M/s. Pulavarti Polymers P.Ltd., Hyderabad V. DCIT, Circle-16(3), Hyderabad

MA 164/HYD/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8969 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-09-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 23-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ANJANA SAHU
• Assessee Lawyers: K L RATHI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL M EMBER MISC. APPLN. NO.164/HYD/2012 (IN ITA NO.699/HYD/11) : ASSTT. YEAR 2006-07 M/S. PULAVARTHY POLYMERS P. LIMITED, HYDERABAD ( PAN - AACPJ 7115 J ) V/S. DY. COMMISSIONER OF INCOME-TAX CIRCLE 16(3), HYDERABAD . (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI K.L.RATHI RESPONDENT BY : SMT. ANJANA SAHU DATE OF HEARING 14.9.2012 DATE OF PRONOUNCEMENT 21.09.2012 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: BY THIS MISCELLANEOUS APPLICATION, ASSESSEE HAS R EQUESTED FOR RECALLING THE ORDER OF THE TRIBUNAL DATED 22.6. 2012 IN THE APPEAL OF THE ASSESSEE BEING, ITA NO.699/HYD/2011 FOR THE ASS ESSMENT YEAR 2006-007, ON THE GROUND THAT CERTAIN MISTAKES APPAR ENT FROM RECORD HAVE CREPT INTO THE SAME. 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT CERTAIN VITAL ISSUES/POINTS RAISED IN THE APPEAL AN D DURING THE COURSE OF HEARING BEFORE THE TRIBUNAL, WERE LEFT TO BE DECIDE D OR ESCAPED THE NOTICE OF THE TRIBUNAL, RESULTING IN DECIDING THE A PPEAL AGAINST THE ASSESSEE, CONFIRMING THE ORDER OF THE COMMISSIONER OF INCOME-TAX PASSED UNDER S.263 OF THE ACT. ELABORATING THE POI NTS/ISSUES OMITTED TO BE CONSIDERED BY THE TRIBUNAL, REITERATING THE C ONTENTIONS RAISED IN MA NO.164/HYD/2012 ( IN ITA NO.699/.HYD/2011) M/S. PULAVARTHY POLYMERS P. LIMITED, HY DERABAD 2 THE PRESENT PETITION, LEARNED COUNSEL FOR THE ASSES SEE SUBMITTED THAT THE ISSUE INVOLVED IN THE ORDER OF THE TRIBUNAL, WA S WHETHER THE ASSESSEE MADE PURCHASES OF RS.3,02,77,616/-, AND WH ETHER THE COMMISSIONER OF INCOME-TAX WAS JUSTIFIED IN DOUBTIN G THE GENUINENESS OF SOME OF THESE PURCHASES BASED ON THE VAT RETURN FIELD BY THE ASSESSEE, AND PASSING THE IMPUGNED ORDER UNDER S.26 3 DIRECTING THE ASSESSING OFFICER TO VERIFY THE PURCHASES MADE BY T HE ASSESSEE. IT IS SUBMITTED THAT OUT OF THESE PURCHASES, THE PURCHASE S TO THE TUNE OF RS.1,49,71,969/- BEING VAT PURCHASES, THEY WERE INC LUDED IN THE VAT RETURN, BUT BALANCE PURCHASES OF RS.1,53,05,647/-, WHICH BEING PURCHASE MADE FROM OUTSIDE THE STATE, THEY WERE LIA BLE TO CENTRAL SALES TAX, WERE NOT INCLUDED IN THE VAT RETURN. SI NCE THESE PURCHASES WERE OUTSIDE THE SCOPE OF LEVIES BY THE COMMERCIAL TAX DEPARTMENT OF THE STATE GOVERNMENT, THERE IS NO QUESTION OF INCLU SION OF THESE PURCHASES IN THE VAT RETURN DOES NOT ARISES. NEEDL ESS TO SAY THAT VAT IS APPLICABLE ONLY IN CASE OF STATE PURCHASES WHERE AS CENTRAL SALES TAX IS APPLICABLE IN RESPECT OF INTER-STATE TRANSACTION S, WHICH ARE SUBJECT TO TAX AT THE PLACE OF PURCHASE. BUT STILL, DESPITE T HIS DIFFERENCE, THE COMMISSIONER OF INCOME-TAX HELD THAT THIS REQUIRES VERIFICATION AND FOR THAT PURPOSE PASSED THE ORDER UNDER S.263, IMPUGNED IN THE APPEAL BEFORE THE TRIBUNAL, AND DIRECTED THE ASSESSING OFF ICER TO CHECK UP THESE PURCHASES. 3. THE LEARNED COUNSEL FURTHER SUBMITTED THAT ALL THE PURCHASES, WHETHER PURCHASES FROM WITHIN THE STATE WHICH ATTRACT VAT OR INTERSTATE PURCHASES, WHICH SUFFER CENTRAL SALES TAX, PAYMENTS FOR SUCH PURCHASES WERE MADE BY THE ASSESSEE THROUGH AC COUNT PAYEE CHEQUES, WITHOUT ANY EXCEPTION. THOUGH A SPECIFIC GROUND BEING GROUND NO2. IS TAKEN IN THIS BEHALF AND THE SAID GR OUND IS ALSO TAKEN MA NO.164/HYD/2012 ( IN ITA NO.699/.HYD/2011) M/S. PULAVARTHY POLYMERS P. LIMITED, HY DERABAD 3 NOTE OF BY THE TRIBUNAL IN THE ORDER DATED 22.6.201 2, THE ORDER OF THE TRIBUNAL IS SILENT AS TO THE IMPACT OF THIS GROUND ON THE GENUINENESS OF THE PURCHASES. HE SUBMITTED THAT THE IMPUGNED ORDE R OF THE TRIBUNAL IS SILENT ON THIS ASPECT. 4. FURTHER, REFERRING TO GROUND OF APPEAL NO.3, L EARNED COUNSEL STATED THAT THE ASSESSEE MENTIONED HAT THE ASSESSEE HAD FURNISHED THE LIST OF THE ENTIRE PURCHASES OF RS.3, 02,77,616 IN SUPPORT OF THE FACT THAT EACH AND EVERY PURCHASE HAD SUFFER ED BASIC EXCISE DUTY AND THE DETAILS OF WHICH HAS BEEN IN THE FORM OF A CHART IN SIX PAGES FILED WITH COMMISSIONER OF INCOME-TAX AND ALL THE PURCHASE BILLS WERE PRODUCED IN THE COURSE OF ASSESSMENT PROCEEDI NGS FOR THE VERIFICATION AND THE ASSESSING OFFICER WAS VERY MUC H SATISFIED WITH THE PARTICULARS FURNISHED. THE ORDER OF THE COMMISSION ER OF INCOME-TAX PASSED UNDER S.263 IS SILENT ON THESE ASPECT, AND T HE TRIBUNAL HAS NOT CONSIDERED THE GROUND OF THE ASSESSEE IN THIS BEHAL F. 5. IT IS FURTHER SUBMITTED BY THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE ASSESSEE IN RESPONSE TO THE NOT ICE OF THE COMMISSIONER OF INCOME-TAX SUBMITTED THAT HE CAN V ERIFY FROM THE COMMERCIAL TAX DEPARTMENT WHETHER INTER-STATE PURCH ASES ARE REQUIRED TO BE INCLUDED IN VAT RETURN. BASED ON TH IS SUBMISSION OF THE ASSESSEE, THE COMMISSIONER DID MAKE A REFERENCE TO THE COMMERCIAL TAX DEPARTMENT AS IS VERY MUCH EVIDENT FROM THE ORD ER UNDER S.263 WHEREIN IN PARA 3.1 AT PAGE3, COMMISSIONER OF INCOM E-TAX HIMSELF HAS MENTIONED QUERIES RAISED TO COMMERCIAL TAX DEPARTME NT AND THE REPLIES IN RESPONSE. NOT WITHSTANDING THE REPLY OF THE COMMERCIAL TAX DEPARTMENT THAT INTER-STATE PURCHASES NEED NOT BE INCLUDED IN THE VAT RETURN, THE IMPUGNED ORDER OF THE COMMISSIONER OF INCOME-TAX IS MA NO.164/HYD/2012 ( IN ITA NO.699/.HYD/2011) M/S. PULAVARTHY POLYMERS P. LIMITED, HY DERABAD 4 SILENT AS TO THE REPLY GIVEN BY THE COMMERCIAL TAX DEPARTMENT. IN THE CIRCUMSTANCES, LEARNED COUNSEL SUBMITTED THAT THE D IRECTION GIVEN TO THE ASSESSING OFFICER BY THE COMMISSIONER OF INCOME -TAX FOR VERIFICATION ARE NOT JUSTIFIED. IN VIEW OF THE CAT EGORICAL REPLY OF THE COMMERCIAL TAX DEPARTMENT, AND THE FACT THAT THE AS SESSEE HAS MADE PAYMENTS FOR PURCHASE BY ACCOUNT PAYEE CHEQUES WITH OUT EXCEPTION, AND EACH AND EVERY PURCHASE HAS SUFFERED EXCISE DUT Y AND FURTHER THAT THE ASSESSEES BOOKS OF ACCOUNTS ARE AUDITED UNDER S.44AB OF THE ACT AS WELL AS THE COMPANIES ACT, AND EVEN THE BOARD HA S ADVISED IN SUCH CIRCUMSTANCES, THAT THE AUDIT REPORT HAS TO BE BELI EVED AND ACTED UPON, EXERCISE OF POWER UNDER S.263 BY THE COMMISSI ONER OF INCOME- TAX IS NEITHER LEGAL NOR VALID, AND THE TRIBUNAL WH ILE THE WHILE DISPOSING OFF THE APPEAL OF THE ASSESSEE BY CONFIRMING THE OR DER OF THE COMMISSIONER OF INCOME-TAX, HAS IGNORED THE CONTENT IONS OF THE ASSESSEE TAKEN EVEN IN THE VERY GROUNDS OF APPEAL. 6. THE LEARNED COUNSEL FOR THE ASSESSEE, PLACING RELIANCE ON THE DECISIONS OF HONBLE SUPREME COURT IN THE CASE OF UDHAVADAS KEWALRAM V/S. CIT(66 ITR 462); ESTHURI ASWATHIAH V/ S. CIT (66 ITR 478) AND KILLICK NIXON AND CO. V/S. CIT(66 ITR 714) , SUBMITTED THAT ALL THE POINTS AND ISSUES RAISED BY THE ASSESSEE FOR OR AGAINST MUST BE DEALT WITH AND OTHERWISE THE ORDER WILL NOT BE DEEM ED TO BE COMPLETE. 7. THE LEARNED COUNSEL THEREFORE, SUBMITTED THAT THE ORDER OF THE TRIBUNAL DATED 22.6.2012, HAVING NOT CONSIDERED SEVERAL CONTENTIONS OF THE ASSESSEE, SOME OF WHICH ARE TAKE N IN THE VERY GROUNDS OF APPEAL OF THE ASSESSEE BEFORE THE TRIBUN AL, AS DISCUSSED ABOVE, IS ERRONEOUS AND HAS TO BE RECTIFIED/RECALLE D UNDER S.254(2) OF THE ACT. MA NO.164/HYD/2012 ( IN ITA NO.699/.HYD/2011) M/S. PULAVARTHY POLYMERS P. LIMITED, HY DERABAD 5 8. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON TH E OTHER HAND, STRONGLY SUPPORTED THE ORDER OF THE TRIBUNAL DATED 22.6.2012 AND SUBMITTED THAT THERE IS NO MISTAKE APPARENT FRO M RECORD IN THE ORDER OF THE TRIBUNAL AND ALL THAT THE ASSESSEE IS SEEKING BY THE PRESENT APPLICATION IS A MERE REVIEW OF THE DECISIO N OF THE TRIBUNAL, WHICH IS NOT PERMISSIBLE IN THESE PROCEEDINGS UNDER S.254(2) OF THE ACT. 9. WE HEARD BOTH SIDES AND PERUSED THE ORDERS OF T HE LOWER AUTHORITIES. A CLOSE READING OF THE ORDER OF THE TR IBUNAL DATED 22.6.2012 CLEARLY INDICATES THAT THE TRIBUNAL HAS T AKEN NOTE OF ALL THE POINTS OF ARGUMENTS OF THE ASSESSEE BEFORE IT, AND HAS TAKEN A CONSCIOUS VIEW ON THE POINTS OF DISPUTE BEFORE IT, AFTER CAREFUL CONSIDERATION OF THE SUBMISSIONS OF THE PARTIES BEF ORE IT, WHILE CONFIRMING THE ORDER OF THE COMMISSIONER OF INCOME- TAX PASSED UNDER S.263 OF THE ACT. IN THE CIRCUMSTANCES, WE FIND TH AT THE ASSESSEE, BY VARIOUS ARGUMENTS MADE IN THE PRESENT PETITION AS A LSO BY THE COUNSEL BEFORE US, IS MERELY DISPUTING THE FINDINGS OF THE TRIBUNAL, AND SEEKING A REVIEW OF THE DECISION OF THE TRIBUNAL BY REARGUI NG THE CASE ON MERITS. SINCE SUCH A REVIEW IS NOT POSSIBLE IN THE SE PROCEEDINGS UNDER S.254(2) OF THE ACT, THE SCOPE OF WHICH IS CONFINED TO MERE RECTIFICATION OF THE MISTAKES APPARENT FROM RECORD, WE FIND THAT THE PRESENT APPLICATION OF THE ASSESSEE IS DEVOID OF ME RIT. IT IS ACCORDINGLY REJECTED. 10. IN THE RESULT, ASSESSEES MISCELLANEOUS APPLI CATION IS DISMISSED. MA NO.164/HYD/2012 ( IN ITA NO.699/.HYD/2011) M/S. PULAVARTHY POLYMERS P. LIMITED, HY DERABAD 6 ORDER PRONOUNCED IN THE COURT ON 21.09.2012 SD/- SD/- (SAKTIJIT DEY) (CHANDRA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER DT/- 21ST SEPTEMBER, 2012 COPY FORWARDED TO: 1. M/S. PULAVARTHY POLYMERS P. LIMITED, ROAD NO.13, IDA MALLAPUR, HYDERABAD 2. DY. COMMISSIONER OF INCOME - TAX CIRCLE 16(3), HYDERABAD 3. COMMISSIONER OF INCOME - TAX - IV, HYDERABAD. 4. DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S.