Asst. Commissioner of Income tax,Circle1(1), Panaji V. M/S. Goa State Infrastructure Development Corp. Ltd., Panaji

ITA 69/PAN/2013

• Counselvise Citation: 6924114 RSA 2013
• Duration Of Justice: 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-08-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 05-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMRIT RAJ SINGH
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PANAJI BENCH, PANAJI BEFORE SHRI P.K. BANSAL, HONBLE ACCOUNTANT MEMBER AND SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER ITA NO. 69/PNJ/2013 : (ASST. YEAR : 2009 - 10) ASST. COMMISSIONER OF INCOME TAX, CIRCLE - 1(1), PANAJI, GOA (APPELLANT) VS. M/S. GOA STATE INFRASTRUCTURE DEVELOPMENT CORPORATION LTD., 7 TH FLOOR, EDC HOUSE, DR. ATMARAM BORKAR ROAD, PANAJI, GOA. (RESPONDENT) PAN : AACCG0256F APPELLANT BY : AMRIT RAJ SINGH, DR RESPONDENT BY : M.M. GOLVALA, CA DATE OF HEARING : 25 / 06 /2013 DATE OF PRONOUNCEMENT : 08 / 08 /2013 O R D E R PER P.K. BANSAL : 1. THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A) DT. 13.2.2012 BY TAKING THE FOLLOWING EFFECTIVE GROUNDS OF APPEAL : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASES & IN LAW, THE LD. CIT(A) ERRED IN NOT UPHOLDING THE DISALLOWANCE OF RS.3,73,07,240/ - , FOR NON - COMPLIANCE OF PROVISIONS U/S. 40(A)(IA) OF THE I.T . ACT BY FOLLOWING THE DECISION OF ITAT SPECIAL BENCH MUMBAI IN THE CASE OF M/S. BHARTI SHIPYARD VS. THE DY. COMMISSIONER OF INCOME - TAX OF DATED 09.09.2011. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE AO DURING THE COURSE OF ASSESSMENT DISALLOWED AN AMOUN T OF RS.3,73,07,240/ - U/S 40(A)(IA) OF THE INCOME TAX ACT. THE ASSESSEE WENT IN APPEAL BEFORE THE CIT(A). THE CIT(A) CONFIRMED THE DISALLOWANCE MADE BY AO VIDE ORDER DT. 20.11.2012 BUT SUBSEQUENTLY THE ASSESSEE FILED AN APPLICATION U/S 154 ON 2.1.2013 WH EREIN THE 2 ITA NO. 69/PNJ/2013 (ASST. YEAR : 2009 - 10) ASSESSEE CONTENDED THAT HIS GROUNDS OF APPEAL REMAINED TO BE CONSIDERED WHILE DECIDING THE APPEAL OF THE ASSESSEE AND THEREFORE THERE IS A MISTAKE APPARENT FROM THE RECORD WHICH REQUIRES RECTIFICATION U/S 154. THE RECTIFICATION APPLICATION OF TH E ASSESSEE WAS DISPOSED OFF BY CIT(A) VIDE ORDER DT. 13.2.2013 AND CIT(A) GRANTED THE RELIEF TO THE ASSESSEE BY HOLDING THAT THE FACTS IN THE CASE OF THE ASSESSEE ARE EXACTLY THE SAME AS IN THE CASE OF M/S. KARISHMA GOA MINERALS TRADING PVT. LTD. AND ACCOR DINGLY DIRECTED THE AO TO DELETE THE DISALLOWANCE MADE U/S 40(A)(IA) AMOUNTING TO RS.3,73,07,240/ - . THE ASSESSEE HAS COME IN APPEAL BEFORE US AGAINST THE ORDER OF CIT(A) DT. 20.11.2012 AND THE REVENUE HAS COME IN APPEAL AGAINST THE ORDER OF CIT(A) DT. 13. 2.2013. WE DECIDED TO DISPOSE OFF THE APPEAL AGAINST ORDER OF CIT(A) DT. 13.2.2013 AS I N CASE WE UPHOLD THE ORDER OF CIT(A) DT. 13.2.2013, THE APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) DT. 20.11.2012 WILL BECOME INFRUCTUOUS. THEREFORE, THE APPEAL OF THE ASSESSEE AGAINST THE ORDER DT. 20.11.2012 IS DECIDED TO BE KEPT IN ABEYANCE. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFULLY CONSIDERED THE SAME. WE FIND FORCE IN THE SUBMISSION OF THE LD. AR THAT EVEN THOUGH THE CIT(A) HELD THAT INDEED THERE IS AN APPARENT MISTAKE IN THE APPELLATE ORDER PASSED ON 20.1 1.2012 AS GROUNDS OF APPEAL AND ARGUMENT OF THE APPELLANT HAVE NOT BEEN CONSIDERED WHILE DECIDING THE APPEAL OF THE ASSESSEE, THIS OBSERVATION OF CIT, IN OUR OPINION, IS GEN ERAL. CIT(A) HAS NOT GIVEN ANY SPECIFIC FINDING WHICH GROUND OF APPEAL TAKEN BY THE ASSESSEE HAS NOT BEEN DISPOSED OFF BY HIM IN THE ORDER PASSED ON 20.11.2012 AND WHAT ARGUMENTS OF THE ASSESSEE TAKEN BEFORE HIM REMAINS UNDISPOSED OFF BY CIT(A) WHILE PASS ING THE ORDER DT. 20.11.2012. CIT(A) JUST GRANTED THE RELIED TO THE ASSESSEE MERELY HOLDING THAT THE FACTS ARE EXACTLY SAME AS ARE IN THE CASE OF M/S. KARISHMA GOA MINERALS TRADING PVT. LTD . NEITHER THE FACTS IN THE CASE OF M/S. KARISHMA GOA MINERALS TRA DING PVT. LTD. WERE BROUGHT ON RECORD NOR DISCUSSED IN THE ORDER PASSED U/S 154. U/S 154, 3 ITA NO. 69/PNJ/2013 (ASST. YEAR : 2009 - 10) THE CIT(A) HAS JURISDICTION TO RECTIFY THE MISTAKE APPARENT ON RECORD. THE MISTAKE MAY BE OF FACTS OR MAY BE OF LAW. CIT(A), IN OUR OPINION, DOES NOT HAVE ANY POWE R TO REVIEW ITS OWN ORDER WHICH HAS BEEN PASSED EARLIER. WITHOUT BRINGING ON RECORD WHICH GROUND OF APPEAL TAKEN BY THE ASSESSEE REMAINS UNDISPOSED OFF AND WHAT ARGUMENTS TAKEN BY THE ASSESSEE HAS NOT BEEN DISCUSSED AND DISPOSED OFF BY CIT(A) WHILE PASSIN G THE ORDER DT. 20.11.2012 , IT CANNOT BE SAID THAT THERE WAS A MISTAKE APPARENT ON THE RECORD. THERE MUST BE A CONCRETE FINDING. THE MISTAKE HAS TO BE OBVIOUS AND DOES NOT REQUIRE ANY DISCUSSION OR ARGUMENTS. IF THERE ARE TWO CONCEIVABLE OPINIONS POSSIB LE, THEN, IT CANNOT BE SAID THAT THERE IS A MISTAKE APPARENT ON RECORD. IN OUR OPINION, CIT(A) MUST GIVE A CLEAR - CUT FINDING WHAT MISTAKE HAS OCCURRED IN THE ORDER PASSED BY CIT(A) ON 20.11.2012. WITHOUT SPECIFYING THE MISTAKE APPARENT ON RECORD, CIT(A) DOES NOT HAVE JURISDICTION TO RECTIFY THE ORDER AND REVERSE THE FINDING GIVEN IN THE ORDER DT. 20.11.2012. WE, ACCORDINGLY, SET ASIDE THE ORDER OF CIT(A) AND RESTORE THIS ISSUE TO THE FILE OF CIT(A) WITH A DIRECTION THAT CIT(A) WILL PASS AN ORDER AFRESH U /S 154 IN VIEW OF OUR OBSERVATIONS GIVEN HEREINABOVE. HE MUST GIVE A CLEAR - CUT FINDING WHAT MISTAKE HAS CREPT INTO THE ORDER DT. 20.11.2012 AND AFTER THAT, HE SHOULD PASS THE ORDER AFRESH AFTER GIVING REASONABLE OPPORTUNITY TO BOTH THE PARTIES. 4. IN THE RESULT, THE APPEAL FILED BY THE R E V E N U E IS ALLOWED FOR STATISTICAL PURPOSE. 5. ORDER PRONOUNCED IN THE OPEN COURT ON 0 8 / 08 /2013. S D / - (D.T.GARASIA) JUDICIAL MEMBER S D / - (P.K. BANSAL) ACCOUNTANT MEMBER PLACE : PANAJI / GOA DATED : 0 8 / 08 / 2013 *SSL* 4 ITA NO. 69/PNJ/2013 (ASST. YEAR : 2009 - 10) COPY TO : (1) APPELLANT (2) RESPONDENT (3) CIT, PANAJI (4) CIT(A), PANAJI (5) D.R (6) GUARD FILE TRUE COPY, BY ORDER SR. P RIVATE S ECRETARY ITAT, PANAJI, GOA