Dhanshree Agro Polyproducts, Ahmedabad V. The ACIT.,Circle-7, Ahmedabad

MA 172/AHD/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9586 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-12-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2003-2004
• Appeal Filed On: 10-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T SANKAR
• Assessee Lawyers: U S BHATI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD (BEFORE SHRI MUKUL KR. SHRAWAT, JM AND SHRI A. MOHA N ALANKAMONY, AM) M.A. NO.172/AHD/2012 (IN ITA NO.423/AHD/2010: A.Y.: 2003-04) M/S. DHANSHREE AGRO POLYPRODUCTS, S/6, GOLD COIN COMPLEX, 2 ND FLOOR, SATELLITE ROAD, AHMEDABAD P. A. NO. AABFD 5070 A VS THE A. C. I. T., CIRCLE-7, C. U. SHAH BUILDING, OFF. ASHRAM ROAD, AHMEDABAD (APPLICANT) (RESPONDENT) APPLICANT BY SHRI U. S. BHATI, AR RESPONDENT BY SHRI T. SANKAR, SR. DR DATE OF HEARING: 07-12-2012 DATE OF PRONOUNCEMENT: 07-12-2012 O R D E R PER A. MOHAN ALANKAMONY: THIS MISC. APPLICATION IS FILED BY THE ASSESSEE REQUESTING FOR RECTIFICATION OF THE OR DER OF THE TRIBUNAL DATED 01-06-2012 PASSED IN ITA NO. 423/AHD/2010 FOR THE A SSESSMENT YEAR 2003-04. 2. THE ASSESSEE IN THIS MISC. APPLICATION HAS STATE D THAT FORM THE FINDING OF THE TRIBUNAL WHILE DISPOSING OF THE ASSE SSEES APPEAL IN ITA NO.423/AHD/2010 DATED 01-06-2012, IT IS APPARENT TH AT THE APPEAL OF THE ASSESSEE HAS BEEN ALLOWED WHEREIN IT WAS HELD AS UN DER: 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CAREFUL LY PERUSED THE MATERIALS ON RECORD BEFORE US. IT IS ADMITTED F ACT THAT THE ASSESSEE HAD GENUINELY SUFFERED LOSS OF RS.3,254,18 6/- DUE TO DEPOSIT KEPT IN BANK DURING THE COURSE OF ITS BUSIN ESS. DURING THE CONDUCT OF THE BUSINESS IT IS AN INHERENT NATURE FO R ANY BUSINESS HOUSE TO DEPOSIT ITS SURPLUS FUNDS IN THE BANK OR I N ANY FINANCIAL M. A. NO.172/AHD/2012 - (IN ITA NO.423/AHD/2010 (AY : 2003-04) M/S. DHANSHREE AGRO POLYPRODUCTS VS ACIT, CIR-7, AH MEDABAD 2 INSTITUTIONS FOR PRESERVING ITS FUNDS. THESE KIND OF SHORT DEPOSITS ARE RECALLED AS AND WHEN THE BUSINESS REQUIRES THE FUND S. IN FACT, THE FUNDS ARE KEPT IN FIXED DEPOSIT IN BANKS/FINANCIAL INSTITUTIONS READY FOR USE. THEREFORE, AS STATED BY THE ASSESSEE DEPEN DING UPON EACH AND EVERY TRANSACTION THE ISSUE BECOMES DEBATABLE W HETHER SUCH LOSS IS CAPITAL LOSS OR REVENUE LOSS. FURTHER, RELY ING ON THE ORDER OF THE HONBLE APEX COURT CITED BY THE ASSESSEE IN THE CASE OF CIT VS RELIANCE PETROPRODUCTS PVT. LTD. WHEREIN IT HAS BEE N HELD THAT A MERE MAKING OF CLAIM WHICH IS NOT SUSTAINABLE IN LA W, BY ITSELF, WOULD NOT AMOUNT TO FURNISHING OF INACCURATE PARTIC ULARS REGARDING INCOME OF THE ASSESSEE. SUCH A CLAIM MADE IN A RETURN NOT AMOUNTING TO FURNISHING OF INACCURATE PA RTICULARS WE ARE OF THE CONSIDERED VIEW THAT IN SUCH CIRCUMSTANC ES PENALTY IS NOT LEVIABLE ESPECIALLY WHEN THE ISSUE IS DEBATABLE. MO REOVER, FROM THE FACTS OF THE CASE IT IS APPARENT THAT THE ASSESSEE HAS NOT CONCEALED ANY PARTICULARS OF INCOME OR FURNISHED ANY INACCURA TE PARTICULARS. THEREFORE, WE HEREBY DELETE THE PENALTY LEVIED BY T HE REVENUE ON THE ISSUE OF UNREALIZABLE FIXED DEPOSIT KEPT IN BAN K WRITTEN OFF AMOUNTING TO RS.3,25,186/- DUE TO CESSATION OF THE FUNCTIONING OF THE BANK. IT WAS, FURTHER PLEADED BY THE APPLICANT THAT IN PA RA 7 OF THE SAID ORDER OF THE TRIBUNAL IT WAS STATED THAT IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED INSTEAD OF STATING IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED AND PRAYED THAT THIS APPARENT MISTAKE MAY BE RECT IFIED. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND GONE THR OUGH THE ORDER OF THE TRIBUNAL DATED 01-06-2012 IN ITA NO.423/AHD/201 0. ON PERUSAL OF THE ORDER IT IS FOUND THAT BY INADVERTENT OVERSIGHT IN PARA 7 OF THE AFORESAID ORDER THE MISTAKE POINTED OUT BY THE APPLICANT HAS BEEN COMMITTED WHICH AMOUNTS TO BE AN APPARENT MISTAKE WHICH REQUIRES TO BE RECTIFIED BY INVOKING THE PROVISIONS OF SECTION 254(2) OF THE AC T. THEREFORE, WE HEREBY RECTIFY THE MISTAKE AND ACCORDINGLY HOLD THAT PARA 7 OF THE AFORESAID ORDER SHOULD HENCEFORTH BE READ AS UNDER:- 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. M. A. NO.172/AHD/2012 - (IN ITA NO.423/AHD/2010 (AY : 2003-04) M/S. DHANSHREE AGRO POLYPRODUCTS VS ACIT, CIR-7, AH MEDABAD 3 4. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 07-12-2012 SD/- SD/- (MUKUL KR. SHRAWAT) JUDICIAL MEMBER (A. MOHAN ALANKAMONY) ACCOUNTANT MEMBER LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA DEKA/ DEKA/ DEKA/ 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 A SST. REGISTRAR, ITAT, AHMEDABAD 1. DATE OF DICTATION: 07-12-2012 (DIRECT ON COMPUTE R) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE T HE DICTATING MEMBER: 10-12-2012/ 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: 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: