Gujarat State Financial Services Ltd., Ahmedabad V. The ACIT.,Circle-4, Ahmedabad

MA 130/AHD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7622 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-02-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 17-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VIMAL SHAH
• Keywords: Opportunity of being heard

Judgement Text

-1- IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'C' BEFORE SHRI D K TYAGI - JM AND SHRI A MOHAN ALANKAMONY - AM M A NO.130/AHD/2011 [ARISING OUT OF ITA NO.2176/AHD/2007 (ASSESSMENT YEAR:-2004-05) GUJARAT STATE FINANCIAL SERVICES LTD., WING B KHANIJ BHAVAN, 132 FT. RING ROAD, NEAR UNIVERSITY ROAD, VASTRAPUR, AHMEDABAD V/S THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-4, AHMEDABAD PAN: AAACG 5581 B [APPLICANT] [ORIGINAL APPELLANT] [RESPONDENT] [ORIGINAL RESPONDENT] ASSESSEE BY :- SHRI VIMAL SHAH, AR REVENUE BY:- SHRI VINOD TANWANI, SR. DR DATE OF HEARING:- 13-01-2012 DATE OF PRONOUNCEMENT:- 09-02-2012 O R D E R PER D K TYAGI (JM) :- BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE HAS REQUESTED FOR RECALLING / RECTIFYING T HE ORDER DATED 21-04-2011 PASSED BY THE ITAT AHMEDABAD BENCH-C IN ITA NO.2176/AHD/2007 FOR ASSESSMENT YEAR 2004-05. 2 IN THE MISCELLANEOUS APPLICATION, THE ASSESSEE HA S SUBMITTED THAT WHILE DECIDING GROUND NOS.1 AND 1.2 IN ITA NO.2176/AHD/2007, THE TRIBUNAL, VIDE PARA-3 OF ITS ORDER, HAS 2 FOLLOWED THE DECISION OF THE ITAT IN ASSESSEES OWN CASE IN ITA NO.403/AHD/2005 FOR AY 2001-02 DATED 10-03-2009, WH EREIN THE TRIBUNAL HAS SET ASIDE THE ISSUE TO THE FILE OF AO. BUT, WHILE QUOTING PARAGRAPH FROM THE SAID DECISION, THE TRIBU NAL HAS QUOTED PARA-6 OF THE SAID ORDER INSTEAD OF PARA-4 O F THE SAID ORDER. THE LEARNED COUNSEL OF THE ASSESSEE THEREFOR E SUBMITTED THAT THE ABOVE BEING MISTAKE APPARENT FROM RECORDS, THE TRIBUNAL MAY RECTIFY THE SAME BY PASSING SUITABLE ORDER U/S 254 OF THE ACT. 3 AFTER HEARING BOTH THE PARTIES, WE AGREE WITH THE SUBMISSION OF THE LEARNED COUNSEL OF THE ASSESSEE A ND RECTIFY THE ORDER. ACCORDINGLY, PARA-3 OF ORDER DATED 21-04-201 1 MAY BE READ AS UNDER:- 3 AT THE TIME OF HEARING BOTH THE PARTIES AGREED THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF ITAT IN ASSESSE ES OWN CASE IN ITA NO.403/AHD/2005 FOR ASSESSMENT YEAR 2001-02 DAT ED 10-03- 2009, WHEREIN THE TRIBUNAL HAS SET ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER BY OBSERVING AS UNDER:- 4 WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED MATE RIAL ON RECORD AND CAREFULLY GONE THROUGH THE ORDERS OF THE AUTHORITIES. WE ARE O THE CONSIDERED VIEW THAT THE AUTHORITIES C ONCERNED HAVE NOT CORRECTLY APPRECIATED THE FACTS AND BROUGH T RELEVANT MATERIAL ON RECORD FOR MAKING PROPORTIONATE DISALLO WANCE. IT HAS TO BE SHOWN THAT INTEREST HAS BEEN PAID ON FUNDS WH ICH WERE INVESTED IN TAX FREE SECURITIES. IF IT IS UNABLE TO PROVE SO, THEN FOLLOWING THE DECISION OF SPECIAL BENCH ITO VS. DAG A CAPITAL MANAGEMENT PVT. LTD. 312 ITR (AT) 01, A PROPORTIONA TE DISALLOWANCE AO FOR DECIDING THE ISSUE AFRESH AFTER GIVING ASSESSEE REASONABLE OPPORTUNITY OF BEING HEARD. THI S GROUND OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSE. 3 IN VIEW OF THE ABOVE WE SET ASIDE THIS ISSUE TO TH E FILE OF ASSESSING OFFICER TO DECIDE IN TERMS OF TRIBUNALS DECISION O F ASSESSEES OWN CASE (SUPRA) FOR ASSESSMENT YEAR 2001-02 AFTER PROV IDING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THIS GR OUND OF ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSE. 4 IN THE RESULT, THE MISCELLANEOUS APPLICATION FILE D BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT TODAY ON 09-02-2012 SD/- SD/- (A MOHAN ALANKAMONY) ACCOUNTANT MEMBER (D K TYAGI) JUDICIAL MEMBER DATE : 09-02-2012 COPY OF THE ORDER FORWARDED TO: 1. GUJARAT STATE FINANCIAL SERVICES LTD., WING B KHANIJ BHAVAN, 132 FT. RING ROAD, NEAR UNIVERSITY ROAD, VASTRAPUR, AHMEDABAD 2. THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-4, AHMEDABAD 3. CIT CONCERNED 4. CIT(A)-VIII, AHMEDABAD 5. DR, ITAT, AHMEDABAD BENCH-C, AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT, AHMEDABAD