M/s. Plastichemix Industries, Baroda V. The ACIT.,Cent.Circle-2, Baroda

ITA 1312/AHD/2009

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60332 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-05-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 15-03-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 23-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KARTAR SINGH
• Assessee Lawyers: S N SOPARKARSR
• Section: 143(3); 153A; 80IB

Judgement Text

ITA NO.1 312/AHD/2009 ASSESSME NT YEAR 2002- 03 . 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI, A.M.) I.T.A. NO.1312 /AHD/2009 (ASSESSMENT YEAR: 2002 - 03) PLASTICHEMIX INDUSTRIES, 6 TH FLOOR, KIRTI TOWERS, TILAK ROAD, SAYAJI GUNJ, BARODA. (APPELLANT) VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2 AAYAKAR BHAVAN, NEAR RACE COURSE CIRCLE, BARODA. (RESPONDENT) PAN: AABFP 8519L APPELLANT BY : MR.S.N.SOPARKAR,SR.ADVOCATE . RESPONDENT BY : MR. KARTARSINGH CIT (DR) ( )/ ORDER DATE OF HEARING : 15-3-2012 DATE OF PRONOUNCEMENT : 11-5-2012 PER: SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER OF LD. CIT (A)-IV, AHMEDABAD DATED 11-12-2008 FOR THE ASSESSME NT YEAR 2002-03. ITA NO.1 312/AHD/2009 ASSESSME NT YEAR 2002- 03 . 2 2. THE ASSESSEE HAS EFFECTIVELY RAISED THE GROUND O F APPEAL RELATING TO SECTION 153A OF THE I. T. ACT. 3. THE ASSESSEE THEREAFTER FILED THE FOLLOWING ADDI TIONAL GROUNDS OF APPEAL. THE APPELLANT CRAVES LEAVE TO RAISE THIS ADDITION AL GROUND OF APPEAL BEFORE THE HONBLE ITAT. THIS IS A LEGAL GROUND AND THEREFORE AS PER THE DECISION OF NATIONAL THERMAL P OWER (229 ITR 383), IT CAN BE RAISED BEFORE THE HONBLE ITAT. 1. THE ASSESSING OFFICER HAS ERRED IN TAKING ACTION U/S. 153A OF THE ACT AND ASSESSING THE INCOME OF THE ASSESSEE WHICH WAS ALREADY ASSESSED DURING ORIGINAL ASSESSMENT U/S. 1 43(3) OF THE ACT AND WAS FURTHER SUBJECT MATTER OF APPEAL BEFORE CIT (A).LD. A.O. ERRED IN DISALLOWING DEDUCTION U/S. 80IB OF TH E ACT, IGNORING THE FACT THAT THE SAID DEDUCTION WAS ADJUDICATED WH ILE PASSING ASSESSMENT ORDER U/S. 143(3) OF THE ACT AND WAS ALS O A SUBJECT MATTER OF APPEAL; BEFORE CIT (A). THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER, E DIT, DELETE, MODIFY OR CHANGE ALL OR ANY OF THE GROUNDS OF APPEAL; AT THE TIME OF OR BEFORE THE HEARING OF THE APPEAL. 4. WE SHALL FIRST TAKE UP THE ISSUE REGARDING ADMIS SION OF ADDITIONAL GROUND OF APPEAL REPRODUCED ABOVE, RAISE D BY THE ITA NO.1 312/AHD/2009 ASSESSME NT YEAR 2002- 03 . 3 ASSESSEE. ACCORDING TO LD. A.R. THE GROUND RAISED I S LEGAL ISSUE AND NO NEW FACTS WHICH ARE NOT ON RECORD, ARE INVOLVED IN THIS ADDITIONAL GROUND. IN SUPPORT OF HIS CONTENTIONS, HE HAS CITED THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF NATIONAL POWER CO. LTD. VS. CIT (229) ITR 383 (SC). 5. THE LD. D.R. DID NOT SERIOUSLY OPPOSE THE RAISIN G OF THE ADDITIONAL GROUND FOR THE FIRST TIME BEFORE US. 6. WE HAVE CONSIDERED THE RIVAL CONTENTIONS. HONBL E SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD VS. CIT (1998) 229 ITR 383 (SC) HELD THAT A LEGAL GROUND CAN BE TAKEN BY THE ASSESSEE BEFORE THE TRIBUNAL,. EVEN IF NOT RAISED BEFORE THE LOWER AUTHORITIES. IN THE PRESENT APPEAL SINCE ALL THE FACTS RELEVANT TO THE LEGAL GROUND TAKEN BY THE ASSESSEE, IS ALREADY ON THE RECORD, FO LLOWING THE DECISION OF HONBLE IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. (SUPRA), WE ACCEPT THE SAME. AS THE ISSUE HAS NOT B EEN CONSIDERED BY CIT (A), IN THE INTEREST OF JUSTICE AND FAIR PLAY, THE SAME IS RESTORED TO THE FILE OF CIT (A) FOR DECIDING THE ISSUE. IN VIEW OF THIS DIRECTION REMAINING GROUNDS OF APPEAL ARE ALSO NOT ADJUDICATE D BY US AND ARE RESTORED TO THE FILE OF CIT (A) TO DECIDE IT AFRESH IN ACCORDANCE WITH LAW. THE CIT (A) WILL PROVIDE DUE OPPORTUNITY OF HE ARING TO BOTH THE PARTIES. ITA NO.1 312/AHD/2009 ASSESSME NT YEAR 2002- 03 . 4 8. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN OPEN COURT ON 11 - 5 - 2012. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. S.A.PATKI. COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) IV, BARODA 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHMEDABAD. 1.DATE OF DICTATION 15 - 3 -2012 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING 3 / 5 / 2012 MEMBER.OTHER MEMBER. 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S - -2012. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT - -2012 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S - -2012 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK - -2012. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..