Assistant Commissioner of Income-tax, V. Thermax Ltd., Pune

MA 1/PUN/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4376 (ITAT-PUNE)
• Duration Of Justice: 3 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-05-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2000-2001
• Appeal Filed On: 24-02-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANIL CHAWARE
• Assessee Lawyers: R D ONKAR
• Keywords: Bad and doubtful debts

Judgement Text

] IQ.KS ] IQ.KS ] IQ.KS ] IQ.KS IQ.KS IQ.KSIQ.KS IQ.KS IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE . . , , ! ' BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM . / MA NO.1/PN/2016 (ARISING OUT OF ITA NO.1290/PN/2005) !$ $ / ASSESSMENT YEAR : 2000-01 THERMAX LIMITED, THERMAX HOUSE, 4, BOMBAY-PUNE ROAD, SHIVAJI NAGAR, PUNE 411005 . / APPLICANT V/S ACIT, CIRCLE-8, PUNE . / RESPONDENT / APPLICANT BY : SHRI R.D. ONKAR / RESPONDENT BY : S SHRI ANIL CHAWARE / ORDER PER VIKAS AWASTHY, JM : THE MISCELLANEOUS APPLICATION HAS BEEN FILED BY THE ASSESSEE IN ITA NO.1290/PN/2005 FOR THE ASSESSMENT YEAR 2000-01 FO R RECTIFICATION OF ALLEGED MISTAKE IN THE ORDER OF TRIBUNAL DATED 30-06-2015. 2. SHRI R.D. ONKAR APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT THE GROUNDS OF APPEAL NO.4.1 TO 4.5 RAISED IN THE APPEAL OF THE DEPARTMENT RELATING TO LEASE RENTAL INCO ME IS SIMILAR TO GROUND OF APPEAL NO.7 RAISED BY THE ASSESSEE IN ITS CR OSS APPEAL IN / DATE OF HEARING :20.05.2016 / DATE OF PRONOUNCEMENT:25.05.2016 2 MA NO.01/PN/2016 ITA NO.1247/PN/2005 FOR A.Y. 2000-01. THE ASSESSEE HAD FILED M.A.NO.35/PN/2015 IN ITA NO.1247/PN/2005 FOR RECTIFICATION OF THE ERROR IN ORDER DATED 30-06-2015. WHILE ADJUDICATING GROUN D NO.7 IN THE APPEAL OF ASSESSEE, THE TRIBUNAL DID NOT CONSIDER THE DECISION OF HONBLE SUPREME COURT OF INDIA IN THE CASE OF CIT VS. M/S . EXCEL INDUSTRIES LTD. REPORTED AS 358 ITR 295. THE TRIBUNAL VID E ORDER DATED 18-01-2016 IN M.A.NO.35/PN/2015 IN ITA NO.1247/PN/2 005 HAS RECALLED THE ORDER OF TRIBUNAL DATED 30-06-2015 FOR THE LIMITED PURPOSE TO ADJUDICATE GROUND OF APPEAL NO.7 IN THE APPEA L OF THE ASSESSEE. SINCE THE REVENUE HAS ALSO RAISED THE SAME I SSUE IN ITS CROSS APPEAL FOR THE SAME ASSESSMENT YEAR BOTH THE GR OUNDS HAVE TO BE RE-ADJUDICATED TOGETHER. THE LD. AUTHORISED REPRES ENTATIVE INFORMED THAT THE APPEAL OF THE ASSESSEE IS LISTED FOR HEAR ING ON 27- 06-2016. 3. SHRI ANIL CHAWARE REPRESENTING THE DEPARTMENT ADMITTE D THE FACT THAT THE GROUND OF APPEAL NO.7 RAISED IN THE APPEAL O F THE ASSESSEE FOR A.Y. 2000-01 AND GROUNDS OF APPEAL NO.4.1 TO 4.5 IN THE APPEAL OF THE DEPARTMENT FOR A.Y. 2000-01 ARE ON THE SAM E ISSUE AND HAVE TO BE ADJUDICATED TOGETHER. 4. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF RIVAL SIDES. THE GROUNDS OF APPEAL NO.4.1 TO 4.5 RAISED IN TH E APPEAL BY THE DEPARTMENT READS AS UNDER : 4.1 ON THE FATS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A) ERRED IN HOLDING THAT THE AO SHALL GRANT DEDUCTION O F BAD DEBT OF RS.4,17,888/- IN A.Y. 2001-02 IN REFERENCE TO MODI A LKALIES LTD. 4.2 THE CIT(A) OUGHT TO HAVE RESTRICTED HERSELF ON TH E ISSUES RELEVANT FOR A.Y. 2000-01 ONLY AND OUGHT TO HAVE NOT CONSIDER ED AND DECIDED THE ISSUES PERTAINING TO OTHER YEAR WHICH WERE NOT SUBJECT MATTER OF APPEAL. 4.3 ON THE FATS AND IN THE CIRCUMSTANCES OF THE CASE, T HE LD.CIT(A) ERRED IN DELETING LEASE RENTAL INCOME OF RS.34,37,380 /-. 3 MA NO.01/PN/2016 4.4 ON THE FATS AND IN THE CIRCUMSTANCES OF THE CASE, T HE LD.CIT(A) ERRED IN HOLDING THAT RESULTANT BAD DEBTS SHOULD BE AL LOWED IN A.Y.2001- 02 IN REFERENCE TO INERTIA INDUSTRIES. 4.5 THE CIT(A) OUGHT TO HAVE RESTRICTED HERSELF ON TH E ISSUE RELEVANT FOR A.Y. 2000-01 ONLY AND OUGHT TO HAVE NOT CONSIDER ED AND DECIDED THE ISSUES PERTAINING TO OTHER YEARS WHICH WERE NOT SUBJECT MATTER OF APPEAL. 5. THE APPEALS OF THE ASSESSEE ITA NO.1247 & 1248/PN/2 005 FOR A.Y. 2000-01 AND 2001-02, RESPECTIVELY AND THE CROSS AP PEALS BY THE DEPARTMENT ITA NO.1290 & 1291/PN/2005 FOR THE SAME A SSESSMENT YEARS WERE DECIDED VIDE COMMON ORDER DATED 30-06-2015. WE FIND THAT IN PARA 13 OF THE TRIBUNAL ORDER DATED 30-06-2015 IT HAS BEEN CATEGORICALLY MENTIONED THAT THE SEVENTH GROUND RAISED BY THE ASSESSEE REGARDING LEASE RENTAL INC OME AND THE ISSUE RAISED IN GROUNDS OF APPEAL NO.4.1 TO 4.5 IN THE APPEA L BY REVENUE ARE SIMILAR. AT THE TIME OF DECIDING GROUND NO.7 IN THE APPEAL OF THE ASSESSEE, THE DECISION OF HONBLE SUPREME COURT OF INDIA IN THE CASE OF M/S. EXCEL INDUSTRIES LTD. (SUPRA) WAS NOT CONSIDERED. 6. THE TRIBUNAL VIDE ORDER DATED 18-01-2016 IN M.A.NO.35/PN/2015 IN ITA NO.1247/PN/2005 FILED BY THE ASSES SEE HAS RECALLED THE ORDER DATED 30-06-2015 FOR THE LIMITED P URPOSE TO RECTIFY THE ERROR WITH THE FOLLOWING OBSERVATION : 6. THE TRIBUNAL IN ORDER DATED 30-06-2015 HAD DEA LT WITH THIS ISSUE IN PARAS 13 AND 28 OF THE ORDER. A PERUSAL OF THE ORD ER SHOWS THAT THE DECISION OF HON'BLE SUPREME COURT OF INDIA IN THE CA SE OF COMMISSIONER OF INCOME TAX VS. M/S. EXCEL INDUSTRIES LTD. (SUPRA) WAS NOT CONSIDERED BY THE TRIBUNAL WHILE ADJUDICATING GROUND NO. 7 IN APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2000-01 AND GROUND NO. 2 OF APPEAL OF THE DEPARTMENT IN ASSESSMENT YEAR 2001-02. SINCE, THE ERROR HAS CREPT IN THE ORDER OF TRIBUNAL, WE DEEM IT APPROPRIATE TO RECALL THE ORDER FOR THE LIMITED PURPOSE OF ADJUDICATING GROUND NO. 7 IN ITA NO. 1247/PN/2005 FOR THE ASSESSMENT YEAR 2000-01 AND GROUND NO. 2 IN ITA NO. 1291/PN/2005 FOR THE ASSESSMENT YEAR 2001-02, AFRESH AFT ER CONSIDERING 4 MA NO.01/PN/2016 THE DECISION OF HON'BLE SUPREME COURT OF INDIA IN TH E CASE OF COMMISSIONER OF INCOME TAX VS. M/S. EXCEL INDUSTRIES LTD. (SUPRA). SINCE, IN THE CROSS APPEALS BY THE ASSESSEE AND REVENUE , THE ISSUE RAISED ARE ANALOGOUS, THE ORDER OF TRIBUNAL DATED 30 -06-2015 IS RECALLED IN THE APPEAL OF DEPARTMENT AS WELL FOR THE LIMITED P URPOSE OF RE-ADJUDICATING GROUND NOS. 4.1 TO 4.5 RAISED IN THE APP EAL IN THE AFORESAID TERMS. 7. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE ASSESS EE IS PARTLY ACCEPTED. THE OFFICE REGISTRY IS DIRECTED TO LIST IT A NO.1290/PN/2005 ALONG WITH ITA NO.1247/PN/2005 ON 27-06-2016. ORDER PRONOUNCED ON WEDNESDAY, THE 25 TH DAY OF MAY, 2016. SD/- SD/- ( R.K.PANDA ) ( VIKAS AWASTHY ) ACCOUNTANT MEMBER JUDICIAL MEMBER IQ.KS PUNE ; DATED :25 TH MAY, 2016. LRH'K ' (!* + / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. $ ( ) S / THE CIT(A)-III, PUNE 4. $ S / THE CIT-III, PUNE 5. 6. ' **+, +, IQ.KS / DR, ITAT, A PUNE; / / GUARD FILE. / BY ORDER , ' //TRUE COPY // ' * //TRUE COPY// 12 * + / SR. PRIVATE SECRETARY +, IQ.KS / ITAT, PUNE