Appeal details
Counselvise Citation
[2019] 116 COUNSELVISE.COM (IT) 5748 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
4 month(s) 4 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
07-08-2019
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
D
Assessment Year
2011-2012
Appeal Filed On
02-04-2019
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH BEFORE: SHRI AMARJIT SINGH, ACCOUNTANT MEMBER & SMT. MADHUMITA ROY, JUDICIAL MEMBER M/S. JAY CHEMICAL INDUSTRIES LTD., JAY HOUSE, PANCHAVATI CIRCLE, AMBAWADI, AHMEDABAD- 380006 VS. DCIT (OSD)-1, CIRCLE-4, AHMEDABAD & DCIT, CIR. 2(1)(2), AHMEDABAD (APPELLANT) ( RESPONDENT) PAN: AAA CJ7 625 J REVENUE BY: SHRI NIMESH VAYAWALA, AR ASSESSEE BY: SHRI VINOD TANWANI, SR. DR DATE OF HEARING : 05-07-2019 DATE OF PRONOUNCEMENT : 07-08-2019 /ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:- THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICAT ION AGAINST THE DECISION OF ITAT VIDE ITA NO. 305/AHD/ 2015 AND C.O . NO. 41/AHD/2015. IT IS SUBMITTED IN THE MISCELLANEOUS APPLICATION TH AT WHILE REFERRING THE DECISION OF WEST COAST PAPER MILLS PVT. LTD. VS. CI T (2014) 52 TAXMAN.COM 268 (MUM-TRIB). IT IS HELD THAT WE DO NOT FIND AN Y ERROR IN THE DECISION OF M.A. NO. 172/AHD/2019 (IN ITA NO. 305/AHD/2015) ASSESSMENT YEAR 2011-12 M.A. NO. 185/AHD/2019 (IN CO NO. 41/AHD/2015) ASSESSMENT YEAR 2011-12 M.A. NOS.172/AHD/2019 & 185/AHD/2019 A.Y. 2011-12 JAY CHEMICALS INDUSTRIES LTD. VS. DCIT 2 THE LD. CIT(A) THEREFORE, THIS GROUND OF APPEAL OF REVENUE IS DISMISSED. IT IS ALSO SUBMITTED THAT THE CO-ORDINATE BENCH HAS DI SMISSED THE C.O. NO. 41/AHD/2015 FILED BY THE ASSESSEE STATING THAT CROS S OBJECTION HAS NOT BEEN PRESSED. 2. HOWEVER, IT IS SUBMITTED THAT DECISION OF WEST C OAST PAPER MILLS PVT. LTD. WAS REFERRED IN CONNECTION TO THE CROSS OBJECT ION OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION AND LD. CIT(A) HAS ALREADY HELD THAT STEAM WAS NOT POWER FOR SEC. 80IA(IV) AND THERE WAS NO APPEAL BY THE REVENUE ON THAT GROUND OR POINT. CONSIDERING ABOVE THE RELEVANT PA RT OF THE MISCELLANEOUS APPLICATION OF THE ASSESSEE IS REPRODUCED AS UNDER: - RESPECTFULLY FOLLOWING THE DECISION OF THE CO-ORDI NATE BENCH OF ITAT MUMBAI SUPRA ON IDENTICAL ISSUE AND FACTS AND AFTER CONSID ERING THE DETAILED FINDINGS OF THE LD. CIT(A) , WE DO NOT FIND ANY ERROR IN THE DE CISION OF LD. CIT(A), THEREFORE, THIS GROUND OF APPEAL OF REVENUE IS DISMISSED. THUS, IT IS CLEAR THAT ITAT HAS CONCURRED WITH THE VIEW THAT STEAM IS POWER. HOWEVER, AS THE CIT(A) HAS ALREADY HELD THAT STEAM IS NOT POWER FOR 80IA(IV) THERE WAS NO APPEAL BY THE REVENUE ON THAT GROUND O R POINT. THE JOINT ORDER IS PASSED FOR A.Y. 2010-11 AND 201 1-12 THE MATTER NOS ITA NO. 2693/AHD/2014 AND CO NO 01/AHD/2015 FOR 2010-11 AND ITA NO 305/AHD/2015 AND CO NO 41/AHD/2015 2011-12. BOTH THE APPEALS WER E HEARD ONE AFTER THE ANOTHER. THE CO NO 01/AHD/2015 WAS NOT PRESSED AND THE HEARI NG FOR APPEAL NO A.Y. 2010-11 WAS CONCLUDED. THEN AFTER THE APPEAL FOR A. Y. 2011-12 WAS TAKEN UP. THE HON'BLE ITAT HAS NOTED THAT CO 41 /AND/2015 WAS NOT PRESSED. IN FACT ONLY CO NO 01/AHD/2015 FOR THE YEAR WAS NOT PRESSED. THE CO FOR A.Y. 2011-12 WAS AGAINST THE FINDING OF THE CIT(A) THAT STEAM IS NOT POWER. IN THIS CONNECTION THE HON'BLE ITAT WITH DUE RESPECT CORRECTLY ARRIVED AT CONCURRENCE WITH THE COORDINATE BENCH IN THE CASE O F WEST COAST PAPER MILLS MUM. HOWEVER, THIS FINDING WAS RECORDED IN CONNECTI ON WITH THE CO OF THE ASSESSEE. THE ASSESSEE HAS IN THE CO RAISED THE FOL LOWING GROUNDS. THE LOWER AUTHORITIES OUGHT TO HAVE FOLLOWED THE D ECISIONS OF VARIOUS BENCHES OF HOB'BLE ITAT INCLUDING THE DECISION IN 52 TAXMAN N.COM 268 AND HAVE HELD M.A. NOS.172/AHD/2019 & 185/AHD/2019 A.Y. 2011-12 JAY CHEMICALS INDUSTRIES LTD. VS. DCIT 3 THAT STEAM IN ANY FORM IS POWER AND THE PROFIT FROM THE SAME IS ELIGIBLE FOR DEDUCTION VIDE SECTION 80IA. THE LOWER AUTHORITIES MAY BE DIRECTED TO COMPUTE THE DEDUCTION VIDE SECTION 80IA ACCORDINGLY AFTER C ONSIDERING THAT A.Y. 2011-12 BEING THE INITIAL ASSESSMENT YEAR AS HELD BY LD. CI T(A) THE BROUGHT FORWARD LOSSES WHICH ARE ALREADY ABSORBED AGAINST OTHER INC OME ARE NOT TO BE DEDUCTED FOR COMPUTING THE RELIEF VIDE SECTION 80IA, THE FIN DING GIVEN ON THAT ASPECT BY LEARNED CIT(A) BEING CORRECT. THE CO CLEARLY AGITATES THE FINDING OF THE LOWER AU THORITIES THAT STEAM IS NOT POWER THUS, IT WAS INCORRECT TO RECORD THE FINDING THAT C O WAS NOT PRESSED. IN FACT BY REFERRING TO VARIOUS DECISIONS INCLUDING WEST COAST PAPER MILLS LIMITED THE AR DID ARGUE THE CO IN DETAIL. IT MAY BE NOTED THAT TH E HON'BLE ITAT HAS IN THIS ORDER ITSELF REACHED THE CONCLUSION THAT STEAM IS A FORM OF POWER AND HAS EFFECTIVELY DISPOSE OFF THE GROUNDS IN THE CO IN FA VOR OF THE ASSESSEE. THUS, THERE IS MISTAKE APPARENT FROM RECORD. AFTER FOLLOWING THE DECISION OF WEST COAST PAPER MI LLS AS DONE BY THE HON'BLE ITAT THE FINDING OUGHT TO BE THAT THE ISSUE RAISED IN CO STANDS ALLOWED THE ASSESSEE HAS ALSO RELIED UPON THE FOLLOWING DEC ISIONS IN THE PAPER BOOK DEPUTY C.I.T. VS. VISHAL FABRICS PVT. LTD. (PAGE NO . 128 TO 140 OF PAPER BOOK FILLED ON 11/12/2018) A.C.I.T. VS. J.H. KHARAWALA PVT. LTD. (PAGE NO. 112 TO 123 OF PAPER BOOK FILLED ON 11/12/2018) (BOTH THE ABOVE DECISIONS ALLOW STEA M AS POWER FOR 80 IA) IN VIEW OF THE ABOVE THE FINDING OF THE ITAT THAT C O NO 41/AHD/2015 WAS NOT PRESSED IS A MISTAKE AND HAS TO BE RECTIFIED. IN FACT, THE CO FOR A.Y. 2011-12 WAS ARGUED AND HEN CE THE REFERENCE TO WEST COAST PAPER MILLS. FOR THE SAKE OF ARGUMENT, IT IS TAKEN THAT CO WAS NOT ARGUED THEN ALSO THE DECISION HAS TO BE ON MERITS. WE SHALL LIKE TO PLACE ON RECORD THAT WRONG CONCESS ION BY THE COUNCIL IS NOT BINDING. IN FACT, THE DECISIONS ARE TO BE GIVEN NOT ON THE BASIS OF CONCESSIONS BUT ON FACTS AND LAW INVOLVED IN THE MATTER. UNION OF INDIA & ANR V. S.C. PARASHAR (SUPREME COUR T OF INDIA) APPEAL (CIVIL) 1267 OF 2006 THE CENTRAL COUNCIL FOR RESEARCH V. DR. K. SANTHAKU MARI (SUPREME COURT OF INDIA) APPEAL (CIVIL) 3595 OF 2001 M.A. NOS.172/AHD/2019 & 185/AHD/2019 A.Y. 2011-12 JAY CHEMICALS INDUSTRIES LTD. VS. DCIT 4 THE DEPUTY COMMISSIONER OF INCOME TAX V. K.S. SURES H (MADRAS HIGH COURT) WRIT APPEAL NO. 766 TO 771 OF 2005 WE THEREFORE REQUEST TO RECTIFY THE MISTAKE BY PASS ING THE ORDER VIDE SECTION 254(2). 3. IN THE LIGHT OF THE ABOVE FACTS AND CIRCUMSTANC ES WE OBSERVE THAT THERE IS APPARENT ERROR IN ADJUDICATION OF GROUND O F APPEAL NO. 4 OF THE REVENUE AND NOT ADJUDICATING OF C.O. NO. 41/AHD/201 5 FILED BY THE ASSESSEE. AND FURTHER THE ASSESSEE FILED HIS SUBMI SSION DATED 21.06.2019 HAS FURTHER REFERRED THE OTHER DECISION WHICH ARE REPRO DUCED AS UNDER:- IN THE RECENT DECISION IN THE CASE OF SUN PHARMACE UTICALS LIMITED THE VIEW HAS BEEN TAKEN THAT VIEW OF THE COORDINATE BENCH IS TO BE FOLLOWED. IN THE CASE OF J.H. KHARAWALA PVT. LIMITED, FILED I N THE PAPER BOOK THE BENCH HAS TAKEN THE VIEW THAT STEAM IS EQUIVALENT TO POWER. T HE OTHER DECISION OF VISHAL FABRICS IS ALSO FILED IN PAPER BOOK. THUS, IN VIEW OF THE EARLIER DECISIONS OF AHMEDABAD BENCH THE STEAM IS FORM OF POWER. AS THE VIEW OF THE FAA IS NOT IN LINE WITH THE SAME THE CO WAS FILED. THE ORDER REQUIRES THE MODIFICATION TO THAT EXTENT. WHEN THE ITAT HAS AGREED THAT STEAM IS IN FORM OF POWER THE ORDER HAS TO BE MODIFIED TO TH AT EXTENT AS THE AHMEDABAD ITAT HAS EARLIER TAKEN THE VIEW TH E BENCH CANNOT DIFFER FROM THE SAME. EXTRACT FROM THE ORDER OF SUN PHARMACEUTI CALS LINRTED ITA NO. 922/ 929/234/1237 OF 2017. MOREOVER, WE ARE BOUND TO FOLLOW THE ORDER OF THIS TRIBUNAL IN THE OWN CASE OF THE ASSESSEE IN THE EARLIER YEAR AS THE FACTS ARE I DENTICAL IN THE IMPUGNED ISSUE BEFORE US. IT IS ALSO IMPORTANT TO NOTE THAT THE LD . DR HAS NOT BROUGHT ANYTHING ON RECORD CONTRARY TO THE ARGUMENT ADVANCED BY THE LD. COUNSEL FOR THE ASSESSEE AND THE FINDING OF THE LD. CIT-(A). 38.1 WE ALSO PLACE OUR RELIANCE ON THE JUDGMENT OF HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT V. L.G. RAMAMURTHI 1977 CTR (MAD .) 416 : [1977] 110 ITR 453 (MAD.). THE RELEVANT EXTRACT HAS BEEN REPRODUCE D IN THE PRECEDING PARAGRAPH. IN THE LIGHT OF THE RATIO DECIDENDI IN T HE ABOVE-SAID JUDGMENT, WE ARE OF THE CONSIDERED OPINION THAT THE VIEW ADOPTED BY THE CO-ORDINATE BENCH AS DISCUSSED ABOVE SHALL BE APPLIED IN THE CASE ON HAN D WITH FULL STRENGTH. THE ID. DR AND THE ID. AR HAS NOT BROUGHT ANY DECISIONS VAR YING FROM SIMILAR OR IDENTICAL FACTS OR CIRCUMSTANCES. THEREFORE, THE RATIO DECIDE NDI RENDERED BY THE EARLIER ITA M.A. NOS.172/AHD/2019 & 185/AHD/2019 A.Y. 2011-12 JAY CHEMICALS INDUSTRIES LTD. VS. DCIT 5 NOS.922 & 1234/AHD/2017 (BY REVENUE) AND ITA NOS.92 9 & 1237/AHD/2017 (BY ASSESSEE) DCIT VS. SUN PHARMACEUTICALS INDS. LTD. V S. DCIT ASST YEARS - 2010-11 & 2012. ORDER OF THE TRIBUNAL HAS NECESSARILY TO BE FOLLOWE D BY US IN LINE AND TUNE WITH THE JUDICIAL DISCIPLINE AND DECORUM. IN VIEW OF THE ABOVE AND RESPECTFULLY FOLLOWING THE ITAT ORDER AS DISCUSSED ABOVE, WE ALL OW THE GROUND OF APPEAL OF THE ASSESSEE AND DISMISS THE GROUND OF APPEAL OF TH E REVENUE. IN THE END WE SHALL LIKE TO MENTION THAT AN INADVER TENT ERROR OF THE ITAT SHOULD NOT PREJUDICE ANY LITIGANT. THE RELIANCE IS PLACED UPON, 1. HONDA SIEL POWR PRODUCTS LTD. V. COMMISSIONER OF INCOME TAX 165 TAXMAN 307 (SUPREME COURT OF INDIA) 2. APEX THERM PACKAGING (P.) LTD. V. INCOME TAX OFF ICER 42 TAXMANN.COM 98 (HIGH COURT OF GUJARAT) 3. HINDUSTAN LEVER LTD. V. JOINT COMMISSIONER OF IN COME TAX, SPECIAL RANGE-2, CALCUTTA 104 TAXMANN.COM 215 (HIG H COURT OF CALCUTTA) 4. CONSIDERING THE MATERIAL REFERRED BY THE ASSESSE E IN HIS SUBMISSION AND THE MATERIAL FACT THAT CROSS OBJECTION OF THE A SSESSEE WAS DISMISSED ON THE GROUND THAT IT WAS NOT PRESSED, WE ALLOW THE MI SCELLANEOUS APPLICATION OF THE ASSESSEE TO THE LIMITED EXTENT OF GROUND NO. 4 OF THE REVENUE, HOWEVER, C.O. NO. 41/AHD/2015 OF THE ASSESSEE TO BE ADJUDICA TED A FRESH AFTER CONSIDERING THE MATERIAL REFERRED BY THE ASSESSEE. IN RESPECT OF GROUND NO. 4 OF THE REVENUE IT IS NOTICED THAT PARA NO. 17 AND P ARA NO. 18 OF THE ORDER ARE MISTAKENLY REPORTED WHILE ADJUDICATING THE GROUND N O. 4 OF THE REVENUE, THEREFORE IN PLACE OF PARA 17 AND PARA 18 THE FINDI NGS OF THE ITAT BE READ AS UNDER:- WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED TH E MATERIAL ON RECORD. AFTER CONSIDERING THE DECISIONS OF CO-ORDINATE BENCHES OF THE ITAT AHMEDABAD AS REPORTED IN PARA 4 OF THE ORDER LD. CIT(A) WE DO NO T FIND ANY ERROR IN THE DECISION OF THE LD. CIT(A). THEREFORE, GROUND NO. 4 OF APPEAL OF REVENUE IS DISMISSED. SINCE THERE IS NO SPECIFIC ADJUDICATION OF C.O. NO . 41/AHD/2015 OF THE ASSESSEE AND IT IS REQUIRED TO BE ADJUDICATED SPECI FICALLY BY SPEAKING ORDER, M.A. NOS.172/AHD/2019 & 185/AHD/2019 A.Y. 2011-12 JAY CHEMICALS INDUSTRIES LTD. VS. DCIT 6 THEREFORE, WE CONSIDER THAT THERE IS APPARENT MISTA KE IN THE ORDER OF ITAT FOR ADJUDICATING THE C.O. NO. 41/AHD/2015 FILED BY THE ASSESSEE. ACCORDINGLY, MISCELLANEOUS APPLICATION OF THE ASSESSEE IS ALLOWE D TO THE EXTENT OF CORRECTING THE FINDING OF THE ITAT AS ABOVE IN RESP ECT OF GROUND NO. 4 OF THE REVENUE. THE C.O. NO. 41/AHD/2015 OF THE ASSESSEE IS TO BE ADJUDICATED A FRESH AS THE SAME WAS DISMISSED ON THE GROUND THAT IT WAS NOT PRESSED. ACCORDINGLY, THE REGISTRY IS DIRECTED TO FIX THE CA SE FOR HEARING IN DUE COURSE FOR ADJUDICATING THE C.O. NO. 41/AHD/2015 FILED BY THE ASSESSEE. IN THE RESULT, CROSS OBJECTION OF THE ASSESSEE IS ALLOWED TO THE TERM AND CONDITION AS MENTIONED ABOVE IN THIS ORDER. 5. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 07-08-201 9 SD/- SD/- (MADHUMITA ROY) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 07/08/2019 TANMAY TRUE COPY / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,
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