N.R.Agarwal Industries Ltd., Vapi V. Dy Commissioner of Income Tax, Surat

MA 156/AHD/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2666 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 16-01-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 22-09-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI G.C. GUPTA, VICE PRESIDENT (AZ) AND SHRI N.S.SAINI, ACCOUNTANT MEMBER 1. MA NO.154/AHD/2014 A.Y. 2007-08 (IN ITA NO.341/AHD/2012 AY 2007-08) 2. MA NO.155/AHD/2014 A.Y. 2008-09 (IN ITA NO.342/AHD/2012 AY 2008-09) 3. MA NO.156/AHD/2014 A.Y. 2009-10 (IN ITA NO.343/AHD/2012 AY 2009-10) 4. MA NO.157/AHD/2014 A.Y. 2010-11 (IN ITA NO.344/AHD/2012 AY 2010-11) M/S.N.R. AGARWAL INDUSTRIES LTD. PLOT NO.169, II PHASE GIDC VAPI 396 195 / VS. THE DCIT CENTRAL CIRCLE-3 AAYAKAR BHAVAN SURAT ./ ./ PAN/GIR NO. : AAACN 7721 N ( / APPLICANT ) .. ( / RESPONDENT ) ASSESSEE BY : SHRI S.N. SOPARKAR, AR RE VENUE B Y : SHRI NIMISH YADAV, SR.DR / DATE OF HEARING 16/01/2015 !' / DATE OF PRONOUNCEMENT 23/01/2015 / O R D E R PER SHRI G.C.GUPTA, VICE PRESIDENT (AZ) : THESE FOUR MISCELLANEOUS APPLICATIONS PREFERRED BY THE ASSESSEE FOR THE ASSESSMENT YEARS 2007-08, 2008-09, 2009-10 & 20 10-11 INVOLVED AN IDENTICAL ISSUE. 2. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED TH AT THE ISSUE NO.2 IN ASSESSEES APPEAL FOR THE RELEVANT ASSESSMENT YEARS REGARDING THE DISALLOWANCE OF DEDUCTION U/S.80IA(4) OF THE ACT TO WARDS THE CLAIM OF LP STEAM WHICH IS GROUND NO.2 FOR ASSESSMENT YEARS 200 7-08 AND 2008-09 MA NOS.154 TO 157/AHD/2014 (IN ITA NOS. 341 TO 344/AHD/2012 RESPECTIVELY) N.R. AGARWAL INDUSTRIES LTD. VS. THE DCIT ASST.YEARS - 2007-08 TO 2010-11 RESPECTIVELY) - 2 - AND GROUND NO.1 OF ASSESSMENT YEARS 2009-10 & 2010- 11 WERE DECIDED AGAINST THE ASSESSEE BY THE ITAT A BENCH AHMEDABA D VIDE IMPUGNED ORDER DATED 26/07/2013 IN ITA NOS.341, 342, 343 AND 344/AHD/2012 FOR AYS 2007-08 TO 2010-11 RESPECTIVELY. THE TRIBUNAL WHILE DECIDING THIS ISSUE IN PARA-5.1 OF THE IMPUGNED ORDER DATED 26/07 /2013 HELD SINCE THIS ISSUE IN THE REVENUES APPEAL THAT STEAM IS NOT POWER, IS HELD IN FAVOUR OF THE REVENUE ON PAGE 22 PARA 19.1 HEREIN BELOW, THIS GROUND RAISED BY THE ASSESSEE HAS BECOME INFRUCTUOU S AND, THEREFORE, IT IS DISMISSED AS SUCH. HE SUBMITTED THAT IT AMOUNTS TO A MISTAKE APPARENT FROM THE RECORD INASMUCH AS THE TRIBUNAL W HILE DECIDING THE APPEAL OF THE REVENUE ON PAGE NO.22 AT PARA-19.1 AN D DECISION ON PAGE NO.32 OF THE SAME ORDER HAS REMITTED THIS ISSUE BAC K TO THE FILE OF THE LEARNED CIT(A) TO CONSIDER THE MATTER AFRESH KEEPIN G IN VIEW OF THE ADDITIONAL ARGUMENTS TAKEN UP BY THE LEARNED DR BEF ORE US AND DECIDE AFTER ALLOWING DUE HEARING TO BOTH THE PARTIES. T HE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT SINCE THE ISSUE WAS RESTORE D TO THE FILE OF LD.CIT(A) FOR FRESH DECISION BY THE TRIBUNAL WHILE DECIDING THE APPEALS OF THE REVENUE, THE TRIBUNAL SHOULD HAVE RESTORED T HE ISSUE NO.2 IN THE ASSESSEES APPEAL ALSO TO THE FILE OF THE LD.CIT(A) FOR A FRESH DECISION IN ACCORDANCE WITH LAW AND THE MISTAKE BEING APPARENT FROM THE RECORD AND WAS COMMITTED UNDER A WRONG IMPRESSION THAT THE ISS UE HAS BEEN DECIDED IN FAVOUR OF THE REVENUE WHILE ADJUDICATING THE REV ENUES APPEALS, THE MISTAKE BE RECTIFIED AND THE ISSUE NO.2 IN THE ASSE SSEES APPEALS MAY ALSO BE RESTORED TO THE FILE OF LD.CIT(A) FOR FRESH DECI SION. THE DR COULD NOT CONTROVERT THE SUBMISSIONS OF THE LD.COUNSEL FOR T HE ASSESSEE. MA NOS.154 TO 157/AHD/2014 (IN ITA NOS. 341 TO 344/AHD/2012 RESPECTIVELY) N.R. AGARWAL INDUSTRIES LTD. VS. THE DCIT ASST.YEARS - 2007-08 TO 2010-11 RESPECTIVELY) - 3 - 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAV E PERUSED THE ORDER OF THE TRIBUNAL DATED 26/07/2013(SUPRA). WE FIND THAT THE ISSUE NO.2 IN THE ASSESSEES APPEAL FOR THE RELEVANT ASSE SSMENT YEARS WAS DEALT WITH BY THE TRIBUNAL IN THEIR ORDER DATED 26/07/201 3 IN PARAS-5 AND 5.1 OF ITS ORDER. THE TRIBUNAL PROCEEDED WITH THE ASSUMPT ION THAT THIS ISSUE IN THIS REVENUES APPEAL THAT STEAM IS NOT POWER W AS HELD IN FAVOUR OF THE REVENUE ON PAGE NO.22 AT PARA NO.19.1 HEREIN BE LOW. IN THE SAME ORDER OF THE TRIBUNAL, THE TRIBUNAL HAS HELD THAT G ROUND RAISED BY THE ASSESSEE HAS BECOME INFRUCTUOUS AND, THEREFORE, WAS DISMISSED AS SUCH. WE HAVE PERUSED THE RELEVANT PARAS-19.1 TO 22 IN TH E IMPUGNED TRIBUNAL ORDER DATED 26/07/2013 WHEREIN, IN FACT, WHILE DECI DING THE REVENUES APPEAL, THE ISSUE WAS RESTORED TO THE FILE OF LD.CI T(A) FOR A FRESH DECISION AFTER ALLOWING DUE HEARING TO BOTH THE PARTIES. IN THESE FACTS OF THE CASE, WE ARE OF THE VIEW THAT A MISTAKE APPARENT FROM THE RECORD HAS CREPT IN THE ORDER OF THE TRIBUNAL IN PARAS-5 & 5.1 OF THE I MPUGNED ORDER OF THE TRIBUNAL DATED 26/07/2013 AND, ACCORDINGLY, THE MIS TAKE APPARENT FROM THE RECORD IS RECTIFIED AND THE LAST LINE IN PARA-5 .1 OF THE SAID IMPUGNED ORDER OF THE TRIBUNAL IS REPRODUCED ABOVE IS MOD IFIED AS SINCE THIS ISSUE IN THE REVENUES APPEAL THAT WHETHER STEA M COULD BE CONSIDERED AS POWER FOR THE PURPOSE OF GRANT OF B ENEFIT U/S.80IA(4) OF THE I.T.ACT, 1961 HAS BEEN RESTORED TO THE FILE OF THE LD.CIT(A) TO CONSIDER THE MATTER AFRESH KEEPING IN VIEW OF THE A DDITIONAL ARGUMENTS TAKEN UP BY THE LD.DR BEFORE THE TRIBUNAL AND TO DECIDE AFTER ALLOWING DUE HEARING TO BOTH THE PARTIES, WE RESTORE THIS ISSUE NO.2 IN ASSESSEES APPEALS TO THE FILE OF CIT(A) WI TH DIRECTION TO MA NOS.154 TO 157/AHD/2014 (IN ITA NOS. 341 TO 344/AHD/2012 RESPECTIVELY) N.R. AGARWAL INDUSTRIES LTD. VS. THE DCIT ASST.YEARS - 2007-08 TO 2010-11 RESPECTIVELY) - 4 - DECIDE THE SAME DE NOVO IN ACCORDANCE WITH LAW AFTER ALLOWING DUE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. WE DIRECT ACCORDINGLY. 4. IN THE RESULT, ALL THE FOUR MISCELLANEOUS APPLICA TIONS PREFERRED BY THE ASSESSEE ARE ALLOWED AS DISCUSSED ABOVE. SD/- SD/- ( N.S. SAINI ) ( G.C. GUPTA ) ACCOUNTANT MEMBER VICE PRESIDENT (AZ) AHMEDABAD; DATED 23/01/2015 %. ., .'. ./ T.C. NAIR, SR. PS ! '!# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPLICANT. 2. / THE RESPONDENT. 3. ( )* + / CONCERNED CIT 4. + ( ) / THE CIT(A)-II, AHMEDABAD 5. ./0 '')* , )*' , ( / DR, ITAT, AHMEDABAD 6. 034 5 / GUARD FILE. / BY ORDER, . ' //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 16.1.15 (DICTATION-PAD 11-P AGES ATTACHED AT THE END OF THIS FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 16.1.15 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.23.1.15 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 23.1.15 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK.. . 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER