Gujarat Alkalies And Chemicals Ltd., Baroda V. The Dy. Commissioner of Income Tax, Circle-1(1), Baroda

MA 160/AHD/2016

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5276 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 20-01-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 24-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROOP CHAND
• Assessee Lawyers: SUNILTTALATI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE SHRI S. S. GODARA, JM & SHRI MANISH BORAD, AM. M.A. NO.160/AHD/2016 IN ITA NO.2398 /AHD/2012 ASST. YEAR: 2009-10 GUJARAT ALKALIES & CHEMICALS LTD., PO : PETROCHEMICALS, DIST. BARODA. VS. DCIT, CIR.1(1), BARODA. APPELLANT RESPONDENT PAN AAACG 8896M APPELLANT BY SHRI SUNILTTALATI, AR RESPONDENT BY SHRI ROOP CHAND, DR DATE OF HEARING: 20.1.2017 DATE OF PRONOUNCEMENT: 03/03/2017 O R D E R PER MANISH BORAD, ACCOUNTANT MEMBER . THIS ASSESSEES MISCELLANEOUS APPLICATION FILED U/ S 254(2) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) WHEREIN IT HAS BEEN STATED AS FOLLOWS:- 1. THAT HON'BLE INCOME TAX APPELLATE TRIBUNAL, AHME DABAD BENCH 'D' IN ASSESSEE'S ITA NO. 2398/AHD/2012 FOR ASST. YEAR 200 9 - 10 HAD BEEN KIND ENOUGH TO PASS AN ORDER DATED 19-11 : 2015, A COPY OF WHICH IS PLACED AT EXHIBIT- A HERETO. 2. THE HON'BLE TRIBUNAL HAS DISPOSED OFF ITA NO. 2 398/AHD/2012 AFTER DISCUSSING THE GROUND NO. 4 IN PARA 20 TO 24, ON PA GE NO. 11 TO 13 OF THE ORDER. HON'BLE TRIBUNAL WAS KIND ENOUGH TO ALLOW THIS GROU ND FULLY IN FAVOUR OF THE MA NO.160/AHD/2016 IN ITA NO. 2398/AHD/2012 ASST. YEAR 2009-10 2 APPELLANT VIDE PARA 23 AND 24 OF THE ORDER. HOWEVER , THE HON'BLE TRIBUNAL IN PARA 23 & 24 OF THE ORDER HAS OBSERVED AS UNDER: '23. WE HAVE CONSIDERED THE RIVAL SUBMISSION AND PE RUSED THE MATERIAL ON RECORDS. WE FIND THAT THE CO-ORDINATE BENCH IN ASSE SSEE'S OWN CASE FOR ASST. YEARS 2005-06 TO 2007-08 HAS DECIDED SIMILAR ISSUE BY OBSERVING AS UNDER :- 5.4.1 WE HAVE CONSIDERED THE RIVAL SUBMISSION AND W E FIND THAT THIS ISSUE WAS DECIDED BY ID. CIT(A) AS PER THE TRIBUNAL DECISION IN THE CASE OF ALEMBIC LTD. (SUPRA) AND ALSO IN THE CASE OF JINDAL STEELS & POWER LTD. (SUPRA) AND WORKED OUT DEDUCTION ALLOWABLE TO THE A SSESSEE U/S 801A IN RESPECT OF CAPTIVE CONSUMPTION OF POWER, THE RATES FIXED BY ELECTRICITY BOARD I. E. GEB IN THE PRESENT CASE, HAS TO BE APPL IED AND NOT THE PRICE FIXED BY THE LEGISLATIVE MANDATE. HE HAS ALSO NOTED THAT IN THE PRESENT CASE, THE ASSESSEE IS PREVENTED BY LEGISLATIVE MANDATE FROM SELLING POWER TO ANY PERSON OTHER THAN GEB AND THE RATES FIXED BY GEB WAS RS.1.86 PER UNIT ONLY BUT THE GEB IS ASKING ASSESSEE TO PAY AT RS.4.55 PER UNIT AND HENCE, HE HAS DIRECTED THE AO TO ALLOW DEDUCTION U/ S. 80IA AS DECISION WAS BROUGHT TO OUR NOTICE BY THE ID. DR AND HENCE, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER ID. CIT(A) ON THIS ISSUE WHICH IS IN LINE WITH VARIOUS TRIBUNAL DECISION. THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE AND THESE GROUND OF THE REVENUE IN ALL THE THREE YE ARS ARE REJECTED. 24. APPLYING THE SAME RATIO TO THE CASE OF ASSESSEE ON THIS GROUND, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A) AND ACCORDINGLY THE GROUND OF ASSESSEE IS PARTLY ALLOWED.' IT IS SUBMITTED WITH RESPECT THAT THE OBSERVATION O F THE HON'BLE TRIBUNAL IN PARA 24 THAT ' APPLYING THE SAME RATIO TO THE CASE OF ASSESSEE ON THIS GROUND, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A) AND ACCORDINGLY THE GROUND OF ASSESSEE IS PARTLY ALLOWED IS ERRONEOUS AS IN PRECEDING PARA 23, THE HON'BLE BENC H HAS ACCEPTED THAT THE COORDINATE BENCH IN ASSESSEE' S OWN CASE FOR ASST. YEARS 2005-06 TO 2007-08 HAS DECIDED SIMILAR ISSUE AND RE PRODUCED THE RELEVANT FINDINGS, WHEREIN IT IS CRYSTAL CLEAR THAT THE COORDINATE BEN CH DECIDED THE ISSUE IN ASSESSEE'S OWN CASE FOR ASST. YEARS 2005-06 TO 2007-08 AND HAS HELD THAT THE ASSESSEE IS ELIGIBLE TO ADOPT THE SALE PRICE OF THE ELECTRICITY AT RS. 4.55 PER UNIT AGAINST RS. 1.86 ALLOWED BY A.O. IN HIS ASSESSMENT ORDER. THEREAFTER IN SUCCEEDING PARA 24, EVEN THOUGH THE HON BLE BENCH FOLLOWING THE ORDER OF CO- ORDINATE BENCH, HAS HELD THAT WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A) AND ACCORDINGLY THE GROUND OF APPEAL IS PARTLY ALLOWED, WHICH IS INCORRECT AS WELL AS MISTAKE APPARENT FROM RECORD IN AS MUCH AS RELIEF CLAIMED BY THE APPELLAN T IS NOT ALLOWED. THE COPY OF ORDER PASSED BY CO-ORDINATE BENCH IN ASSESSEE'S OWN CASE FOR AY 2005-06 TO 2007- 08 IS ALSO ENCLOSED HEREWITH FOR YOUR REFERENCE AS PER EXHIBIT - B HERETO. MA NO.160/AHD/2016 IN ITA NO. 2398/AHD/2012 ASST. YEAR 2009-10 3 THE LD. CIT (A) HAS ALLOWED THIS GROUND IN PART BY TAKING THE RATE OF SELL OF ELECTRICITY AT RS. 3.11 PER UNIT AGAINST TAKEN BY THE A.O. AT R S. 2.23 PER UNIT. WHEREAS THE ASSESSEE HAS CLAIMED RATE OF SALE OF ELECTRICITY AT RS. 4.55 PER UNIT AS PER CLAIM MADE IN WORKING OF SECTION 80IA RETURN OF INCOME FI LED AND THUS THE ASSESSEE WAS IN APPEAL BEFORE YOUR HONOR AGAINST THE ORDER PASSED B Y LD. CIT(A). AS SUCH A MISTAKE HAS BEEN UNKNOWINGLY COMMITTED IN MAKING SUCH OBSER VATION AND CONSEQUENTIAL RELIEF WHICH SHOULD BE AVAILABLE TO THE APPELLANT. 3. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, TH E ERROR IN PARA 24 OF THE TRIBUNAL'S ORDER TO THE EXTENT THE HON'BLE TRIBUNAL OBSERVED THAT WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A) AND ACCO RDINGLY THE GROUND OF ASSESSEE IS PARTLY ALLOWED, REQUIRES TO BE RECTIFIED ACCORDING TO THE FACTS OF THE CASE. 4. IT IS THEREFORE, PRAYED THAT THE HON'BLE TRIBUNA L BE KIND ENOUGH TO OBSERVE AND HOLD THAT AS THE SIMILAR ISSUE HAS ALREADY BEEN DECIDED IN FAVOUR OF THE ASSESSES BY THE CO-ORDINATE BENCH IN ASSESSEE'S OWN CASE FOR ASST. YEARS 2005-06 TO 2007-08 AS MENTIONED BY HON'BLE BENCH IN PARA 23 OF THE ORDER AND IN A.Y. 2008- 09 AS PER PARA 3 OF THE ORDER PLACED AT EXHIBIT C APPLYING THE SAME RATIO TO THE CASE OF ASSESSEE FOR THE YEAR UNDER CONSIDERATION , THE RATE OF SELL OF ELECTRICITY AS TAKEN BY THE ASSESSEE AT RS. 4.55 PER UNIT OUGHT TO HAVE BEEN ACCEPTED AND THE GROUNDS RAISED BY THE ASSESSEE OUGHT TO HAVE BEEN ALLOWED. 2. LD. AUTHORISED REPRESENTATIVE FURTHER SUBMITTED THAT THE ONLY ERROR CROPPED UP IN THE TRIBUNALS ORDER IS IN PARA 24 WHEREIN HON. TRIBUNAL HAS APPARENTLY MENTIONED OF NOT INTERFERIN G IN THE ORDER OF LD. COMMISSIONER OF INCOME TAX(A) AND HAS PARTLY ALLOWE D THE GROUND OF ASSESSEE WHEREAS IN THE PRECEDING PARAGRAPH 23, HON . TRIBUNAL ACCEPTED ASSESSEES GROUND BY FOLLOWING THE DECISIO N OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASST. YEAR 2005-06 TO 20 07-08 AND, THEREFORE, GROUND NO.4 RAISED BY THE ASSESSEE HAS A CTUALLY BEEN ALLOWED BY THE TRIBUNAL BUT INADVERTENTLY THE WORDS PARTLY ALLOWED HAVE BEEN MENTIONED ALONG WITH CALLING FOR NO INTER FERENCE IN THE LD. COMMISSIONER OF INCOME TAX(A)S ORDER. 3. ON THE OTHER HAND, LD. DEPARTMENTAL REPRESENTATI VE COULD NOT CONTROVERT THE SUBMISSIONS OF LD. AUTHORISED REPRES ENTATIVE. MA NO.160/AHD/2016 IN ITA NO. 2398/AHD/2012 ASST. YEAR 2009-10 4 4. WE HAVE HEARD THE RIVAL CONTENTIONS. ASSESSEE TH ROUGH THIS MISCELLANEOUS APPLICATION IS REFERRING TO AN APPARE NT MISTAKE WHICH HAS OCCURRED IN THE TRIBUNALS ORDER DATED 19 .11.2015 IN PARA 24 ADJUDICATING GROUND NO.4 RAISED BY THE ASSE SSEE IN ITA NO.2398/AHD/2012 FOR ASST. YEAR 2009-10. WE OBSERVE THAT ASSESSEE, WHICH IS ELIGIBLE FOR CLAIMING DEDUCTION U/S 80IA OF THE ACT ADOPTED THE SALE PRICE OF ELECTRICITY AT RS .4.55 PER UNIT WHICH WAS RESTRICTED TO RS.2.23 PER UNIT BY THE ASS ESSING OFFICER AND WAS FURTHER SUSTAINED TO RS.3.11 PER UN IT BY LD.CIT(A). AGGRIEVED, ASSESSEE CAME UP IN APPEAL BE FORE THE TRIBUNAL AGAINST LD. COMMISSIONER OF INCOME TAX(A) S ORDER ALLOWING DEDUCTION U/S 80IA ON THE BASIS OF SALE PR ICE OF ELECTRICITY AT RS.3.11 AS AGAINST RS.4.55 PER UNIT. WE FURTHER OBSERVE THAT CO-ORDINATE BENCH VIDE ITS ORDER FOR ASST. YEAR 2005-06 TO 2007-08 IN ASSESSEES OWN CASE ALLOWED ASSESSEES CLAIM OF DEDUCTION U/S 80IA OF THE ACT B Y TAKING THE SALE PRICE AT RS.4.55 PER UNIT. HOWEVER, IN PARA 24 OF THE TRIBUNALS ORDER DATED 19.11.2015 IT WAS WRONGLY ME NTIONED THAT GROUND OF ASSESSEE IS PARTLY ALLOWED AND NO IN TERFERENCE IS CALLED FOR IN THE ORDER OF LD. COMMISSIONER OF INCO ME TAX(A). 5. IN VIEW OF OUR ABOVE DISCUSSION, WE ARE OF THE O PINION THAT IN THESE PECULIAR FACTS AN APPARENT MISTAKE HAS CROPPE D UP IN THE TRIBUNALS ORDER DATED 19.11.15 GIVING RISE TO A CO NTRADICTORY VIEW OCCURRING IN PARA 23 AND PARA 24 OF THE ORDER. WE T HUS RECALL OUR MA NO.160/AHD/2016 IN ITA NO. 2398/AHD/2012 ASST. YEAR 2009-10 5 FINDING MENTIONED IN PARA 24 OF THE ORDER DATED 19. 11.15 AND REPLACE IT WITH THE FOLLOWING PARAGRAPH :- RESPECTFULLY FOLLOWING THE RATIO OF DECISION TAKEN BY THE CO-ORDINATE BENCH IN ASSESSEES OWN CASE, WE SET ASIDE THE ORDE R OF LD. COMMISSIONER OF INCOME TAX(A) AND ALLOW THE GROUND OF ASSESSEE. 6. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS ALLOWED IN THE ABOVE STATED TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD MARCH, 2017 SD/- SD/- (S. S. GODARA) JUDICIAL MEMBER (MANISH BORAD) ACCOUNTANT MEMBER DATED 03/03/2017 MAHATA/- 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 ASST. REGISTRAR, ITAT, AHMEDABAD MA NO.160/AHD/2016 IN ITA NO. 2398/AHD/2012 ASST. YEAR 2009-10 6 1. DATE OF DICTATION: 02/03/2017 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 02/03/2017 OTHER MEMBER: 3. DATE ON WHICH APPROVED DRAFT COMES TO THE SR. P. S./P.S.: 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE TH E DICTATING MEMBER FOR PRONOUNCEMENT: __________ 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S./P.S.: 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK: 3/3/17 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK: 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER: 9. DATE OF DESPATCH OF THE ORDER: