Samir L.Druve, Baroda V. The Income tax Officer,Ward-3(1), Baroda

MA 223/AHD/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8493 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-06-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 11-05-2012
• Assessment Year: 2000-2001
• Appeal Filed On: 19-10-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B L YADAV
• Keywords: Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, AHMEDABAD BEFORE SHRI D. K. TYAGI, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER M.A.NOS.223, 224 AND 225/AHD/2010 IN I.T.A. NOS. 376, 377 & 378/ AHD/2007 (ASSESSMENT YEAR 2000-01, 2001-02 & 2002-03) SHRI SAMIR L DURVE, KIRTI CLASSES, SUBHANPURA, BARODA VS. ITO ,WARD 3(1), BARODA PAN/GIR NO. : (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI BHAVIN MARFATIA, AR RESPONDENT BY: SHRI B L YADAV, SR. DR DATE OF HEARING: 11.05.2012 DATE OF PRONOUNCEMENT: 28.06.2012 O R D E R PER SHRI A. K. GARODIA, AM:- ALL THESE THREE MISCELLANEOUS APPLICATIONS ARE FIE LD BY THE ASSESSEE SEEKING RECALL OF THE COMBINED TRIBUNAL ORDER DATED 16.12.2009 AS PER WHICH THREE CROSS OBJECTIONS WERE DISMISSED ON THIS BASIS THAT SINCE THE APPEALS OF THE REVENUE WERE DISMISSED AS NOT MAINTA INABLE, THE CROSS OBJECTIONS DO NOT SURVIVE BECAUSE THERE IS NO SAVIN G FORMULA SUGGESTED BY THE ASSESSEE IN THE WRITTEN SUBMISSIONS FILED BY TH E ASSESSEE. IT IS ALSO THE SUBMISSIONS OF THE ASSESSEE IN THESE MISCELLANEOUS APPLICATIONS THAT IN THE SIMILAR FACTS, THE TRIBUNAL HAS DECIDED THE CROSS O BJECTIONS FILED BY THE ASSESSEE IN THE CASE OF SHRI DILIP GOHIL VIDE ORDER DATED 23.09.2008 IN C.O. NOS. 373, 374, 375/AHD/2007. THE ASSESSEE HAS ALSO PLACED RELIANCE M.A.NOS.223, 224 & 225 /AHD/2010 2 ON THE TRIBUNAL DECISION RENDERED IN THE CASE OF AC IT VS KRIPA CHEMICALS (P) LTD. AS REPORTED IN 82 ITD 449 IN WHICH, THE TR IBUNAL HAS FOLLOWED THE JUDGMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF SUPERINTENDING ENGINEER VS B SUBBA REDDY AIR (1999) SCW 1479. REL IANCE HAS ALSO BEEN PLACED ON THE TRIBUNAL DECISION RENDERED IN TH E CASE OF ITO VS K VENKATESH DUTT 87 TTJ 494 (BANG.) AND ALSO ON THE J UDGEMENT OF HONBLE GUAHATI HIGH COURT RENDERED IN THE CASE OF CIT VS PURVANCHAL PARIBAHAN GOSTHI AS REPORTED IN 234 ITR 663 AND ON THE JUDGEMENT OF HONBLE MADRAS HIGH COURT RENDERED IN THE CASE OF I TO VS FAGOOMAL LAKSHMI CHAND AND ANOTHER AS REPORTED IN 118 ITR 76 6 (MAD.) 2. IN THE COURSE OF HEARING BEFORE US, THE LD. A.R. HAS PLACED RELIANCE ON VARIOUS JUDGEMENTS CITED IN THE MISCELLANEOUS AP PLICATION FILED BY THE ASSESSEE FOR ALL THE THREE YEARS. LD. D.R. SUBMITT ED THAT THERE IS NO APPARENT MISTAKE IN THE TRIBUNAL ORDER FOR ALL THE THREE YEAS AND HENCE, THE MISCELLANEOUS APPLICATIONS OF THE ASSESSEE SHOULD B E REJECTED IN ALL THE THREE YEARS. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH VARIOUS JUDGEMENTS CIT ED BY THE ASSESSEE IN THESE THREE MISCELLANEOUS APPLICATIONS. WE FIND TH AT NONE OF THESE JUDGEMENTS SUPPORT THE CASE OF THE ASSESSEE AND WE WOULD DISCUSS ALL THESE JUDGEMENTS ONE BY ONE. 4. BEFORE DISCUSSING THE JUDGEMENTS CITED BY THE LD . A.R., WE WANT TO NOTE DOWN THE FACTS OF THE PRESENT CASE. IN THE PR ESENT CASE, THE APPEALS FILED BY THE REVENUE WERE DISMISSED BY THE TRIBUNAL AS PER TRIBUNAL ORDER DATE 14.02.2008 IN I.T.A. NOS. 3943, 3944 & 3945/AH D/2007 ON THIS BASIS THAT THESE APPEALS OF THE REVENUE ARE NOT MAI NTAINABLE BECAUSE OF LOW TAX EFFECT. IN THE IMPUGNED ORDER, ALL THE THR EE CROSS OBJECTIONS OF THE M.A.NOS.223, 224 & 225 /AHD/2010 3 ASSESSEE WERE DISMISSED BY THE TRIBUNAL ON THE BASI S THAT TRIBUNAL DID NOT FIND ANY SAVING FORMULAE IN THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE. - THE FIRST DECISION ON WHICH RELIANCE WAS PLACED B Y THE ASSESSEE IS THE TRIBUNAL DECISION RENDERED IN THE CASE OF DILIP GOHIL (SUPRA). IN THAT CASE ALSO, APPEAL OF THE REVENUE WAS DISMISSED BY T HE TRIBUNAL BECAUSE OF LOW TAX EFFECT BY HOLDING THAT THE APPEAL OF THE RE VENUE ARE NOT MAINTAINABLE. BUT WHILE DISPOSING OFF THE CROSS OB JECTIONS OF THE ASSESSEE IN THAT CASE, THIS WAS NOT AN ARGUMENT BEFORE THE T RIBUNAL FROM ANY SIDE THAT NONE OF THE APPEALS OF THE REVENUE WERE MAINTA INABLE AND THE CROSS OBJECTIONS OF THE ASSESSEE DO NOT SURVIVE. MOREOVE R IN THE PRESENT CASE, HAD IT BEEN POINTED OUT IN THE COURSE OF HEARING OF THE CROSS OBJECTIONS, WE MIGHT HAVE CONSIDERED THIS TRIBUNAL DECISION BUT IN THE PRESENT CASE, WE ARE DECIDING THE MISCELLANEOUS APPLICATIONS OF T HE ASSESSEE AND IN THE IMPUGNED ORDER, IT IS NOTED BY THE TRIBUNAL THAT IN THE WRITTEN SUBMISSIONS FILED BY THE ASSESSEE, THE TRIBUNAL DID NOT FIND ANY SAVING FORMULA. IT MEANS THAT NO SUCH ARGUMENT WAS RAISED BY THE ASSESSEE IN THE COURSE OF HEARING OF THESE CROSS OBJECTIONS AND , THEREFORE, IT CANNOT BE SAID THAT THERE IS ANY APPARENT MISTAKE IN THE TRIB UNAL ORDER AS PER WHICH, THE TRIBUNAL DISMISSED THE CROSS OBJECTIONS FILED B Y THE ASSESSEE AND, THEREFORE, THIS TRIBUNAL ORDER DOES NOT HELP THE CA SE OF THE ASSESSEE FOR THE PURPOSE OF DISPOSING OFF THESE MISCELLANEOUS APPLIC ATIONS. - THE 2 ND DECISION CITED BY THE ASSESSEE IN THE MISCELLANEOU S APPLICATION IS THE TRIBUNAL DECISION RENDERED IN TH E CASE OF ACIT VS KRIPA CHEMICALS (P) LTD. (SUPRA). IN THAT CASE, THE APPE AL OF THE REVENUE WAS WITHDRAWN BY THE DEPARTMENT WHEREAS IN THE PRESENT CASE, THE APPEAL OF THE REVENUE WAS DISMISSED AS NOT MAINTAINABLE. THE RE IS A THE BASIC DIFFERENCE IN BOTH THESE CASES. WHEN THE APPEAL IS WITHDRAWN BY THE REVENUE, IT MEANS THAT THE APPEAL WAS PROPER AND VA LID AND WAS ADMITTED M.A.NOS.223, 224 & 225 /AHD/2010 4 BY THE TRIBUNAL AND THEREAFTER, THE SAME WAS WITHDR AWN BY THE REVENUE. BUT IN THE PRESENT CASE, APPEALS OF THE REVENUE WER E NOT PROPER AND MAINTAINABLE AND WERE NOT ADMITTED BY THE TRIBUNAL. ONCE IT IS HELD THAT THE APPEALS OF THE REVENUE ARE NOT PROPER AND VALID AND, THEREFORE, NOT MAINTAINABLE, NO RIGHT ACCRUES TO THE ASSESSEE TO F ILE THE C.O. AND, THEREFORE, UNDER THESE FACTS, WE DO NOT FIND ANY AP PARENT MISTAKE IN THE TRIBUNAL ORDER EVEN AFTER CONSIDERING THIS TRIBUNAL DECISION CITED BY THE ASSESSEE. - IT IS ALSO STATED BY THE ASSESSEE IN THE MISCELLA NEOUS APPLICATIONS THAT WHILE DECIDING THE ISSUE IN THE CASE OF ACIT V S KRIPA CHEMICALS (P) LTD. (SUPRA), THE TRIBUNAL FOLLOWED THE JUDGEMENT O F HONBLE APEX COURT RENDERED IN THE CASE OF SUPERINTENDING ENGINEER VS B SUBBA REDDY (SUPRA), COPY OF WHICH HAS NOT BEEN SUBMITTED BUT W E FIND THAT IT IS NOTED BY THE TRIBUNAL ON PAGE 451 OF 82 ITD THAT RELIANCE ON THIS JUDGEMENT OF HONBLE APEX COURT WAS PLACED IN SUPPORT OF THIS CO NTENTION THAT CROSS OBJECTION IS LIKE AN APPEAL AND, THEREFORE, EVEN IF THE APPEAL HAS BEEN WITHDRAWN BY THE REVENUE, THE CROSS OBJECTION SURVI VE FOR ADJUDICATION. WE HAVE ALREADY NOTED THAT THERE IS BASIC DIFFERENC E IN WITHDRAWAL OF APPEAL AND DISMISSAL OF APPEAL OF THE REVENUE ON TH IS BASIS THAT THE SAME IS NOT PROPER, VALID AND MAINTAINABLE BECAUSE OF LO W TAX EFFECT AND, THEREFORE, THIS JUDGMENT OF HONBLE APEX COURT IS A LSO OF NO HELP TO THE ASSESSEE IN THE PRESENT CASE. - THE ASSESSEE HAS ALSO PLACED RELIANCE ON THE DECI SION RENDERED IN THE CASE OF ITO VS K VENKATESH DUTT (SUPRA). IN TH AT CASE ALSO, THE APPEAL OF THE REVENUE WAS WITHDRAWN ON THE BASIS TH AT THE A.O. HAS PASSED THE ORDER SUBSEQUENT TO THE DIRECTION OF LD. CIT(A) AND, THEREFORE, THE APPEALS ARE NOT PRESSED INTO SERVICE. SINCE, T HE FACTS ARE IDENTICAL TO THE CASE OF KRIPA CHEMICALS (P) LTD. (SUPRA), FOR T HE SAME REASON, IT IS M.A.NOS.223, 224 & 225 /AHD/2010 5 HELD THAT THIS TRIBUNAL DECISION IS ALSO OF NO HELP TO THE ASSESSEE IN THE PRESENT CASE. - THEREAFTER, THE ASSESSEE HAS ALSO PLACED RELIANCE ON THE JUDGEMENT OF HONBLE GUAHATI HIGH COURT RENDERED IN THE CASE OF CIT VS PURVANCHAL PARIBAHAN GOSTHI (SUPRA). ALTHOUGH THE COPY OF THIS JUDGEMENT WAS NOT SUBMITTED ALONG WITH THE MISCELLA NEOUS APPLICATION BUT RELEVANT PORTION OF THE SAME HAS BEEN REPRODUCE D BY THE ASSESSEE IN THE MISCELLANEOUS APPLICATION AT PARA 10, WHEREIN W E FIND THAT AS PER THIS JUDGEMENT OF HONBLE GUAHATI HIGH COURT, THE CROSS OBJECTION NEED NOT BE CONFINED TO THE POINTS TAKEN BY THE OPPOSITE PAR TY IN THE MAIN APPEAL AND IT DOES NOT THROW ANY LIGHT ON THIS ASPECT AS T O WHETHER THE CROSS OBJECTION OF THE ASSESSEE IS MAINTAINABLE EVEN WHEN THE APPEAL FILED BY THE REVENUE IS FOUND TO BE NOT PROPER, VALID AND MA INTAINABLE. THEREFORE, THIS JUDGEMENT OF HONBLE GUAHATI HIGH COURT IS ALS O OF NO HELP TO THE ASSESSEE IN THE PRESENT CASE. - THE LAST JUDGMENT ON WHICH RELIANCE WAS PLACED BY THE ASSESSEE IN THE MISCELLANEOUS APPLICATIONS IS THE JUDGEMENT OF HONBLE MADRAS HIGH COURT RENDERED IN THE CASE OF ITO VS FAGOOMAL LAKSH MI CHAND AND ANOTHER (SUPRA), COPY OF THIS JUDGEMENT HAS BEEN SU BMITTED ALONG WITH THE MISCELLANEOUS APPLICATIONS. IN THAT CASE, APPE AL OF THE REVENUE WAS DISMISSED BY THE TRIBUNAL EX-PARTE. IN THAT CASE, THE FACTS WERE TOTALLY DIFFERENT. IN THAT CASE, APPEAL FILED BY THE REVEN UE WAS DISPOSED OFF EX- PARTE AND SUBSEQUENTLY MEMO OF C.O. FILED BY THE AS SESSEE WAS ALSO DISMISSED. THE TRIBUNAL HAS SET ASIDE THE ORDER DI SMISSING THE MEMO OF C.O. ON ASSESSEES APPLICATION. SUBSEQUENTLY, THE TRIBUNAL ALSO SET ASIDE THE EX-PARTE ORDER IN REVENUES APPEAL. IT WAS HEL D BY THE HONBLE MADRAS HIGH COURT THAT SUCH ORDER OF THE TRIBUNAL A S PER WHICH IT SET ASIDE THE EX-PARTE ORDER IN REVENUES APPEAL IS JUSTIFIED . IN THE PRESENT CASE, THE M.A.NOS.223, 224 & 225 /AHD/2010 6 FACTS ARE TOTALLY DIFFERENT AND, THEREFORE, THIS JU DGEMENT OF HONBLE MADRAS HIGH COURT IS ALSO OF NO HELP TO THE ASSESSE E. 5. FROM THE ABOVE DISCUSSION, WE FIND THAT NONE OF THE JUDGEMENTS CITED BY THE ASSESSEE IN THE MISCELLANEOUS APPLICAT IONS IS RENDERING ANY HELP TO THE ASSESSEE IN THE PRESENT CASE. WE DO NO T FIND ANY REASON TO SAY THAT THERE IS ANY APPARENT MISTAKE IN THE TRIBUNAL ORDER. 6. IN THE RESULT, ALL THE THREE MISCELLANEOUS APPLI CATIONS OF THE ASSESSEE ARE DISMISSED. 7. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (D. K. TYAGI) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 25/6 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 25/6.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S.26/6 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 28/6 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.28/6 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 28/6/12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .