M/s. Citadal Research&Solutions Ltd.,Hyd., V. ACIT,C-1(2),Hyd.,

MA 216/HYD/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1398 (ITAT-HYDERABAD)
• Duration Of Justice: 5 month(s) 5 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-01-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 22-08-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S J T KOTTARAM
• Assessee Lawyers: V SHIV KUMAR
• Keywords: Share purchase agreement; Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER MISC. APLN. NO.215/HYD/2013 (IN ITA NO.1171/HYD/2008) : ASSESSMENT YEAR 2003 - 04 MISC. APLN. NO.216/HYD/2013 (IN ITA NO.2068/HYD/2008) : ASSESSMENT YEAR 2003 - 04 M/S. CITADEL RESEARCH AND SOLUTIONS LTD., HYDERABAD ( PAN - AABCC 4332 M) V/S. ASST. COMMISSIONER OF INCOME - TAX CIRCLE 1(2), HYDERABAD (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI V.SHIV KUMAR RESPONDENT BY : SHRI S.J.T. KOTTARAM, DR DATE OF HEARING 13.12.2013 DATE OF PRONOUNCEMENT 28.1.2014 O R D E R PER SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER: BY TH E S E APPLICATION S UNDER S.254(2) OF THE ACT, THE APPLICANT ASSESSEE SEEKS RECTIFICATION/RECALL OF THE CONSOLIDATED ORDER OF THIS TRIBUNAL DATED 1 3 .3.2013 IN ITA NO.1171/HYD/2008 AND ITA NO.2068/HYD/2008 FOR THE ASSESSMENT YEAR 2003 - 04, ON THE GROUND THAT CERTAIN MISTAKES A PPARENT FROM RECORD HAVE CREPT INTO THE SAME. 2. THE LEARNED COUNSEL FOR THE APPLICANT - ASSESSEE, REITERATING AVERMENTS MADE IN THESE APPLICATIONS SUBMITTED IN RELATION TO ORDER OF THE T RIBUNAL DATED 1 3 .3.2013 INSOFAR AS IT R ELA TED TO ITA NO.1171/HYD/ .2008 THAT THERE WAS OMISSION TO CONSIDER VITAL FACTUAL EVIDENCE FILED BEFORE THE TRIBUNAL REL A TING TO TRANSFER OF SHARES. IT IS SUBMITTED THAT THE TRIBUNAL DIRECTED THE ASSESSEE DURING THE COURSE HEARING ON THE APPEAL, TO FILE COPIES OF RESOLUTIONS OF THE BOARD OF DIRECTORS O F THE ASSESSEE COMPANY, R E L A TING TO SALE OF SHARES. THOUGH THE A SSESSEE FILED COPIES OF BOARD RESOLUTIONS DA T ED 26.12.2002 AND 15.7.2002, VIDE PAGES 14 TO 16 OF THE PAPER - BOOK DATED 3.12.2012, AND THE MA NO.2 15 - 216 /HYD2013 (IN ITA NO. 1171/HYD/2008 & 2068 HYD/201 1 ) M/S. CITADEL RESEARCH AND SOLUTIONS LTD., HYDERABAD 2 VITAL EVIDENCE WHICH ESTABLISHES T HE FACT THAT SHA R ES WERE NOT DELIVERED AS PER ORIGINAL AGREEMENT DATED 18.7.2002, BU T WERE DELIVERED ONLY LATER AFTER SUPPLEMENT AGREEMENT WAS ENTERED, THE TRIBUNAL OVERLOOKED THE EVIDENCE IN THE FORM OF BOARD RESOLUTIONS FURNISHED BY THE ASSESSEE. IT IS ALSO SUBMITTED THAT THER E WERE ALSO MISTAKES IN THE ORDER OF THE TRIBUNAL WITH REGARD TO DATE OF DELIVERY OF ORIGINAL SHARE CERTIFICATES , INASMUCH AS THE TRIBUNAL NOT E D THAT THE ASSESSEE HAD DELIVERED THE ORIGINAL SHARE CERTIFICATES TO WIPRO WHICH IN TURN LODGED THE SAME TO M/S. GE MEDICAL SYSTEMS INFORMATION TECHNOLOGIES P VT. LTD. FOR TRANSFER BEFORE 31.7.2002; AND AGAIN IN PARA 7 THAT THE DATE OF TRANSFER OF SHARES TOO CANNOT B E TAKEN AS 3.1.2003 BECAUSE AS PER THE AGREEMENT DATED 18.7.2002 THE SHARES W ERE LODGED WITH GE MEDICAL SYSTEMS INFORMATION T E CHNOLOGIES PVT. LTD. BEFORE 31.7.2002. THESE FINDINGS OF THE TRIBUNAL, ACCORDING TO THE ASSESSEE ARE NOT BASED ON ANY EVIDENCE AVAILABLE ON RECORD. FURTHER, REFERRING TO THE FINDINGS/OBSERVATIONS OF THE TRI BUNAL WITH REGARD TO ACQUISITION OF SHARES, IN PARAS 7, 9, 11 AND 17, IT IS ALSO POINTED OUT THAT THE FINDING OF THE TRIBUNAL WITH REGARD TO THE DATE OF ACQUISITION OF SHARES, BEING 23.8.2001 IS CONTRARY TO THE UNCONTROVERTED FINDING OF THE DEPARTMENT ITSE LF. 3. ON SIMILAR LINES, IN THE CONTEXT OF APPEAL , ITA N O . 2068/HYD/2011, REITERATING THE AVERMENTS MADE IN M.A. NO.216/HYD/2013, ALSO THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THERE WERE OMISSIONS TO CONSIDER VITAL FACTUAL EVIDENCE AVAILABLE ON RECO RD, RELATING TO TRANSFER OF SHA RES. 4. IN VIEW OF THE ABOVE, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT NON - CONSIDERATION OF THE RESOLUTIONS PASSED BY THE BOARD OF DIRECTORS OF THE ASSESSEE - COMPANY AMOUNTS DENIAL OF PRINCIPLES OF NATURAL JUSTICE AND THEREFORE, THE ORDER DATED 13.3.2013 MAY BE RECALLED. IN SUPPORT OF HIS CONTENTIONS, THE LEARNED COUNSEL FOR THE ASSESSEE ALSO RELIED ON THE DECISION OF APEX COURT IN THE CASE OF ASIT KUMAR KAR V/S. STATE OF WEST BENGAL AND OTHERS IN W.P. NO.11 0 OF 2008 DATED 21 ST JANUARY, 2009 DULY FURNISHING A COPY THEREOF BEFORE US. MA NO.2 15 - 216 /HYD2013 (IN ITA NO. 1171/HYD/2008 & 2068 HYD/201 1 ) M/S. CITADEL RESEARCH AND SOLUTIONS LTD., HYDERABAD 3 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, STRONGLY OPPOSED THE ABOVE SUBMI S SION S O F THE ASSESSEE AND SUBMITTED THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL AND THE PRESENT APPLI C ATION S ARE LIABLE TO BE REJECTED. 6. WE HEARD BOTH SIDES AND PERUSED THE ORDER OF THE TRIBUNAL DATED 13.3.2013 IN THE LIGHT OF O THER MATERIAL AVAILABLE ON RECORD. WE DO NOT FIND ANY MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL. THE TRIBUNAL CONSIDERED ALL THE CONTENTIONS OF THE ASSESSEE AND THE MATERIAL AVAILABLE ON RECORD, AND CAME TO A SPECIFIC CONCLUSION THAT TH E EFFECTIVE DATE OF ACQUISITION OF SHARES BY THE ASSESSEE WAS 23.8.2001 AND NOT 24.11.2000 AS CLAIMED BY THE ASSESSEE IN TH E COMPUTATION, AND THE D A TE O F TRANSFER OF SHARES TOO CANNOT BE TAKEN AS 3.1.2003 B E CAUSE AS PER AGREEM E NT DATED 18.7.2002, THE SHARE S WERE LODGED WITH GE MEDICAL SYSTEMS INFORM A TION TECHNOLOGY P V T . LTD. B EFORE 31.7.2002. THIS IS A WELL CONSIDERED AND CONSCIOUS VIEW TAKEN BY THE TRIBUNAL, ON APPRECIATION OF ALL THE MATERIAL AVAILABLE ON RECORD AND WE FIND NO MISTAKE WHATSOEVER IN THE O RDER OF THE TRIBUNAL ON THIS ASPECT. WE FIND THAT THE ASSESSEE THROUGH THE ELABORATE CONTENTIONS IN THESE APPLICATIONS, IS MERELY SEEKING A R E VIEW OF THE ORDER OF THIS TRIBUNAL DATED 13.3.2013, BY REITERATING ITS CONTENTIONS AND REARGUING THE CASE. SINCE SUCH A REVIEW IS NOT PERMISSIBLE IN THESE PROCEEDINGS UNDER S.254(2) OF THE ACT, THE SCOPE OF WHICH IS CONFINED TO RECTIFICATION OF OBVIOUS AND PATENT MISTAKES APPARENT FROM REC ORD, WE FIND NO MERIT IN THE PRESENT APPLICATIONS OF THE ASSESSEE, WHICH ARE ACCORDINGLY REJECTED. MA NO.2 15 - 216 /HYD2013 (IN ITA NO. 1171/HYD/2008 & 2068 HYD/201 1 ) M/S. CITADEL RESEARCH AND SOLUTIONS LTD., HYDERABAD 4 7 . IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATION S OF THE ASSESSEE ARE REJECTED. ORDER PRONOUNCED IN THE COURT ON 28.01.2014 SD/ - SD/ - (CHANDRA POOJARI ) (ASHA VIJAYARAGHAVAN) ACCOUNTANT MEMBER JUDICIAL MEMBER DT/ - 28 TH JANUARY, 2014 COPY FORWARDED TO: 1. M/S. CITADEL RESEARCH AND SOLUTIONS LTD., 35 SAI ENCLAVE, AVENUE 1, ROAD NO.12, BANJARA HILLS, HYDERABAD 500 034. 2 . ASST . COMMISSIONER OF INCOME - TAX CIRCLE 1 (2), HYDERABAD 3. COMMISSIONER OF INCOME - TAX(APPEALS) I I, HYDERABAD 4. COMMISSIONER OF INCOME - TAX II HYDERABAD 5 DEPARTMENTAL REPRESENTATIVE, ITAT, HYDERABAD. B.V.S