SHREE RAMA MULTI TECH LTD., Ahmedabad V. THE Jt.CIT.,S.R.-7, Ahmedabad

MA 193/AHD/2011

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9752 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 1 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-01-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 1998-1999
• Appeal Filed On: 21-11-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINHA
• Section: 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD C BENCH BEFORE: SHRI A.K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER M.A. NO.193/AHD/2011 (ARISING OUT OF ITA NO.3297/AHD/2003) A. Y.1998-99 SHRI RAMA MULTI TECH. LTD., RAMNIVAS-1, KHANPUR, AHMEDABAD APPELLANT VS. THE J.C.I.T., SR-7, AHMEDABAD RESPONDENT DEPARTMENT BY : SHRI D.K. SINHA, SR. D.R. ASSESSEE BY : SMT. URVASHI SHODHAN, A.R. DATE OF HEARING : 04.01.2013 DATE OF PRONOUNCEMENT 18.01.2013 / ORDER PER : A.K. GARODIA, ACCOUNTANT MEMBER THIS M.A. IS FILED BY THE ASSESSEE POINTING OUT CER TAIN MISTAKES IN THE IMPUGNED TRIBUNAL ORDER. 2. THE CONTENTS OF THE M.A. ARE REPRODUCED BELOW:- YOUR APPLICANT MOST RESPECTFULLY CRAVES LEAVE TO P REFER THIS MISCELLANEOUS APPLICATION IN ITA NO:3297/AHD/2003 F OR ASST. YEAR:1998-99. THE HONBLE INCOME TAX APPELLATE TRIBUNAL, AHMEDABA D BENCH C HAD PASSED AN ORDER DATED 21/10/2011 (CERTIFIED COP Y ENCLOSED EXHIBIT-A HERETO). THE SAID ORDER WAS IN THE APPEAL PREFERRE D BY THE APPLICANT AGAINST THE ORDER PASSED U/S 143(3 ) BY THE JCITSR-7, AHMEDABAD IN WHICH VARIOUS GROUNDS HAVE B EEN TAKEN AS IS EVIDENT FROM FORM NO:36 ON RECORD. THE HONBLE TRIBUNAL HAS CONSIDERED GROUND NO:9 AT PARA 21 PAGE 16 & 17 OF THE ORDER. THE SAID GROUND WAS RELATING TO DISALLOWANCE OF DEDUCTION UNDER S. 80-IA ON CERTAIN INCOME. AS STATED BY THE HONBLE BENCH AT PARA 21, THE ITEMS O F INCOME RELATED TO FIVE CATEGORIES REPRODUCED BY THE HONBL E BENCH AS UNDER: M.A. NO.193/AHD/2011 (ARISING OUT OF ITA NO.3297/AHD/2003) A. Y.1998-99 2 (I) RS.11,36,535/- OTHER INCOME AS PER PAGE NO.22 O F PAPER BOOK. (II) RS.7,07,288/- SALE OF RAW MATERIAL. (III) RS.19,65,195/- PRIOR PERIOD INCOME AS PER DET AILS GIVEN AT PAGES 23 OF PAPER BOOK. (IV) RS.9,92,525/- SUNDRY BALANCES WRITTEN OFF. (V) RS.48,77,032/- NETTING OF INTEREST. AS ITEM NO.(II) OF RS.7,07,288/- AND ITEM NO.(IV) O F RS.9,92,525/- WERE NOT PRESSED, THE SAME WERE HELD AS NOT PRESSED . THE HONBLE BENCH THEREAFTER ADJUDICATED ITEM NO.(I) OF RS.11,36,535/- BEING OTHER INCOMER AND DECIDED THE SAME AT PARA 23 AND 24. HOWEVER, THROUGH OVERSIGHT, ITEM NO.(III) RS.19,65, 195/- PRIOR PERIOD INCOME AND ITEM NO V) RS.48,77,032/- NETTING OF INTEREST IN GROUND NO.9 HAVE NOT BEEN ADJUDICATED AS THE HON BLE BENCH PROCEEDED TO ADJUDICATE GROUND NO.10 AT PARA 25. SINCE THE HONBLE TRIBUNAL HAS NOT CONSIDERED AND A DJUDICATED THE ABOVE TWO ITEMS OF GROUND NO.9 RAISED BOTH IN THE A PPEAL MEMO AND AT THE TIME OF HEARING, A MISTAKE HAS CREPT IN THE ORDER WHICH NEEDS TO BE RECTIFIED AND DECIDED IN THE INTEREST O F JUSTICE. YOUR APPLICANT THEREFORE, MOST RESPECTFULLY SUBMITS THAT THE SAID ORDER TO THE EXTENT OF NON CONSIDERATION OF THE ABOVE ITE MS OF GROUND NO.9 BE RECALLED AND DECIDED AFTER CONSIDERING THE SAME. FOR ABOVE ACT OF KINDNESS AND JUDICIOUS ADMITTING A ND HEARING THIS MISCELLANEOUS APPLICATION, THE APPLICANT SHALL EVER REMAIN OBLIGED. 3. IN THE COURSE OF HEARING OF THIS M.A., IT WAS SU BMITTED BY LD. A.R. OF THE ASSESSEE THAT OUT OF FIVE ITEMS IN RESPECT OF GROUN D NO.9, TWO ITEMS WERE NOT PRESSED BY LD. A.R. OF THE ASSESSEE IN THE COURSE O F HEARING OF THE APPEAL AND ONE ITEM NO.1 WAS DECIDED BY THE TRIBUNAL BUT REMAI NING TWO ITEM NOS.3 AND 5 I.E. RS.RS.1965195/- IN RELATION TO PRIOR PERIOD INCOME AND RS.4877032/- REGARDING NETTING OF INTEREST WERE NOT DECIDED BY T HE TRIBUNAL AND THIS IS AN APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL AND T HE TRIBUNAL SHOULD DECIDE M.A. NO.193/AHD/2011 (ARISING OUT OF ITA NO.3297/AHD/2003) A. Y.1998-99 3 THESE TWO ITEMS ALSO. IT WAS FURTHER SUBMITTED THA T AGAINST THE IMPUGNED TRIBUNAL ORDER, APPEAL WAS FILED BY THE REVENUE BEF ORE HONBLE GUJARAT HIGH COURT AND THE SAME HAS BEEN DISPOSED OF BY HONBLE GUJARAT HIGH COURT AS PER ITS JUDGMENT DATED 18.12.2012 IN TAX APPEAL NO. 235 OF 2012 AND SHE SUBMITTED A COPY OF THE JUDGMENT OF HONBLE GUJARAT HIGH COURT. SHE POINTED OUT THAT IT IS HELD BY HONBLE GUJARAT HIGH COURT T HAT THE TRIBUNAL HAS GRANTED CERTAIN BENEFITS AS CLAIMED BY ASSESSEE FOR DEDUCTI ON U/S 80IA OF THE ACT WITHOUT FULL DISCUSSION AND THE SAME ARE PLACED BAC K BEFORE THE TRIBUNAL FOR CONSIDERATION ON MERITS AND DISPOSAL BY SPEAKING OR DER. IT IS ALSO OBSERVED BY HONBLE GUJARAT HIGH COURT THAT WHILE DECIDING T HIS ASPECT OF THE MATTER REGARDING ASSESSEES CLAIM U/S 80IA OF THE ACT, THE TRIBUNAL HAS NOT GIVEN SOME SPECIFIC VERDICT REGARDING SOME OF THE ISSUES RAISED BY THE ASSESSEE IN RECTIFICATION APPLICATION AND IT WAS STATED THAT TH E TRIBUNAL WILL CONSIDER THE SAME AND TAKE STEPS ON SUCH APPLICATION IRRESPECTIV E OF THE ORDER IN APPEAL BY HONBLE GUJARAT HIGH COURT. HE SUBMITTED THAT SINC E OTHER MATTERS ARE RESTORED BACK BY HONBLE GUJARAT HIGH COURT TO THE TRIBUNAL FOR FRESH DECISION BY WAY OF SPEAKING ORDER, THE ORDER IN RESPECT OF T HESE TWO ISSUES SHOULD BE RECALLED AND SHOULD BE DECIDED ALONG WITH OTHER ISS UES WHICH ARE RESTORED BACK BY HONBLE GUJARAT HIGH COURT TO THE TRIBUNAL FOR FRESH DECISION BY WAY OF SPEAKING ORDER. 4. LD. D.R. OF THE REVENUE SUBMITTED THAT THERE IS NO MATERIAL ON RECORD TO SHOW THAT THE PRIOR PERIOD INCOME HAS CRYSTALISED I N THIS YEAR AND HENCE, THE SAME CANNOT BE CONSIDERED IN THE PRESENT YEAR FOR D EDUCTION U/S 80IB OF THE INCOME TAX ACT. REGARDING NETTING OF INTEREST ALSO , IT WAS SUBMITTED THAT THE SAME IS NOT ALLOWABLE AS NO NEXUS IS ESTABLISHED BE FORE THE TRIBUNAL. M.A. NO.193/AHD/2011 (ARISING OUT OF ITA NO.3297/AHD/2003) A. Y.1998-99 4 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT AS PER THE IMPUGNED TRIBUNAL ORDER, IT IS STATED BY THE TRIBUN AL THAT THERE ARE FIVE ITEMS FOR WHICH THE ASSESSEES CLAIM FOR DEDUCTION U/S 80 IA HAS TO BE DECIDED BY THE TRIBUNAL. IT IS FURTHER NOTED BY THE TRIBUNAL IN T HE IMPUGNED TRIBUNAL ORDER THAT OUT OF THESE FIVE ITEMS, LD. A.R. OF THE ASSES SEE DID NOT PRESS FOR TWO ITEMS AND THE CLAIM OF THE ASSESSEE WAS THEREFORE, REJECTED AS NOT PRESSED IN RESPECT OF THESE TWO ITEMS. SO THERE IS NO DISPUTE IN RESPECT OF THESE TWO ITEMS. AS PER THE JUDGMENT OF HONBLE GUJARAT HIGH COURT IN TAX APPEAL NO.235 OF 2012 DATED 18.12.2012, IT WAS HELD BY HON BLE GUJARAT HIGH COURT THAT TRIBUNAL HAS GRANTED CERTAIN BENEFITS AS CLAIM ED BY THE ASSESSEE FOR DEDUCTION U/S 80IA OF THE INCOME TAX ACT WITHOUT FU LL DISCUSSION. THIS ISSUE HAS BEEN RESTORED BACK BY THE HONBLE GUJARAT HIGH COURT FOR CONSIDERATION ON MERIT AND DISPOSAL BY SPEAKING ORDER 6. REGARDING THESE ITEMS FOR WHICH RECTIFICATION AP PLICATION HAS BEEN MADE BY THE ASSESSEE BEFORE THE TRIBUNAL, IT WAS OBSERVE D THAT THE TRIBUNAL SHOULD TAKE STEPS ON SUCH APPLICATION. UNDER THESE FACTS, WE ARE SATISFIED THAT ON THESE TWO ISSUES ALSO, THE TRIBUNAL SHOULD DECIDE R EGARDING CLAIM OF THE ASSESSEE FOR DEDUCTION U/S 80IA AND SINCE ON ONE IT EM FOR WHICH THE CLAIM WAS DECIDED BY THE TRIBUNAL IN FAVOUR OF THE ASSESS EE AS PER IMPUGNED ORDER, HONBLE GUJARAT HIGH COURT HAS RESTORED THE MATTER TO THE FILE OF THE TRIBUNAL FOR FRESH DECISION BY WAY OF SPEAKING ORDER, WE FEE L THAT THE TRIBUNAL SHOULD DECIDE THESE TWO ITEMS ALSO TOGETHER WITH THE ONE I TEM FOR WHICH THE MATTER HAS BEEN RESTORED BACK BY THE HONBLE GUJARAT HIGH COURT TO THE FILE OF THE TRIBUNAL FOR FRESH DECISION BY WAY OF SPEAKING ORDE R AND HENCE, TO THIS EXTENT, WE RECALL THE IMPUGNED TRIBUNAL ORDER AND DIRECT TH E REGISTRY TO FIX THE M.A. NO.193/AHD/2011 (ARISING OUT OF ITA NO.3297/AHD/2003) A. Y.1998-99 5 HEARING OF THIS APPEAL IN DUE COURSE AND THE TRIBUN AL SHOULD DECIDE THE CLAIM OF THE ASSESSEE REGARDING THESE TWO ITEMS ALONG WIT H ONE ITEM FOR WHICH THE MATTER IS RESTORED BACK BY HONBLE GUJARAT HIGH COU RT TO THE TRIBUNAL AFTER HEARING BOTH SIDES AND AS PER SPEAKING ORDER. IN C ASE, THAT ITEM FOR WHICH THE MATTER IS RESTORED BACK BY HONBLE GUJARAT HIGH COURT IS ALREADY DECIDED AFRESH BY THE TRIBUNAL, THAN THESE TWO ITEMS ONLY B E DECIDED BY THE TRIBUNAL AFTER HEARING BOTH SIDES. 7. IN THE RESULT, THE M.A. OF THE ASSESSEE STANDS A LLOWED IN THE TERMS INDICATED ABOVE. ORDER PRONOUNCED IN OPEN COURT ON 18.01.2013 SD/- SD/- (KUL BHARAT) (A.K. GARODIA) JUDICIAL MEMBER ACCO UNTANT MEMBER TRUE COPY N.K. CHAUDHARY, SR. P.S. / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. / CONCERNED CIT 4. - / CIT (A) 5. , ! , '# / DR, ITAT, AHMEDABAD 6. $% &' / GUARD FILE. BY ORDER/ , ( / ' ) ! , '# +