The DCIT, Circle-4, Baroda V. M/s. Transpek Industry Ltd, Baroda

ITA 1282/AHD/2011

• Counselvise Citation: 128220514 RSA 2011
• Duration Of Justice: 1 year(s) 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 10-05-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 29-04-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M P SARDA
• Assessee Lawyers: D P GUPTA
• Section: 43B; 143(3); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, D BENCH, AHMEDABAD BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER I.T.A. NO.1502 / AHD/2009 (ASSESSMENT YEAR 2003-04) M/S. TRANSPEK INDUSTRY LTD., 6 TH FLOOR, MARBLE ARCH, RACE COURSE ROAD, BARODA VS. ITO, WARD 4(3), BARODA PAN/GIR NO. : ASAACT8639B I.T.A.NO. 1767/AHD/2009 & I.T.A.NO. 1282/AHD/2011 (ASSESSMENT YEAR 2003-04) ITO WARD 4(3), VS. M/S. TRANSPEK INDUSTRY LTD., BARODA 6 TH FLOOR, MARBLE ARCH, RACE COURSE ROAD, BARODA (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI M P SARDA, AR RESPONDENT BY: SHRI D P GUPTA, CIT DR DATE OF HEARING: 10.05.2012 DATE OF PRONOUNCEMENT: 15. 06.2012 O R D E R PER SHRI A. K. GARODIA, AM:- OUT OF THESE THREE APPEALS, THERE ARE TWO CROSS AP PEALS OF THE ASSESSEE AND THE REVENUE WHICH ARE DIRECTED AGAINST THE ORDER OF LD. CIT(A) III, BARODA DATED 03.02.2009 IN CONNECTION W ITH ASSESSMENT COMPLETED BY THE A.O. U/S 143(3) AND THE REMAINING THIRD APPEAL IS REVENUES APPEAL FILED FOR THE SAME ASSESSMENT YEAR WHICH IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) III, BARODA DATED 0 4.211.2010 IN RESPECT OF SECTION 154 PROCEEDINGS AGAINST APPEAL EFFECT OR DER PASSED BY THE A.O. I.T.A.NO. 1502 /,1767/AHD/2009 I.T.A.NO. 1282/AHD/2011 2 ALL THESE THREE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENC E. 2. FIRST, WE TAKE UP THE APPEAL OF THE ASSESSEE IN I.T.A.NO. 1502/AHD/2011. 2.1 GROUND NO.1 IS GENERAL. 2.2 GROUND NO.2 IS AS UNDER: (A) THE HONBLE CIT(A) HAS ERRED IN DIRECTING TO AL LOW THE CLAIM OF SALES TAX DEFERMENT OF RS.44.56 LACS ONLY OUT OF YOUR APPELLANTS CLAIM OF RS.464.11 LACS, WITHOUT APPRECIATING THE F ACTS SUBMITTED DURING THE COURSE OF HEARING. (B) THE HONBLE CIT(A) HAS FAILED TO APPRECIATE THE FACT THAT HE DEFERMENT INCLUDED THE LOAN DISBURSED AND RECEIVED DURING THE YEAR OR RS.314.65 LACS AND RS.73.85 LACS PERTAINING TO F .Y. 1996-97 TO 2000-01. YOUR APPELLANT SUBMITS THAT PROVISIONS OF SECTION 43B ARE NOT APPLICABLE TO LOANS RECEIVED DURING THE YEA R. THE AMOUNTS WERE PAID BY YOUR APPELLANT FOR SALES TAX OF RESPEC TIVE YEARS ARE REFUNDED DURING THE YEAR AS LOAN. THE ADDITION CON FIRMED BY THE HONBLE CIT(A) BE THEREFORE DELETED. 2.2.1 THE GROUNDS RAISED BY THE REVENUE IN ITS APPE AL IN I.T.A.NO. 1767/AHD/2009 ARE BEING DECIDED SIMULTANEOUSLY BECA USE THE SAME ARE INTERCONNECTED. GROUND WAS AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN ALLOWING DEDUCTION RELATED TO DEFERRED SALE TAX LOAN, WHICH WAS DISALLOWED U/S. 43B OF THE INCOME TAX ACT, 1961, AS THE ASSESSEE HAD FAILED TO FURNISH AN Y PROOF IN FORM D DURING THE ASSESSMENT PROCEEDINGS. 2. THE CIT(A) HAS ALSO ERRED IN ADMITTING FR ESH EVIDENCE IN CONTRAVENTION TO RULE 46A OF THE INCOME TAX RULES W ITHOUT AFFORDING OPPORTUNITY TO THE ASSESSING OFFICER TO E XAMINE THE FRESH EVIDENCE PRODUCED DURING THE APPELLATE PROCEEDINGS. 3. THE APPELLANT CRAVES LEAVE TO ADD, TO AMEN D OR ALTER THE ABOVE GROUNDS AS MAY BE DEEMED NECESSARY. 2.2.2 IT WAS AGREED BY BOTH THE SIDES THAT THE ENTI RE ISSUE REGARDING APPLICABILITY OF SECTION 43B AND DEFERMENT OF SALES TAX SHOULD BE RESTORED I.T.A.NO. 1502 /,1767/AHD/2009 I.T.A.NO. 1282/AHD/2011 3 BACK TO THE FILE OF THE A.O. FOR A FRESH DECISION B ECAUSE IT IS THE GRIEVANCE OF THE REVENUE IN ITS APPEAL THAT LD. CIT(A) ADMITT ED FRESH EVIDENCE IN CONTRAVENTION TO RULE 46A OF THE INCOME TAX RULES W ITHOUT AFFORDING OPPORTUNITY TO THE A.O. TO EXAMINE THE FRESH EVIDEN CE. WE, THEREFORE, HOLD THAT THIS ENTIRE MATTER SHOULD GO BACK TO THE FILE OF THE A.O. FOR A FRESH DECISION. WE SET ASIDE THE ORDER OF LD. CIT( A) ON THIS ISSUE AND RESTORE THE ENTIRE MATTER BACK TO THE FILE OF THE A .O. FOR A FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEAD TO THE ASSESSEE. WE WOULD LIKE TO MAKE IT CLEAR THAT HE SHOULD NOT BE G UIDED BY THE ORDER OF LD. CIT(A) ON THIS ISSUE AND HE SHOULD TAKE FRESH D ECISION AS PER LAW AFTER CONSIDERING THE ENTIRE FACTS AND SUBMISSIONS OF THE ASSESSEE. GROUND NO.2 OF THE ASSESSEES APPEAL AND BOTH THE GROUNDS OF THE REVENUES APPEAL ARE ALLOWED FOR STATISTICAL PURPOSES. 2.3 GROUNDS NO.3 & 4 OF THE ASSESSEES APPEAL ARE N OT PRESSED BY THE LD. A.R. AND HENCE, THE SAME ARE REJECTED AS NOT PR ESSED. 2.4 IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE WHEREAS THE APPEAL OF THE REVENUE IS ALLOWE D FOR STATISTICAL PURPOSE. 3. NOW, WE TAKE UP THE REVENUES APPEAL IN I.T.A.NO . 1282/AHD/2011 IN RESPECT OF 154 PROCEEDINGS AGAINST APPEAL EFFECT ORDER PASSED BY THE A.O. 3.1 THE GROUND RAISED BY THE REVENUE IS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN ALLOWING RELIEF OF RS.4,19,54,819/- RELATE D TO DEFERRED SALES TAX LOAN, WHICH WAS DISALLOWED U/S 43B OF THE INCOM E TAX ACT, 1961 AS THE ASSESSEE HAD FAILED TO FURNISH ANY PROO F IN FORM D DURING THE ASSESSMENT PROCEEDINGS. 3.2 REGARDING THIS ISSUE ALSO, BOTH THE SIDES AGREE D THAT THIS IS ALSO INTERCONNECTED WITH THE GROUND NO.2 OF THE ASSESSEE S APPEAL AND THE GROUND RAISED BY THE REVENUE IN ITS APPEAL IN I.T.A .NO. 1767/AHD/2009 I.T.A.NO. 1502 /,1767/AHD/2009 I.T.A.NO. 1282/AHD/2011 4 AND HENCE, THIS MATTER SHOULD ALSO BE RESTORED BACK TO THE FILE OF THE A.O. ACCORDINGLY, WE SET ASIDE THE ORDER OF LD. CIT(A) O N THIS ISSUE AND RESTORE THIS MATER ALSO BACK TO THE FILE OF THE A.O . FOR A FRESH DECISION SIMULTANEOUSLY. 3.3 IN THE RESULT, THIS APPEAL OF THE REVENUE IS AL SO ALLOWED FOR STATISTICAL PURPOSES. 4. IN THE COMBINED RESULT, BOTH THE APPEALS OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSE WHEREAS APPEAL OF THE ASSES SEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. 5. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (KUL BHARAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 13/6 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 14/6. OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S.14/6 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 15/6 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.15/6 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 15/6 /12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .