NARMADA CHEMATUR PETROCHEMICALS LTD., V. THE JT. CIT, (ASSTT.) SPL. RANGE -2,

ITA 769/AHD/2003

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 60387 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 20-03-2012
• Assessment Year: 1998-1999
• Appeal Filed On: 25-02-2003
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S K GUPTA CITD R
• Section: 80HHC

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD , .. , '# ' $ BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER ./ I.T.A. NO.769/AHD/2003 ( & ' & ' & ' & ' / / / / ASSESSMENT YEAR : 1998-99) NARMADA CHEMATUR PETROCHEMICALS LTD. P.O. NARMADANAGAR 392 015 & & & & / VS. THE JT.CIT (ASST.) SPECIAL RANGE-2 BARODA ( '# ./)* ./ PAN/GIR NO. : 31-615-CV-1363 ( (+ / // / APPELLANT ) .. ( ,-(+/ RESPONDENT ) (+ . '/ APPELLANT BY : SHRI VIMAL DESAI ,-(+ / . ' / RESPONDENT BY : SHRI S.K.GUPTA, CIT-D.R. &0 / #/ // / DATE OF HEARING : 20/03/2012 12' / # / DATE OF PRONOUNCEMENT : 22/05/12 '3/ O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE WHICH HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-VI, BARODA DATED 01/11/2002. 2. WE HAVE BEEN INFORMED THAT THE ASSESSEE HAS MOVE D A MISCELLANEOUS PETITION [ MA NO.100/AHD/2008 FOR A.Y . 1998-99 (ARISING FROM ITA NO.769/AHD/2003 A.Y. 1998-99) ] THROUGH WHICH IT WAS INFORMED THAT AN ADDITIONAL GROUND COULD NOT BE DEC IDED, REPRODUCED FOR READY REFERENCE. ITA NO .769/AHD/2003 NARMADA CHEMATUR PETROCHEMICALS LTD. VS. JT.CIT ASST.YEAR 1998-99 - 2 - THE LEARNED CIT(A) HAS ERRED IN NOT DISPOSING GROU ND NO.8.6 OF THE GROUNDS OF APPEAL, WHICH INTERALIA STATES THAT SINCE THE APPELLANT IS LIABLE TO TAX UNDER PROVISIONS OF SECT ION 115JA OF THE I.T. ACT, BOOK PROFIT SHOULD BE TREATED AS PROFIT O F BUSINESS FOR COMPUTING DEDUCTION U/S.80HHC AND THEREBY ASSESSING OFFICER ERRED IN NOT ALLOWING DEDUCTIONS U/S.80HHC ON BOOK PROFIT, WHILE COMPUTING INCOME U/S.115JA OF THE I.T. ACT. APPELL ANT SUBMITS THAT IN THE FACTS AND CIRCUMSTANCES OF THE CASE, DE DUCTION U/S.80HHC OUGHT TO HAVE BEEN ALLOWED ON THE BOOK PR OFIT. IT BE SO HELD NOW. 2.1. THIS MISCELLANEOUS PETITION WAS DECIDED VIDE A N ORDER DATED 16/02/2012 AS PER THE FOLLOWING OBSERVATION: 3. THE LEARNED COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ADDITIONAL GROUND TAKEN BY THE ASSESSEE RELATING TO DEDUCTION U/S.80HHC ON THE BASIS OF BROOK PROFIT U/S.115JA HA S NOT BEEN ADJUDICATED UPON BY THE TRIBUNAL WHILE PASSING ITS ORDER DATED 31/08/2007. THE SAID GROUND IS REPRODUCED ABOVE IN THE MISCELLANEOUS APPLICATION. IN SUPPORT OF THIS SUBM ISSION, THE LEARNED COUNSEL OF THE ASSESSEE REFERRED TO THE CHA RT SUBMITTED BEFORE THE TRIBUNAL DURING THE COURSE OF APPEAL HEA RING WHEREIN THE ADDITIONAL GROUND TAKEN UP WAS ALSO MENTIONED. THE LEARNED COUNSEL OF THE ASSESSEE ACCORDINGLY PRAYED FOR RECA LLING OF THE ORDER DATED 31-08-2007 FOR DECIDING THE SAID ADDITI ONAL GROUND. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORDS. WE FIND FROM THE ORDER DATED 31-08-2007 THAT THERE IS A MISTAKE APPARENT FROM RECORD AS THE TRIBUNAL HAS NOT DEALT WITH THE SAID ADDITIONAL GROUND TAKEN BY THE ASSESSEE, THEREFORE, TO THIS EXTENT THE ORDER DATED 31-08-2007 IS HEREBY RECALLED TO DE CIDE THIS ADDITIONAL GROUND ONLY. THE REGISTRY IS DIRECTED T O FIX THE APPEAL FOR HEARING IN DUE COURSE. ITA NO .769/AHD/2003 NARMADA CHEMATUR PETROCHEMICALS LTD. VS. JT.CIT ASST.YEAR 1998-99 - 3 - 3. CONSEQUENCE THEREUPON, THIS APPEAL WAS FIXED FOR HEARING AND ACCORDINGLY WE HAVE HEARD BOTH THE SIDES. 4. AT THE OUTSET, PARTIES APPEARING BEFORE US HAVE INFORMED THAT THE ISSUE HAS RAKED UP THROUGH THIS MISCELLANEOUS PETIT ION WAS A LEGAL ISSUE BUT COULD NOT BE PLEADED BEFORE LEARNED CIT(APPEALS ). AS FAR AS THE LEGALITY ON THIS ISSUE IS CONCERNED, OUR ATTENTION HAS BEEN DRAWN ON THE PROVISIONS OF SECTION 115JA WHICH PRESCRIBES THAT N OTWITHSTANDING ANYTHING CONTAINED IN ANY OF THE PROVISIONS OF THE ACT, IF THE TOTAL INCOME IS LESS THAN 30% OF THE BOOK PROFIT, THE TOTAL INCO ME OF SUCH ASSESSEE CHARGEABLE TO TAX FOR RELEVANT PREVIOUS YEAR SHALL BE DEEMED TO BE AN AMOUNT EQUAL TO 30% OF SUCH BOOK PROFIT. FOR THE P URPOSE OF COMPUTATION OF THE BOOK PROFIT THE SAME IS TO BE RE DUCED BY THE AMOUNT OF PROFIT ELIGIBLE FOR DEDUCTION U/S.80HHC COMPUTED UNDER CLAUSES (A), (B) AND (C) OF SUB-SECTION (3A) AS THE CASE MAY BE OF THAT SECTION AND SUBJECT TO THE CONDITIONS IS SPECIFIED IN SUB-SECTI ON(4) & (4A) OF THAT SECTION. AS FAR AS THE ELIGIBILITY OF THE PROFIT I S CONCERNED, THE SAME HAS NOT YET BEEN ADJUDICATED UPON BY THE LOWER AUTHORIT IES. IT IS ALSO NOT CLEAR WHETHER THE CONDITIONS SPECIFIED UNDER THE SE CTION 80HHC OF THE I.T.ACT HAVE ALSO BEEN COMPLIED WITH OR NOT. IT AP PEARS THAT DUE TO THESE REASONS THE PARTIES APPEARING BEFORE US HAVE FAIRLY SUGGESTED TO REFER THIS ISSUE BACK TO THE STAGE OF LEARNED CIT(APPEALS), SO THAT THE SAME CAN BE PROPERLY ADJUDICATED UPON. THIS SUGGESTION IS HERE BY ACCEPTED AND THIS ADDITIONAL GROUND IS RESTORED BACK TO THE STAGE OF FIRST APPEAL TO BE DECIDED DE NOVO AS PER LAW. WE ORDER ACCORDINGLY. ITA NO .769/AHD/2003 NARMADA CHEMATUR PETROCHEMICALS LTD. VS. JT.CIT ASST.YEAR 1998-99 - 4 - 5. IN VIEW OF THE ABOVE DIRECTIONS, THE EARLIER RES ULT NOW STOOD MODIFIED THAT THAT THE ASSESSEES APPEAL IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. SD/- SD/- ( .. ) ( ) '# ( T.R. MEENA ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL ME MBER AHMEDABAD; DATED 22/05/2012 ..&, .&../ T.C. NAIR, SR. PS '3 / ,4 5'4' '3 / ,4 5'4' '3 / ,4 5'4' '3 / ,4 5'4'/ COPY OF THE ORDER FORWARDED TO : 1. (+ / THE APPELLANT 2. ,-(+ / THE RESPONDENT. 3. 6 / CONCERNED CIT 4. 6() / THE CIT(A)-VI, BARODA 5. 49: ,& , , / DR, ITAT, AHMEDABAD 6. :; <0 / GUARD FILE. '3& '3& '3& '3& / BY ORDER, -4 , //TRUE COPY// = == =/ // / ) ) ) ) ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION21.5.2012 (DICTATION-PAD PAGE S 1 TO 6 ATTACHED) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 21.5.2012 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S22.5.12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 22.5.12 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