The Dy. Commissioner of Income-tax, Phagwara V. M/s. PMS Diesels, Phagwara

MA 18/ASR/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9236 (ITAT-AMRITSAR)
• Duration Of Justice: 2 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-10-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 05-10-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 09-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: R L CHHANALIA
• Assessee Lawyers: RAVISH SOOD
• Keywords: Rectification of order; Notional interest; Commercial expediency

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER M.A. NO.18(ASR)/2012 (ARISING OUT I.T.A. NO.457(ASR)/2012) ASSESSMENT YEAR:2005-06 PAN : DY. COMMR. OF INCOME TAX VS. M/S. P.M.S. DIESELS, PHAGWARA CIRCLE, G.T.ROAD, PHAGWARA. PHAGWARA. (APPELLANT) (RESPONDENT) APPELLANT BY:SH. R.L.CHHANALIA, DR RESPONDENT BY:SH.RAVISH SOOD, ADV. DATE OF HEARING:05/10/2012 DATE OF PRONOUNCEMENT:05/10/2012 ORDER PER BENCH ; THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS AP PLICATION AGAINST THE ORDER OF THE ITAT, AMRITSAR BENCH, DATED 26.09. 2009, PASSED IN ITA NO.457(ASR)/2009, FOR THE ASSESSMENT YEAR 2005-06. THE REVENUE HAS SUBMITTED FOLLOWING WRITTEN SUBMISSIONS DATED 17.02 .2012: SUB: RECTIFICATION OF MISTAKE IN THE ORDER IN THE CASE OF DCIT, PHAGWARA VS. P.M.S. DIESELS, G.T.ROAD, PHAGWARA (IT A NO.457/2008) ISSUED ON 26.06.2009 REG. 2 THE ORDER IN THE AFORESAID CASE WAS PRONOUNCED BY HONBLE ITAT AMRITSAR BENCH ON 26.06.2009. THE OPERATIVE PART OF THE DECISION ON PAGE NO.18 OF THE ORDER RECORDS AS UNDER: THE ARGUMENTS PLACED BEFORE THE LD. CIT(A) AS WELL AS BEFORE US ARE CONTRARY TO THE FINDINGS OF THE AO. HENCE, ONE HAS TO GO THROUGH EACH LEDGER ACCOUNT AND HAS TO BE EXAMINED INDIVIDUALL Y. FOR THIS PURPOSE, WE SET ASIDE THE ENTIRE ISSUE TO THE FILE OF THE AO TO EXAMINED WHETHER THERE IS ANY TRADING TRANSACTION B ETWEEN THESE PARTIES. IF THERE IS TRADING TRANSACTION BETWEEN T HE PARTIES, THE ADVANCE TO BE TREATED AS TRADE ADVANCE MADE ON ACC OUNT OF COMMERCIAL EXPEDIENCY AND SUCH NOTIONAL INTEREST C ANNOT BE TREATED AS INCOME OF THE ASSESSEE. IN VIEW OF THE ABOVE, THE ISSUE IS SET ASIDE TO THE FILE OF THE CIT(A) WITH THE ABOVE DIRE CTION . THE CIT(A) IS ALSO DIRECTED TO TAKE NET BALANCE IN EACH ACCOUNT AND RE- EXAMINE THE SAME. 2. THERE APPEARS TO BE TYPOGRAPHICAL ERROR IN THE O RDER IN AS MUCH AS IN IST PART OF THE OPERATIVE PORTION OF THE ORDE R THE ISSUE HAS BEEN SET ASIDE TO THE FILE OF THE AO WHEREAS IN THE 2 ND PART THE ISSUE HAS BEEN SET ASIDE TO THE FILE OF THE CIT(A). 3. THE MISTAKE BEING APPARENT FROM RECORD IT IS REQ UESTED THAT THE SAME MAY KINDLY BE GOT RECTIFIED. YOURS FAITHFULLY, SD/- (JAGDEEP GOEL) COMMISSIONER OF INCOME TAX (APPEALS)-II, LUDHIANA. 2. THE LD. DR, RELIED UPON THE CONTENTIONS RAISED B Y THE REVENUE IN THE MISCELLANEOUS APPLICATION AND THE LD. COUNSEL FOR T HE ASSESSEE HAS ALSO AGREED THAT THERE IS A MISTAKE APPARENT IN THE ORDE R AND THE ISSUE SHOULD BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER. 3 3. AFTER HEARING BOTH THE PARTIES, WE ARE OF THE VI EW THAT THERE IS A MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE T RIBUNAL DATED 26.06.2009. THE CONCLUDING PARA OF THE ORDER OF THE TRIBUNAL IS RECTIFIED AND HENCEFORTH MAY BE READ AS UNDER: THE ARGUMENTS PLACED BEFORE THE LD. CIT(A) AS WEL L AS BEFORE US ARE CONTRARY TO THE FINDINGS OF THE AO. HENCE, ONE HAS TO GO THROUGH EACH LEDGER ACCOUNT AND HAS TO BE EXAMINED INDIVIDUALL Y. F OR THIS PURPOSE, WE SET ASIDE THE ENTIRE ISSUE TO THE FILE OF THE AO TO EXAMINED WHETHER THERE IS ANY TRADING TRANSACTION B ETWEEN THESE PARTIES. IF THERE IS TRADING TRANSACTION BETWEEN T HE PARTIES, THE ADVANCE TO BE TREATED AS TRADE ADVANCE MADE ON ACCOUNT OF COMMERCIAL EXPEDIENCY AND SUCH NOTIONAL INTEREST CANNOT BE TR EATED AS INCOME OF THE ASSESSEE. IN VIEW OF THE ABOVE, THE ISSUE IS SET ASIDE TO THE FILE OF THE A.O. WITH THE ABOVE DIRECTION. THE A.O. IS ALSO DIRECTED TO TAKE NET BALANCE IN EACH ACCOUNT AND RE-EXAMINE THE SAME. ACCORDINGLY, MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS ALLOWED. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 5TH OCTOBER, 2012. SD/- SD/- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 5TH OCTOBER, 2012 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. P.M.S. DIESELS, G.T.ROAD, PHAGWAR A 2. THE DCIT, PHAGWARA. 3. THE CIT(A)