M/s. Madhav Marbles & Granites, UDAIPUR V. ACIT, UDAIPUR

MA 22/JODH/2009

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0016 (ITAT-JODHPUR)
• Duration Of Justice: 3 year(s) 8 month(s) 8 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 07-03-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-02-2013
• Assessment Year: 1999-2000
• Appeal Filed On: 29-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAHESH KUMARDR
• Keywords: Bad and doubtful debts
• Section: 131

Judgement Text

1 IN THE INCOME TAX APPELALTE TRIBUNAL: JODHPUR BENCH : JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. M.A NO. 22/JU/2009 A/O ITA NO. 729/JU/2009 [A.Y. 1999-2000] M/S. MADHAV MARBLES & GRANITES LTD. VS. THE A.C.I. T, N.H. 8, AMBERI CIRCLE UDAIPUR UDAIPUR PAN NO. AAACM 9243 M (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI G.K. GARGIEYA SHRI SARVESH BALDI DEPARTMENT BY : SHRI MAHESH KUMAR(DR). DATE OF HEARING : 25/02/2013. DATE OF PRONOUNCEMENT : 07/03/2013. PER HARI OM MARATHA, J.M. : THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY T HE ASSESSEE IN RELATION TO TRIBUNAL ORDER DATED 30.5.2008 PASSED I N ASSESSEES CASE IN ITA NO. 729/JU/2007 FOR A.Y. 1999-2000. 2. THIS APPLICATION WAS RECEIVED BY HAND IN THIS OF FICE ON 3.11.2008 AND HAS BEEN FILED U/S 254(2) OF THE INCOME-TAX ACT , 1961 [HEREINAFTER 2 REFERRED TO AS 'THE ACT', FOR SHORT] AND IS BEING R EPRODUCED VERBATIM HEREINUNDER: APPEAL NO.: ITA 729/JU/2007 ORDER DATED 30/05/2008 HON'BLE MEMBERS, 1. THAT THE APPLICANT RESPECTFULLY SUBMITS THAT THE AFORESAID ORDER DATED 30/05/2008 REQUIRES RECTIFICA TION OF 'MISTAKE APPARENT FROM RECORD. 2. THAT THE IMPUGNED ORDER WAS PASSED BY THIS HON'BLE TRIBUNAL IN THE DEPARTMENTAL APPEAL AGAINST THE ORD ER DATED 16.05.2006 OF CIT (A), UDAIPUR PASSED U/S 147/143(3) OF THE INCOME TAX ACT, 1961 ('THE ACT' FOR SHORT) ALLOWING THE ASSESSEE/APPLICANT'S CLAIM OF R S. 2,29,70,959/- (BAD ADVANCES WRITTEN OFF TO TH E EXTENT OF RS. 1,82,89,333/- AND BAD DEBTS WRITTEN OFF TO THE EXTENT OF RS. 46,81,625.88/-). 3. THAT THIS HON'BLE TRIBUNAL VIDE IMPUGNED ORDER DATE D 30/05/2008 HAS DIRECTED TO DISALLOW THE SAID CLAIMS OF THE APPLICANT BY REVERSING THE RELIEF ALLOWE D BY LD CIT(A).THE RELEVANT PORTION OF THE SAID ORDER IS REPRODUCED HEREIN FOR READY REFERENCE: - 'SINCE THE ASSESSEE IS CLAIMING THEM AS ALLOWABLE AS THEY BECAME IRRECOVERABLE, HE HAS TO ESTABLISH PRIMARILY THAT ALL ARE RELATED AND HAVING NEXUS TO THE BUSINESS CARRIED ON BY THE 3 ASSESSEE AND ALSO WHILE COMPUTING THE INCOME OF THE PERIOD WHEN THEY WERE GIVEN THAT THESE TRANSACTION WERE TAKEN INTO ACCOUNT WHILE ARRIVING AT PROFIT CHARGEABLE TO TAX. BOTH INGREDIENTS WERE NOT SATISFIED BY THE ASSESSEE BEFORE THE DEPARTMENTAL AUTHORITIES. .. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT SINCE THE ASSESSEE HAS NOT SATISFIED THE INGREDIENTS REQUIRED FOR CLAIMING THE DEDUCTION IN QUESTION, IS NOT ENTITLED FOR THE SAME.' 4. THAT THE AFORESAID FINDINGS GIVEN BY HO N'BLE TRIBUNAL WHILE DISALLOWING THE CLAIM OF THE APPLI CANT THAT THE ASSESSEE HAS FAILED TO ESTABLISH BEFORE THE AUTHORITIES THE BUSINESS NEXUS AND THAT W HETHER THESE TRANSACTIONS WERE TAKEN INTO ACCOUNT WHILE ARRIVING AT PROFIT CHARGEABLE TO TAX IN THE YEAR IN WHICH THEY WERE GIVEN, IS NOT BORNE OUT OF THE FACTS AND THE MATERIAL ON RECORD AND IS CONTRARY TO THE ASS ESSMENT ORDER. 5. THAT THE CLAIM OF THE APPLICANT COMPANY WAS VERIFIED BY THE ASSESSING OFFICER DURING THE C OURSE OF ASSESSMENT PROCEEDINGS WHEREIN THE SAID ASPECTS WE RE NEVER A SUBJECT MATTER OF DISPUTE. THE CLAIM OF THE ASSESSEE WAS DISALLOWED BY THE ASSESSING OFFICER CATEGORICALLY ON THE GROUND THAT THE ASSESSEE HAS N OT TAKEN ANY LEGAL ACTIONS FOR THE RECOVERY OF THE 4 ADVANCES/DEBTS AND THE ASSESSEE HAS FAILED TO PR OVE THAT THE SAID ADVANCES/DEBTS HAVE ACTUALLY BECOME BAD AND THAT THE ADVANCES TO THE TUNE OF RS. 60,12,792/- PERTAINS TO THE PARTIES WHICH HAVE BEEN PROVED TO BE ENTRY PROVIDERS. THE RELEVANT PORTION OF THE ASSESSMENT ORDER IS REPRODUCED HEREIN BELOW- '4.9 FROM THE DISCUSSION MADE ABOVE AND CONSIDERING ALL THE FACTS AND THE MATERIAL EVIDENCE, IT IS CLEAR THAT: 1. THE ASSESSEE HAS FAILED TO FURNISH ANY DOCUMENTARY EVIDENCE WHATSOEVER IN RESPECT OF EFFORTS/STEPS TAKEN FOR THE RECOVERY OF THE ALLEGED ADVANCES. 2 ADVANCES TO THE TUNE OF RS 60,12,792/- HAVE BEEN SHOWN IN RESPECT OF CONCERNS BELONGING TO GAJENDRA PORWAL GROUP, WHICH HAS BEEN PROVED AS ENTRY PROVIDER AND THE FACT HAS ALSO BEEN ADMITTED BY SHRI GAJENDRA PORWAL IN THE STATEMENT RECORDED ON OATH U/S 131 AND THE ASSESSEE HAS FAILED TO REFUTE THE SAME, 3. ADVANCES TO THE TUNE OF RS 67,20,000/- HAVE BEEN SHOWN IN RESPECT OF CONCERNS WHICH ARE NOT TRACEABLE.' 5 'THE ASSESSEE HAS NOT GIVEN ANY DETAILS OF THE STEPS TAKEN BY HIM TO RECOVER THE AFORESAID DEBTS. THERE IS NOTHING ON RECORD TO PROVE THAT SUCH DEBTS HAVE ACTUALLY BECOME BAD. THE ASSESSEE HAS NOT FURNISHED ANY DETAIL WHETHER ANY LEGAL SUIT HAS BEEN FILED TO RECOVER THE DEBTS. IT IS A SETTLED POSITION OF THE LAW THAT WHEN ANY DEDUCTION OR ALLOWANCE IS CLAIMED BY THE ASSESSEE THE ONUS LIES ON HIM TO PROVE THE ALLOWABILITY OF THE SAME AND ITS BUSINESS EXPEDIENCY BUT IN THE INSTANT CASE THE ASSESSEE HAS FAILED TO DISCHARGE THE ONUS.' 5. THAT THE AFORESAID CONTENTIONS OF THE APPLICANT FUR THER FINDS SUPPORT FROM THE CATEGORICAL FINDINGS RECORDED BY T HE LD CIT(A) IN ITS ORDER DATED 30.07.2007 REPRODUCED HER EIN BELOW- 'I HAVE CONSIDERED THE FACTS OF THE CASE AND THE CONTENTIONS OF THE LD A/R AND FOUND THAT THE ADVANCE FOR RAW-MATERIAL HAS BEEN GIVEN IN ACCOUNTING YEAR 1993-94,1994- 95,1996-97 AND 1997-98, ADVANCE FOR CONSUMABLE IN ACCOUNTING YEAR 1996-97, ADVANCE FOR PROFESSIONAL FEES PAID IN 5 ACCOUNTING YEAR 1997-98, ADVANCE TO EMPLOYEES IN ACCOUNTING YEAR 1 993-94, 1996-97 AND 1997-98, CANCELLATION, VISA AND MISC IN 1996-97,ADVANCE AGAINST ENERGY CONSUMPTION TO TAMIL NADU ELECTRICITY BOARD IN 6 1993-94 ADVANCES IN CASE OF SUNDRY DEBTORS PERTAINS TO ACCOUNTING YEAR 1993-94,1994- 95,1995-96,1996-97 AND 1997-98.HIRE CHARGES RECEIVABLE IN ACCOUNTING YEAR 1995-96,SALE OF ADVANCE LICENCE IN 1995-96 AND 1996-97.ADVANCE TO ANU CONSTRUCTION, JALKANTA TECHNICAL AND FINANCIAL SERVICES P LTD AND JAIN INDUSTRIES WERE GIVEN FOR PURCHASE OF RAW MATERIALS IN ACCOUNTING YEAR 1994-95 AND 1995-96.IN CASE OF EMPLOYEES THEY HAVE LEFT THE ORGANIZATION. IN CASE OF THREE CONCERNS BELONGING TO GAJENDRA PORWAL GROUP, THE ADVANCES WERE GIVEN IN ACCOUNTING YEAR 1994-95 AND 1995-96 FOR PURCHASE OF RAW-MATERIAL.' THE LD CIT(A) HAS GIVEN A CLEAR FINDING IN ITS ORDE R THAT ADVANCES HAS BEEN GIVEN ON ACCOUNT OF RAW-MATERIALS IN THE PAST YEARS. 7. FURTHER THIS HON'BLE TRIBUNAL WHILE DISALLOWING THE CLAIM HAS OMITTED TO CONSIDER THAT THE RESPONDENT DEPARTMENT HAS LARGELY ACCEPTED THE FINDINGS GIVEN BY THE LD CIT(A) WHILE ALLOWING THE CLAIM OF THE ASSESSEE AND THAT THE APPEAL BY THE RESPONDENT DEPARTMENT HAS BE EN FILED ON THE LIMITED GROUND THAT THE CLAIM ON ACCOU NT OF BAD ADVANCES/DEBTS AMOUNTING TO RS 2,29,70,959/- BE DISALLOWED BECAUSE ADVANCES AMOUNTING TO RS 60,12,792/-PERTAINING TO ANU CONSTRUCTION, JALKANTA TECHNICAL AND FINANCIAL P LTD AND JAIN INDUSTRIES R ELATE TO 7 ACCOMMODATION ENTRY PROVIDERS. THE RESPONDENT DEPARTMENT HAS NO WHERE CHALLENGED THAT THE ASSESSE E HAS NOT ESTABLISHED THE BUSINESS NEXUS AND THAT THE SAI D DEBTS WERE TAKEN INTO ACCOUNT FOR ARRIVING AT PROFIT CHAR GEABLE TO TAX IN THE YEARS IN WHICH THEY WERE ADVANCED. TH E SPECIFIC GROUND OF APPEAL OF THE RESPONDENT DEPARTM ENT BEFORE THE TRIBUNAL IS REPRODUCED HEREIN BELOW- 'ON THE FACTS-AND CIRCUMSTANCES OF THE CASE, THE LD CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF RS 2,29,70,959/- ON ACCOUNT OF DOUBTFUL ADVANCES/DEBTS WRITTEN OFF IGNORING THE FACTS THAT THE DEBTS RE/ATE TO AN ACCOMMODATION ENTRY PROVIDER, WHO WAS AN EMPLOYEE AT THE TIME OF ADVANCING DEBTS'. FURTHER THIS HON'BLE TRIBUNAL WHILE PASSING THE ORD ERS HAS OMITTED TO DIFFERENTIATE BETWEEN THE CLAIM OF B AD ADVANCES AMOUNTING TO RS 1,82,89,3337- AND BAD DEBTS AMOUNTING TO RS 46,81,625/-. THE CLAIM OF BAD ADVANCES HAS BEEN DISALLOWED BY ASSIGNING/ APPLYING THE SAME REASONING/PRINCIPLE AS ASSIGNED/ APPLIED FOR DISALLOWING THE CLAIM OF BAD DEBTS WITHOUT APPRECIATING THE NATURE OF THE SAID ADVANCES, WHICH ARE IN THE NATURE OF TRADING LOSS DEDUCTIBLE U/S 28/29 OF THE ACT AND IN THIS REGARD THE FOLLOWING FACTS, DIRECTLY RELATABLE TO THE IMPUGNED ISSUE 8 AND RELEVANT FOR THE ADJUDICATION OF THE IMPUGNED CONTROVERSY HAS ESCAPED THE ATTENTION OF HON'BLE TRIBUNAL. A. THAT THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF EXPORTING MARBLE TILES AND GRANITE SLABS. THE ASSESSEE COMPANY IS NOT HAVING THEIR OWN MINES, THEREFORE THEY HAVE TO PURCHASE MARBLE BLOCKS FROM VARIOUS EXISTING MINE OWNERS/OPERATORS WHO HAVE MONOPOLY IN THE TRADE. AS PER THE PRACTICES PREVAILING IN THE TRADE OF DEALING WITH THE MINE OWNERS THE BUYERS HAVE TO BOOK THEIR PURCHASES BY MAKING ADVANCE PAYMENTS BEFORE THE MARBLE BLOCKS ARE ACTUALLY MINED OUT BY THE MINE OWNERS IN ORDER TO ENSURE THE REGULAR SUPPLY OF THE RAW-MATERIAL. THIS AGREEMENT ALSO CARRIES A RISK OF THE QUALITY OF THE MARBLE/GRANITE AS BEFORE THE ACTUAL MINING EVEN THE OWNERS DOESN'T KNOW ABOUT THE QUALITY OF THE MARBLE/GRANITE WHICH WOULD BE MINED OUT AND THEREFORE 'WHATEVER TRANSACTION TAKES PLACE BEFORE ACTUAL MINING IS ON THE BASIS OF NEGOTIATION BETWE EN THE BUYER AND SELLER ABOUT THE PRICES BASED ON THE GUESS WORK ABOUT THE QUALITY OF THE BLOCKS. THAT IT IS A MATTER OF CHANCE AS TO WHAT KIND OF QUALITY WOULD C OME OUT AFTER MINING AS SOME TIMES AFTER A LAYER OF INFERIOR QUALITY OF MARBLE BLOCKS BETTER QUALITY CO MES OUT. 9 B. THE ASSESSEE COMPANY HAS BEEN REGULARLY FOLLOWING SUCH PRACTICE OF MAKING ADVANCE BOOKINGS AS A MATTE R OF BUSINESS EXPEDIENCY AND THE SAME AS PER THE PAST EXPERIENCE OF THE ASSESSEE HAS RESULTED IN OVER ALL GAINS IN PURCHASING THE MARBLE BLOCKS AT CHEAPER RA TE AFTER TAKING INTO ACCOUNT SOME ODD INSTANCES OF LOS SES IN CASE OF INFERIOR QUALITY OF MARBLE/GRANITE. IF T HE ASSESSEE COMPANY DOES NOT FOLLOW SUCH PRACTICE THEN IT WILL END UP IN BUYING THE MARBLE BLOCKS AT A VERY HIGHER PRICE AS ONCE MARBLE BLOCK IS OUT, THE MINE OWNERS WOULD KNOW ITS QUALITY AND THE MAXIMUM PRICE THEY CAN GET FOR THE SAME THAT SINCE THE ASSESSEE COMPANY IS AN EXPORTER AND HAS TO COMPETE IN THE INTERNATIONAL MARKET, WHENEVER INFERIOR QUALITY OF MARBLE/GRANITE BLOCKS ARE MINED OUT THE ASSESSEE WA ITS FOR SOME TIME HOPING FOR A BETTER LAYER OF MARBLE BLOCK TO BE MINED OUT AND IN THE ABSENCE OF THE SAM E HAPPENING DESPITE ITS COMMITMENT REFUSES TO ACCEPT THE INFERIOR QUALITY OF MARBLE/BECAUSE THE PROCESS OF CONVERTING RAW MARBLE BLOCK INTO SALEABLE COMMODITY REQUIRES LOT OF PRODUCTION COST AND A MERE MARGINAL DIFFERENCE IN THE QUALITY CAN RESULT IN PRODUCT REJECTION CAUSING HEAVY LOSSES TO THE ASSESSEE COMPANY THEREFORE THE ADVANCE GIVEN TO THE MINE OWNERS BECOME IRRECOVERABLE . 9. THAT THE AFORESAID OMISSIONS AND MISTAKES WOULD CONSTITUTE 'MISTAKE APPARENT FROM RECORD' WITHIN THE MEANING OF SECTION 254(2) OF THE ACT AND THE 10 ASSESSEE/APPLICANT IN THIS REGARD PLACES RELIANCE ON THE FOLLOWING JUDICIAL PRONOUNCEMENTS CHAMPA LAI CHOPRA VS STATE OF RAJASTHAN REPORTED AT 257 ITR 74 (RAJ) WHERE THERE IS FACTUAL MISTAKE SO APPARENT THAT IT BECOMES NECESSARY TO CORRECT THE SAME, THE TRIBUNAL WOULD BE JUSTIFIED IN NOT ONLY CORRECTING THE SAID MISTAKE BY WAY OF RECTIFICATION BUT IN RECALLING SUCH ORDER AND POSTING FOR HEARING IF THE JUDGMENT HAS PROCEEDED ON THE BASIS OF THAT FACT CIT VS. DEVILAL SONI REPORTED AT 271 ITR 566 (RAJ) UNDER SECTION 254(2), THE TRIBUNAL IS AUTHORIZED TO RECTIFY ANY MISTAKE APPARENT FROM THE RECORD. THE SAID EXPRESSION IS WIDER THAN THE EXPRESSION APPARENT ON THE FACE OF THE RECORD AS GIVEN IN ORDER 47 RULE 1 OF CPC. CIT VS. MITHALAL ASHOK KUMAR REPORTED AT (1986) 158 ITR 755 (MP) TRIBUNAL IS COMPETENT TO RECTIFY ITS ORDER WHERE IT DISCOVERS THAT IT OMITTED TO CONSIDER RELEVANT MATERIAL ON RECORD, AND SUCH ACT/ON DOES NOT AMOUNT TO REVIEW OF ORDER. 4. CIT VS MOOL CHAND SHYAM LAL REPORTED AT 273 ITR 160 (ALL) 11 TRIBUNAL HAVING INCORRECTLY RECORDED CERTAIN FACTUA L ASPECTS IN ITS ORDERS, RECTIFICATION U/S 254(2) IS PERMISSIBLE. 3. AFTER HEARING THIS M.A, THE TRIBUNAL PASSED THE FOLLOWING ORDER: ON CAREFUL ANALYSIS OF THE ORDER DATED 30.5.2008 PA SSED BY THE TRIBUNAL WELL AS THE ORDERS OF THE LOWER AUTHORITIE S AND THE MATERIAL MADE AVAILABLE BEFORE THE ITAT, IT IS FOUN D THAT THE DISALLOWANCE OF THE CLAIMS OF THE ASSESSEE IS VERY MUCH REASONED ON THE GROUND THAT ASSESSEE IS NOT ABLE TO ESTABLISH THE NECESSARY INGREDIENTS REQUIRING THERETO. THEREF ORE, WE ARE OF THE CONSIDERED VIEW THAT THIS TRIBUNAL HAS T AKEN ONE OF THE POSSIBLE VIEWS BASING ON THE IMPUGNED ORDERS AS WELL AS THE MATERIAL MADE AVAILABLE BEFORE THE TRIBUNAL. TH EREFORE, SUCH A FINDING WILL NEVER CONSTITUTE A MISTAKE APPA RENT ON RECORD REQUIRING ANY RECTIFICATION OR AMENDMENT AS THE CASE MAY BE. ON THE OTHER HAND THE CONTENTIONS OF THE AS SESSEE IS ACCEPTED IT WILL CERTAINLY AMOUNT TO REVIEW OF THE ORDER DATED 30.5.2008 PASSED BY THE TRIBUNAL WHICH POWER IS NOT AVAILABLE WITH THE ITAT. ACCORDINGLY, THE PETITION OF THE ASSESSEE IS FOUND DE VOID OF MERIT AND IS HEREBY DI SMISSED. ACCORDINGLY, THE MISCELLANEOUS APPLICATION IS HEREB Y DISMISSED. 4. IN RESPECT OF THIS ORDER DATED 27.4.2010 PASSED IN MA NO. 22/JU/2010 FOR A.Y. 1999-2000, THE ASSESSEE FILED A WRIT PETITION AS 12 CIVIL WRIT PETITION NO. 8428/2010. COPY OF WHICH IS ENCLOSED AT PAGES 29 TO 39 OF ASSESSEES PAPER BOOK 5. THE HON'BLE HIGH COURT OF JUDICATURE FOR RAJAS THAN AT JODHPUR HAS PASSED AN ORDER DATED 19.12.2011 IN THIS WRIT P ETITION COPY OF WHICH IS ENCLOSED AT PAGES 43 TO 59 OF ASSESSEES P APER BOOK, WHEREIN IT HAS BEEN HELD AS UNDER: THEREFORE, THE PRESENT WRIT PETITION IS FOUND TO BE WORTHY OF ACCEPTANCE AND THE SAME IS ACCORDINGLY, ALLOWED AND SETTING ASIDE THE IMPUGNED ORDER OF LD. ITAT DATED 27.4.201 0 [ANNEX -1] U/S 254(2) OF THE ACT, THE MATTER IS REMANDED BACK TO THE LD. TRIBUNAL FOR PASSING FRESH ORDERS U/S 254(2) OF THE ACT ON THE MISC. APPLICATION OF THE ASSESSEE, CONSIDERING THE LEGAL POSITION, AS NARRATED ABOVE, IN ACCORDANCE WITH LAW WITHIN A PERIOD OF SIX MONTHS FROM TODAY. NO COSTS. 6. THUS IT BECOMES EVIDENT FROM THE ABOVE JUDGMENT THAT THE TRIBUNAL ORDER PASSED IN MA NO. 22/JODHPUR/2009 DAT ED 27.4.2010 HAS BEEN SET ASIDE AND THE MATTER HAS BEEN REMANDED BAC K TO THE TRIBUNAL FOR PASSING A FRESH ORDER U/S 254(2) OF THE ACT IN THE M.A. OF THE ASSESSEE, AFTER CONSIDERING THE LEGAL POSITION AS N ARRATED ABOVE, IN ACCORDANCE WITH LAW, WITHIN A PERIOD OF SIX MONTHS FROM THE DATE OF 13 ORDER I.E. 19.12.2011. HOWEVER, THE ASSESSEE/APPEL LANT/APPLICANT HAS BROUGHT THE FACT OF RENDITION OF THIS ORDER BY THE HON'BLE HIGH COURT DATED 19.12.2011 TO THE NOTICE OF THE ITAT ONLY ON 31.1.2013 VIDE LETTER DATED 28.1.2013 BY MAKING A PRAYER THAT THE QUANTUM APPEAL IN ITA NO. 134/JU/2010 FOR A.Y. IN VIEW OF THE ORDER P ASSED IN WRIT PETITION BY HON'BLE HIGH COURT SHOULD BE ENLISTED A LONGWITH THE QUANTUM APPEAL IN ITA NO. 729/JU/2007 FOR A.Y. PRIO R TO 31.3.2013, THE TRIBUNAL WAS NEVER INFORMED ABOUT THIS ORDER OF THE HON'BLE HIGH COURT EITHER BY THE ASSESSEE/APPELLANT/APPLICANT OR BY THE REVENUE. THEREFORE, IMMEDIATELY AFTER THE FACT OF THIS WAS B ROUGHT TO THE NOTICE OF ITAT THE APPEAL WAS FIXED FOR HEARING AND IT WAS HEARD AFRESH AS PER THE DIRECTIONS GIVEN. 7. AFTER HEARING BOTH THE SIDES AND AFTER THE PERUS AL OF THE ORDER OF HON'BLE HIGH COURT IT IS NOTICED THAT THIS ISSUE HA S TO BE DECIDED AFRESH IN THE LIGHT OF THE DIRECTIONS GIVEN. THEREFORE, I N THE LIGHT OF THE DIRECTIONS GIVEN BY THE HON'BLE HIGH COURT, WE ALLO W THE MA NO. 22/JU/2009 AND ORDER TO RECALL THE TRIBUNAL ORDER D ATED 27.4.2010 TO THAT EXTENT. AFTER RECALLING THE TRIBUNAL ORDER DA TED 27.4.2010 PASSED IN ITA NO. 729/JU/2007, WE FIX THE MAIN APPEAL FOR HEARING OF THIS ISSUE ON 12.3.2013. 14 8. BEFORE PARTING, WE WOULD LIKE TO MENTION THE FOL LOWING FACTS: A) MA NO. 22/JU/2009 IS DIRECTED IN RELATION TO TRI BUNAL ORDER DATED 30.5.2008 PASSED IN ITA NO. 729/JU/2007 FOR A .Y. 1999- 2000 IN THE CASE OF ACIT, CIRCLE 2, UDAIPUR VS. M/S . MADHAV MARBLES & GRANITES LTD., N.H. 8, AMBERI, UDAIPUR, P AN NO. AAACM 9243 M. BUT THE HON'BLE HIGH COURT HAS REFER RED TO THE MA NO. 22/JU/2009 IN ITA NO. 929/JU/2007 FOR A.Y. 1 999-2000 FILED BY THE ASSESSEE U/S 254(2) OF THE ACT. B) THUS THERE SEEMS TO BE SOME MISTAKE/ERROR IN THI S REGARD ALTHOUGH BOTH THE PARTIES ARGUED AND REFERRED TO TH E ORDER OF THE TRIBUNAL FOR AND AGAINST THE SUBJECT MATTER OF ITA NO. 729/JU/2007 FILED BY THE APPLICANT. BUT THE HON'BL E HIGH COURT HAS GIVEN A DIRECTION IN RELATION TO MA NO. 22/JU/2 009 IN ITA NO. 929/JU/2007 FOR A.Y. 1999-2000 [REFER TO PARA 1 OF HON'BLE HIGH COURTS JUDGMENT]. COPIES OF ANNEXURES MENTIONED IN THIS JUDGMENT HAVE NOT BEEN ENCLOSED FOR OUR PERUSAL. A CCORDINGLY, WE DIRECT THE REGISTRY TO FIX THE APPEAL ON 12.3.20 13. 15 9. IN THE RESULT, THE M.A. IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH MARCH, 2013. SD/- SD/- [N.K. SAINI] [HARI OM MARATHA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 7 TH MARCH, 2013 VL/ COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR ASSISTANT REGISTRAR