M/s. M.M. Patel & Sons Pvt. Ltd., Anand V. The ACIT(OSD), Anand Circle, Anand

MA 158/AHD/2008

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7658 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-03-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 24-12-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 29-07-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHEEM THAKKAR
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE SHRI MUKUL KUMAR SHRAWAT, JM AND SHRI A. MO HAN ALANKAMONY, AM) M. A. NO.158/AHD/2008 ((IN ITA NO.202/AHD/2006 AY: 2002-03) THE A. C. I. T., ANAND CIRCLE ANAND VS M. M. PATEL & SONS PVT. LTD., P.O. BOX 10, CHIKHODRA, TAL. ANAND PA NO. AAACM 2723Q (APPLICANT) (RESPONDENT) APPLICANT BY SHRI VINOD TANWANI, SR. DR RESPONDENT BY SHRI ASHEEM THAKKAR, AR DATE OF HEARING: 10-02-2012 DATE OF PRONOUNCEMENT: 16-03-2012 ORDER PER A. MOHAN ALANKAMONY : THIS MISC. APPLICATION IS FILED BY THE REVENUE BEING AGGRIEVED BY THE ORDE R OF THE TRIBUNAL DATED 30-03-2007 IN ITA NO.202/AHD/2006 FOR THE ASS ESSMENT YEAR 2002-03, IN SETTING ASIDE THE ISSUES WHILE ADJUDICA TING GROUNDS NO.6 AND 7. 2. IN THE MISC. APPLICATION FILED BY THE REVENUE IT HAS BEEN STATED THAT THE ASSESSEE, ON APPEAL BEFORE THE LEARNED CIT (A), WHILE DECIDING THE OTHER ISSUES HAD NOT AGITATED THE ISSU ES WITH RESPECT TO DISALLOWANCE OF SALES PROMOTION EXPENSES OF RS.1,50 ,000/ AND MA NO.158/AHD/2008 (IN ITA NO.202AHD/2006 AY: 2002- 03) ACIT, ANAND CIRCLE, ANAND VS M. M. PATEL & SONS PVT . LTD., ANAND 2 DISALLOWANCE OF BAD DEBT OF RS.1,10,000/-. THE LEA RNED DR POINTED OUT THAT THE TRIBUNAL IN ITS ORDER DATED 30-03-2007 HAD WRONGLY SET ASIDE THESE ISSUES TO THE FILE OF THE LEARNED CIT(A ) WITHOUT APPRECIATING THE ABOVE FACT. THE RELEVANT PORTION O F THE TRIBUNALS ORDER IS REPRODUCED HEREIN BELOW: 14. THE SIX AND SEVENTH GROUND ARE AGAINST THE DIS ALLOWANCE OUT OF SALES PROMOTION EXPENSES OF RS.1,50,000, AND DISALLOWANCE ON ACCOUNT OF BAD DEBT OF RS.1,10,000. THESE GROUNDS WERE NOT DEALT WITH BY THE CIT(A) IN HIS OR DER, THOUGH THE SAME HAVE BEEN CHALLENGED BY THE ASSESSEE BEFOR E HIM. WE ACCORDINGLY SET ASIDE THESE ISSUES TO THE FILE O F THE CIT(A) AND DIRECT HIM TO ADJUDICATE THE ISSUES, IN ACCORDA NCE WITH LAW, AFTER GIVING PROPER OPPORTUNITY OF BEING HEARD TO T HE ASSESSEE. 3. THE LEARNED AR ADMITTED THAT THESE ISSUES WERE N OT RAISED BEFORE THE LEARNED CIT(A) WHICH IS APPARENT FROM FO RM NO.35. HOWEVER, HE OPINED THAT ADDITIONAL GROUNDS MIGHT HA VE BEEN RAISED BEFORE THE LEARNED CIT(A) AT THE TIME OF THE HEARIN G OF THE CASE THOUGH NOTHING WAS FOUND ON RECORD TO SUBSTANTIATE THE SAME AT THIS STAGE. THE LEARNED DR OPPOSED TO THE SUBMISSIONS OF THE LEARNED AR AND STOUTLY ARGUED THAT THESE ISSUES WERE NEVER AGI TATED BY THE ASSESSEE BEFORE THE LEARNED CIT(A), HENCE FRESH GRO UNDS CANNOT BE TAKEN BEFORE THE TRIBUNAL AND SINCE PROPER FACTS WE RE NOT PLACED BEFORE THE TRIBUNAL, THIS MISTAKE HAS CREPT IN THE ORDER OF THE TRIBUNAL DATED 30/03/2007 IN PARA 14. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE RECORDS PLACED BEFORE US. ON EXAMINING FORM NO.35 P LACED BEFORE THE LEARNED CIT(A), IT IS EVIDENT THAT THE A SSESSEE HAS NOT MA NO.158/AHD/2008 (IN ITA NO.202AHD/2006 AY: 2002- 03) ACIT, ANAND CIRCLE, ANAND VS M. M. PATEL & SONS PVT . LTD., ANAND 3 TAKEN THESE GROUNDS AS SUBMITTED BY THE LEARNED DR. IN THESE CIRCUMSTANCE IT APPEARS THAT THE TRIBUNAL HAD REMIT TED BACK THE MATTER BEFORE THE LEARNED CIT(A) BASED ON CERTAIN F ACTS WHICH COULD NOT BE SUBSTANTIATED. THEREFORE WE ARE OF THE VIEW THAT A MISTAKE APPARENT ON RECORD HAS CREPT INTO THE ORDER OF THE TRIBUNAL DATED 30/03/2007 AND WE HEREBY RECALL THE ORDER OF THE TRIBUNAL TO THAT EXTENT AND DIRECT THE REGISTRY TO POST THE CAS E IN THE NORMAL COURSE. 5. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16-03-2012. SD/- SD/- (MUKUL KUMAR SHRAWAT) JUDICIAL MEMBER (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/ LAKSHMIKANT DEKA/- -- - COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD