY WHO DID NOT FILE AN APPEAL, GETS AN EXTENDED PERIOD OF LIMITATION FOR FILING WHAT IS IN EFFECT AN APPEAL. WHEN THE ASSESSEE HAS SUCCEEDED WHOLLY BEFORE THE AAC AND TH E TRIBUNAL, THERE WAS NO SCOPE FOR FILING AN APPEAL O R CROSS OBJECTIONS. THE TRIBUNAL SHOULD HAVE DISMISSED THE CROSS- OBJECTIONS IN LIMINE AS NOT BEING ENTERTAINABLE. TH E PROCEDURE OF FILING CROSS-OBJECTIONS IS NOT TO BE GONE THROUG H MERELY FOR THE PURPOSE OF PUTTING FORWARD ARGUMENTS IN SUPPORT OF AN ORDER WHICH IS IN FAVOUR OF THE CROSS-OBJECTOR. 5. IN VIEW OF THE RATIO LAID DOWN BY THE HON'BLE MADRA S HIGH COURT, THE CROSS OBJECTION FILED BY THE ASSESSEE IS LIABLE TO BE DISMISSED AS INFRUCTUOUS. WE ORDER ACCORDINGLY. 6. IN THE RESULT, THE CROSS OBJECTION FILED BY THE ASS ESSEE IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON THIS 03.12.2 012 ) SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMER DATED : 3 RD DECEMBER, 2012 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR BY ORDER ASSISTANT REGISTRAR ITAT, JODHPUR 4