Gujarat Industrial Investment Corporation Ltd., Gandhinagar V. The ACIT.,GNR Circle, Gandhinagar

MA 101/AHD/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1335 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-01-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 20-12-2013
• Assessment Year: 1997-1998
• Appeal Filed On: 02-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER MA NO.101/AHD/2013 (ARISING OUT OF ITA NO.1778/AHD/2009 A.Y. 1997-98 GUJARAT INDUSTRIAL INVESTMENT CORPORATION LTD., 6 TH FLOOR, BLOCK NO.11, UDHYOG BHAWAN, SECTOR 11, GANDHINAGAR. PAN: AAACG 5304Q VS THE ACIT, GANDHINAGAR CIRCLE, GANDHINAGAR. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI O.P. BATHEJA, SR.D.R. ASSESSEE(S) BY : SHRI RAJESH SHAH / DATE OF HEARING : 20/12/2013 / DATE OF PRONOUNCEMENT: 24/01/2014 / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THROUGH THIS MISC. PETITION FILED ON 2 ND MAY, 2013, THE FIRST GRIEVANCE OF THE APPLICANT IS NARRATED AS UNDER: 1. THIS MISCELLANEOUS APPLICATION IS PREFERRED UND ER SECTION 254(2) OF THE INCOME TAX ACT, 1961 FOR RECTIFYING THE MISTAKE APP ARENT FROM THE RECORD CONTAINED IN THE ORDER OF THE INCOME TAX APPELLATE TRIBUNAL (HEREINAFTER REFERRED TO AS 'ITAT') IN ITA NO.L778/A/2009 AS SET OUT BELOW. 2. IN THE ABOVE APPEAL THE REVENUE HAD RAISED GROU ND NO.L IN RESPECT OF DELETION OF ADDITION OF RS.10,95,222/- ON ACCOUNT O F INTEREST WAIVED BY THE LEARNED CIT(A). 3. THE APPLICANT REPRODUCES THE SAID GROUND NO. 1 OF APPEAL, FOR READY REFERENCE AS UNDER: MA NO. 101/AHD/2013 IN ITA NO.1778/AHD/2009 GUJARAT INDUSTRIAL INVESTMENT CORPORATION LTD. VS. THE ACIT, GANDHINAGAR CIRCLE, GANDHINAGAR. FOR A.Y.1997-98 - 2 - 'THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) H AS ERRED IN LAW AND ON FACTS IN DELETED THE ADDITION OFRS.10,95,222 /- ON ACCOUNT OF INTEREST WAIVED. ' 4. THE SAID GROUND HAS BEEN DECIDED BY THE HON'BLE ITAT AT PARAGRAPH 9 ON PAGE 12 OF THE ORDER. THE SAID DECISION IS REPRODUC ED AS UNDER FOR READY REFERENCE: 'APROPOS TO GROUND NO.L, FACTS HAVE REVEALED THAT T HE AMOUNT IN QUESTION PERTAINED TO PENAL INTEREST WHICH STOOD AL LOWED, THEREFORE, FOLLOWING THE DIRECTIONS OF THE TRIBUNAL, THE CIT(A ) HAS DIRECTED THAT THE WAIVER OF PENAL INTEREST IS ALLOWABLE. THIS FIN DINGS OF THE CIT(A) BEING INCONSISTENT WITH THE ORDER OF THE TRIBUNAL I S HEREBY ALLOWED' 5. IN THIS RESPECT, THE APPLICANT SUBMITS THAT TH ERE IS A MISTAKE APPARENT FROM RECORD IN THE ABOVE FINDINGS OF HON'BLE ITAT. IN TH E FINDING OF THE HON'BLE ITAT IT HAS BEEN OBSERVED THAT THE CIT(A) HAS FOLLO WED THE DIRECTIONS OF THE ITAT WHILE DIRECTING THAT WAIVER OF PENAL INTEREST IS ALLOWABLE. HOWEVER, WHILE CONCLUDING ON THE MATTER THE HON'BLE ITAT HAS HELD THAT 'CIT(A) FINDINGS BEING INCONSISTENT WITH THE ORDER OF THE T RIBUNAL IS HEREBY ALLOWED' WHICH CONTRADICTS THE FINDING MENTIONED ABOVE. THE APPLICANT BELIEVES THAT THERE IS A TYPOGRAPHICAL ERROR IN THE CONCLUSION O F THE HONBLE ITAT WHERE THE WORD 'INCONSISTENT' HAS BEEN USED ERRONEOUSLY I NSTEAD OF THE WORD 'CONSISTENT' WHICH WOULD BE IN SYNC WITH THE FINDIN G OF THE HON'BLE IT AT AND ALSO IT HAS TO BE FURTHER MENTIONED THAT THE GROUND OF REVENUE IS DISMISSED. THUS IN OUR RESPECTFUL SUBMISSION THE PARAGRAPH 9 S HOULD APPEAR AS UNDER: 'APROPOS TO GROUND NO. 1, FACTS HAVE REVEALED THAT THE AMOUNT IN QUESTION PERTAINED TO PENAL INTEREST -WHICH STOOD A LLOWED, THEREFORE, FOLLOWING THE DIRECTIONS OF THE TRIBUNAL, THE CIT(A ) HAS DIRECTED THAT THE WAIVER OF PENAL INTEREST IS ALLOWABLE. THESE FI NDINGS OF THE CIT(A) BEING CONSISTENT WITH THE ORDER OF THE TRIBUNAL DED UCTION IS HEREBY ALLOWED AND CONSEQUENTLY THE GROUND OF DEPARTMENT I S DISMISSED. ' 6. THE ABOVE MISTAKE IF RECTIFIED, THE JUDGEMENT O F THE HON'BLE ITAT BECOMES CONSISTENT WITH THE FINDING. 2. WE HAVE BEEN INFORMED THAT VIDE PARAGRAPH 2.3.4, LEARNED CIT(A) IN THE IMPUGNED ORDER DATED 31.03.2009 HAS DECIDED THE ISSUE IN THE FOLLOWING MANNER: COMING TO THE SECOND FIGURE OF RS.10,95,292/-, IT HAS BEEN STATED THAT THIS PERTAINED TO PENAL INTEREST, PART OF IT STANDS ALLO WED AS CURRENT YEARS PENAL INTEREST. FURTHER, THESE AMOUNTS ARE INCLUDED IN TI ME NO.4 AMOUNTING TO RS.20,69,012/-. THE APPELLANTS CONTENTION APPEARS TO BE CORRECT. ONCE THE MA NO. 101/AHD/2013 IN ITA NO.1778/AHD/2009 GUJARAT INDUSTRIAL INVESTMENT CORPORATION LTD. VS. THE ACIT, GANDHINAGAR CIRCLE, GANDHINAGAR. FOR A.Y.1997-98 - 3 - ITAT HAD GIVEN A DIRECTION THAT WAIVER OF PENAL INT EREST IS ALLOWABLE, THE ASSESSING OFFICER IS DUTY BOUND TO ALLOW THE SAME. HENCE THE SUM OF RS.10,95,292/- IS ALLOWED. 3. AS FAR AS THE ORDER OF THE TRIBUNAL FOR A.Y. 199 6-97 IS CONCERNED, NOW THE SAME IS PLACED BEFORE US, BEARING ITA NO. 8 26/AHD/2001 (A.Y.1996-97) TITLED AS JCIT V/S. GIIC LIMITED, WHE REIN VIDE PARAGRAPH 9 IT WAS HELD AS UNDER: FORTH GROUND IS PERTAINING TO INTEREST WAIVED BY AS SESSEE OF RS.6,64,504/-. LEARNED AR SUBMITTED THAT IN A.Y. 1992-93, ITAT DIR ECTED AO TO VERIFY WHETHER SAME AMOUNTS TO PENAL INTEREST AND HELD THA T IF THE SAME IS IN THE NATURE OF APPEAL INTEREST THEN DEDUCTION IS ADMISSI BLE. LD. AR DRAWN ATTENTION TO PAGE NO.6 OF CIT(A) AND SUBMITTED THAT CIT(A) HA S GIVEN CATEGORICAL FINDING THAT ONLY PENAL INTEREST IS WAIVED. LD. AR ACCORDINGLY URGED THAT ORDER OF CIT(A) BE CONFIRMED INSTEAD OF SENDING BAC K MATTER TO THE FILE OF AO. LEARNED DR, ON THE OTHER HAND, SUBMITTED THAT SINCE ITAT IN EARLIER YEARS HAS SENT BACK MATTER TO THE FILE OF AO FOR NECESSARY VE RIFICATION, THEREFORE, THIS MATTER MAY ALSO BE SENT BACK TO THE FILE OF AO. AFT ER CONSIDERING SUBMISSION OF LEARNED REPRESENTATIVE OF PARTIES AND IN VIEW OF FACTS THAT WE FOLLOWED ORDER OF ITAT, WE ALSO SEND BACK MATTER TO THE FILE OF AO WITH IDENTICAL DIRECTIONS, AS GIVEN BY ITAT IN THAT ORDER. 4. IN THE AFORESAID ORDER OF THE TRIBUNAL WHICH IS FOLLOWED BY LEARNED CIT(A), IT IS ABSOLUTELY CLEAR THAT THE ISSUE IN HA ND WAS RESTORED BACK TO THE FILE OF THE AO. HOWEVER, LEARNED CIT(A) WHILE R EFERRING THIS DECISION OF THE TRIBUNAL HAS DIRECTED TO ALLOW THE PENAL INT EREST. THEREFORE, WHILE DECIDING THE APPEAL OF THE REVENUE IN ITA NO.1778/A HD/2009, VIDE ORDER DATED 31.07.2012 HELD THAT THE SAID FINDING O F THE LEARNED CIT(A) WAS INCONSISTENT WITH THE ORDER OF THE TRIBUNAL, TH EREFORE, THE GROUND OF THE REVENUE WAS ALLOWED. WE FIND NO APPARENT MISTAK E IN THE SAID ORDER OF THE TRIBUNAL; HENCE, THIS PART OF THE MA IS HERE BY DISMISSED. 5. THE NEXT OBJECTION OF THE MA IS REPRODUCED BELOW: MA NO. 101/AHD/2013 IN ITA NO.1778/AHD/2009 GUJARAT INDUSTRIAL INVESTMENT CORPORATION LTD. VS. THE ACIT, GANDHINAGAR CIRCLE, GANDHINAGAR. FOR A.Y.1997-98 - 4 - 7. FURTHER, THE APPELLANT ALSO SUBMITS THAT THE ABOVE MENTIONED AMOUNT OF RS. 10,95,222/- ON ACCOUNT OF INTEREST WAIVED IS IN CLUDED IN THE AMOUNT MENTIONED IN THE THIRD GROUND OF RS.20,69,012/- BEI NG INTEREST WAIVED PERTAINING TO THE EARLIER YEAR. WHILE DECIDING IN R ESPECT OF THIRD GROUND, THE HON'BLE ITAT HAS HELD THAT 'THE EXACT POSITION OF O VERLAPPING OF THE AMOUNT HAS NOT BEEN PLACED ON RECORD, THEREFORE WE REFER THIS ITEM OF WAIVER OF PENAL INTEREST BACK TO THE AO TO VERIFY THE SAME AN D IF FOUND CORRECT, THEN FOLLOWING THE VIEW TAKEN BY THE TRIBUNAL ALLOW THE SAME. FOR STATISTICAL PURPOSES, THIS GROUND OF THE REVENUE MAY BE TREATED AS ALLOWED. ' HERE, THE ENTIRE AMOUNT OF RS.20,69,012/- ALREADY INCLUDES TH E AMOUNT OF RS. 10,95,222/- MENTIONED IN THE FIRST GROUND. THIS CAN BE SEEN FROM COMPARISON OF PAGE NO. 64 AND 71 WHERE THE AMOUNT OF RS. 10,95 ,292 OF PAGE 64 COULD BE FOUND INCREASED IN AMOUNT OF RS. 20,69,012 ON PAGE 71 WHEN WE SEE THE ITEMS IN THE BREAK-UP OF THOSE FIGURES. THEREFORE, IT BEC OMES A CASE OF DOUBLE DISALLOWANCE OF SAME ITEM OF RS. 10,95,292/- AND HE NCE TO THAT EXTENT THIRD GROUND OF DEPARTMENT APPEAL SHOULD HAVE BEEN DISMIS SED. FOR THE REMAINING AMOUNT OF RS.9,73,790/- THE SAME BEING PENAL INTERE ST WAIVED DURING THE CURRENT YEAR (EVEN IF IN RESPECT OF SUCH INTEREST P ERTAINING TO EARLIER YEAR) HAS TO BE ALLOWED IN FAVOUR OF THE APPLICANT FOLLOWING HON'BLE ITAT'S ORDER FOR AY 1998-99, A COPY OF WHICH IS ALREADY PLACED IN PA PER BOOK AT PAGES 134 - 157 (RELEVANT PARA 3). THUS, THE ENTIRE GROUND OF D EPARTMENT FOR RS.20,69,012 SHOULD HAVE BEEN DISMISSED AS AGAINST SETTING IT AS IDE TO THE FILE OF THE ASSESSING OFFICER. 6. THROUGH THIS MISC. PETITION, NOW THE ASSESSEE IS TRYING TO CHALLENGE THE RESTORATION OF THE ISSUE VIDE PARA 11 OF ITAT O RDER DATED 31.07.2012; BUT ACCORDING TO US THE TRIBUNAL HAS RIGHTLY RESTOR ED THE ISSUE BACK TO THE STAGE OF THE AO WITH CERTAIN DIRECTIONS. EVEN IN TH IS MISC. PETITION, THE APPLICANT HAS NOW STATED THAT THIS IS A CASE OF DOU BLE DISALLOWANCE. WE HEREBY HOLD THAT THE FACT OF DOUBLE DISALLOWANCE WA S REQUIRED TO BE VERIFIED AT THE STAGE OF THE AO AND CONSIDERING THA T SITUATION AT THE TIME WHEN GROUND NO.3 OF REVENUES APPEAL WAS DECIDED VI DE ORDER DATED 31.07.2012 (SUPRA), THE TRIBUNAL HAS CORRECTLY HELD THAT ALL THOSE FACTS CAN ONLY BE VERIFIED BY THE AO; HENCE, RESTORED THE ISS UE BACK TO AO. WE FIND NO MISTAKE IN THE SAID RESTORATION OF THE GROU ND OF THE REVENUE. HENCE, THIS PART OF THE MISC. PETITION IS ALSO HERE BY DISMISSED. MA NO. 101/AHD/2013 IN ITA NO.1778/AHD/2009 GUJARAT INDUSTRIAL INVESTMENT CORPORATION LTD. VS. THE ACIT, GANDHINAGAR CIRCLE, GANDHINAGAR. FOR A.Y.1997-98 - 5 - 7. IN THE RESULT, THE PRESENT MA OF THE ASSESSEE IS DISMISSED ACCORDINGLY. SD/- SD/- (T.R. MEENA) (MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 24/01/2014 PRABHAT KR. KESARWANI, SR. P.S. / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A)-III, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE. / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD