Vinayak Build Dev Private Limited, UDAIPUR V. ITO, UDAIPUR

CO 9/JODH/2013

• Counselvise Citation: [2013] 122 COUNSELVISE.COM (IT) 8940 (ITAT-JODHPUR)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 26-08-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 23-08-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 06-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N A JOSHI
• Keywords: Period of limitation
• Section: 40A(3)

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JODHPUR BENC H : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. C.OS. NO. 08 TO 11/JODH/2013 (ARISING OUT OF ITA NOS. 179 TO 182/JODH/2013) (A.Y. 2005-06 TO 2008-09) VINAYAK BUILD DEV PRIVATE LTD., VS. ITO, WARD-1(4 ), 107, BAPU BAZAR, UDAIPUR. UDAIPUR. PAN NO. AAACV5543Q ASSESSEE BY : SHRI YOGESH POKHARNA. DEPARTMENT BY : SHRI N.A. JOSHI- D.R. DATE OF HEARING : 23/08/2013. DATE OF PRONOUNCEMENT : 26/08/2013. O R D E R PER BENCH THESE CROSS OBJECTIONS FILED BY THE ASSESSEE ARISI NG OUT OF I.T.A.NO. 179-182/JODH/2013 FOR THE A.Y. 2005-06 TO 2008-09 R ESPECTIVELY ARE DIRECTED AGAINST THE SEPARATE ORDERS OF LD. CIT (A) , EACH DATED 31/12/2012. THE ASSESSEE HAS RAISED SIMILAR GROUND S IN THESE CROSS- OBJECTIONS. THE ONLY DIFFERENCE IS IN THE FIGURE I NVOLVED. THE GROUNDS 2 RAISED IN CROSS-OBJECTION NO. 08/JODH/2013 FOR THE A.Y. 2005-06 ARE REPRODUCED AS UNDER:- 1. THE LEARNED CIT(A) HAS RIGHTLY DELETED ADDITION OF RS. 13,28,360/- OF DIFFERENCE BETWEEN ACTUAL SALE AMOUNT AND SALE VALU E SHOWN IN BOOKS AND DETERMINED INCOME BY APPLYING NP RATE OF 20%. 2. THE LEARNED CIT(A) HAS RIGHTLY DELETED ADDITION OF RS. 47,10,480/- U/S 40(A)(IA) & ALSO U/S 40A(3) OF THE ACT. 3. THE RESPONDENT RESERVE TO HIS RIGHT TO ADD, ALTE R, AMEND, DELETE GROUNDS OF CROSS OBJECTION. 2. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PAR TIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON RE CORD. FROM THE ABOVE GROUNDS, IT IS NOTICED THAT THE ASSESSEE HAS SUPPOR TED THE ORDER OF LD. CIT(A) AND NO RELIEF HAS BEEN SOUGHT. IN VIEW OF T HE ABOVE, WE ARE OF THE OPINION THAT THE CROSS OBJECTIONS BECOME INFRUCTUOU S SINCE NO SPECIFIC RELIEF HAD BEEN SOUGHT FOR. 3. FOR THE AFORESAID VIEW, WE ARE FORTIFIED BY THE J UDGMENT OF HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. SUNDARAM CLAYTON LTD. (1982) 136 ITR 315 WHEREIN THEIR LORDSHIPS AT PAGE 322 HAD OBSERVED A S 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, APPEAL BY THE OTHER SIDE SO AS TO FILE CROSS-OBJECTIONS TO GET RI D OF THE ORDER IN SO FAR AS IT IS ADVERSE TO HIM, AS THE PERIOD OF LI MITATION FOR THE FILING OF THE CROSS-OBJECTIONS IS CALCULATED FROM T HE DATE OF THE 3 SERVICE OF THE APPELLATE GROUNDS. IN EFFECT, IN SU CH 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 OR CROSS OB JECTIONS. THE TRIBUNAL SHOULD HAVE DISMISSED THE CROSS-OBJECTIONS IN LIMINE AS NOT BEING ENTERTAINABLE. THE PROCEDURE OF FILING CR OSS- OBJECTIONS IS NOT TO BE GONE THROUGH MERELY FOR THE PURPOSE OF PUTTING FORWARD ARGUMENTS IN SUPPORT OF ON ORDER WH ICH IS IN FAVOUR OF THE CROSS-OBJECTOR. ' 4 . IN VIEW OF THE RATIO LAID DOWN BY THE HON'BLE MAD RAS HIGH COURT IN THE AFORESAID REFERRED TO CASE, THE CROSS-OBJECTION S FILED BY THE ASSESSEE ARE LIABLE TO THE DISMISSED AS INFRUCTUOUS. WE ORD ER ACCORDINGLY. 5. IN THE RESULT, THE CROSS-OBJECTIONS FILED BY THE A SSESSEE ARE DISMISSED. (ORDER PRONOUNCED IN THE COURT ON 26 TH AUGUST, 2013). (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 26 TH AUGUST, 2013. VR/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R ASSISTANT REGISTRAR, ITAT, JODHPUR.