Prem Bansal Real Estate Pvt. Ltd., Zirakpur V. DCIT, Patiala

MA 171/CHANDI/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9801 (ITAT-CHANDIGARH)
• Duration Of Justice: 4 month(s) 22 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-01-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 06-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N K SAINI
• Assessee Lawyers: N K GARG
• Keywords: Question of law
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A CHANDIGARH BEFORE SHRI T.R.SOOD, ACCOUNTANT MEMBER AND MS.SUSHMA CHOWLA, JUDICIAL MEMBER MA NO. 170 TO 172/CHD/2012 IN ITA NOS.627 TO 629/CHD/2011 A.Y. 2006-07 TO 2008-09 PREM BANSAL REAL ESTATE V THE DCIT, CENTRAL CIRCL E, PVT. LTD., PATIALA. SWASTIK VIHAR, PATIALA ROAD, ZIRAKPUR. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI N.K.GARG RESPONDENT BY : SHRI N.K.SAINI DATE OF HEARING : 18.01.2013 DATE OF PRONOUNCEMENT : 28.01.2013 ORDER MS.SUSHMA CHOWLA, JM THE APPLICANT HAS FILED THESE MISCELLANEOUS APPLIC ATIONS FOR RECALLING THE ORDER DATED 12.01.2012 IN ITA NOS . 627 TO 629/CHD/2011 RELATING TO THE ASSESSMENT YEARS 2006- 07 TO 2008-09 WHICH WERE DISMISSED. THE PRESENT MAS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLID ATED ORDER FOR THE SAKE OF CONVENIENCE. 2. THE APPLICANT HAS FILED THE PRESENT MISCELLANEOU S APPLICATIONS AGAINST THE ORDER OF THE TRIBUNAL DECI DING THE GROUNDS OF APPEAL RAISED BY THE REVENUE AGAINST THE ALLOWANCE OF DEDUCTION U/S 80IB OF THE ACT. THE CIT(APPEALS) HA D ALLOWED THE DEDUCTION U/S 80IB OF THE ACT ON DISALLOWANCE O F RS.3,60,970/- ON ACCOUNT OF UNEXPLAINED DONATIONS, ADDITION OF 2 RS.9,81,990/- ON ACCOUNT OF UNDISCLOSED CASH RECEIP TS AND DISALLOWANCE OF RS.14,16,512/- U/S 40(3) ON ACCOUNT OF CASH PAYMENTS IGNORING THE JUDGMENT OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF NATIONAL LEGGUARD 288 ITR 18 AND HON'BLE TRIBUNAL, CHANDIGARH DECISION IN THE CASE O F VALLABH YARN ITA NO. 79/CHD/2010. THE TRIBUNAL HAD VIDE PA RA 25 TO 29 IN-TURN RELYING UPON THE RATIO LAID DOWN IN VALL ABH YARN PVT.LTD. V ADDL.CIT IN ITA NO. 79/CHD/2010 WHICH HA D NOTED THE JUDGEMENT OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN NATIONAL LEGGUARD 288 ITR 18 (P&H) HAD HELD AS UNDE R: IN THE MATTERS BEFORE US, THE ASSESSEE HAS NOT ESTABLISHED THAT THE ADDITIONS/DISALLOWANCES MADE B Y THE AO AND CONFIRMED BY THE CIT(APPEALS) CONSTITUTE PROFITS DERIVED FROM AN ELIGIBLE INDUSTRIAL UNDERTA KING. BESIDES, SUCH ADDITIONS/DISALLOWANCES HAVE NOT BEEN INCLUDED IN THE PROFITS OF INDUSTRIAL UNDERTAKING I N THE AUDITED ACCOUNTS. IN THIS VIEW OF THE MATTER, THE ORDER OF THE CIT(APPEALS) IN THIS BEHALF IS REVERSED AND THAT OF THE AO RESTORED. APPEALS FILED BY THE DEPARTMENT AR E ALLOWED. 3. THE APPLICANT VIDE PRESENT MISCELLANEOUS APPLICA TION HAS RE-ARGUED THE ISSUE AND THE GRIEVANCE OF THE APPLIC ANT WAS AS UNDER : 8.1 THAT WHILE RECORDING THE FINDING IN PARA 25 AN D 29 OF THE ORDER, THE HON'BLE TRIBUNAL OBSERVED/HELD THAT THERE IS NO MATERIAL ON RECORD TO SHOW THAT ASSESSEE HAS EST ABLISHED THAT THE DISALLOWANCES/ADDITIONS MADE BY THE AO AND CONFIRMED BY LD. CIT(APPEALS) WERE PART OF PROFIT & GAINS DERIVED FROM SUCH INDUSTRIAL UNDERTAKING. THE HON' BLE TRIBUNAL HAS FAILED TO TAKE THE NOTE OF THE FINDING OF FACT AS HELD IN THE ASSESSMENT ORDER AS WELL AS IN THE APPE LLATE ORDER AND WHICH ARE NOT BEEN DISPUTED ANY STAGE AND 3 EMERGING FROM THE AUDITED BALANCE SHEETS AND ITS SC HEDULES WHICH ARE PART OF RECORD BEFORE THE AO, LD. CIT(APP EALS) AS WELL AS BEFORE THE HON'BLE TRIBUNAL HAVE HELD THAT THERE IS NO MATERIAL ON RECORD, THAT THE ASSESSEE HAS NOT ES TABLISHED THAT THE ADDITIONS MADE BY AO AND CONFIRMED BY CIT(APPEALS) WERE PART OF PROFIT AND GAINS DE-HORSE THE FINDING OF FACT IN THE ASSESSMENT ORDER AS WELL AS IN THE APPELLATE ORDER AND EMERGING FROM THE AUDITED BALAN CE SHEETS AS STATED ABOVE. 8.2 FURTHER, THE HON'BLE TRIBUNAL HAVE FAILED TO CO NSIDER THE CASE LAW RELIED UPON BY THE APPELLATE SUBMITTED THAT THE JUDGMENTS DIRECTLY APPLICABLE TO THE FACT. IN VIEW OF THE ABOVE FACTS OF THE MATTER AND SUBMIS SIONS IT IS SUBMITTED THAT THERE IS MISTAKE APPARENT FROM RE CORD WHICH REQUIRES RECTIFICATION. THEREFORE IT IS PRAYED THAT THE ORDER MAY KINDLY BE RECALLED AND MISTAKES WHICH IS CREPT IN MAY PLEASE BE RECTIF IED OR ANY ORDER WHICH THE HON'BLE MEMBERS DEEMED TO BE FI T, MAY PLEASE BE PASSED. 4. LD. 'AR' FOR THE APPLICANT, DURING THE COURSE OF HEARING FAIRLY ADMITTED THAT THERE WAS NO DISPUTE IN THE FI NDINGS OF THE TRIBUNAL. IT WAS ALSO ADMITTED BY THE LD. 'AR' FOR THE APPLICANT THAT APPEALS HAVE BEEN FILED AGAINST THE ORDER OF T HE TRIBUNAL BEFORE THE HON'BLE PUNJAB & HARYANA HIGH COURT AND THE QUESTION OF LAW HAS BEEN FRAMED. LD. 'DR' FOR THE R EVENUE POINTED OUT THAT IN THE PRESENT MISCELLANEOUS APPLI CATION, NOTHING SPECIFIC HAS BEEN MENTIONED AGAINST THE ORD ER OF THE TRIBUNAL AND THE PETITION FILED BY THE APPLICANT TA NTAMOUNTS TO REVIEW OF ORDER BY TRIBUNAL. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE APPLICANT IS AGGRIEVED BY THE ORDER OF THE TRIBUNAL IN REVERSING THE ORDER OF CIT(APPEALS) AGAINST WHIC H THE REVENUE 4 WAS IN APPEAL BEFORE THE TRIBUNAL. THE FINDINGS OF THE TRIBUNAL IN THIS REGARD ARE IN PARAS 25 TO 29 OF THE ORDER D ATED 12.1.2012. WHILE DECIDING THE ISSUE, RELIANCE WAS PLACED BY THE TRIBUNAL ON THE RATIO LAID DOWN IN VALLABH YARN P.L TD. V ADDL. CIT (SUPRA) AND IN THE CASE OF NATIONAL LEGGUARD (S UPRA). THE LD. 'AR' FOR THE APPLICANT HAS FAIRLY ADMITTED THAT THERE WAS NO DISPUTE AGAINST THE FINDINGS OF THE TRIBUNAL. THE APPLICANT HAD ALSO PREFERRED APPEALS AGAINST THE ORDER OF THE TRI BUNAL BEFORE THE HON'BLE JURISDICTIONAL HIGH COURT, WHICH HAD BE EN ADMITTED AND QUESTIONS OF LAW HAVE BEEN FRAMED. THE PRESENT MISCELLANEOUS APPLICATIONS MOVED BY THE ASSESSEE TA NTAMOUNTS TO RE-ARGUING THE APPEAL, WHICH IS NOT PERMISSIBLE UNDER THE PROVISIONS OF SECTION 254(2) OF THE ACT, AS WHAT IS ALLOWED IS RECTIFICATION OF ANY ERROR APPARENT FROM RECORD. T HE REVIEW OF THE ORDER PASSED BY THE TRIBUNAL IS NOT ALLOWED BY WAY OF MISCELLANEOUS APPLICATION FILED U/S 254(2) OF THE A CT. THUS, WE DISMISS THE MISCELLANEOUS APPLICATIONS FILED BY TH E APPLICANT. 6. IN THE RESULT, MISCELLANEOUS APPLICATIONS ARE DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 28 TH DAY OF JANUARY,2013. SD/- SD/- (T.R.SOOD) (SUSHMA CHOWLA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 28 TH JAN.,2013. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT CHANDIGARH.