GENUS POWER INFRASTRUCTURES LTD., Jaipur V. ITO, Jaipur

MA 153/JPR/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 5090 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 06-12-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 20-10-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NEENA JEPH JCIT DHK
• Keywords: Capital receipt

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ MA NO.153/JP/16 (ARISING OUT OF ITA NO.110 & 169/JP/2 013 ) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2009-10 M/S GENUS POWER INFRASTRUCTURES LTD. SPL-3, RIICO INDUSTRIAL AREA, SITAPURA, TONK ROAD, JAIPUR CUKE VS. THE ITO, WARD 7(2), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AACCG 1218 P VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI MANISH AGARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SMT. NEENA JEPH, (JCIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 02.12.2016 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 06/12/2016. VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E ASSESSEE AGAINST THE ORDER PASSED BY THE CO-ORDINATE BENCH IN ITA NO . 110/JP/13 (ASSESSEE) AND ITA NO. 169/JP/13 (REVENUE) DATED 09.09.2016. IN ITS APPLICATION, THE ASSESSEE HAS SUBMITTED THAT THERE ARE CERTAIN MISTA KE APPARENT ON RECORD IN THE ABOVE MENTIONED ORDER OF THIS HONBLE BENCH IN THE BACKDROP OF FOLLOWING FACTS: (1) THAT THE ABOVE MENTIONED APPEAL I.E ITA NO. 110 /JP/2013 WAS FILED BY THE APPELLANT AGAINST THE ORDER OF LD. CIT(A)-III, JAIPUR WHICH WAS DECIDED BY THIS HONBLE BENCH 09.09.2016 MA NO. 153/JP/16 M/S GENUS POWER INFRASTRUCTURES LTD. VS. ITO WARD 7 (2), JAIPUR 2 (2) THAT IN PARA 6 PAGE 13 OF ABOVE MENTIONED ORDER DATED 09/09/2016 THIS HONBLE BENCH OBSERVED THAT FACTS OF THE CASE FOR C APTIONED ASSESSMENT YEAR ARE IDENTICAL TO A.Y. 2008-09 AND THUS CASE IS SQUARELY COVERED BY ORDER OF HONBLE BENCH IN ASSESSEES OWN CASE IN IT A NO. 38/JP/12 DATED 20.05.2016. (3) THAT AS PER ABOVEMENTIONED ORDER IN ITA NO. 38/ JP/12, ALL THE GROUNDS OF APPEAL RAISED BY ASSESEE AS WELL AS DEPARTMENT I N THEIR RESPECTIVE APPEALS ARE FULLY COVERED IN FAVOUR OF ASSESSEE. (4) THAT HONBLE BENCH HAS ERRONEOUSLY MENTIONED TH AT RESPECTIVELY FOLLOWING THE ORDER OF THE TRIBUNAL (SUPRA) PASSED ON 20.05.2916 IN THE ASSESSEES CASE FOR A.Y. 2008-09, IN ITA NO. 38/JP/ 12, THE GRIEVANCE RAISED, RESPECTIVELY, BY BOTH THE PARTIES BY WAY OF THE RESPECTIVE GROUNDS OF APPEAL IN THEIR RESPECTIVE APPEALS IS RE JECTED. (5) THAT, AT PARA 7 PAGE 14, IT HAS BEEN HELD THAT IN THE RESULT, THE APPEAL OF THE ASSESSEE AS WELL AS THE REVENUES APPEAL ARE DI SMISSED. (6) ACCORDINGLY, ORDER PASSED BY HIS HONBLE BENCH AS HIGHLIGHTED IN THE ABOVE PRODUCED PARA 4 & 5, REFLECT A MISTAKE APPARE NT ON THE FACE OF THE RECORD. THEREFORE, THIS MISCELLANEOUS APPLICATION IS PRESEN TED BEFORE THIS HONBLE BENCH SEEKING RECTIFICATION OF THE ABOVEMENTIONED O RDER DATED 09.09.2016. SINCE THE ORDER UNDER REFERENCE IS SOLELY BASED ON THE DECISION OF HONBLE BENCH IN PRECEDING ASSESSMENT YEARS WHERE THE ASSES SEES APPEAL WERE ALLOWED AND THAT OF THE DEPARTMENT WERE DISMISSED T HEREFORE, THE ABOVE STATED CONCLUSION TO BE RECTIFIED ACCORDINGLY. 2. HERE IT WOULD BE RELEVANT TO REFER TO PARA 5, 6 &7 OF THE CO-ORDINATE BENCH ORDER DATED 09/09/2016, WHICH IS THE SUBJECT MATTER OF PRESENT APPLICATION, WHICH IS AS UNDER: MA NO. 153/JP/16 M/S GENUS POWER INFRASTRUCTURES LTD. VS. ITO WARD 7 (2), JAIPUR 3 5. ALL THESE ISSUES, AS CORRECTLY CONTENDED ON BEH ALF OF THE ASSESSEE AND NOT SUCCESSFULLY DISPUTED BY THE LD CIT DR, STAND C OVERED IN FAVOUR OF THE ASSESSEE BY THE TRIBUNALS ORDER DATED 20/5/2016 PA SSED IN ITA NO. 38/JP/2012, IN THE ASSESSEES CASE FOR AY 2008-09. THE IMPUGNED ORDER IS DATED 09/11/2012, WHEREAS THE AFORESAID TRIBUNAL ORDER IN THE ASSESSEES CASE FOR AY 2008-09 IS DATED 20/5/2016. THE SAID TRIBUNAL ORDER DATED 20/5/2016 HAS NOT BEEN SHOWN TO HAVE BE EN UPSET, OR EVEN STAYED ON APPEAL.... 6. IT REMAINS UNDISPUTED BEFORE US THAT THE FACTS FOR THE YEAR UNDER CONSIDERATION ARE NOT DIFFERENT FROM THOSE BEFORE T HE TRIBUNAL FOR A. Y.2008-09. THEREFORE, RESPECTFULLY FOLLOWING THE O RDER OF THE TRIBUNAL (SUPRA) PASSED ON 20.05.2016 IN THE ASSESSEES CASE OR A.Y. 2008-09, IN ITA NO. 38/JP/2012, THE GRIEVANCE RAISED, RESPECTFU LLY, BY BOTH THE PARTIES BY WAY OF THE RESPECTIVE GROUNDS OF APPEAL IN THEIR RESPECTIVE APPEALS , IS REJECTED. THE FINDINGS OF THE LD. CIT (A) ARE CONFIRMED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE AS WE LL AS THE REVENUES APPEAL ARE DISMISSED. 3. FROM THE PERUSAL OF ORDER OF THE COORDINATE BENC H DATED 09.09.2016, IT IS OBSERVED THAT THE COORDINATE BENCH IN ITS ORDER DATED 09.09.2016 HAS FOLLOWED THE EARLIER DECISION OF THE COORDINATE BEN CHS IN ASSESSEES OWN CASE FOR AY 2008-09 IN ITA NO 38/JP2012 & 257/JP/2012 DA TED 20.05.2016 WHERE THE GROUND WISE DECISION WAS RENDERED AS UNDER: ASSESSEES GROUNDS OF APPEAL: GROUND NO. 1 RELATING TO COMMISSION AND BROKERAGE A ND SERVICE TAX THEREON WAS ALLOWED. GROUND NO. 2 RELATING TO REDUCTION IN DEDUCTION UND ER SECTION 80IC WAS RESTRICTED TO RS 7,50,000 AND GROUND WAS PARTLY ALL OWED. DEPARTMENTS GROUNDS OF APPEAL: GROUND NO. 1 RELATING TO DEFERRED REVENUE EXPENSES WAS DISMISSED. MA NO. 153/JP/16 M/S GENUS POWER INFRASTRUCTURES LTD. VS. ITO WARD 7 (2), JAIPUR 4 GROUND NO. 2 RELATING TO SALES TAX INCENTIVE TREATE D AS CAPITAL RECEIPT WAS DISMISSED. GROUND NO. 3 RELATING TO DISALLOWANCE OF DEPRECIATI ON ON PEAK AND PLACE MACHINE WAS DISMISSED. GROUND NO. 4 RELATING TO DEDUCTION U/S 80JJAA OF TH E ACT WAS DISMISSED. 4. IN LIGHT OF ABOVE, PARA 6 & 7 OF THE COORDINATE BENCH DECISION DATED 09.09.2016 STAND MODIFIED AND SHOULD NOW BE READ AS UNDER: 6. IT REMAINS UNDISPUTED BEFORE US THAT THE FACTS FOR THE YEAR UNDER CONSIDERATION ARE NOT DIFFERENT FROM THOSE BEFORE T HE TRIBUNAL FOR A. Y.2008-09. THEREFORE, RESPECTFULLY FOLLOWING THE ORDER OF THE TRIBUNAL (SUPRA) PASSED ON 20.05.2016 IN THE ASSESSEES CASE OR A.Y. 2008-09, IN ITA NO. 38/JP/2012, THE GRIEVANCE RAISED, RESPECTFULLY, BY THE ASSESSEE BY WAY OF ITS GROUNDS OF APPEAL IS PARTLY ALLOWED AND GRIEVANCE RAISED, RESPECTFULLY, BY THE REVENUE BY WAY OF ITS GROUNDS OF APPEAL IS REJECTED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED AND THE REVENUES APPEAL IS DISMISSED. THE MISCELLANEOUS APPLICATION IS DISPOSED OFF ACCOR DINGLY. ORDER PRONOUNCED IN THE OPEN COURT ON 06/12/2 016. SD/- SD/- (KUL BHARAT ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 06/12/2016 PILLAI MA NO. 153/JP/16 M/S GENUS POWER INFRASTRUCTURES LTD. VS. ITO WARD 7 (2), JAIPUR 5 VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/S GENUS POWER INFRASTRUCTURES LTD. JAIPUR 2. IZR;FKHZ@ THE RESPONDENT- THE ITO, WARD 7(2), JAIPUR 3. VK;DJ VK;QDR@ CIT III, JAIPUR 4. VK;DJ VK;QDRVIHY@ THE CIT(A)-III, JAIPUR 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (MA NO. 153/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR. MA NO. 153/JP/16 M/S GENUS POWER INFRASTRUCTURES LTD. VS. ITO WARD 7 (2), JAIPUR 6 MA NO. 153/JP/16 M/S GENUS POWER INFRASTRUCTURES LTD. VS. ITO WARD 7 (2), JAIPUR 7