M/s. Harsh Developers, Baroda V. The Income tax Officer,Ward-2(3), Baroda

MA 129/AHD/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0140 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2005-2006
• Appeal Filed On: 12-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINGH
• Assessee Lawyers: G S PATEL

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , !.. , #$ # % BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI T.R.MEENA, ACCOUNTANT MEMBER MA NO.129/AHD/2012 (IN ./ IN I.T.A. NO.3523/AHD/2008 WITH CO NO.290/AHD/2008) ( & ' (' / ASSESSMENT YEAR : 2005-06) M/S.HARSH DEVELOPERS A-4, SHASHTRI NAGAR SOCIETY NIZAMPURA,BARODA (ORIGINAL RESPONDENT) & / VS. THE INCOME TAX OFFICER WARD-2(3) BARODA (ORIGINAL APPELLANT) ./ ./ PAN/GIR NO. : AADFH 4179 C ( APPLICANT ) .. ( RESPONDENT ) / APPLICANT BY : SHRI G.S. PATEL, AR / REVENUE BY : SHRI D.K. SINGH, SR.DR ! ' / DATE OF HEARING : 03/05/2013 #$%& ! / DATE OF PRONOUNCEMENT : 9/5/13 '( / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THROUGH THIS MISCELLANEOUS PETITION FILED ON 12/ 07/2012, THE APPLICANT HAS MAINLY CONTESTED THAT AN ADDITIONAL G ROUND WAS NOT CONSIDERED BY THE TRIBUNAL. IN THIS REGARD, THE LD .AR HAS ARGUED PARAGRAPH OF THE PETITION, REPRODUCED BELOW:- MA NO.129/AHD/2012 (IN ITA NO.3523/AHD/08 WITH CO NO.290/AHD/08) M/S.HARSH DEVELOPERS VS. ITO ASST.YEAR - 2005-06 - 2 - 1. THIS M.A. IS ARISING OUT OF THE ORDER FOR I.T. A. NO.3523/A/2008 AND CO.NO.290/A/2008 FOR A.Y. 2005-2006 PASSED ON 1 9-02- 2009 BY HON.BENCH D OF AHMEDABAD 2. THERE IS A MISTAKE APPARENT FROM RECORD WHICH IS AS UNDER:- (I) THE RESPONDENTS SUBMIT THAT HON.BENCH DID NOT C ONSIDER THROUGH OVERSIGHT THE ADDITIONAL GROUND FILED BY RESPONDENT S ON 26-12- 2008 IN RESPECT OF C.O. NO.290/A/2008 FOR A.Y. 2005 -06 WHILE PASSING THE ORDER DATED 19-02-2009 FOR I.T.A. NO.35 23/A/2008 AND C.O. NO.290/A/2008 FOR A.Y. 2005-2006. THIS IS A MISTAKE APPARENT FROM RECORD AND HENCE BE RECTIFIED AND AN ORDER U/S.254(2) BE PASSED ACCORDINGLY. 2. BEFORE US, LD.AR HAS PLACED A PHOTOCOPY OF THE I MPUGNED ADDITIONAL GROUND STATED TO BE DATED 17/12/2008 WHI CH WAS RECEIVED BY THE REGISTRY OF THE INCOME-TAX APPELLATE TRIBUNAL ON 20/12/2008 AND A COPY HAS ALSO BEEN SERVED ON THE REPRESENTATIVE OF THE SENIOR DEPARTMENTAL REPRESENTATIVE ON 26/12/008, RELEVANT PORTION EXTRACTED BELOW:- TO THE REGISTRAR ITAT AHMEDABAD DEAR SIR RE : I.T.O. V M/S.HARESH DEVELOPERS A.Y. 2005-2006 C.O.NO.290/A/2008 HEARING FIXED ON 24-12-2008 BEFORE HON.BENCHB SUBMISSION OF ADDITION GROUND 1. WE HAVE FILED C.O. ON 21-11-2008. 2. THE FOLLOWING ADDITIONAL GROUND MAY BE ALLOWED WITH THE APPROVAL OF HON.BENCH B:- MA NO.129/AHD/2012 (IN ITA NO.3523/AHD/08 WITH CO NO.290/AHD/08) M/S.HARSH DEVELOPERS VS. ITO ASST.YEAR - 2005-06 - 3 - THE RESPONDENT SUBMIT THAT THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.601835/- U/S.40(A)(IA) MADE BY T HE AO ON THE GROUND THAT THE APPELLANT DID NOT GIVEN ANY SUBMISS ION AND DID NOT PRESS THIS GROUND. THANKING YOU, YOURS FAITHFULLY, SD/- FOR M/S.HARSH DEVELOPERS 2.1. LD.AR HAS ALSO DRAWN OUR ATTENTION ON PARA-4 OF THE ORDER OF THE CIT(A)-II BARODA DATED 25/08/2008, WHEREIN THAT GR OUND WAS DISMISSED BEING NOT CONTESTED AS PER THE FOLLOWING OBSERVATIO NS:- 4. THE SIXTH GROUND OF APPEAL IS AGAINST DISALLOW ANCE OF EXPENSE U/S.40(A)(IA) APPELLANT DID NOT GIVE ANY SUBMISSION AND DURING THE COURSE OF HEARING AND DID NOT PRESS THIS GROUND HEN CE THIS GROUND FAILS. 3. FROM THE SIDE OF THE REVENUE, LD.DR HAS OBJECTED THE REQUEST OF THE ASSESSEE THAT THE ADDITIONAL GROUND MAY NOW BE ADMITTED FOR ADJUDICATION AND PLACED RELIANCE ON S.KUMARS TYRE M ANUFACTURING CO. LTD. VS. DY.CIT 61 ITD 326 (INDORE) BENCH, WHEREIN THE OBSERVATION WAS THAT THE ASSESSEE HAD NOT AGITATED THE ISSUE OF LEVY OF INTEREST U/S.234B BEFORE CIT(A), NOR THAT ISSUE WAS RAISED I N THE MEMO OF APPEAL FILED BEFORE THE TRIBUNAL. IN THE SAID CITED DECIS ION, IT HAS ALSO BEEN NOTED THAT NO EXPLANATION WAS OFFERED FOR SUCH OMIS SION. IT HAS FURTHER BEEN NOTED THAT NO GROUND WAS TAKEN IN SUPPORT OF T HE SAID ADDITIONAL GROUND THAT THERE WAS NO DEFAULT IN PAYMENT OF ADVA NCE TAX. ON ACCOUNT OF ALL THOSE REASONS, THE TRIBUNAL HAS TAKEN A VIEW THAT SUCH AN ADDITIONAL GROUND CANNOT BE ADMITTED. THE OTHER DECISION WHIC H WAS CITED IS THE MA NO.129/AHD/2012 (IN ITA NO.3523/AHD/08 WITH CO NO.290/AHD/08) M/S.HARSH DEVELOPERS VS. ITO ASST.YEAR - 2005-06 - 4 - DECISION OF BATLIBOI & CO. LTD. VS. DCIT 67 ITD 39 7 (MUM.), WHEREIN THE OBSERVATION OF THE RESPECTED CO-ORDINATE BENCH WAS THAT THE ASSESSEE HAD NOT GIVEN REASON FOR NOT RAISING THE GROUND WH ILE FILING THE APPEAL, THEREFORE THE TRIBUNAL HAS TAKEN A VIEW THAT THE TR IBUNAL HAS TO BE SATISFIED ABOUT THE EXISTENCE OF GOOD REASON FOR TH E OMISSION OF RAISING OF THE GROUND AT THE ORIGINAL STAGE. ON THE OTHER HAN D, THE ASSESSEE HAS NECESSITATED UPON THAT HE WAS NOT BOUND TO GIVE ANY REASONS FOR NON- RAISING THE SAID GROUND. THE TRIBUNAL HAS TAKEN A VIEW THAT THE ADDITIONAL GROUND WAS NOT TO BE ADMITTED. 4. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES A ND CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT THE ASSESSEE HAD FACTUALLY RAISED THE GROUND IN RESPECT OF THE D ISALLOWANCE OF EXPENSES U/S.40(A)(IA) OF IT ACT BEFORE LD.CIT(A), HOWEVER, UNDER WRONG UNDERSTANDING OF LAW PREFERRED NOT TO PRESS THE GRO UND BEFORE LD.CIT(A). BECAUSE OF THAT BONA FIDE REASON, THE SAID GROUND W AS NOT RAISED IN THE CROSS OBJECTION BY THE ASSESSEE. HOWEVER, ON GET TING THE CORRECT LEGAL ADVICE, THE SAID GROUND WAS RAISED BY SUBMITTING AN ADDITIONAL GROUND, A COPY OF THE SAME IS REPRODUCED BEFORE US, RELEVANT PORTION EXTRACTED ABOVE. RECORDS HAVE REVEALED THAT ALTHOUGH IT WAS FILED ON 17.12.2008 BUT WHILE PASSING THE ORDER DATED 19/2/2009, IT WAS NOT PLACED BEFORE THE TRIBUNAL AS IT WAS NOT AVAILABLE IN THE MAIN APPEAL FILE OF THE ASSESSEE. IT APPEARS THAT THE SAID ADDITIONAL GROUND WAS NOT AVA ILABLE TO THE REGISTRY WHEN THE APPEAL WAS DECIDED, THEREFORE THE SAID ADD ITIONAL GROUND BEING NOT BEFORE THE TRIBUNAL WAS NOT ADJUDICATED UPON. WE ARE THEREFORE OF THE VIEW THAT THE ASSESSEE IS REQUIRED TO GIVE A CH ANCE OF HEARING FIRSTLY MA NO.129/AHD/2012 (IN ITA NO.3523/AHD/08 WITH CO NO.290/AHD/08) M/S.HARSH DEVELOPERS VS. ITO ASST.YEAR - 2005-06 - 5 - ON THE ADMISSION OF THE ADDITIONAL GROUND AND THEN IF ADMITTED NATURALLY THE SAME IS TO BE ADJUDICATED UPON AS PER LAW. AS FAR AS THE CASE-LAWS CITED FROM THE SIDE OF THE REVENUE ARE CONCERNED, W E HAVE EXAMINED THE CONTENTS OF THOSE CASE-LAWS AND THEREAFTER ARRIVE A T A CONCLUSION THAT THOSE CASE-LAWS ARE IN RESPECT OF THE QUESTION OF A DMISSION OF ADDITIONAL GROUND BY THE ITAT. IN OUR OPINION, THE ISSUE OF A DMISSION OF ADDITIONAL GROUND CAN BE RAISED AT THE TIME OF THE APPROPRIAT E PROCEEDINGS WHEN THE CONTENTS OF THE ADDITIONAL GROUND SHALL BE APPRECIA TED BY THE TRIBUNAL AND TO DECIDE WHETHER THE ADDITIONAL GROUND IS TO BE AD MITTED OR NOT. AT THAT POINT OF TIME, THE REVENUE IS FREE TO RAISE THE OBJ ECTION ABOUT THE ADMISSION OF THE ADDITIONAL GROUND BY CITING THESE TWO DECISIONS. AT PRESENT, WE ARE ONLY CONCERNED ABOUT THE REQUEST OF THE ASSESSEE TO RE-CALL THE ORDER OF THE TRIBUNAL AS CITED-SUPRA TO THE EXT ENT OF GRANTING AN OPPORTUNITY TO THE ASSESSEE IN RESPECT OF THE ADMIS SION OF THIS ADDITIONAL GROUND. WHETHER THE ADDITIONAL GROUND IS TO BE ADM ITTED AND TO BE ADJUDICATED UPON IS TO BE DECIDED AT THE APPROPRIAT E TIME OF HEARING. FOR THIS LIMITED PURPOSE, THE ORDER OF THE TRIBUNAL DATED 189/02/2009 IS HEREBY RECALLED AND THE REGISTRY IS DIRECTED TO FIX THE APPEAL IN REGULAR COURSE OF HEARING. 5. IN THE RESULT, MISCELLANEOUS APPLICATION IS ALLO WED. SD/- SD/- ( )!..* & ) ( * * + ' ' ' ) ' ,- ' ( T.R. MEENA ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 9/ 5 /2013 )!. ., .-. ./ T.C. NAIR, SR. PS MA NO.129/AHD/2012 (IN ITA NO.3523/AHD/08 WITH CO NO.290/AHD/08) M/S.HARSH DEVELOPERS VS. ITO ASST.YEAR - 2005-06 - 6 - #* + ,-. /#.( / COPY OF THE ORDER FORWARDED TO : 1. / THE APPLICANT-ASSESSEE 2. / THE RESPONDENT. 3. /01 2 ' / CONCERNED CIT 4. 2 ' ( ) / THE CIT(A)-II, BARODA 5. 456 - -01, ! 01&, 7*'/' / DR, ITAT, AHMEDABAD 6. 689 : / GUARD FILE. #*& / BY ORDER, 4 - //TRUE COPY// 0/ 1 ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION DATED 6.5.13(DICTATION-PAD 11 PAGES ATTACHED WITH FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 6.5.13 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.9.5.13 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 9.5.13 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER