Gruh Finance Ltd., Ahmedabad V. The Income Tax Officer, Ward-4(4), Ahmedabad

MA 208/AHD/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9757 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-01-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 1996-1997
• Appeal Filed On: 30-10-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K SINHA
• Assessee Lawyers: M G PATEL
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD A BENCH BEFORE: SHRI A.K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER M.A. NO.208/AHD/2012 (ARISING OUT OF ITA NO.2010/AHD/2004) A. Y.1996-97 GRUH FINANCE LTD. GRUH MITHAKHALI SIX ROADS, ELLISBRIDGE, AHMEDABAD APPELLANT VS. THE INCOME TAX OFFICER, WARD-4(4), AHMEDABAD RESPONDENT DEPARTMENT BY : SHRI D.K. SINHA, SR. D.R. ASSESSEE BY : SHRI M.G. PATEL, 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. 2. IT WAS SUBMITTED BY THE ASSESSEE IN THE M.A. THA T THE ASSESSEE HAD FILED ONE ADDITIONAL GROUND OF APPEAL BEFORE THE TRIBUNAL BUT IN THE IMPUGNED TRIBUNAL ORDER, THIS ADDITIONAL GROUND WAS NEITHER REFERRED TO NOR DECIDED AND HENCE THIS IS AN APPARENT MISTAKE IN THE TRIBUNAL O RDER WHICH SHOULD BE RECTIFIED. 3. IN THE COURSE OF HEARING BEFORE US, THE BENCH WA NTED TO KNOW FROM LD. A.R. OF THE ASSESSEE THE DATE ON WHICH THE ADDITION AL GROUND WAS ADMITTED BY THE TRIBUNAL AND REGARDING THE ARGUMENTS MADE BY LD . A.R. OF THE ASSESSEE IN COURSE OF HEARING OF APPEAL IN RESPECT OF ADMISSION OF ADDITIONAL GROUND AND ON M.A. NO.208/AHD/2012 (ARISING OUT OF ITA NO.2010/AHD/2004) A. Y.1996-97 2 MERIT OF ADDITIONAL GROUND. IN REPLY, IT WAS SUBMI TTED BY LD. A.R. OF THE ASSESSEE THAT THE ADDITIONAL GROUND WAS FILED BY TH E ASSESSEE BEFORE THE TRIBUNAL ON 11 TH APRIL, 2012 AND THE SAME IS AVAILABLE IN THE FILE OF THE TRIBUNAL AND HENCE, IN THE COURSE OF HEARING OF THIS APPEAL BY THE TRIBUNAL ON 12 TH JUNE, 2012, THE BENCH SHOULD HAVE ASKED FOR THE LD. A.R. OF THE ASSESSEE TO ARGUE THIS ADDITIONAL GROUND FOR ADMISSION AND ON MERIT A ND THEREAFTER, SHOULD HAVE DECIDED THE ADDITIONAL GROUND. HE FURTHER SUBMITTE D THAT SINCE THIS WAS NOT DONE BY THE TRIBUNAL, THIS IS MISTAKE APPARENT FROM RECORD AND THEREFORE THE SAME SHOULD BE RECTIFIED AND THE ADDITIONAL GROUND OF THE ASSESSEE SHOULD BE DECIDED. HE FURTHER SUBMITTED THAT THE REQUIREMENT UNDER RU LE-11 OF THE INCOME TAX APPELLATE TRIBUNAL RULES TO FILE AN APPLICATION FOR LEAVE FOR ADMISSION OF ADDITIONAL GROUND WAS DULY COMPLIED WITH BY FILING A LETTER DATED 11.04.2012 ALONG WITH ADDITIONAL GROUND AND THE APPLICATION WA S ON RECORD OF THE TRIBUNAL ON THE DATE OF HEARING I.E. 12.06.2012. HE ALSO PL ACED RELIANCE ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS:- (I) CIT VS. MAYUR FOUNDATION 274 ITR 562 (GUJ) (II) AMINES PLASTICIZER LTD. VS. CIT 223 ITR 173 ( GAUHATI) (III) T. JAYABHARTHY VS. ACIT 294 ITR 128 (MAD) (IV) RAM JI DASS & CO. VS. CIT 323 ITR 505 (P & H) 4. IN REPLY, IT WAS SUBMITTED BY LD. D.R. OF THE RE VENUE THAT SINCE THE ADDITIONAL GROUND WAS NOT ADMITTED BY THE TRIBUNAL AND NO ARGUMENT WAS MADE BY LD. COUNSEL OF THE ASSESSEE IN RESPECT OF ADMISS ION OF THIS ADDITIONAL GROUND OR FOR DECIDING THIS ADDITIONAL GROUND, THERE IS NO MISTAKE IN THE TRIBUNALS ORDER AND HENCE THE M.A. OF THE ASSESSEE SHOULD BE REJECT ED. M.A. NO.208/AHD/2012 (ARISING OUT OF ITA NO.2010/AHD/2004) A. Y.1996-97 3 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PER USED THE RECORDS. WE FIND THAT ADDITIONAL GROUND WAS VERY MUCH RAISED BY THE ASSESSEE ON 11.04.2012 AND THE SAME IS AVAILABLE IN THE APPEAL FOLDER. THE ADDITIONAL GROUND READS AS UNDER:- WITHOUT PREJUDICE TO EARLIER GROUNDS SINCE THE LEA SE TRANSACTIONS ARE TREATED AS FINANCE LEASE AND CONSEQUENTLY DISALLOWA NCE OF DEPRECIATION IS CONFIRMED BY LD. CIT(A), IN ALTERNA TIVE LD. CIT(A) OUGHT TO HAVE ALLOWED DEDUCTION OF PRINCIPAL AMOUNT OF RS.38,42,675/- 6. AT NO OCCASION, ANY ARGUMENT WAS MADE BY LD. A.R . OF THE ASSESSEE FOR ADMISSION OF THIS ADDITIONAL GROUND OR FOR DECIDING THIS ADDITIONAL GROUND. THIS IS ADMITTED POSITION OF FACT AS PER THE REPLY OF LD . A.R. OF THE ASSESSEE BEFORE US IN COURSE OF HEARING OF THIS M.A. THE CONTENTION O F LD. A.R. OF THE ASSESSEE IS THIS THAT SINCE THE ADDITIONAL GROUND WAS RAISED BY THE ASSESSEE AND THIS IS AVAILABLE ON THE RECORD OF THE TRIBUNAL, IT WAS THE DUTY OF THE BENCH TO ASK THE LD. COUNSEL OF THE ASSESSEE TO ARGUE FOR ADMISSION OF ADDITIONAL GROUND AND ALSO FOR DECISION OF THE ADDITIONAL GROUND. WE DO NOT F IND ANY MERIT IN THE SUBMISSIONS OF LD. A.R. OF THE ASSESSEE. EVEN IF A DDITIONAL GROUND IS RAISED AND THE SAME IS AVAILABLE ON THE RECORD OF THE TRIBUNAL , IT IS THE DUTY OF LD. A.R. OF THE ASSESSEE TO MAKE ARGUMENTS REGARDING ITS ADMISS ION AND IF IT IS ADMITTED, THEN HE SHOULD MAKE ARGUMENTS FOR ITS DECISION. IN THE PRESENT CASE, THE ADDITIONAL GROUND WAS NOT ADMITTED BECAUSE NO ARGUM ENT WAS MADE BY LD. A.R. OF THE ASSESSEE FOR ADMISSION OF THIS ADDITIONAL GR OUND. AS PER THE LETTER DATED 11.04.2012 WITH WHICH THIS ADDITIONAL GROUND WAS SU BMITTED BEFORE THE TRIBUNAL, NO ARGUMENT IS MADE AND NO REASON IS GIVE N AS TO WHY THIS ADDITIONAL GROUND COULD NOT BE RAISED IN THE ORIGINAL GROUNDS OF APPEAL AND WHY THE M.A. NO.208/AHD/2012 (ARISING OUT OF ITA NO.2010/AHD/2004) A. Y.1996-97 4 ADDITIONAL GROUND SHOULD BE ADMITTED. IN THE ABSEN CE OF ANY SUBMISSION IN THE LETTER DATED 11 TH APRIL, 2012 FOR ADMISSION OF ADDITIONAL GROUND AND ALSO IN THE ABSENCE OF ANY ARGUMENT ON THIS ISSUE IN THE COURSE OF HEARING OF THE APPEAL, THERE IS NO REQUIREMENT FOR THE BENCH OF THE TRIBUN AL TO GO INTO THE ADDITIONAL GROUND AND DECIDE THE SAME OR TO ASK THE LD. A.R. O F THE ASSESSEE TO RAISE ARGUMENTS FOR ADMISSION OF THIS ADDITIONAL GROUND A ND HENCE, THERE IS NO MISTAKE IN THE TRIBUNALS ORDER ON THIS ASPECT AND THEREFORE, THE M.A. OF THE ASSESSEE IS LIABLE TO BE DISMISSED. 7. NOW, WE ALSO DISCUSS THE LETTER DATED 11.04.2012 AND VARIOUS JUDGMENTS CITED BEFORE US. THE CONTENTS OF LETTER DATED 11.04 .2012 WITH WHICH THIS ADDITIONAL GROUND WAS SUBMITTED IS ALSO REPRODUCED HEREINBELOW:- TO: THE DEPUTY REGISTRAR INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD DEAR SIR, SUB: REQUEST FOR ADMISSION OF ADDITIONAL GROUND IN ITA NO.2010/AHD/2004 IN CASE OF M/S GRUH FINANCE LTD. F OR A.Y. 1996-07. THE ABOVE STATED APPEAL OF OUR ABOVE NAMED CLIENT H AS BEEN FIXED FOR HEARING ON 12.04.2012 BEFORE HONBLE ITAT, B BENC H, AHMEDABAD. WE ARE ENCLOSING HEREWITH TWO COPIES OF ADDITIONAL GROUND OF APPEAL IN THE ABOVE APPEAL. COPY OF THE ADDITIONAL GROUND IS BEING SIMULTANEOUSLY SUBMITTED TO THE DEPARTMENTAL REPRES ENTATION, B BENCH, AHMEDABAD ON TODAY. YOU MAY KINDLY PLACE THE SAME BEFORE THE HONBLE ME MBERS OF ITAT B BENCH, AHMEDABAD FOR THEIR CONSIDERATION. THANKING YOU, YOURS FAITHFULLY, FOR MANUBHAI & CO., M.A. NO.208/AHD/2012 (ARISING OUT OF ITA NO.2010/AHD/2004) A. Y.1996-97 5 CHARTERED ACCOUNTANTS SD/- (M.G. PATEL) 8. FROM THE ABOVE LETTER OF THE ASSESSEE DATED 11.0 4.2012 ALONG WITH WHICH THE ADDITIONAL GROUND WAS SUBMITTED BEFORE THE TRIB UNAL, WE FIND THAT THE SAME IS NOT AS PER THE REQUIREMENT OF RULE-11 OF INCOME TAX APPELLATE TRIBUNAL RULE, 1963. IN THIS LETTER THIS IS THE ONLY SUBMISSION T HAT TWO COPIES OF ADDITIONAL GROUNDS ARE ENCLOSED AND ONE COPY OF THE SAME IS SI MULTANEOUSLY SUBMITTED TO LD. D.R. OF THE REVENUE AND THE REGISTRY WAS REQUES TED TO PLACE THE SAME BEFORE THE BENCH FOR CONSIDERATION AND HENCE, IT IS SEEN THAT NO SUBMISSION IS MADE IN THIS LETTER REGARDING ADMISSION OF ADDITION AL GROUND. IN FACT, EVEN THE WORD ADMISSION IS NOT STATED IN THIS LETTER EXCEPT IN THE SUBJECT. HENCE, THIS LETTER IS NOT IN COMPLIANCE TO RULE 11 OF INCOME TA X APPELLATE TRIBUNAL RULE, 1963. 9. REGARDING VARIOUS JUDGMENTS CITED BY LD. A.R. OF THE ASSESSEE IN THE PRESENT CASE, WE DISCUSS APPLICABILITY OF ALL THE J UDGMENTS. FIRST JUDGMENT CITED IS THE JUDGMENT OF HONBLE GUJARAT HIGH COURT RENDE RED IN THE CASE OF CIT VS.MAYUR FOUNDATION (SUPRA). IN THIS CASE, IT WAS HELD BY HONBLE GUJARAT HIGH COURT THAT THE TRIBUNAL WAS WELL WITHIN ITS JURISDI CTION TO ENTERTAIN THE NEW GROUND BY WHICH THE ASSESSEE CLAIM THE BENEFIT U/S 11(2) OF THE I.T. ACT. THIS SHOWS THAT THIS JUDGMENT IS AN AUTHORITY FOR THIS T HAT THE TRIBUNAL CAN ENTERTAIN A NEW GROUND I.E. ADDITIONAL GROUND BUT THIS IS NOT AN AUTHORITY IN SUPPORT OF THIS CONTENTION THAT EVEN IF NO ARGUMENT HAS BEEN M ADE BY THE ASSESSEE FOR ADMISSION OF ADDITIONAL GROUND AND EVEN WHEN PROPER APPLICATION AS REQUIRED UNDER RULE 11 OF THE INCOME TAX APPELLATE TRIBUNAL RULE, 1963 WAS NOT M.A. NO.208/AHD/2012 (ARISING OUT OF ITA NO.2010/AHD/2004) A. Y.1996-97 6 SUBMITTED, THE TRIBUNAL HAS TO DECIDE THE ADDITIONA L GROUND AND IF IT IS NOT DONE, THEN THERE IS AN APPARENT MISTAKE IN THE TRIBUNAL O RDER. 10. THE SECOND JUDGMENT CITED IS THE JUDGMENT OF HO NBLE GAUHATI HIGH COURT RENDERED IN THE CASE OF AMINES PLASTICIZER LTD. VS. CIT (SUPRA). IN THAT CASE, IT IS NOTED BY HONBLE GAUHATI HIGH COURT THAT IF ADDI TIONAL GROUND WAS URGED BY THE ASSESSEE AT THE TIME OF HEARING OF THE APPEAL A ND THE TRIBUNAL DID NOT DISBELIEVE THAT LEAVE WAS SOUGHT FOR, THE TRIBUNAL OUGHT TO HAVE APPRECIATED THE SAID ADDITIONAL GROUND. IN THE PRESENT CASE, NEITH ER THE ADDITIONAL GROUND WAS URGED BY THE ASSESSEE AT THE TIME OF HEARING OF THE FIRST APPEAL NOR LEAVE WAS SOUGHT FOR BY THE ASSESSEE FOR ADMISSION OF ADDITIO NAL GROUND AS REQUIRED UNDER RULE 11 OF THE INCOME TAX RULE, 1963 AND HENCE, THI S JUDGMENT OF HONBLE GAUHATI HIGH COURT IS ALSO NOT RELEVANT IN THE PRES ENT CASE BECAUSE FACTS ARE DIFFERENT IN THE PRESENT CASE. 11. THE NEXT JUDGMENT CITED BY LD. A.R. OF THE ASSE SSEE IS THE JUDGMENT OF HONBLE MADRAS HIGH COURT RENDERED IN THE CASE OF T . JAYABHARTHY VS. ACIT (SUPRA). IN THAT CASE, THE PRIMARY ISSUE WAS THIS THAT THE TRIBUNAL FAILED TO CONSIDER THE THIRD ADDITION WHEN THE ORDER WAS PASS ED BY THE TRIBUNAL ON SEPTEMBER, 21 ST , 2004. LATER ON, NON-CONSIDERATION OF ONE OF THE DISPUTED ISSUES BY THE TRIBUNAL IN THE APPEAL BEFORE IT WAS RECORDED AS A MISTAKE APPARENT ON THE FACE OF THE RECORD. THE TRIBUNAL E NTERTAINED THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IN WHICH IT IS HE LD TO BE EVIDENT THAT THERE WAS AN ERROR APPARENT ON THE FACE OF THE RECORD IN THAT ORDER MADE BY THE TRIBUNAL AND IN THE M.A. ORDER ITSELF, THE TRIBUNAL DECIDED THE THIRD ISSUE