M/s. Eagle Flask Industries Ltd., Pune V. Assistant Commissioner of Income-tax,

ITA 1697/PUN/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 1809 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 04-05-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 08-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAWE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE , , !'#'' $ , % & BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM / ITA NO. 1697/PN/2014 %' ( ')( / ASSESSMENT YEAR : 2006-07 M/S. EAGLE FLASK INDUSTRIES LTD., C/O EAGLE HOME APPLIANCES LTD., PARMAR GALLERY, 4 TH FLOOR, WANAWADI, PUNE-411040 PAN : AAACE4197M ....... / APPELLANT ' / V/S. ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 8, PUNE / RESPONDENT ASSESSEE BY : SHRI M.K. KULKARNI REVENUE BY : SHRI HITENDRA NINAWE / DATE OF HEARING : 04-05-2016 / DATE OF PRONOUNCEMENT : 27-05-2016 * / ORDER PER VIKAS AWASTHY, JM : THE APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE OR DER OF COMMISSIONER OF INCOME TAX (APPEALS)-V, PUNE DATED 20- 11- 2013 FOR THE ASSESSMENT YEAR 2006-07. 2 ITA NO. 1697/PN/2014, A.Y. 2006-07 2. THE APPEAL HAS BEEN FILED WITH THE DELAY OF 232 DAYS. THE ASSESSEE HAS FILED AN AFFIDAVIT CITING REASONS FOR DELAY IN FILING OF THE APPEAL. THE DELAY HAS BEEN ATTRIBUTED TO THE CONFU SION ARISING FROM THE DIRECTIONS GIVEN BY THE TRIBUNAL IN THE FIR ST ROUND OF LITIGATION. THE ASSESSEE HAD FILED APPEAL AGAINST TH E ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-V, PUNE DATED 17- 02-2011 IN ITA NO. 562/PN/2011 FOR THE ASSESSMENT YEAR 2006- 07. THE TRIBUNAL VIDE ORDER DATED 30-01-2013 SET ASIDE THE IMPUGNED ORDER WITH THE DIRECTION TO ADJUDICATE THE PLEA OF THE ASSESSEE AFRESH, IN ACCORDANCE WITH LAW. HOWEVER, WHILE SE TTING ASIDE THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) TH E TRIBUNAL IN PARA 26 OF ITS ORDER DID NOT CLEARLY MENTION W HETHER THE FILE HAS BEEN SET ASIDE TO COMMISSIONER OF INCOME TAX (APPEALS) OR THE ASSESSING OFFICER. AFTER THE ORDER OF TRIBU NAL, THE ASSESSEE PURSUED THE MATTER BEFORE ASSESSING OFFICER . THE ASSESSING OFFICER PASSED THE ORDER ON 31-01-2014, AGAINS T WHICH THE ASSESSEE FILED APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS)-VI, AKURDI, PUNE. THE COMMISSIONER OF INCOME TAX (APPEALS) ALSO TOOK UP THE MATTER SIMULTANEOUSLY IN PURSUA NCE TO THE DIRECTIONS OF TRIBUNAL AND PASSED THE IMPUGNED ORDER ON 20- 11-2013. THE CONTENTION OF THE LD. COUNSEL FOR THE ASSES SEE IS THAT THERE WAS CONFUSION WITH REGARD TO FILING OF APPEAL AGA INST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) DATED 20 -11- 2013. IN THIS MELEE OF JURISDICTION TO COMPLY WITH THE DIRE CTIONS OF THE TRIBUNAL, THE DELAY OF 232 DAYS OCCURRED IN FILING OF THE PRESENT APPEAL. AFTER PERUSAL OF REASONS GIVEN IN AFFIDAVIT, W E ARE SATISFIED THAT THE DELAY IN FILING OF APPEAL IS NOT DELIBERATE OR 3 ITA NO. 1697/PN/2014, A.Y. 2006-07 WILLFUL. THE DELAY OF 232 DAYS IN FILING OF APPEAL IS ACCORDINGLY CONDONED AND THE APPEAL OF THE ASSESSEE IS ADMITTED TO BE HEARD AND DISPOSED OFF ON MERITS. 3. SHRI M.K. KULKARNI APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE PRESENT APPEAL FILED BY THE ASSESSEE IS ARISING FROM THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) WHICH WAS PASSED IN PURSUANCE TO DIRECTIONS OF THE TRIBUNAL IN I TA NO. 562/PN/2011 FOR THE ASSESSMENT YEAR 2006-07 DECIDED O N 30- 01-2013. THE TRIBUNAL HAD REMITTED THE ISSUE, HOWEVER, FR OM THE ORDER OF TRIBUNAL IT WAS NOT CLEARLY EVIDENT AS TO WHETHE R THE FILE HAS BEEN REMITTED BACK TO ASSESSING OFFICER OR COMMISSION ER OF INCOME TAX (APPEALS). BOTH THE AUTHORITIES BELOW TOOK UP THE MATTER TO ADJUDICATE THE REMITTED ISSUES. THE ASSESSING OFFICER DECIDED THE REMANDED MATTER FOR THE ASSESSMENT YEAR 2 006-07 ON 31-01-2014, AGAINST WHICH THE ASSESSEE HAS FILED APPEA L BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS)-VI, AKURD I, PUNE ON 01-09-2014. THE SAID APPEAL OF THE ASSESSEE IS STILL PENDING FOR FINAL ADJUDICATION. CONCURRENTLY, THE COMMISSION ER OF INCOME TAX (APPEALS) DECIDED THE ISSUE AGAINST THE ASS ESSEE. THE ASSESSEE HAS FILED PRESENT APPEAL BEFORE THE TRIBUNA L CHALLENGING THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEALS). THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT DUE TO CONFUSION CAUSED BY MISREADING THE ORDER OF TRIBUNAL BOTH THE AUTHORITIES BELOW ASSUMED THEIR RESPECTIVE JURISDICTION IN DECIDING THE ISSUE. THE LD. COUNSEL FOR THE ASSESSEE FURTHE R SUBMITTED THAT SINCE THE ISSUE RAISED IN THE PRESENT AP PEAL AND THE APPEAL PENDING BEFORE THE COMMISSIONER OF INCOME TAX 4 ITA NO. 1697/PN/2014, A.Y. 2006-07 (APPEALS) IS THE SAME FOR THE SAME ASSESSMENT YEAR, THE P RESENT APPEAL MAY BE REMITTED BACK TO THE COMMISSIONER OF INCOM E TAX (APPEALS) TO AVOID ANY CONFLICTING DECISIONS ON THE SAME ISSU E IN THE SAME ASSESSMENT YEAR. 4. SHRI HITENDRA NINAWE REPRESENTING THE DEPARTMENT ADMITTED THE FACT THAT FOR THE SAME ISSUE WHICH HAS BEEN REMITTED BY THE TRIBUNAL BOTH THE AUTHORITIES BELOW HAVE PASSED THEIR RESEPECTIVE ORDERS. THE LD. DR AGREED WITH THE SUB MISSIONS OF THE ASSESSEE THAT THE PRESENT APPEAL CAN BE REMITTE D BACK TO THE COMMISSIONER OF INCOME TAX (APPEALS). 5. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESENTATIVES OF RIVAL SIDES AND HAVE PERUSED THE ORD ERS OF THE AUTHORITIES BELOW. THE CONTENTIONS OF THE LD. COUNSEL FOR TH E ASSESSEE IS THAT THE ISSUE RAISED IN THE PRESENT APPEAL FOR THE ASSESSMENT YEAR 2006-07 IS IDENTICAL TO THE ISSUE PENDING FOR FINAL ADJUDICATION BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) IN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF ASSESSING AUTHORITY. THIS IS THE SECOND ROUND OF LITIGATION BEFORE THE TRIBUNAL. EARLIER, THE ASSESSEE HAD FILED APPEAL AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) IN ASSESSMENT YEAR 2006-07 IN ITA NO. 562/PN/2011 WHICH WAS DECIDED O N 30- 01-2013. THE GROUND RAISED BEFORE THE TRIBUNAL WAS : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD.CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE CLAIM OF DISALLOWANCE OF SET OFF MADE BY ASSESSING OFFICER HAVING CLAIMED BY THE ASSESSEE AS SET OFF OF BUSINESS LOSS OF RS.2,30,38, 084/- AGAINST CARRY FORWARD BUSINESS LOSSES IN VIEW OF THE PROVIS IONS OF SEC.71(1) OF THE ACT. THE ACTION OF THE ASSESSING OFFICER TREATING THE SAME AS SHORT TERM CAPITAL GAIN OF RS.2,85,59,5 23/- AND NOT 5 ITA NO. 1697/PN/2014, A.Y. 2006-07 ALLOWING SET OFF OF THE SAME WAS NOT IN CONSONANCE WITH THE PROVISIONS OF THE LAW. THE CLAIM OF THE ASSESSEE B E ALLOWED. 5.1 THE TRIBUNAL SET ASIDE THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) AND REMITTED THE ISSUE BACK WITH DIRE CTIONS TO ADJUDICATE THE PLEA OF THE ASSESSEE AFRESH, IN ACCORDA NCE WITH LAW. THE RELEVANT EXTRACT OF THE FINDINGS AND DIRECTIONS OF THE TRIBUNAL ARE REPRODUCED HERE-IN-UNDER : 26. .WE THEREFORE, DO NOT ASCRIBE TO THE REASON S MADE OUT BY THE CIT(A) ON THE BASIS OF HIS READING OF SEC. 3 2(1)(I) OF THE ACT. THEREFORE, WE SET ASIDE HIS ORDER WITH DIRECTION TO ADJUDICATE THE PLEA OF THE ASSESSEE AFRESH IN ACCORDANCE WITH LAW AFTER ALLOWING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEAR D. 6. SINCE, IT WAS NOT SPECIFICALLY MENTIONED IN THE ORDER OF TRIBUNAL AS TO WHETHER THE ISSUE HAS BEEN REMITTED BACK TO THE COMMISSIONER OF INCOME TAX (APPEALS) OR ASSESSING OFFICER, BOT H THE AUTHORITIES BELOW PASSED THEIR RESPECTIVE ORDERS IN COMPLIANCE OF THE DIRECTIONS OF THE TRIBUNAL. THE ASSESSEE FILED APPEAL AGAINST THE ORDER OF ASSESSING OFFICER BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) AND ON THE SAME ISS UE WHICH WAS DECIDED AGAINST THE ASSESSEE BY COMMISSIONER O F INCOME TAX (APPEALS), THE ASSESSEE HAS FILED PRESENT APPE AL BEFORE THE TRIBUNAL. THE LD. COUNSEL FOR THE ASSESSEE HAS INFORMED THAT THE APPEAL ARISING FROM THE ORDER OF ASSESS ING OFFICER IS STILL PENDING BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) FOR FINAL ADJUDICATION. THIS STATEMENT OF THE LD. AUTHORISED REPRESENTATIVE HAS NOT BEEN CONTROVERTED B Y THE LD. DEPARTMENTAL REPRESENTATIVE. 6 ITA NO. 1697/PN/2014, A.Y. 2006-07 IN SUCH CIRCUMSTANCES, WITHOUT COMMENTING ON THE MERITS OF THE APPEAL, WE DEEM IT APPROPRIATE TO REMIT THIS FILE BAC K TO COMMISSIONER OF INCOME TAX (APPEALS) SO THAT THERE IS NO INCONSISTENCY IN THE VIEW TAKEN BY THE FIRST APPELLATE AUT HORITY ON THE SAME ISSUE IN THE SAME ASSESSMENT YEAR IN THE A PPEAL PENDING BEFORE HIM. THE COMMISSIONER OF INCOME TAX(A) MAY TAKE UP BOTH THE APPEALS TOGETHER TO MAINTAIN PARITY AN D EVENNESS. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FO R STATISTICAL PURPOSE. ORDER PRONOUNCED ON FRIDAY, THE 27TH DAY OF MAY, 2016. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) ACCOUNTANT MEMBER JUDICIAL M EMBER / PUNE; #$ / DATED :27 TH MAY, 2016 RK/SATISH *+,%-.#/#)- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. % () / THE CIT(A)-V, PUNE 4. % / THE CIT-V, PUNE 5. !() **+, , +, , - -./ , / DR, ITAT, B BENCH, PUNE. 6. ) 0 12 / GUARD FILE. // ! * // TRUEOPY// $3 / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY, +, , / ITAT, PUNE