Alembic Limietd., Baroda V. The ACIT.,Circle-1(1), Baroda

MA 165/AHD/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9906 (ITAT-AHMEDABAD)
• Duration Of Justice: 6 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-03-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 23-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T SHANKAR
• Assessee Lawyers: S N SOPARKAR

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER M.A.NO.165/AHD/2012 IN I.T.A. NO. 4561/ AHD/2007 (ASSESSMENT YEAR 2004-05) ALEMBIC LIMITED, 5 TH FLOOR, ADMIN BUILDING, ALEMBIC ROAD, BARODA VS. ACIT, CIRCLE1(1), BARODA PAN/GIR NO. : AABCA7950P (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI S N SOPARKAR, ADV. RESPONDENT BY: SHRI T SHANKAR, SR. DR DATE OF HEARING: 01.03.2013 DATE OF PRONOUNCEMENT: 08.03.2013 O R D E R PER SHRI A. K. GARODIA, AM:- THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASS ESSEE AND FOR THE SAKE OF READY REFERENCE, THE CONTENTS OF THE MISCEL LANEOUS APPLICATION ARE REPRODUCED BELOW: APPLICATION U/S 254(2) OF THE INCOME TAX ACT, 196 1 1. THE APPELLANT ABOVE NAMED FILES THE PRESENT APPL ICATION FOR SETTING ASIDE THE ORDER DATED 11/05/2012 PASSED BY THIS HON'BLE TRIBUNAL PARTLY ALLOWING THE APPEAL FILED BY THE RE SPONDENT (ORIGINAL APPELLANT). IT IS MOST RESPECTFULLY SUBMI TTED THAT IN THE SAID ORDER OF THE HON'BLE ITAT, THERE IS ERROR APPA RENT ON THE RECORD. 2. THE HON'BLE ITAT ADJUDICATING GROUND # 6 RAISED BY THE RESPONDENT NOTED AS UNDER ON PAGE 13 PARA 40: '6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE ID. CIT(A) ERRED IN ALLOWING REDUCTION OF RS. 1 6, 54, 000/- BEING WITHDRAWAL FROM REVALUATION RESERVE WITH THE OBSERVATION THAT THE ISSUE WAS DECIDED BY HIM IN THE ASSESSMENT YEAR 2002-03 M.A.NO.165 /AHD/2012 2 WHEREAS NO SUCH ISSUE AROSE IN THAT ASSESSMENT YEAR AND, MOREOVER, SUCH REDUCTION WAS NOT PERMITTED IN VIEW OF THE PRO VISO TO CLAUSE(I) OF THE EXPLANATION BELOW SECTION 115JB(2) .' THE HON'BLE ITAT WHILE REPRODUCING THE WRITTEN SUBM ISSIONS OF ID. COUNSEL FOR THE APPLICANT ON PAGE 16 PARA 11 (O F THE SUBMISSIONS) NOTED THE SUBMISSIONS OF THE COUNSEL T HAT THE SAID GROUND WAS ALSO COVERED BY THE ORDERS OF THE HON'BL E ITAT IN ASSESSEE'S OWN CASE FOR A.Y. 2006-07, A.Y. 97-98 TO A.Y. 01- 02(COMBINED ORDER FOR 5 YEARS), 2005-06 AND 2002-03 . THE HON'BLE ITAT VIDE PARA 43 FROM PAGE 17 TO 20 OF THE ORDER ALLOWED THE ABOVE GROUND RAISED BY REVENUE. 3. THE APPELLANT RESPECTFULLY SUBMITS THAT ID. CIT (A) VIDE PARA 25 ON PAGE 21 OF THE IMPUGNED ORDER DELETED SAID DI SALLOWANCE FOLLOWING HIS OWN ORDER FOR A.Y. 2002-03 & A. Y. 20 03-04. THE APPEALS BY REVENUE STANDS DISMISSED BY THE HON'BLE ITAT VIDE ORDERS OF CO ORDINATE BENCHES PLACED ON RECORD IN P APER BOOK OF CASE LAWS FOR VARIOUS YEARS IN SUPPORT OF THE CONTE NTION OF THE APPLICANT THAT THE ISSUE IS NOW SQUARELY COVERED IN FAVOUR OF THE APPLICANT. UNDER THE CIRCUMSTANCES IT IS RESPECTFUL LY SUBMITTED THAT IF THE HON'BLE BENCH WISHED TO HOLD OTHERWISE THEN THE DECISIONS TAKEN BY THE EARLIER BENCHES THEN THE ONLY COURSE O PEN IS TO MAKE A REFERENCE TO THE PRESIDENT OF THE HON'BLE ITAT AS P ROVIDED U/S 255(3) OF THE ACT TO CONSTITUTE A SPECIAL BENCH TO RESOLVE THE CONTROVERSY. 4. RELIANCE IS PLACED ON OBSERVATION OF JURISDI CTIONAL HIGH COURT IN SAYAJI IRON AND ENGINEERING CO (253 ITR 749) AT PAGE 753 AS PER BELOW - 'IF A BENCH OF A TRIBUNAL ON THE IDENTICAL FACTS IS ALLOWED TO COME TO A CONCLUSION DIRECTLY OPPOSED TO THE CONCLUSION REACHED BY ANOTHER BENCH OF THE TRIBUNAL ON AN EARLIER OCCASIO N THAT WILL BE DESTRUCTIVE OF THE INSTITUTIONAL INTEGRITY ITSELF.. . IF THE TRIBUNAL WANTS TO TAKE AN OPINION DIFFERENT FROM THE ONE TAK EN BY AN EARLIER BENCH, IT SHOULD PLACE THE MATTER BEFORE THE PRESID ENT OF THE TRIBUNAL SO THAT HE COULD HAVE THE CASE REFERRED TO A FULL BENCH OF THE TRIBUNAL...' 5. THE HON'BLE ITAT WHILE ADJUDICATING GROUND # 7 OF APPEAL FILED BY REVENUE COMMITTED SIMILAR ERROR OF DIFFERI NG FROM THE DECISIONS OF CO ORDINATE BENCH OF THE ITAT FOR EARL IER YEARS RELIED UPON BY THE COUNSEL OF THE APPLICANT AND PLACED ON RECORD IN THE COMPILATION OF ORDERS. THE HON'BLE BENCH IN PARA 5. 5 ON PAGE 32 REVERSED THE ORDER OF ID. CIT (A) ALLOWING DEPRECIA TION ON REVALUED FIXED ASSETS AND ALLOWED THE GROUND OF THE REVENUE. 6. IN VIEW OF THE ABOVE, THERE IS AN ERROR AP PARENT ON THE RECORD AND THE SAME REQUIRES TO BE RECTIFIED AND THEREFORE , THE ORDER OF THE M.A.NO.165 /AHD/2012 3 HON'BLE ITAT IS REQUIRED TO BE RECALLED SO THAT ORD ERS RELIED UPON MAY BE APPRECIATED AND THE RATIO BE APPLIED TO MODI FY THE ORDER AND RELIEF PRAYED FOR MAY BE GRANTED. 2. IN THE COURSE OF HEARING OF THE MISCELLANEOUS AP PLICATION, IT WAS SUBMITTED BY THE LD. A.R. THAT ON BOTH THE ISSUES I .E. REGARDING GROUND NO.6 AND 7, THE ASSESSEE HAS SUCCEEDED BEFORE THE T RIBUNAL IN THE EARLIER YEARS AND HENCE EITHER THE TRIBUNAL SHOULD HAVE FOL LOWED THE EARLIER YEAR ORDER OR THE MATTER SHOULD HAVE BEEN REFERRED TO TH E SPECIAL BENCH AND SINCE THIS WAS NOT DONE, THERE ARE TWO APPARENT MIS TAKES IN THE TRIBUNAL ORDER WHICH SHOULD BE RECTIFIED. 3. AS AGAINST THIS, IT WAS SUBMITTED BY THE LD. D.R . THAT THERE IS NO APPARENT MISTAKE IN THE TRIBUNAL ORDER AND THE TRIB UNAL HAS GIVEN SUFFICIENT REASONS IN THE ORDER FOR NOT FOLLOWING EARLIER YEAR TRIBUNAL ORDER AND IT HAS ALSO DISTINGUISHED THE FACTS IN THE PRESENT YEAR AN D, THEREFORE, THERE IS NO CASE MADE OUT BY THE ASSESSEE FOR FOLLOWING THE ORD ER OF EARLIER YEAR OR REFERRING THE MATTER TO THE SPECIAL BENCH AND HENCE , THIS MISCELLANEOUS APPLICATION OF THE ASSESSEE SHOULD BE REJECTED. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT REGARDING GROUND NO.6 OF THE REVENUE, IT IS STATED BY THE TRI BUNAL IN PARA 45 OF THE TRIBUNAL ORDER THAT IN THE EARLIER YEAR I.E. FOR TH E ASSESSMENT YEAR 2003-04, WHILE DECIDING THE ISSUE IN DISPUTE, THE TRIBUNAL H AS FOLLOWED ANOTHER TRIBUNAL ORDER IN THE ASSESSEES OWN CASE IN I.T.A. NO. 1706/AHD/2003 DATED 27.09.2005 AND IT WAS STATED THAT PARA 85-86 OF THE EARLIER YEAR ORDER WAS COVERING THE ISSUE IN FAVOUR OF THE ASSES SEE AND THESE TWO PARAS OF THE EARLIER TRIBUNAL ORDER WERE ALSO REPRODUCED IN THE TRIBUNAL ORDER FOR THE ASSESSMENT YEAR 2005-06. THEREAFTER, THIS IS N OTED BY THE TRIBUNAL IN THE PRESENT YEAR ORDER THAT AS PER THESE PARAS 85-8 6 OF THE TRIBUNAL ORDER FOR THE ASSESSMENT YEAR 2003-04, THE ISSUE IN DISPU TE WAS DIFFERENT AND, THEREFORE, THE TRIBUNAL ORDER IS NOT BEING FOLLOWED IN THE PRESENT YEAR. WE FIND THAT REGARDING THE TRIBUNAL ORDER FOR THE A SSESSMENT YEAR 2003-04, M.A.NO.165 /AHD/2012 4 A CLEAR FINDING IS GIVEN BY THE TRIBUNAL IN THE IMP UGNED ORDER THAT PARA 85- 86 OF THIS TRIBUNAL DECISION IS IN RESPECT OF SOME OTHER ISSUE AND REGARDING THE TRIBUNAL ORDER FOR THE ASSESSMENT YEAR 2002-03 AND 2005-06, IT IS STATED BY THE TRIBUNAL IN THE IMPUGNED TRIBUNAL ORD ER THAT THE TRIBUNAL HAS SIMPLY FOLLOWED THE TRIBUNAL ORDER FOR THE ASSESSME NT YEAR 2003-04 AND IN PARTICULAR, PARA 85-86 OF THE TRIBUNAL ORDER AND SI NCE THOSE PARAS 85-86 ARE RELATING TO OTHER DISPUTE, EVEN IF SOME ISSUE W AS DECIDED IN FAVOUR OF THE ASSESSEE IN EARLIER YEAR ON A WRONG PREMISE THE N SUCH A TRIBUNAL ORDER CANNOT BE CONSIDERED AS BINDING PRECEDENT AND, THER EFORE, THERE IS NO MISTAKE IN THE TRIBUNAL ORDER IN NOT FOLLOWING THE EARLIER YEAR TRIBUNAL ORDER AND ALSO IN NOT REFERRING THE MATTER TO THE S PECIAL BENCH AND HENCE, THIS OBJECTION OF THE ASSESSEE IN THE MISCELLANEOUS APPLICATION IS REJECTED. 5. SIMILARLY, REGARDING GROUND NO.7, THE ISSUE IN D ISPUTE WAS DECIDED BY THE TRIBUNAL IN THIS IMPUGNED ORDER AS PER PAR 5 .3 AND THE BASIS OF THIS DECISION IS THIS THAT IN THE PRESENT YEAR, THERE IS A QUALIFICATION NOTE BY THE AUDITORS AND FROM THAT, THIS INFERENCE IS DRAWN BY THE TRIBUNAL IN THE PRESENT YEAR THAT THE BOOK RESULTS ARE NOT APPROVED BY THE AUDITORS AND REGARDING THE TRIBUNAL ORDER FOR THE ASSESSMENT YEA R 1998-99, IT IS NOTED BY THE TRIBUNAL IN THE IMPUGNED ORDER THAT THIS TR IBUNAL ORDER IS NOT AFTER TAKING NOTE OF THIS FACT THAT THERE IS ANY QUALIFIC ATION NOTE BY THE AUDITORS ON THIS ISSUE REGARDING REVALUATION AND DEPRECIATIO N ON REVALUATION AND, THEREFORE, THIS TRIBUNAL ORDER CANNOT BE CONSIDERED AS A BIDING PRECEDENT WHERE THERE IS A QUALIFICATION NOTE BY THE AUDITORS . IT SHOWS THAT THE EARLIER YEAR ORDER WAS CLEARLY DISTINGUISHED BY THE TRIBUNAL IN THE IMPUGNED ORDER AND IT CANNOT BE SAID THAT THERE IS ANY APPARENT MISTAKE IN THE TRIBUNAL ORDER ON ACCOUNT OF NOT FOLLOWING EARL IER YEAR TRIBUNAL ORDER AND ALSO ON ACCOUNT OF NOT REFERRING THE MATTER TO A SPECIAL BENCH OF THE TRIBUNAL. REGARDING THE TRIBUNAL ORDER FOR ASSESSM ENT YEAR 2006-07 ALSO, IT IS NOTED BY THE TRIBUNAL IN THE IMPUGNED TRIBUNA L ORDER THAT THE ISSUE M.A.NO.165 /AHD/2012 5 WAS NOT RAISED BY THE REVENUE BEFORE THE TRIBUNAL A ND IN THIS YEAR ALSO, IT COULD NOT BE SHOWN THAT SIMILAR NOTE OF THE AUDITOR S WAS THERE IN THIS ORDER AND LD. CIT(A) HAD DECIDED AFTER CONSIDERING THIS NOTE AND, THEREFORE, THIS ARGUMENT IS NOT RELEVANT. THE TRIB UNAL HAS ALSO CONSIDERED THE APPLICABILITY OF THE JUDGEMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF APOLLO TYRES (I) LTD. AS REPORTED IN 255 IT R 273 AND IT IS OBSERVED BY THE TRIBUNAL IN THE IMPUGNED ORDER THAT IN THE PRESENT CASE, THE STATUTORY AUDITORS HAVE NOT VERIFIED THE ACCOUN TS AS TRUE AND FAIR WITHOUT GIVING A QUALIFICATION NOTE AND IN FACT QUA LIFICATION NOTE HAS BEEN GIVEN BY THE STATUTORY AUDITORS IN THE PRESENT CASE AND ON THIS BASIS, IT WAS HELD BY THE TRIBUNAL IN THE IMPUGNED ORDER THAT THE JUDGEMENT OF HONBLE APEX COURT IS NOT RENDERING ANY HELP TO THE ASSESSE E IN THE PRESENT CASE BECAUSE IN THE PRESENT CASE, THE AUDITORS HAVE GIVE N A QUALIFIED AUDIT REPORT. CONSIDERING ALL THESE FACTS, WE DO NOT FIN D ANY MERIT IN THIS OBJECTION ALSO OF THE LD. A.R. AND HENCE, THE SAME IS ALSO REJECTED. 6. IN THE RESULT, MISCELLANEOUS APPLICATION OF THE ASSESSEE STANDS DISMISSED. 7. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD./- SD./- (KUL BHARAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD M.A.NO.165 /AHD/2012 6 1. DATE OF DICTATION 01/03/2013 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 04/03/2013.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 08/03/2013 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.8/3 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 08/03/2013 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .