The ACIT, Circle-4, Baroda V. M/s. Transmetal Ltd., Baroda

MA 209/AHD/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6506 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-06-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2003-2004
• Appeal Filed On: 22-09-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S R SHAH
• Section: 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH AHMEDABAD (BEFORE S/SHRI BHAVNESH SAINI, JM AND D. C. AGRAWAL , AM) M. A. NO.209/AHD/2010 (IN ITA NO.3650/AHD/200 AY: 2003-04) THE A. C. I. T., CIRCLE-4, BARODA VS M/S. TRANSMETAL LT., ALKAPURI ARCADE, R. C. DUTT ROAD, BARODA PA NO. AABCT 0793K (APPLICANT) (RESPONDENT) APPLICANT BY SHRI SAMIR TEKRIWAL, SR. DR RESPONDENT BY SHRI S. R. SHAH, AR ORDER PER BHAVNESH SAINI : THIS ORDER SHALL DISPOSE OF THE MISC. APPLICATION FILED BY THE REVENUE DEPARTMENT THROUGH ACIT, CIRCLE-4, BARODA. IT IS STATED IN THE APPLICATION THAT THE TR IBUNAL DECIDED VARIOUS APPEALS VIDE ORDER DATED 24-03-2010. THE RE VENUE FILED APPEAL FOR ASSESSMENT YEAR 2003-04 IN ITA NO.3650/A HD/2004 AND RAISED GROUND NO.3 WHICH READS AS UNDER: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) ERRED IN DIRECTING TO EXCLUDE THE INCOME FRO M OTHER SOURCES OF RS.31,56,195 FROM TOTAL TURNOVER FOR THE PURPOSE OF WORKING OUT DEDUCTION U/S. 80HHC, THOUGH AFORESAID EXCLUSIONS ARE NOT DEFINED, WHEREAS SPECIFIC EXCLUSIONS ARE DE FINED IN EXPLANATION (BA) TO SUB-SECTION 4C TO SECTION 80 HH C. IT IS ALSO STATED THAT WHILE DECIDING THE ISSUE IN PARA 21 OF THE TRIBUNALS ORDER ONLY PART OF THE GROUND WAS DECIDE D WITH REGARD TO ITEMS OF EXCISE DUTY AND SALES TAX. BUT THE COMPONE NTS OF OTHER INCOME NAMELY DIVIDEND, INTEREST ON ICD, INTEREST O N MARGIN MONEY MA NO.209/AHD/2010(IN ITA NO.3650/AHD/2007) ACIT, CIR-4, BARODA VS M/S. TRANSMETAL LTD. 2 DEPOSIT, INTEREST OF FD, INTEREST ON INCOME TAX REF UND AND OTHER INCOME AMOUNTING TO RS.31,56,195/- HAVE NOT BEEN D ECIDED BY THE TRIBUNAL WITH REGARD TO DEDUCTION CLAIMED U/S 80HHC OF THE IT ACT. THE LEARNED DR, THEREFORE, EXPLAINING THE ABOVE FAC TS SUBMITTED THAT THE ABOVE POINTS REMAINS TO BE ADJUDICATED BY THE T RIBUNAL WHICH IS MISTAKE APPARENT ON RECORD AND IT IS REQUESTED THAT MISTAKE APPARENT FROM RECORD MAY BE RECTIFIED. 2. THE LEARNED COUNSEL FOR THE ASSESSEE HOWEVER, S UBMITTED THAT THE TRIBUNAL HAS DECIDED ALL THE ISSUES BY FOLLOWIN G THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CIT VS LAX MI MACHINE WORKS, 290 ITR 667. 3. ON CONSIDERATION OF THE ABOVE FACTS, WE ARE OF T HE VIEW THAT THERE APPEAR MISTAKES APPARENT ON RECORD. THE LEARN ED DR RIGHTLY CONTENDED BY REFERRING TO PARA 19, 20 AND 21 OF THE TRIBUNALS ORDER DATED 24-03-2010 THAT PART OF THE ISSUES HAVE NOT B EEN ADJUDICATED BY THE TRIBUNAL WITH REGARD TO CLAIM OF DEDUCTION U /S 80 HHC OF THE IT ACT ON THE ITEMS OF OTHER INCOME I.E. DIVIDEND, INT EREST ON ICD, INTEREST ON MARGIN MONEY DEPOSIT, INTEREST ON FD, I NTEREST ON INCOME TAX REFUND AND OTHER INCOME. THE TRIBUNAL RELIED UP ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF LAXMI MACH INE WORKS (SUPRA) IN WHICH IT WAS HELD THAT EXCISE DUTY AND S ALES TAX ARE NOT TO INCLUDE IN THE TOTAL TURNOVER AS THERE IS NO ELEMEN T OF PROFIT AS EMBEDDED THEREON. THE DEPARTMENTAL APPEAL WAS DISMI SSED BY THE TRIBUNAL. IT WOULD, THEREFORE, SHOW THAT THE ABOVE ITEMS OF OTHER INCOME HAVE NOT BEEN CONSIDERED AND ADJUDICATED BY THE TRIBUNAL MA NO.209/AHD/2010(IN ITA NO.3650/AHD/2007) ACIT, CIR-4, BARODA VS M/S. TRANSMETAL LTD. 3 WHILE CONSIDERING THE GROUND NO.3 OF THE APPEAL OF THE REVENUE. SINCE THE ISSUE OF OTHER INCOME QUA THE DEDUCTION U /S 80 HHC OF THE IT ACT NOTED ABOVE HAVE NOT BEEN DECIDED, THEREFORE , THERE IS A MISTAKE APPARENT FROM RECORD. TO THIS EXTENT WE REC ALL THE ORDER OF THE TRIBUNAL AND DIRECT THE REGISTRY TO FIX THE APP EAL OF THE REVENUE ON THE ABOVE LIMITED ISSUE FOR FURTHER HEARING. THE MISC. APPLICATION FILED BY THE REVENUE IS, THEREFORE, ALLOWED. OFFICE IS DIREC TED TO FIX THE MAIN APPEAL FOR HEARING FOR LIMITED PURPOSE IN DUE COURS E BY GIVING NOTICE TO BOTH THE PARTIES. 4. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 30-06-2011 SD/- SD/- (D. C. AGRAWAL) ACCOUNTANT MEMBER (BHAVNESH SAINI) JUDICIAL MEMBER DATE : 30-06-2011 LAKSHMIKANT/- COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) CONCERNED 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE BY ORDER D Y. REGISTRAR, ITAT, AHMEDABAD