M/s. Kalpataru Polyfab Pvt. Ltd., Ahmedabad V. The Income Tax Officer, Ward-2(1)(2), Ahmedabad

ITA 2307/AHD/2015

• Counselvise Citation: 230720514 RSA 2015
• Duration Of Justice: 3 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 20-10-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 04-08-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L CHANDEL SR DR

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD .. , ( .) , BEFORE SHRI G.D. AGARWAL,VICE PRESIDENT (AZ) AND SHRI KUL BHARAT, JUDICIAL MEMBER ./ I.T.A. NO.2307/AHD/2015 ( / ASSESSMENT YEAR : 2009-10) M/S.KALPATARU POYFAB PVT.LTD. C/O.VINIT MOONDRA, CA 21, SARAP OPP. NAVJIVAN PRESS ASHRAM ROAD, AHMEDABAD-380 014 / VS. THE ITO WARD-2(1)(2) AHMEDABAD % & ./ ./ PAN/GIR NO. : AABCK 1410 G ( %( / APPELLANT ) .. ( )*%( / RESPONDENT ) %( + / APPELLANT BY : SHRI VINIT MOONDRA, AR )*%( , + / RESPONDENT BY : SHRI S.L. CHANDEL, SR.DR -. , /& / DATE OF HEARING 20/10/2015 0123 , /& / DATE OF PRONOUNCEMENT 30/11/2015 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST T HE ORDER OF THE LD.COMMISSIONER OF INCOME TAX(APPEALS)-2, AHMEDABAD [CIT(A) IN SHORT] DATED 25/06/2015 PERTAINING TO ASSESSMENT Y EAR (AY) 2009-10. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL:- ITA NO.2307/AHD /2015 M/S. KALPATARU POLYFAB PVT.LTD. VS. ITO ASST.YEAR 2009-10 - 2 - 1. THE LD.AO HAS ERRED IN LAW BY REJECTING APPLICATIO N U/S.154 FOR GRANTING REFUND OF RS.92,947/- DESPITE THE FACT THA T ASSESSMENT U/S.143(3) WAS MADE. IN FACT THE REFUND DUE WAS TO BE GRANTED AFTER COMPLETION OF ASSESSMENT AND SINCE THE REFUND WAS N OT GIVEN, RECTIFICATION APPLICATION WAS MADE. THE LD.CIT(A) HAS ERRED IN LAW BY CONFIRMING THE REJECTION OF 154 BY AO. 2. ANY OTHER GROUND OF APPEAL SHALL BE SUBMITTED AT TH E TIME OF HEARING. 2. BRIEFLY STATED FACTS ARE THAT ASSESSMENT U/S.14 3(3) R.W.S.147 OF THE INCOME TAX ACT,1961 (HEREINAFTER REFERRED TO AS TH E ACT) WAS FRAMED VIDE ORDER DATED 28/05/2014. WHILE FRAMING THE AS SESSMENT THE ASSESSING OFFICER (AO IN SHORT) IN PARA-3 OF HIS OR DER DIRECTED TO GIVE CREDIT FOR PRE-PAID TAXES AFTER DUE VERIFICATION. HOWEVER, THE CREDIT OF THE PRE-PAID TAX WAS NOT GIVEN AND THE ASSESSEE WAS NOT GRANTED REFUND. THEREFORE, THE ASSESSEE MADE AN APPLICATION U/S.154 OF THE ACT. THE APPLICATION OF THE ASSESSEE WAS REJECTED BY THE AO VIDE ORDER DATED 26/02/2015; WHEREIN THE AO REJECTED THE APPLICATION BY QUOTING THE PROVISIONS OF SECTION 239(2)(C) OF THE ACT. THE A SSESSEE BEING AGGRIEVED BY THIS ORDER, PREFERRED AN APPEAL BEFORE THE LD.CI T(A), WHO AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE DISMISS ED THE APPEAL. AGGRIEVED BY THE ORDER OF THE LD.CIT(A), NOW THE AS SESSEE IS FURTHER IN APPEAL BEFORE US. ITA NO.2307/AHD /2015 M/S. KALPATARU POLYFAB PVT.LTD. VS. ITO ASST.YEAR 2009-10 - 3 - 3. THE CONTENTION OF THE LD.COUNSEL FOR THE ASSESSE E IS THAT ONCE THE AO HAS GIVEN A DIRECTION FOR GIVING CREDIT TO PRE-P AID TAXES, THEREFORE THE CLAIM COULD NOT HAVE BEEN REJECTED ON THE GROUND TH AT THE CLAIM OF RE- FUND HAS BEEN BARRED BY TIME. IN SUPPORT OF THIS C ONTENTION, THE LD.COUNSEL FOR THE ASSESSEE HAS PLACED RELIANCE ON THE JUDGEMENT OF HONBLE HIGH COURT OF KERALA RENDERED IN THE CASE O F VASCO SALES & MARKETING CORPN. VS. DY.CIT REPORTED AT (2013) 34 T AXMANN.COM 229 (KERALA) AND ALSO THE DECISION OF COORDINATE BENCH (ITAT DELHI BENCH C) RENDERED IN THE CASE OF GLORIC INVESTMENTS LTD . VS. DY.DIRECTOR OF INCOME-TAX (INTERNATIONAL TAXATION) REPORTED AT (20 09) 32 SOT 11 (DELHI) (URO). 3.1. ON THE CONTRARY, LD.SR.DR SUBMITTED THAT THE AUTHORITIES BELOW WERE JUSTIFIED IN REJECTING THE APPEAL OF THE ASSES SEE AS THE ASSESSEE HAD MADE APPLICATION U/S.119(2)(B) OF THE ACT FOR GRANT OF REFUND ON 15/04/2014. THIS APPLICATION OF THE ASSESSEE HAS N OT BEEN REJECTED BY THE CONCERNED AUTHORITY. SUBSEQUENTLY, THE ASSESSEE FI LED AN APPLICATION DATED 09/10/2014 U/S.154 SEEKING RECTIFICATION. HE SUBMITTED THAT UNDER THESE FACTS, THE LD.CIT(A) WAS JUSTIFIED IN REJECTI NG THE APPEAL. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THERE IS NO DISPUTE WITH REGARD TO THE FACT THAT TH E ASSESSEE HAD MADE AN ITA NO.2307/AHD /2015 M/S. KALPATARU POLYFAB PVT.LTD. VS. ITO ASST.YEAR 2009-10 - 4 - APPLICATION FOR SEEKING REFUND ON 15/04/2014. A CO PY OF THE APPLICATION IS ENCLOSED AT PAGE NO.24 OF THE PAPER-BOOK. SUBSE QUENTLY, THE ASSESSMENT ORDER U/S.143(3) R.W.S. 147 OF THE ACT W AS PASSED ON 28/05/2014 DIRECTING TO GIVE CREDIT FOR PRE-PAID TA XES AFTER DUE VERIFICATION. WHEN THE CREDIT OF THE PREPAID TAXES WAS NOT GIVEN, THE ASSESSEE FILED AN APPLICATION U/S.154 ON 09/10/2014 . HOWEVER, THE APPLICATION MADE U/S.154 OF THE ACT WAS REJECTED VI DE ORDER DATED 26/02/2015 ON THE GROUND THAT THE ASSESSEE HAD NOT FILED RETURN OF INCOME WITHIN SPECIFIED PERIOD AS PER SECTION 239(2)(C) OF THE ACT. THE LD.CIT(A) REJECTED THE APPEAL ON THE GROUND THAT ME RELY MENTIONING ABOUT THE CREDIT OF THE PREPAID TAXES AND THE ISSUE OF REFUND ORDER IN THE BODY OF THE ASSESSMENT ORDER BY THE A.O. WOULD NOT GIVE ANY ENTITLEMENT TO CLAIM THE REFUND, ONCE IT IS NOT IN ACCORDANCE W ITH THE PROVISIONS OF SECTION 239(1)(C) OF THE I.T.ACT, 1961. HOWEVER, W E FIND THAT THE HONBLE HIGH COURT OF KERALA IN THE CASE OF VASCO S ALES & MARKETING CORPN. VS. DCIT REPORTED AT (2013) 34 TAXMANN.COM 2 29 (KERALA) :: W.P.(C) NO.24109 OF 2005(T), DATED MARCH 1, 2013, W HEREIN THE HONBLE HIGH COURT UNDER THE IDENTICAL FACTS, HAS H ELD THAT THE DELAY SHOULD LIBERALLY BE CONDONED EVEN IF THE DELAY IN M AKING APPLICATION FOR REFUND WAS DUE TO THE FAULT OF THE ASSESSEE. IN T HE INSTANT CASE, THE ASSESSEE HAD MADE AN APPLICATION WHICH HAS NOT BEEN DECIDED BY THE COMMISSIONER DESPITE LAPSE OF CONSIDERABLE PERIOD. IN REOPENING ITA NO.2307/AHD /2015 M/S. KALPATARU POLYFAB PVT.LTD. VS. ITO ASST.YEAR 2009-10 - 5 - PROCEEDING, THE AO DIRECTED TO GIVE CREDIT OF THE P REPAID TAXES AND ISSUE REFUND ORDER. 4.1. LOOKING TO THE TOTALITY OF THE FACTS OF THE CA SE, WE ARE OF THE CONSIDERED VIEW THAT THE REVENUE IS NOT JUSTIFIED I N REJECTING THE APPLICATION MADE U/S.154 OF THE ACT ON THE GROUND T HAT REFUND IS NOT AVAILABLE IN VIEW OF THE PROVISIONS OF SECTION 239( 1)(C) OF THE ACT. IT IS NOT IN DISPUTE THAT THE AO IN THE ASSESSMENT HAS NO T TAKEN THE BASIS OF PROVISIONS OF SECTION 239 OF THE ACT. THEREFORE, I N OUR CONSIDERED VIEW, THE REVENUE IS NOT JUSTIFIED IN WITHHOLDING THE REF UND OF THE ASSESSEE WHEN THE ASSESSEE HAD MADE APPLICATION U/S.119(2)(B ) OF THE ACT. THEREFORE, WE HEREBY DIRECT THE AO TO GRANT REFUND TO THE ASSESSEE. THUS, GROUND OF ASSESSEES APPEAL IS ALLOWED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON MONDAY, THE 30 TH DAY OF NOVEMBER, 2015 AT AHMEDABAD. SD/- SD/- ( .. ) ( ) ( . ) ( G.D. AGARWAL ) ( KUL BHARAT ) VICE PRESIDENT (AZ) JUDICIAL MEMBER AHMEDABAD; DATED / 11 /2015 6/..-, .-../ T.C. NAIR, SR. PS ITA NO.2307/AHD /2015 M/S. KALPATARU POLYFAB PVT.LTD. VS. ITO ASST.YEAR 2009-10 - 6 - !'#$%&' &$ / COPY OF THE ORDER FORWARDED TO : 1. %( / THE APPELLANT 2. )*%( / THE RESPONDENT. 3. 789 : / CONCERNED CIT 4. : ( ) / THE CIT(A)-2, AHMEDABAD 5. ;< )-89 , / 893 , 7 / DR, ITAT, AHMEDABAD 6. <= >. / GUARD FILE. ! / BY ORDER, *; ) //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 2.XI.15 (DICTATION-PAD 8+ PAGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER ..3.XI.15 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.30.11.15 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 30.11.15 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER