The Dy.CIT., Circle-1(1), Baroda V. Banco Products (India) Ltd., Baroda

MA 147/AHD/2018

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 0766 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-10-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 21-05-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SANKET BAKSHI
• Keywords: Tax effect

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER MISC. APPLICATION NO.147/AHD/2018 IN ./ ITA.NO.2871/AHD/2014 / ASSTT. YEAR: 2008-2009 DCIT, CENT.CIR.3 VADODARA. VS BANCO PRODUCTS (INDIA) LTD. BIL, NR.BHAILI RAILWAY STATION PADRA ROAD DIST. BARODA. PAN: AAACB 8630 L ! / (APPELLANT) '# ! / (RESPONDENT) REVENUE BY : SHRI MUDIT NAGPAL, SR.DR ASSESSEE BY : SHRI SANKET BAKSHI, AR / DATE OF HEARING : 05/10/2018 / DATE OF PRONOUNCEMENT: 05/10/2018 $%/ O R D E R PER RAJPAL YADAV, JUDICIAL MEMBER PRESENT MISC. APPLICATION IS DIRECTED AT THE INSTAN CE OF THE REVENUE POINTING OUT APPARENT ERROR IN THE ORDER OF THE TRI BUNAL DATED 11.9.2017 PASSED IN ITA NO.2871/AHD/2014. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA S CLAIMED WEIGHTED DEDUCTION UNDER SECTION 35(2AB) OF THE INCOME TAX A CT AT RS.1,26,23,818/-. THIS DEDUCTION WAS DISALLOWED TO THE ASSESSEE AND T HE DISPUTE TRAVELLED UPTO THE TRIBUNAL. THE TRIBUNAL IN ITA NO.75/AHD/2012 V IDE ORDER DATED 6.4.2017 REMITTED THIS ISSUE TO THE FILE OF THE AO FOR FRESH ADJUDICATION. THE AO HAS IMPOSED PENALTY OF RS.43.00 LAKHS UNDER SECTION 271 (1)(C) OF THE ACT. THE MA NO.147/AHD/2018 2 DISPUTE QUA IMPOSITION OF THIS PENALTY TRAVELLED UPTO THE TRIB UNAL IN ITA NO.2871/AHD/2014. SINCE QUANTUM ADDITION WAS SET A SIDE BY THE TRIBUNAL IN ITA NO.75/AHD/2012, AND THEREFORE, IN THE PENALTY P ROCEEDINGS, THE TRIBUNAL HAS OBSERVED THAT DE NOVO ASSESSMENT IS PENDING BEFORE THE AO, AND UNLESS THE QUANTUM IS DECIDED, NO PENALTY BE IMPOSED UPON THE ASSESSEE. ACCORDINGLY, APPEAL OF THE ASSESSEE WAS ALLOWED FOR STATISTICAL PURPOSE AND ISSUE WAS REMITTED TO THE FILE OF THE AO. IT WAS L EFT TO THE AO TO INITIATE OR NOT TO INITIATE PENALTY PROCEEDINGS ON THIS ISSUE. IN THE MA, IT HAS BEEN PLEADED THAT THE ORDER OF THE TRIBUNAL DATED 11.9.2007 PASS ED IN PENALTY PROCEEDINGS WAS RECEIVED BY THE DEPARTMENT ON 25.1.2018, BY THA T TIME, THE AO HAS ALREADY PASSED QUANTUM ORDER IN PURSUANCE OF ITATS ORDER DATED 6.4.2017 IN THE QUANTUM PROCEEDINGS. THE AO DID NOT INITIATE P ENALTY PROCEEDINGS IN THE DE NOVO ASSESSMENT ORDER ON THE DIRECTIONS OF THE TRIBUNAL . UNDER THESE CIRCUMSTANCES, A PRAYER IS BEING MADE THAT ORDER DA TED 11.9.2017 PASSED IN ITA NO.2871/AHD/2014 BE RECALLED. 3. AT THE TIME OF HEARING OF THIS MA, IT HAS BEEN B ROUGHT TO OUR NOTICE THAT QUANTUM ORDER OF THE TRIBUNAL PASSED IN ITA NO.75/A HD/2012 WAS CHALLENGED BY THE ASSESSEE BEFORE THE HONBLE HIGH COURT VIDE TAX APPEAL NO.1057 OF 2017. HONBLE HIGH COURT HAS ALLOWED THE APPEAL OF THE ASSESSEE ON 26.3.2018. THE HONBLE HIGH COURT HAS ALLOWED WEIG HTED DEDUCTION CLAIMED BY THE ASSESSEE UNDER SECTION 35(2AB) OF THE ACT. 4. WITH THE ASSISTANCE OF THE LD.REPRESENTATIVES, W E HAVE GONE THROUGH THE RECORD CAREFULLY. THE POWER OF RECTIFICATION UNDER SECTION 254 OF THE INCOME TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE, WHI CH IS SOUGHT TO BE RECTIFIED, IS AN OBVIOUS PATENT MISTAKE, WHICH IS A PPARENT FROM THE RECORD AND NOT A MISTAKE, WHICH IS REQUIRED TO BE ESTABLISHED BY ARGUMENTS AND LONG MA NO.147/AHD/2018 3 DRAWN PROCESS OF REASONING ON POINTS, ON WHICH THER E MAY CONCEIVABLY BE TWO OPINIONS. WE DO NOT FIND ANY MERIT IN THIS APPLIC ATION OF THE REVENUE FOR TWO REASONS VIZ. THE TRIBUNAL HAS SET ASIDE PENALTY ORDER ON 11.9.2017. DEPARTMENT WAS REPRESENTED BY ITS AUTHORIZED OFFICE R, HENCE, IT WAS IN THE KNOWLEDGE OF THE DEPARTMENT, AND THIS INFORMATION O UGHT TO BE REMITTED TO THE AO. HE HAS PASSED DE NOVO ASSESSMENT ORDER ON 27.12.2017 I.E. AFTER ORDER OF THE TRIBUNAL IN SEPTEMBER, 2017. SECOND REASON IS THAT SINCE ADDITION STANDS DELETED BY THE HONBLE HIGH COURT AND APPEAL OF THE REVENUE WILL NOT BE MAINTAINABLE BEFORE THE HONBLE SUPREME COURT FOR W ANT OF TAX EFFECT, THEREFORE, THERE ARE NO CHANCE FOR ANY REVIVAL OF I SSUE OF PENALTY UNDER SECTION 271(1)(C) OF THE ACT. IN VIEW OF THE ABOVE TWO CIR CUMSTANCES, WE DO NOT FIND ANY APPARENT ERROR IN THE ORDER OF THE TRIBUNAL, AN D THEREFORE MA OF THE DEPARTMENT IS DISMISSED. 5. IN THE RESULT, MISC. APPLICATION OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 5 TH OCTOBER, 2018 AT AHMEDABAD. SD/- SD/- ( PRADIPKUMAR KEDIA ) ACCOUNTANT MEMBER (RAJPAL YADAV) JUDICIAL MEMBER