ACIT, Bangalore V. M/s. International Stones India Pvt. Ltd., Bangalore

MA 116/BANG/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6806 (ITAT-BANGALORE)
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 05-08-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 07-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARCHANA CHOWDHARY CITIIDR
• Assessee Lawyers: C RAMESH
• Keywords: Depreciation; Question of law; Unabsorbed depreciation
• Section: 260A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER M.P. NO.116/BANG/2010 (ARISING OUT OF ITA NO. 814/BANG/2009) ASSESSMENT YEAR : 2006-07 THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 11(4), BANGALORE. : APPLICANT VS. INTERNATIONAL STONES INDIA PVT. LTD., NO.55/12, ALANKAR APARTMENT, FLAT NO.1, 39 TH CROSS, 14 TH MAIN, JAYANAGAR, BANGALORE 560 041. PAN: AABCI 1821R : RESPONDENT APPLICANT BY : SMT. ARCHANA CHOWDHARY, CIT-II(DR) RESPONDENT BY : SHRI C. RAMESH, C.A. DATE OF HEARING : 05.08.2011 DATE OF PRONOUNCEMENT : 26.08.2011 O R D E R PER A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER THIS MISCELLANEOUS PETITION IS FILED BY THE REV ENUE ARISING OUT OF THE ORDER PASSED BY THE TRIBUNAL IN ITA NO.814/B/09 FOR THE A.Y. 2006-07 DATED 19.3.2010. MP NO.116/BANG/10 PAGE 2 OF 6 2. THOUGH THE REVENUE HAS FURNISHED ELABORATE SUBMI SSIONS, THE MAIN ISSUES RAISED BY THE LD. DR BEFORE THE BENCH ARE (1) THE TRIBUNAL HAS ERRED IN NOT FOLLOWING THE DEC ISION OF ITS OWN DECISION RENDERED IN THE CASE OF M/S. INTELLINET TE CHNOLOGIES INDIA PVT. LTD. DATED 12.03.2010 IN ITA NO.1021/BANG/2009 FOR THE A.Y. 2004-05. (2) THE TRIBUNAL HAS ERRED IN NOT FOLLOWING THE DEC ISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF HIMMATSINGKA SIEDE LTD. 286 ITR 255 . (3) THE TRIBUNAL HAS ERRED IN NOT ALLOWING THE ASSE SSEE TO MAKE AN APPLICATION U/S. 158A (2) OF THE ACT. (4) THE TRIBUNAL HAS ERRED IN INVOKING SECTION 158A OF THE ACT WHEN THE ASSESSEE HAD TAKEN SHELTER ON THE IDENTICAL ISSUE O F A DIFFERENT ASSESSEE AND NOT THAT OF THE ASSESSEE. 3. THE LD. DR SUBMITTED THAT ON THE ISSUE OF SET O FF OF LOSSES THE TRIBUNAL HAS ERRED IN NOT FOLLOWING ITS OWN DECISIO N IN THE CASE OF INTELLIGENT TECHNOLOGIES INDIA PVT. LTD. VIDE ORDER DATED 12.03 .10 IN ITA NO.1021/BANG/09 . IN THAT CASE IT WAS HELD THAT THE DECISION IN KPIT CUMMINS INFOSYSTEMS (BANGALORE) PVT. LTD. (2008) 26 SOT 529 (PARA 23) WAS NOT A GOOD LAW IN VIEW OF THE DECISION OF THE J URISDICTIONAL HIGH COURT IN HIMATSINGKA SEIDE LTD. (268 ITR 255) WHEREIN UNABSORBED DEPRECIATION WAS REQUIRED TO BE REDUCED BEFORE COMPUTING DEDUCTI ON U/S. 10B/10A OF THE ACT. IT WAS ALSO SUBMITTED THAT THE TRIBUNAL E RRED IN ACCEPTING THE ASSESSEES APPLICATION U/S. 158A(1) PLACING RELIANC E IN THE CASE OF KPIT MP NO.116/BANG/10 PAGE 3 OF 6 CUMMINS INFOSYSTEMS (BANGALORE) PVT. LTD. SUPRA WHEN THE SECTION IS NOT APPLICABLE TO THE FACTS OF THE CASE AND WITHOUT CAL LING FOR A REMAND REPORT FROM THE AO U/S. 158A(2) OF THE ACT. WITH THESE SU BMISSIONS THE LD. DR PRAYED THAT THE ORDER PASSED BY THE TRIBUNAL SUFFER S FROM MISTAKE APPARENT FROM THE RECORDS WITHIN THE MEANING OF SECTION 254( 2) OF THE I.T. ACT, 1961 AND THEREFORE IT MAY BE RECTIFIED. 4. THE LD. AR BROUGHT TO THE NOTICE OF THE BENCH TH AT THE ORDER OF THE TRIBUNAL IN ITA NO.1021/BANG/2009 IN THE CASE OF M/ S. INTELLIGENT TECHNOLOGIES PVT. LTD., PASSED ON 12.3.2010 WAS NO T AVAILABLE BEFORE THE TRIBUNAL AT THE TIME OF HEARING OF THE CASE IN ITA NO.814/BANG/2009. THE CASE AVAILABLE BEFORE THE TRIBUNAL WAS M/S. KPIT CUMMINS INFOSYSTEMS (BANGALORE) PVT. LTD. V. ACIT ADJUDICATED BY THE TRIBUNAL ON 29.08.2008 WHEREIN THE DECISION OF THE CASE HIMATSINGKA SEIDE LTD. (268 ITR 255) WAS CONSIDERED. THEREFORE IT WAS SUBMITTED THAT THERE WAS NO MISTAKE COMMITTED BY THE TRIBUNAL APPARENT ON RECORD. THE TRIBUNAL HAD COME TO A CONCLUSION AND HAD TAKEN A CONSCIOUS DECISION AFTER ANALYZING THE FACTS AND AS PER LAW. THE LD. AR FURTHER SUBMITTED THAT DURING THE PROCEEDINGS BEFORE THE TRIBUNAL ON THIS INSTANT CASE, IT WAS AR GUED AT LENGTH AND DECIDED THAT THE ASSESSEE WOULD BE ENTITLED TO TAKE SHELTER ON THE APPEAL BEFORE ANY APPELLATE AUTHORITY ON THE IDENTICAL ISS UE ARISING IN OTHER CASES OTHER THAN THAT OF THE ASSESSEES FOR DERIVING BENE FIT U/S. 158A(2) OF THE ACT. THE LD. AR SUBMITTED THAT WITH THE COMBINED R EADING OF THE SECTION 158A(1) ALONG WITH FORM 8 UNDER THE INCOME-TAX RULE S WOULD MAKE THIS PROPOSITION CLEAR. LD. AR FURTHER SUBMITTED THAT S INCE THE TRIBUNAL HAD CONSIDERED THIS ISSUE AND PASSED THE ORDER GIVING B ENEFIT OF SECTION MP NO.116/BANG/10 PAGE 4 OF 6 158A(1) TO THE ASSESSEE, THERE IS NO MISTAKE APPARE NT ON RECORD RECTIFIABLE U/S. 254(2) OF THE ACT. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD CAREFULLY. AS POINTED OUT BY THE LD. AR, TH E DECISION OF THE TRIBUNAL DATED 12.3.2010 IN THE CASE OF M/S. INTELLIGENT TECHNOLOGIES (INDIA) PVT. LTD. WAS NOT BEFORE THE TRIBUNAL AT THE TIME OF HEARING OF THE APPEAL. SINCE THE APPELLANT AT THE TIME OF HEARING HAD SUBMITTED APPLICATION AS PER THE PROVISIONS OF SECTION 158A OF THE ACT IN FORM 8 OF THE INCOME-TAX RULES, WHEREIN CLAUSE (2) MAKES IT EVIDENT THAT THE APPELL ANT MAY TAKE SHELTER ON THE DECISION OF AN IDENTICAL ISSUE IN OTHER ASSESSE ES CASE OR ASSESSES OWN CASE BEFORE ANY APPELLATE AUTHORITY, THE BENCH HAD JUDICIOUSLY ALLOWED THE PRAYER OF THE APPELLANT. AS FAR AS THE CORRECTNESS OF THE CLAIM MADE BY THE ASSESSEE WAS CONCERNED IT WAS NOT DISPUTED BY THE R EVENUE AND THEREFORE THE BENCH PROCEEDED TO GRAND BENEFIT U/S 158A TO TH E ASSESSEE WITH OUT GRANTING AN OPPORTUNITY TO THE LD.AO. SINCE IT WAS A CONSCIOUS DECISION RENDERED AFTER GOING THROUGH THE PROVISIONS OF SECT ION 158A (2) IT CANNOT BE CONSIDERED TO BE A MISTAKE APPARENT FROM THE RECORD RECTIFIABLE AS PER SECTION 254(2) OF THE ACT THOUGH VIEWED TO BE INCOR RECT. SECTION 158A(1) OF THE ACT AND CLAUSE (2) OF FORM 8 OF INCOME-TAX R ULES IS REPRODUCED HEREINBELOW FOR REFERENCE: 158A(1) NOTWITHSTANDING ANYTHING CONTAINED IN THI S ACT, WHERE AN ASSESSEE CLAIMS THAT ANY QUESTION OF LAW ARISING IN HIS CASE FOR AN ASSESSMENT YEAR WHICH IS PENDING BEFORE THE ASSE SSING OFFICER OR ANY APPELLATE AUTHORITY (SUCH CASE BEING HEREAFT ER IN THIS SECTION REFERRED TO AS THE RELEVANT CASE) IS IDENTICAL WITH A QUESTION OF LAW ARISING IN HIS CASE FOR ANOTHER ASSESSMENT YEAR WHI CH IS PENDING BEFORE THE HIGH COURT ON A REFERENCE UNDER SECTION 256 OR BEFORE THE SUPREME COURT ON A REFERENCE UNDER SECTION 257 OR IN APPEAL UNDER SECTION 260A BEFORE THE HIGH COURT OR IN APPE AL UNDER SECTION MP NO.116/BANG/10 PAGE 5 OF 6 261 BEFORE THE SUPREME COURT (SUCH CASE BEING HEREA FTER IN THIS SECTION REFERRED TO AS THE OTHER CASE), HE MAY FURN ISH TO THE ASSESSING OFFICER OR THE APPELLATE AUTHORITY, AS TH E CASE MAY BE, A DECLARATION IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER, THAT IF THE ASSESSING OFFICER OR THE APPELL ATE AUTHORITY, AS THE CASE MAY BE, AGREES TO APPLY IN THE RELEVANT CA SE THE FINAL DECISION ON THE QUESTION OF LAW IN THE OTHER CASE, HE SHALL NOT RAISE SUCH QUESTION OF LAW IN THE RELEVANT CASE IN APPEAL BEFORE ANY APPELLATE AUTHORITY OR IN APPEAL BEFORE ANY APPELLA TE AUTHORITY OR IN APPEAL BEFORE THE HIGH COURT UNDER SECTION 260A OR IN APPEAL BEFORE THE SUPREME COURT UNDER SECTION 261. FORM 8 (2) THAT THE SAID QUESTION(S) OF LAW IS/ARE IDENT ICAL WITH THE QUESTION(S) OF LAW ARISING IN MY CASE/IN THE CASE O F IN RESPECT OF THE ASSESSMENT YEAR . WHICH IS PENDING BEFORE .. CONSIDERING THESE FACTS, WE DO NOT FIND ANY MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF THE TRIBUNAL WHICH REQUIRES RECTIFICATION AS PER SECTION 254(2) OF THE ACT. IT IS ORDERED ACCORDINGLY. 6. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE REVENUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON THIS 26 TH DAY OF AUGUST, 2011. SD/- SD/- ( SMT. P. MADHAVI DEVI ) (A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 26 TH AUGUST, 2011. DS/- MP NO.116/BANG/10 PAGE 6 OF 6 COPY TO: 1. APPLICANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE (1+1) BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE.