M/s. Asa Singh Cotton Factory, KOTKAPURA V. The Asstt.Commissioner of Income-tax_III, Ferozepur

MA 120/ASR/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1593 (ITAT-AMRITSAR)
• Duration Of Justice: 4 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-03-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 07-03-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 12-11-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMRIK CHAND
• Assessee Lawyers: S K KATARIA
• Keywords: Maximum Marginal Rate
• Section: 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER M.A.NO.120(ASR)/2013 (ARISING OUT OF I.T.A. NO.53(ASR)/2010) ASSESSMENT YEAR :2007-08 PAN: AAEFA4300P M/S. ASA SINGH COTTON FACTORY, VS. THE ASSTT. CO MMR. OF INCOME-TAX, NEAR WATER WORKS, KOTKAPURA. CIR.III, FEROZEPUR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.S.K.KATARIA, ADVOCATE RESPONDENT BY:SH.AMRIK CHAND, DR DATE OF HEARING:07/03/2014 DATE OF PRONOUNCEMENT:18/03/2014 ORDER PER BENCH ; THIS MISCELLANEOUS APPLICATION OF THE ASSESSEE ARI SES FROM THE ORDER OF THE ITAT, AMRITSAR BENCH, PASSED IN ITA NO.53(AS R)/2010 FOR THE A.Y. 2007-08 DATED 25.06.2010. THE ASSESSEE HAS SUBMITTE D THE MISC. APPLICATION, WHICH FOR THE SAKE OF CONVENIENCE IS R EPRODUCED AS UNDER: THE APPLICANT RESPECTFULLY SUBMITS AS UNDER:- 1. THAT THE ORDER OF TRIBUNAL DATED 25.06.2010 AND THE MA IS IN TIME ALLOWED U/S 254(2). 2 2. THAT THE APPEAL FILED BY THE ASSESSEE WAS HEARD, AND LEARNED DR HAD NOT FILED ANY WRITTEN SUBMISSIONS; APPELLANT WA S HOPEFUL OF ACCEPTANCE OF APPEAL ON MERIT, IN VIEW OF THE JUDGM ENTS CITED AS (1998) 230 ITR 308 (SC), (2009) 313 ITR 231 (RAJ); AND CASE LAW RELIED BY LEARNED DR IN THE REPORTED CASE OF (2009) 315 ITR 422 (MAD). 3. IN THE ORDER HON'BLE BENCH, VIDE PARA 5 AT PAGE 6 HAS RECORDED THAT LEARNED DR HAS FILED WRITTEN SUBMISSION ON DAT ED 17.06.2010. 4. LEARNED DR, HAS NOT SUPPLIED COPY OF WRITTEN SU BMISSION TO APPELLANT, AND CONSEQUENTLY APPELLANT NEVER GOT A C HANCE TO REBUT THE SAME OR FILE REJOINDER ON THIS WRITTEN SUBMISSIONS, THE APPELLANT HAD BEEN DENIED THE OPPORTUNITY TO DEFEND. 5. LEARNED DR HAS FAILED TO ASSIST CORRECT TO HON' BLE BENCH; IN RESPECT OF ABOVE JUDGMENT, AS HON'BLE MADRAS HIGH C OURT HAS REFUSED TO INTERFERE IN THE FINDING OF THE TRIBUNAL (PAGE 425: HOWEVER, WE FIND FORCE IN THE ALTERNATIVE CONTENTIO N OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT CARRY FORWARD OF LOSS IS TO BE ALLOWED TO SET OFF FROM OTHER SOURCES, IF THE ASSETS WERE BUSINESS ASSETS. WE FIND THAT HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. RAMNATH GOENKE (2003) 256 ITR 26 (MAD.) HAS FURTHER. THEREFORE WE DIRECT THE ASSESSING OFFICER TO ALLOW SET OFF OF CARRIED FORWARD BUSINESS EVEN AGAINST THE HE AD INCOME FROM OTHER SOURCES BECAUSE THE ASSETS UNDER CONSIDERATI ON, I.E., HOSPITAL BASICALLY REMAINS A BUSINESS ASSET. MOST RESPECTFULLY IT IS SUBMITTED THAT LEARNED DR H AS, VERY WISELY, STRESSED ON THE POINT OF INCOME TO BE ASSESSED UNDE R HEAD INCOME FROM OTHER SOURCES BUT HAS REMAINED SILENT AS TO A DJUSTMENT OF INCOME AGAINST B/F BUSINESS LOSSES. THE FACTS AND CIRCUMSTANCES OF IDENTICAL, EXCEPT IN APPELLANTS CASE THE OPERATIVE LEASE IS OF ON YEARLY BASIS; THE ASSETS REVERTS BACK TO OWNERS, AS AGAINS T THE ABOVE CITED CASE, WHERE THE OPERATIVE LEASE IS 5 YEARS. THE APPELLANT RESPECTFULLY SUBMITS AS UNDER:- THAT THE ABOVE ORDER DATED 25.06.2010 MAY BE RECALL ED, DIRECTIONS TO A.O. MAY BE ISSUED TO ALLOWED SET OF B/F BUSINESS L OSS AGAINST ABOVE INCOME, IN COMPLETE AGREEMENT WITH RELIED JUDGMENT OF REPORTED CASE (2009) 315 ITR 422 (MA) 425, 426, THE MA OF APPELLA NT/ASSESSEE BE ALLOWED IN ACCORDANCE WITH THE FACTS AND CIRCUMSTAN CES AND LAW AFTER AFFORDING OPPORTUNITY TO THE APPLICANT. 3 2. THE LD. COUNSEL FOR THE ASSESSEE, MR. S.K. KATAR IA, ADVOCATE, READ THE MISC. APPLICATION AND ARGUED THAT THE ITAT IN ITS O RDER AS COMMITTED AN ERROR AND NOT ALLOWED THE SET OFF OF BUSINESS LOSS AGAINST THE INCOME AS SUBMITTED IN THE MISC. APPLICATION IN VIEW OF THE J UDGMENT OF HONBLE MADRAS HIGH COURT, REFERRED TO IN THE MISC. APPLICA TION. ACCORDINGLY, HE PRAYED TO RECALL THE ORDER PASSED BY THE ITAT, AMR ITSAR BENCH DATED 25.06.2010 OR IN THE ALTERNATIVE ALLOW THE BUSINES S OF SET OFF LOSS AGAINST THE INCOME AS SUBMITTED IN THE MISC. APPLICATION. 3. THE LD. DR, ON THE OTHER HAND, SUBMITTED THAT T HERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE ITAT, AMRI TSAR BENCH, DATED 25.06.2010 AND THE LD. COUNSEL FOR THE ASSESSEE HAS FILED THE MISC. APPLICATION TO GET THE ORDER OF THE TRIBUNAL REVIEW ED WHICH IS OUTSIDE THE SCOPE OF SECTION 254(2) OF THE INCOME TAX ACT, 1961 . ACCORDINGLY, THE LD. DR PRAYED TO REJECT THE MISC. APPLICATION FILED BY THE ASSESSEE. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE ASSESSEE IN ITS MISC. APPLICATION THROUGH ITS LD. COUNSEL, SH.S.K.KATARIA, ADVOCATE HAS NOT POINTED OUT ANY MI STAKE APPARENT FROM RECORD. RATHER THE LD. COUNSEL FOR THE ASSESSEE HAS TRIED TO GET OUR ORDER DATED 25.06.2010 REVIEWED UNDER THE GARB OF MISC. APPLICA TION, WHICH IS OUTSIDE 4 THE SCOPE OF SECTION 254(2) OF THE ACT. ACCORDINGLY , THE MISC. APPLICATION FILED BY THE ASSESSEE IS DISMISSED. 3. IN THE RESULT, M.A.NO.120(ASR)/2013 OF THE ASSES SEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18TH MARCH, 2014. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 18TH MARCH, 2014 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. ASA SINGH COTTON FACTORY, KOTKAPU RA. 2. THE ACIT-III, FEROZEPUR. 3. THE CIT(A), BATHINDA. 4. THE CIT, BATHINDA. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR