The ITO, Daman Ward, Nani Daman V. M/s. Jalaram Plast Pack, Nani Daman

MA 172/AHD/2016

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3370 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 11 month(s) 21 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-09-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 14-09-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SEEKING RECALL OF DATED IN APP
• Keywords: Audit objection; Tax effect
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER MA NO. 172/AHD/2016 [ARISING OUT OF ITA NO. 1812/AHD/2015 FOR AY.2008-09] ( VIRTUAL HEARING IN VIRTUAL COURT) INCOME TAX OFFICER, DAMAN WARD, DAMAN, NANI DAMAN. VS M/S. JALARAM PLAST PACK, 1 ST FLOOR, S. NO.200/4, GALA NO.1, PANCHAL UDYOG NAGAR, BHIMPORE, NANI DAMAN -396210 PAN : AAEFJ3685L APPELLANT RESPONDEDNT REVENUE BY SHRI O P MEENA SR. DR ASSESSEE BY SHRI PARIMAL SINGH PARMAR AR DATE OF HEARING 04-09-2020 DATE OF PRONOUNCEMENT 04-09-2020 O R D E R PER PAWAN SINGH, JUDICIAL MEMBER : 1. THIS MISCELLANEOUS APPLICATION (MA) IS FILED BY THE REVENUE FOR SEEKING RECALL OF THE ORDER DATED 16.12.2015. IN THE APPLICATION, THE APPLICANT/REVENUE AS CONTENDED THAT THIS APPEAL WAS DISMISSED BY TRIBUNAL VIDE ORDER DATED 16.12.2015 ON ACCOUNT OF TAX EFFECT OF RS.1,66,950/-, BEING LOWER THAN THE MONETARY TAX UNIT PRESCRIBED IN CBDTS CIRCULAR NO.21 OF 2015. IT IS FURTHER CONTENDED THAT THAT WHILE DECIDING THE APPEAL, THE TRIBUNAL GRANTED LIBERTY TO THE REVENUE TO APPROACH THE TRIBUNAL TO RECALL THE ORDER IN CASE THE APPEAL IS COVERED BY THE EXCEPTIONS IN PARA 8 2 MA NO. 172/AHD/2016 IN ITA. 1812/AHD/2015 M/S. JALARAM PLAST PACK (AY-2008-09) OF THE SAID CIRCULAR. THE REVENUE FURTHER STATED THAT PRESENT APPEAL IS COVERED BY EXCEPTION 8(C) OF CBDTS INSTRUCTION NO. 5/2014 AS THE ADDITIONS IN THE ASSESSMENT ORDER WAS BASED ON AUDIT OBJECTION. THE ADDITION WERE WITH REGARD TO NON-AVAILABILITY OF DEDUCTION OF SECTION 80IB ON EXCISE REFUND AND JOB WORK AS THE SAID RECEIPTS FALLS UNDER THE INCOME FROM OTHER SOURCES. 2. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENUE MADE HIS SUBMISSION WITH FEW SIMILAR LINES. THE LD. DR SUBMITS THAT PRESENT APPEAL WAS CLEARLY COVERED BY PARA 8 (C) OF CBDTS CIRCULAR NO. 5 OF 2014 AND WAS NOT LIABLE TO BE DISMISSED DUE TO LOW TAX EFFECT. 3. ON THE OTHER HAND, THE LD. AUTHORIZED REPRESENTATIVE (AR) OF THE ASSESSE SUBMITS THAT THE CBDT IN ITS CIRCULAR NO. 5 OF 2017 DATED 23.02.2017 CLARIFIED ABOUT PARA 8 C OF CIRCULAR NO. 5 OF 2014 AND CLARIFIED THAT PARA 8 (C) OF THE SAID CIRCULAR IS BEING ERRONEOUSLY INTERPRETED AND APPEALS ARE BEING FILED MECHANICALLY BY THE DEPARTMENT WITHOUT PROPER EXAMINATION OF THE CASE ON MERIT AND CLARIFIED THAT ERROR AND CONTENT OF PARA 8 (C) OF CIRCULAR NO. 21 OF 2015 IS THAT EVEN ON ISSUES MENTIONED IN THE SAID PARA, APPEALS AGAINST THE ADVERSE JUDGMENT SHOULD ONLY BE FILED ON MERITS. IN PARA 4 OF THE SAID CIRCULAR, IT WAS DIRECTED THAT IF APPEAL MAY HAVE BEEN FILED IN VIOLATION OF THIS INSTRUCTION, MAY BE WITHDRAWN. THE LD. AR PLACED ON RECORD THE COPY OF CIRCULAR NO.5 OF 2015. 3 MA NO. 172/AHD/2016 IN ITA. 1812/AHD/2015 M/S. JALARAM PLAST PACK (AY-2008-09) 4. THE LD. AR FOR THE ASSESSEE ALSO RELIED ON THE DECISION OF AHMEDABAD TRIBUNAL IN DCIT VS. MALAY JAYENDRABHAI DALAL IN MA 363/AHD/2019 (IN ITA NO.324/AHD/2019, AY.2011-12) DATED 20.01.2020, ITO VS. ASHOKKUMAR HARIKISHANBHAI BHAVSAR IN MA 332/AHD/2019 (IN ITA NO.2487/AHD/2018, AY.2012-13) DATED 06.01.2020 AND THE DECISION OF BOMBAY HIGH COURT IN PCIT VS. NAWANAY CONSTRUCTION CO. P. LTD (2018) 98 TAXMANN.COM 294 (BOMBAY). THE LD. AR FOR THE ASSESSEE PRAYED FOR DISMISSAL OF THE MA. 5. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD ACCORDINGLY. THE TRIBUNAL VIDE ORDER DATED 10.12.2015 DUE TO LOW TAX EFFECT IN VIEW OF CBDT CIRCULAR NO. 21 OF 2015 DATED 10.12.2015. IN THE PRESENT APPLICATION THE APPLICANT/ REVENUE CONTENDED THAT THE ADDITIONS IN THE ASSESSMENT ORDER WAS BASED ON AUDIT OBJECTION AS REVENUE AUDIT RAISED OBJECTIONS ABOUT NON-AVAILABILITY OF SEDUCTION UNDER SECTION 80IB AND EXCISE REFUND AND JOB WORK INCOME RECEIPT COMES UNDER THE HEAD OTHER SOURCES. FOR THE APPRECIATIONS OF THE FACTS WERE HAVE PERUSED THE IMPUGNED ORDER OF LD. CIT(A) DATED 16.04.2015, WE FIND THAT LD. CIT(A) DELETED THE ADDITIONS/ DISALLOWANCE ON MERIT. IN OUR VIEW THE APPEAL THE APPEAL WOULD NOT BE MAINTAINABLE, SIMPLY BECAUSE THE CASE FALLS UNDER THE ALLEGED EXCEPTION CLAUSE 8(C) OF CBDT CIRCULAR. 4 MA NO. 172/AHD/2016 IN ITA. 1812/AHD/2015 M/S. JALARAM PLAST PACK (AY-2008-09) 6. WE HAVE FURTHER NOTED THAT COORDINATE BENCH OF AHMEDABAD TRIBUNAL IN DCIT VS MALAY JAYENDRABHAI PATEL (SUPRA),WHILE CONSIDERING SIMILAR CONTENTION OF THE REVENUE ON SIMILAR MA, AFTER RELYING ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN PCIT VS NAWANY CONSTRUCTION CO P LTD (SUPRA) HELD AS UNDER; 5. THE HONBLE BOMBAY HIGH COURT HAS CONSIDERED THIS CIRCULAR AND OBSERVED THAT MERE RAISING AN AUDIT OBJECTION IS NOT SUFFICIENT FOR RECALL OF THE ORDER. THE RELEVANT PART OF THE DISCUSSION OF THE HONBLE BOMBAY HIGH COURT HAS HELD AS UNDER: 8. IT IS CONCEDED THAT WHILE SEEKING TO RESTORE INCOME TAX APPEAL NO.254 OF 2013 ON THE FILE OF THIS COURT, NEITHER THE REVENUES CIRCULAR DATED 11-7-2018 IS REFERRED NOR ANY CONDITION THEREIN. IF THE CONDITION NOW RELIED UPON IS WITH REGARD TO THE REVENUE AUDIT OBJECTION, THEN, MERE RAISING OF THIS OBJECTION IN TERMS OF THIS CIRCULAR IS NOT ENOUGH. THE REVENUE WILL HAVE TO POINT OUT THAT THIS AUDIT OBJECTION HAS BEEN ACCEPTED BY THE DEPARTMENT. WE HAVE NO SUCH RECORD BEFORE US. 9. IN THE CIRCUMSTANCES, WE FIND THAT THIS IS AN ATTEMPT TO GET OVER THE BINDING CIRCULARS AND IN ANY CASE WE SHALL NOT ALLOW THE REVENUE TO GET OVER THEM IN THIS MANNER. THE CIRCULARS CONTINUE TO BIND THE REVENUE AND IF THEY CONTAIN ANY CONDITIONS, WHETHER SUCH CONDITIONS ARE ATTRACTED OR NOT WOULD HAVE TO BE PROVED AND ESTABLISHED BY THE REVENUE. ONCE THERE IS NO SUCH RECORD BEFORE US, WE DO NOT COUNTENANCE THE ORAL REQUEST OF MR. PINTO. CONSEQUENTLY, WE DO NOT SEE ANY REASON TO ENTERTAIN THIS APPEAL. IT IS DISMISSED. 6. THE LD.DR WAS UNABLE TO CONTROVERT THE ABOVE POSITION. 7. ON DUE CONSIDERATION OF ALL THESE FACTS, CIRCULARS OF THE BOARD, AS ALSO IN THE LIGHT OF HONBLE BOMBAY HIGH COURT DECISION ALL CITED (SUPRA), WE ARE OF THE VIEW THAT DEPARTMENT HAS NOT BROUGHT ANY SUBSTANTIAL MATERIAL ON THE RECORD POINTING OUT THAT APPEAL WAS FILED AFTER MA NO.363/AHD/2019 4 EVALUATION OF MERIT ON THE ISSUES INVOLVED. IT SOUGHT TO RECALL ORDER OF THE TRIBUNAL MERELY ON THE BASIS OF AUDIT OBJECTION, WHICH IS NOT SUFFICIENT FOR RECALLING THE TRIBUNAL ORDER. THEREFORE, WE DO NOT FIND ANY ERROR IN THE ORDER OF THE TRIBUNAL AND THE MISCELLANEOUS APPLICATION IS REJECTED. 7. THE LD. CIT(A) DR FOR THE REVENUE AT THE TIME OF HEARING COULD NOT BRING ANY MATERIAL TO OUR NOTICE TO DEMONSTRATE THAT THE APPEAL WAS FILED AFTER EVALUATION OF CASE ON MERIT ON THE ISSUES 5 MA NO. 172/AHD/2016 IN ITA. 1812/AHD/2015 M/S. JALARAM PLAST PACK (AY-2008-09) INVOLVED IN THE APPEAL. CONSIDERING THE AFORESAID FACTUAL AND LEGAL DISCUSSION, WE DO NOT FIND ANY MERIT IN THE MA FILED BY THE REVENUE. HENCE, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS DISMISSED. 8. IN THE RESULT, THE MA OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 04/09/2020. SD/- SD/- (DR. ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER SURAT, DATED: 04/09/2020 SAMANTA, PS COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR // TRUE COPY // /TRUE CO/// TRUE BY ORDER ASSISTANT REGISTRAR, SR. PS/ PS ITAT, SURAT