AGAINST THE ASSESSEE. UNDER THESE FACTS, IT WAS HELD BY HONBL E MADRAS HIGH COURT THAT THE M.A. NO.208/AHD/2012 (ARISING OUT OF ITA NO.2010/AHD/2004) A. Y.1996-97 7 WAY IN WHICH THE THIRD ISSUE HAS BEEN DEALT WITH BY THE TRIBUNAL AT THE STAGE OF DECIDING THE M.A. ITSELF, CANNOT BE REGARDED AS COR RECT APPROACH. IT IS ALSO HELD THAT THE ASSESSEE SHOULD HAVE BEEN GIVEN AN OPPORTU NITY TO PUT FORTH HER CASE IN RESPECT OF THIRD ISSUE WHICH HAS BEEN LEFT OUT F OR CONSIDERATION IN THE ORIGINAL ORDER PASSED BY THE TRIBUNAL BY GIVING DUE OPPORTUN ITY. WITH THESE OBSERVATIONS, HONBLE MADRAS HIGH COURT RESTORED BA CK THE MATTER TO THE TRIBUNAL TO RECONSIDER THE ISSUE AFRESH AFTER GIVIN G DUE OPPORTUNITY TO THE ASSESSEE. HENCE THIS JUDGMENT IS ALSO OF NO HELP T O THE ASSESSEE IN THE PRESENT CASE. IN THE PRESENT CASE, THE ISSUE INVOLVED IS N OT REGARDING NON- CONSIDERATION OF A GROUND OF APPEAL IN THE ORIGINAL ORDER AND THEN DECIDING THE SAID ISSUE IN THE M.A. ORDER WITHOUT GIVING PROPER OPPORTUNITY TO THE ASSESSEE. 12. THE 4 TH AND LAST JUDGMENT CITED BY LD. A.R. OF THE ASSESSE E IS THE JUDGMENT OF HONBLE PUNJAB & HARYANA HIGH COURT REN DERED IN THE CASE OF RAM JI DASS & CO. VS. CIT (SUPRA). IN THAT CASE THE FA CTS WERE THAT REVENUE FILED AN APPEAL BEFORE THE TRIBUNAL AND THE ASSESSEE FILED C ROSS OBJECTION. THE APPEAL OF THE DEPARTMENT WAS DISMISSED BUT THE C.O. OF THE ASSESSEE WAS NOT CONSIDERED ON MERIT WHILE DISMISSING THE APPEAL OF THE REVENUE. THE ASSESSEE APPLIED FOR RECALLING OF THE ORDER AND FOR DECISION OF C.O. ON MERIT. THIS PRAYER OF THE ASSESSEE WAS REJECTED BY THE TRIBUNAL BY OBS ERVING THAT THE TRIBUNAL HAS ALREADY DISMISSED THE APPEAL OF THE REVENUE AND THA T WHILE DECIDING THE REVENUES APPEAL, THE TRIBUNAL HAS ALREADY CONSIDER ED THE QUESTION RELATING TO THE RATE OF PROFITS AND HAD UPHELD IT AND IT COULD NOT BE RE-EXAMINED THEREAFTER IN THE ASSESSEES CROSS-OBJECTION. UNDER THESE FAC TS, IT WAS HELD BY HONBLE PUNJAB AND HARYANA HIGH COURT THAT THE C.O. OF THE ASSESSEE IS REQUIRED TO BE M.A. NO.208/AHD/2012 (ARISING OUT OF ITA NO.2010/AHD/2004) A. Y.1996-97 8 HEARD AND DECIDED ON MERIT. APPARENTLY, IN THE PRE SENT CASE THE FACTS AND THE ISSUE INVOLVED IS DIFFERENT AND HENCE THIS JUDGMENT IS ALSO OF NO HELP TO THE ASSESSEE IN THE PRESENT CASE. SINCE, NO JUDGMENT I S RENDERING ANY HELP TO THE ASSESSEE AND IN VIEW OF ABOVE DISCUSSION ABOUT ALL ARGUMENTS OF LD. A.R., WE DISMISS THE M.A. AS DEVOID OF ANY MERIT. 13. IN THE RESULT, M.A. OF THE ASSESSEE STANDS DISM ISSED. 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/ , ( / ' ) ! , '# *