The Dy. CIT., Circle-1(1)(2), Surat V. M/s. Mohit Industries Ltd., Surat

MA 138/AHD/2017

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 2454 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 5 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-10-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 01-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANUPAMA SINGLA
• Keywords: Tax effect
• Section: 254(2)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, HON'BLE JUDICIAL MEMBER AND SHRI ARJUN LAL SAINI, HON'BLE ACCOUNTANT MEMBER (VIRTUAL COURT VIRTUAL HEARING) MISCELLANEOUS APPLICATIONS NOS: 137 & 138/AHD/2017 ARISING OUT OF I.T.A NO.1631/AHD/2012 & C.O.NO.163/AHD/2012 [ [ / ASSESSMENT YEAR: 2008-09 DY.COMMISSIONER OF INCOME TAX, CIRCLE-1(1)(2), SURAT. V S . MOHIT INDUSTRIES LIMITED, A-WING, 601-B, INTERNATIONAL TRADE CENTRE, MAJURA GATE, SURAT 395003. [PAN: AABCM 5903 E] / APPELLANT /RESPONDENT [ /ASSESSEE BY SHRI RAMESH MALPANI - CA /REVENUE BY MS. ANUPAMA SINGLA SR. DR / DATE OF HEARING: 0 9 . 10 .20 20 /PRONOUNCEMENT ON: 09 . 10 .20 20 /O R D E R PER PAWAN SINGH, JM: 1. THESE TWO MISCELLANEOUS APPLICATIONS ARE FILED BY THE REVENUE FOR SEEKING RECTIFICATIONS/RECALL OF ORDER DATED 10.03.2016 PASSED IN APPEAL ITA NO.1631/AHD/2012 FOR A.Y.2008-09. IN THE APPLICATIONS, THE REVENUE HAS CONTENDED THAT ASSESSMENT ORDER U/S.143(3) OF THE ACT WAS PASSED ON 14.12.2011 BY MAKING DISALLOWANCE U/S.14A OF RS.14,76,936/- AND INTEREST DISALLOWANCE OF RS.2,99,507/- ON ACCOUNT OF INTEREST FREE ADVANCES MADE FOR NON-BUSINESS PURPOSES. DCIT, CC-1, SURAT VS. MOHIT INDUSTRIES LTD/ MA NOS.137 & 138/AHD/2017 FOR A.Y. 2008-09 2 2. AGGRIEVED BY THE ADDITION IN ASSESSMENT ORDER, THE ASSESSEE FILED APPEAL BEFORE THE LD.CIT(A). THE LD.CIT(A) DELETED THE DISALLOWANCE U/S.14A OF RS.13,19,815/-, OUT OF TOTAL DIS-ALLOWANCE OF RS.14,19,815/-. 3. THE REVENUE FILED APPEAL BEFORE THIS TRIBUNAL VIDE ITA NO.1631/AHD/2012 AND THE ASSESSEE FILED ITS CROSS OBJECTION VIDE C.O.NO.163/AHD/2012. THE APPEAL OF THE REVENUE WAS DISMISSED BY THE TRIBUNAL DUE TO LOW TAX EFFECT IN VIEW OF CBDT CIRCULAR NO.21/2015 DATED 10.12.2015 WHEREIN TAX EFFECT FOR FILING APPEAL BEFORE TRIBUNAL WAS RESTRICTED TO RS.10,00,000/-. THE ASSESSEE FILED CROSS OBJECTION IN THE APPEAL OF REVENUE BEING C.O.NO.163/AHD/2012 RAISING THE GROUNDS OF APPEAL AGAINST THE ISSUE OF INTEREST DISALLOWANCE. THE TRIBUNAL, THOUGH DISMISSED THE APPEAL OF REVENUE, ON THE OTHER HAND ALLOWED THE CROSS OBJECTION OF ASSESSEE ON ACCOUNT OF INTEREST DISALLOWANCE. IT IS CONTENDED THAT IT APPEARS THAT THERE IS A MISTAKE APPARENT IN THE ORDER OF TRIBUNAL DATED 10.03.2016, WHICH REQUIRE RECTIFICATION AS TWO CONTRARY VIEW CANNOT BE TAKEN IN ONE ORDER. 4. THE LD.DEPARTMENTAL REPRESENTATIVE(DR) FOR THE REVENUE MADE HER SUBMISSIONS ON THE SIMILAR LINES. THOUGH, WHEN CONFRONTED, LD.DR FOR THE REVENUE FAIRLY ACCEPTED THAT APPEAL AND THE CROSS OBJECTION IS TO BE DECIDE INDEPENDENTLY. 5. ON THE OTHER HAND, THE LD.AR OF THE ASSESSEE SUBMITS THAT APPEAL OF THE REVENUE AS WELL AS THE CROSS OBJECTION FILED BY THE ASSESSEE WAS REGISTERED SEPARATELY, THOUGH BOTH THE PARTIES RAISED THEIR RESPECTIVE DCIT, CC-1, SURAT VS. MOHIT INDUSTRIES LTD/ MA NOS.137 & 138/AHD/2017 FOR A.Y. 2008-09 3 GROUNDS OF APPEAL WHICH EMANATES FROM THE ORDER OF LD.CIT(A). THE CROSS OBJECTION OF ASSESSEE WAS REGISTERED INDEPENDENTLY, THOUGH CAUSE OF ACTION FOR FILING CO ARISED ONLY ON FILING OF APPEAL BY THE REVENUE. THE CROSS OBJECTION OF THE ASSESSEE CANNOT BE DISMISSED IN-LIMINE AND WERE LIABLE TO BE ADJUDICATED, AND WERE ADJUDICATED BY THE TRIBUNAL IN ORDER DATED 16.03.2016. THE LD.AR SUBMITS THAT THERE IS NO MISTAKE APPARENT WITHIN THE MEANING OF SECTION 254(2) OF THE ACT. THE LD.AR SUBMITS THAT ON IDENTICAL RATIO THE CO-ORDINATE BENCH OF DELHI TRIBUNAL IN ACIT VS. AJAY KALIA [2016] 66 TAXMANN.COM 99 (DEL) HELD THAT WHEN APPEAL OF THE REVENUE WAS DISMISSED DUE TO LOW TAX EFFECT, CROSS OBJECTION SHOULD NOT BE DISMISSED IN-LIMINE FOR THE REASONS OF DISMISSAL OF REVENUES APPEAL. 6. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND GONE THROUGH THE THE ORDERS DATED 10.03.2016. WE HAVE NOTED THAT THE APPEAL OF THE REVENUE WAS DISMISSED DUE TO LOW TAX EFFECT IN VIEW OF CBDT CIRCULAR NO.21/2015 DATED 10.12.2015. HOWEVER, THE ASSESSEE WAS GRANTED RELIEF ON THE GROUND RAISED IN ITS CROSS OBJECTION. WE HAVE NOTED THAT ON SIMILAR SET OF FACTS AND SIMILAR PLEA OF REVENUE, THE CO-ORDINATE BENCH OF DELHI TRIBUNAL IN ACIT VS. AJAY KALIA (SUPRA) HELD THAT WHEN APPEAL OF THE REVENUE IS DISMISSED DUE TO LOW TAX EFFECT, CROSS OBJECTION COULD NOT BE DISMISSED IN-LIMINE FOR THE REASONS FOR DISMISSAL OF REVENUES APPEAL. IN VIEW OF THE AFORESAID DISCUSSION, THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE ARE REJECTED. DCIT, CC-1, SURAT VS. MOHIT INDUSTRIES LTD/ MA NOS.137 & 138/AHD/2017 FOR A.Y. 2008-09 4 7. IN THE RESULT, TWO MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE ARE DISMISSED. 8. ORDER PRONOUNCED IN THE OPEN COURT ON 09-10-2020. SD/- SD/- (ARJUN LAL SAINI) (PAWAN SINGH) ( /ACCOUNTANT MEMBER) ( /JUDICIAL MEMBER) / SURAT, DATED : 9 TH OCT , 2020/ S.GANGADHARA RAO, SR.PS COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT