GDF Suez Energy I p ltd, Bangalore V. Assistant Commissioner of Income Tax, Bangalore

MA 15/BANG/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5318 (ITAT-BANGALORE)
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-03-2017
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 03-03-2017
• Assessment Year: 2002-2003
• Appeal Filed On: 15-11-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SWAPNA DAS
• Assessee Lawyers: A SHANKAR
• Keywords: Business income; Opportunity of being heard; Capital receipt

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI S JAYARAMAN, ACCOUNTANT MEMBER [MP NO. 15/B/2017 (IN IT(TP)A NO.984/B/2010 & IT(TP)A NO. 1030/B/2010)] (ASSESSMENT YEAR: 2002-03) M/S. GDF SUEZ ENERGY INDIA PRIVATE LIMITED, (FORMERLY KNOWN AS TRACTEBEL ENERGY SOUTH ASIA PRIVATE LIMITED) 43/61, SRINIDHI, I FLOOR, SURVEYOR STREET, BASAVANAGUDI, BENGALURU 560 004. PAN: AAACT5405D APPLICANT VS. ADDL. COMMISSIONER OF INCOME TAX, C-12(3), BENGALURU. RESPONDENT APPLICANT BY : SHRI. A. SHANKAR, ADVOCATE REVENUE BY : SMT. SWAPNA DAS, JCIT DATE OF HEARING : 03/03/2017 DATE OF PRONOUNCEMENT : 27/03/2017 [MP NO. 15/B/2017 (IN IT(TP)A NO.984/B/2010 & IT(TP)A NO. 1030/B/2010)] PAGE 2 OF 6 O R D E R PER SUNIL KUMAR YADAV, JM : THIS MISCELLANEOUS PETITION IS PREFERRED IN ITA NO. 984/BANG/2010 AND IT(TP)A NO. 1030/BANG/2010 ON BEHALF OF THE ASSESSEE WITH THE SUBMISSION THAT WHI LE ADJUDICATING THE ISSUE, THE TRIBUNAL HAS NOT ADJUDI CATED ALL THE GROUNDS RAISED BEFORE IT AND ALSO IN THE CAUSE TITLE THE TRIBUNAL HAS WRONGLY MENTIONED THE NAME OF THE ASSE SSEE. THESE MISTAKES ARE APPARENT IN THE ORDER OF THE TRI BUNAL AND THEREFORE CALLS FOR RECTIFICATION. 2. THE LEARNED COUNSEL FOR THE ASSESSEE HAS CONTEND ED THAT IN THE CAUSE TITLE, THE TRIBUNAL HAS WRONGLY M ENTIONED THE NAME OF THE ASSESSEE AS GDF SUCTSA ENERGY INDI A P. LTD IN PLACE OF GDF SUEZ ENERGY INDIA PRIVATE L IMITED. IN SUPPORT OF HIS CONTENTION, HE HAS INVITED OUR AT TENTION TO FORM NO. 36 FILED BEFORE US. THE LEARNED COUNSEL F OR THE ASSESSEE FURTHER CONTENDED THAT THE ASSESSEE HAS FI LED THE [MP NO. 15/B/2017 (IN IT(TP)A NO.984/B/2010 & IT(TP)A NO. 1030/B/2010)] PAGE 3 OF 6 REVISED GROUNDS OF APPEAL BEFORE THE TRIBUNAL AND S AME WERE REPRODUCED BY THE TRIBUNAL IN ITS ORDER AND IN GROUND NOS. 2 & 3, THE TRIBUNAL HAS QUESTIONED THE JURISDI CTION OF TPO FOR PASSING THE ORDER BUT THESE GROUNDS ESCAPED THE ATTENTION OF THE TRIBUNAL AND REMAINS TO BE ADJUDIC ATED. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER CONTEN DED THAT IN GROUND NO. 5, THE ASSESSEE HAS ALSO CHALLEN GED THE ORDER OF THE CIT(A) FOR NOT ALLOWING THE BENEFIT OF INDEXATION OF RS.475,352,868/-, THIS ALSO REMAINED TO BE ADJUD ICATED BY THE TRIBUNAL. THEREFORE, THE ORDER OF THE TRIBU NAL MAY BE RECALLED AND THE AFORESAID ISSUE MAY BE ADJUDICA TED AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. 3. THE LEARNED DR OPPOSED THE CONTENTION OF THE ASSESSEE AND HAS CONTENDED THAT THERE IS NO ERROR APPARENT IN THE ORDER OF THE TRIBUNAL. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND AFTER HAVING CAREFULLY EXAMINED THE ORDER OF THE TRIBUNAL VIZ-A- VIZ., THE MISCELLANEOUS APPLICATION FILED BY THE AS SESSEE [MP NO. 15/B/2017 (IN IT(TP)A NO.984/B/2010 & IT(TP)A NO. 1030/B/2010)] PAGE 4 OF 6 AND THE RECORD, WE FIND THAT THE ASSESSEES NAME AS DEPICTED IN FORM NO. 36 IS AS GDF SUEZ ENERGY INDI A PRIVATE LIMITED, BUT THE TRIBUNAL HAS INADVERTENTL Y MENTIONED THE NAME OF THE ASSESSEE AS GDF SUCTSA ENERGY INDIA P. LTD. SINCE THE TRIBUNAL HAS INADV ERTENTLY MENTIONED THE INCORRECT NAME OF THE ASSESSEE IN THE CAUSE TITLE OF THE ORDER, WE RECTIFY THE SAME AND SUBSTIT UTE THE NAME OF THE ASSESSEE IN THE CAUSE TITLE OF THE ORDE R BY THE NAME OF THE ASSESSEE AS GDF SUEZ ENERGY INDIA PRIVATE LIMITED. 5. WITH REGARD TO JURISDICTION OF THE TPO FOR DETER MINING THE ALP, THE ISSUE WAS NOT ADJUDICATED BY THE TRIBU NAL IN ITS ORDER. THOUGH THESE GROUNDS WERE REPRODUCED IN THE ORDER OF THE TRIBUNAL, BUT REMAINED TO BE ADJUDICAT ED. WE ARE THEREFORE OF THE VIEW THAT THESE GROUND NOS. 2 & 3 REQUIRES A FRESH ADJUDICATION BY THE TRIBUNAL AFTER AFFORDING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ACCORDINGLY DIRECT THE REGISTRY TO FIX THIS APPEAL FOR HEARING ONLY WITH RESPECT TO GROUND NOS. 2 & 3 IN DUE COURS E. [MP NO. 15/B/2017 (IN IT(TP)A NO.984/B/2010 & IT(TP)A NO. 1030/B/2010)] PAGE 5 OF 6 6. WITH REGARD TO NOT ALLOWING THE BENEFIT OF INDEX ATION AS CONTAINED IN GROUND NO. 5, WE FIND THAT THE TRIB UNAL HAS ADJUDICATED THE NATURE OF RECEIPT OF TRANSFER OF SH ARES HAVING TAKEN INTO ACCOUNT ALL INSTANCES RELATING TO TRANSACTION IN SHARES AND THE TRIBUNAL HAS COME TO THE CONCLUSION THAT IT WAS A BUSINESS RECEIPT AND NOT T HE CAPITAL RECEIPT. THEREFORE, THERE WAS NO QUESTION OF BENEF IT OF INDEXATION. SINCE THE TRIBUNAL HAS ADJUDICATED THE ISSUE IN PARA NO. 26 OF ITS ORDER IN DETAIL, WE FIND NO ERRO R APPARENT IN THE ORDER OF THE TRIBUNAL. MOREOVER, UNDER SECT ION 254(2), ERROR APPARENT FROM THE ORDER CAN BE RECTIF IED AND UNDER THE GARB OF RECTIFICATION, ORDER OF THE TRIBU NAL CANNOT BE RECTIFIED. ACCORDINGLY, WE REJECT THIS REQUEST OF THE ASSESSEE. 7. IN THE RESULT, THE MISCELLANEOUS PETITION OF THE ASSESSEE IS PARTLY ALLOWED AND THE REGISTRY IS DIRE CTED TO LIST THIS APPEAL FOR HEARING ON 08.05.2017, IN TERMS IND ICATED HEREIN ABOVE. SINCE THE DATE OF HEARING HAS BEEN [MP NO. 15/B/2017 (IN IT(TP)A NO.984/B/2010 & IT(TP)A NO. 1030/B/2010)] PAGE 6 OF 6 ANNOUNCED IN THE OPEN COURT, NO FRESH NOTICE WILL B E ISSUED TO THE PARTY. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH MARCH, 2017. SD/- SD/- (S. JAYARAMAN) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE : BANGALORE DATED : 27/03/2017 /NS/ COPY TO : 1 APPELLANT 2 RESPONDENT 3 CIT(A)-II BANGALORE 4 CIT 5 DR, ITAT, BANGALORE. 6 GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME-T AX APPELLATE TRIBUNAL BANGALORE