Smt. Kaminiben A.Mehta, Surat V. The Income tax Officer,Ward-6(2), Surat

ITA 872/AHD/2013

• Counselvise Citation: 87220514 RSA 2013
• Duration Of Justice: 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-08-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Next Hearing Date: 04-07-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 28-03-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: J P JHANGID
• Assessee Lawyers: RAJESH UPADHYAY
• Keywords: Opportunity of being heard
• Section: 147; 37; 43B

Judgement Text

, , , , C, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, C BENCH . .. . . .. . , !' !' !' !', , , , #$ #$ #$ #$ %& %& %& %& , , , , &' &' &' &' ( & ' ( & ' ( & ' ( & ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND TEJ RAM MEENA, ACCOUNTANT MEMBER) ITA NO.872/AHD/2013 [ASSTT.YEAR : 2005-2006] SHRI KAMINIBEN A. MEHTA PROP. OF M/S.SITARAM TEXTILES, A-3, PRINCE INDUSTRIAL SOCIETY BHESTRA, SURAT 395 023. PAN : ABPPM 9115 N /VS. ITO, WARD-6(2) SURAT. ( (( (*+ *+ *+ *+ / APPELLANT) ( (( (,-*+ ,-*+ ,-*+ ,-*+ / RESPONDENT) .% / 0 &/ ASSESSEE BY : SHRI RAJESH UPADHYAY ( / 0 &/ REVENUE BY : SHRI J.P. JHANGID, SR.DR 2 / %3'/ DATE OF HEARING : 4 TH JULY, 2013. 456 / %3'/ DATE OF PRONOUNCEMENT : 02-08-2013 &7 / O R D E R PER G.C. GUPTA, VICE-PRESIDENT: THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2005-2006 IS DIREC TED AGAINST THE ORDER OF THE CIT(A)-I, SURAT DATED 7.1.2013. ITA NO.872/AHD/2013 -2 2. THE GROUND NO.1 AND 2 ARE AS UNDER: 1. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS TO DISMISS APPEAL WITHOUT GIVING ADEQUATE OPPORTUNITY OF BEING HEARD. THE APPELLANT AHS TAKEN POSSIBLE STEP TO REPRESENT THE CASE THROUGH HIS CA, BUT DUE TO INADVERTENCE ON HIS PART , PRESENTATION COULD NOT BE MADE ON THE DATE OF HEARI NG FIXED I.E. 4.1.201 BY CIT(A). 2. THE LD.CIT(A) HAS ERRED IN LAW AND ON FACTS TO DECIDE ISSUE OF REOPENING OF CASE UNDER SECTION 147 OF THE ACT CONTRARY TO THE PROVISION OF THE LAW. 3. THESE GROUNDS OF THE ASSESSEE ARE NOT PRESSED BY THE LEARNED COUNSEL FOR THE ASSESSEE, AND ARE ACCORDINGLY DISMI SSED. 4. THE GROUND NO.3 OF THE ASSESSEES APPEAL IS AS U NDER: 3. THE AO HAS ERRED IN LAW AND ON FACTS TO DISALLO W RS.3,83,510/- U/S,.37 R.W.S. 43B BEING CENVAT CREDI T WRITTEN OFF BY THE APPELLANT FOLLOWING AS-4 ISSUED BY ICAI. THE LD.CIT(A) HAS ALSO ERRED IN UPHOLDING THE DISALLOWA NCE MADE BY THE AO. 5. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ISSUE OF DISALLOWANCE UNDER SECTION 37 R.W.S. SECTION 43B BE ING CENVAT CREDIT WRITTEN OFF BY THE ASSESSEE, IS COVERED IN F AVOUR OF THE ASSESSEE WITH THE DECISION OF THE ITAT, AHMEDABAD IN M/S.SHA H SILK CORPORATION VS. ACIT, ITA NO.3783/4005/AHD/2007 DAT ED 24.3.2010, WHEREIN IDENTICAL ISSUE WAS DECIDED IN F AVOUR OF THE ASSESSEE. THE LEARNED DR HAS RELIED ON THE ORDER O F THE AO AND THE CIT(A). ITA NO.872/AHD/2013 -3 6. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AO AND THE CIT(A), AND ALSO PERUSED THE ORDER O F THE ITAT, AHMEDABAD BENCH IN THE CASE OF M/S.SHAH SILK CORPOR ATION VS. ACIT (SUPRA) WHEREIN IDENTICAL ISSUE OF DISALLOWANC E UNDER SECTION 37 R.W.S. 43B OF THE ACT BEING CENVAT CREDIT WRITTEN OFF BY THE ASSESSEE FOLLOWING THE AS-4 ISSUED BY THE ICAI WAS DECIDED IN FAVOUR OF THE ASSESSEE. WE BEING IN AGREEMENT WITH THE DEC ISION OF THE ITAT, AHMEDABAD BENCH IN M/S.SHAH SILK CORPORATION VS. AC IT (SUPRA) DECIDE THE ISSUE IN FAVOUR OF THE ASSESSEE, AND HOL D THAT NO DISALLOWANCE UNDER SECTION 37 R.W.S. 43B BEING CENV AT CREDIT WRITTEN OFF BY THE ASSESSEE FOLLOWING AS-4 ISSUED B Y THE ICAI COULD BE MADE BY THE REVENUE, AND ACCORDINGLY, THE GROUND NO.3 OF THE ASSESSEE IS ALLOWED. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( %& %& %& %& / TEJ RAM MEENA) &' ( &' ( &' ( &' ( /ACCOUNTANT MEMBER ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD