C.D. Integrated Servioces Ltd., Ahmedabad V. The Jt.CIT.,Range-3, Ahmedabad

MA 224/AHD/2012

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9920 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-02-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 23-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINGH
• Assessee Lawyers: A C SHAH
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE SHRI D.K.TYAGI , JUDICIAL MEMBER AND SHRI T.R. MEENA, ACCOUNTANT MEMBER M.A. NO. 224 /AHD/ 201 2 ASSESSMENT YEAR : 2009-10 (ARISING OUT OF ITA NO. 1629/AHD/2012) ASSESSMENT YEAR :2009-10 C.D. INTEGRATED SERVICES LTD., A-101/102, B-802, PREMIUM HOUSE, OPP. GANDHIGRAM RAILWAY STATION, ASHRAM ROAD, AHMADABAD - 380009 V/S . THE JCIT, RANGE -3, AHMEDABAD PAN NO. AA BC C 2 4 83R (APPELLANT) .. (RESPONDENT) BY APPELLANT SHRI A.C. SHAH, A.R. /BY RESPONDENT SHRI D.K. SINGH, SR.D.R. /DATE OF HEARING 01.02.2013 /DATE OF PRONOUNCEMENT 22.02.2013 O R D E R PER : T.R.MEENA, ACCOUNTANT MEMBER THIS M.A. IS FILED BY THE ASSESSEE AGAINST ORIGINAL ORDER DATED 26.10.2012 IN RESPECT OF ASSESSEES OWN APPEAL IN I TA NO.1629/AHD/2012 FOR A.Y. 2009-10, WHERE THE ASSESSEE FILED THE APPEAL A GAINST THE ORDER OF CIT(A)-6, AHMEDABAD, DATED 26.04.2012. THE ASSESS EES APPEAL IS DISMISSED AND NOW THE ASSESSEE MOVED THIS M.A. NO. 224/ AHD/ 2012, WHICH IS REPRODUCED AS UNDER: 1. WE ARE IN RECEIPT OF THE APPELLATE ORDER DATED 2 6-10-2012 ON 08-11-2012. THERE ARE CERTAIN APPARENT MISTAKES IN THE SAID ORDER. M.A. NO.224/AHD/12, A/O ITA NO. 1629/AHD/2012, A.Y. 09-10 PAGE 2 2. THE ASSESSMENT YEAR MENTIONED IN THE ORDER IS A. Y. 2006- 2007 WHEREAS IT IS ACTUALLY A.Y. 2009-2010. THE SAM E MAY PLEASE BE RECTIFIED. 3. THE HON'BLE LTAT HAS HELD IN PARA NO.4 ON PAGE NO. 4 AS UNDER: '4. WE HAVE GONE THROUGH THE ORDER OF THE AUTHORITI ES BELOW AND CASE LAWS CITED BY THE APPELLANT. THE APP ELLANT HAD SHOWN INVESTMENT IN SHARES IN BALANCE SHEET ON WHICH HE RECEIVED DIVIDEND WHICH HAS BEEN CONSIDERED BY T HE AO IN COMPUTATION OF RULE 8D. THE CASE LAWS CITED BY T HE APPELLANT ARE PERTAINED TO EARLIER YEAR AND RULE 8D WAS EFFECTIVE FROM THE A.Y. 2008-2009 WHICH IS SQUARELY APPLICABLE ON THE ASSESSEE AND IT IS MANDATORY ON T HE PART OF ASSESSEE TO CALCULATE THE DISALLOWANCE UNDER SEC TION 14A READ WITH RULE 8D. BOTH THE CASE LAWS CITED BY THE APPELLANT HAD ONLY TRADING INCOME . IT HAS NOT BORNE OUT FROM THE ORDERS IN THESE CASES, ANY INVESTMENT IN S HARES HAD SHOWN IN BALANCE SHEET SEPARATELY. THE ASSESSEE HAS INCURRED THE EXPENDITURE ON INTEREST AND OTHER EXPE NSES ON EMPLOYEE REMUNERATION AND ADMINISTRATIVE EXPENSES. THEREFORE, WE ARE OF CONSIDERED VIEW THAT THE CIT(A ) WAS RIGHT IN CONFIRMING THE ADDITION IN CASE OF THE ASS ESSEE. WE THEREFORE DISMISS THE APPEAL OF THE ASSESSEE.' 4. WHEREAS THE ATTENTION WAS DRAWN TO PARA NO.2 O F ASST. ORDER TO THE EFFECT THAT THE ASSESSEE IS DEALER IN SHARES WHICH IS ALSO SO STATED IN PARA NO.3 OF ITAT ORDER. THE ATTENTION WAS ALSO DRAWN TO THE CASE LAW OF CCI LTD. V/S. JCIT -ITA NO . 359 OF 2011 FOR A.Y. 2007-2008 [206 TAXMAN 563 (KAR) / 250 CTR 291 (KAR)] AND ITAT, B BENCH PUNE IN CASE OF APOORV A PATNI V/S. ACIT ORDER DATED 21-06-2012. 5. AND WHEREAS IT IS SPECIFICALLY STATED IN THE GR OUNDS OF APPEAL THAT THE ASSESSEE IS A DEALER IN SHARES AND THAT SE CTION 14A IS M.A. NO.224/AHD/12, A/O ITA NO. 1629/AHD/2012, A.Y. 09-10 PAGE 3 NOT APPLICABLE AS HELD BY ITAT MUMBAI IN CASE OF YA TISH TRADING CO. V/S. ACIT 129 1TD 237. 6. AND WHEREAS IT WAS SUBMITTED BEFORE HON'BLE ITAT THAT SECTION 14A(1) IS NOT APPLICABLE SINCE THE INCOME D OES NOT FORM PART OF TOTAL INCOME AND THEREFORE SECTION 14A (2) IS NOT APPLICABLE AND THEREFORE RULE 8D FRAMED THERE UNDER IS NOT APPLICABLE. 7. AND WHEREAS THE HON'BLE ITAT DID NOT CONSIDER GR OUND NO.1 AS PER GROUNDS OF APPEAL IN APPEAL MEMO. 8. THE HON'BLE ITAT MISAPPRECIATED THE FACTS AND LA W BY TREATING THE ASSESSEE AS NOT DEALER IN SHARES AND THEREBY HO N'BLE ITAT HELD THAT THE CASE LAW IS NOT APPLICABLE SINCE IT IS IN RELATION TO ASSESSMENT YEAR PRIOR TO A.Y. 2008-2009 . 9. MISAPPRECIATION OF FACTS AND LAW IS A MISTAKE APPARENT FROM RECORD. 9.1 NOT CONSIDERING THE CASE LAW CITED IN THE GROU NDS OF APPEAL AND AT THE TIME OF HEARING IS A MISTAKE APPARENT FR OM RECORD. 9.2 THE FUNDAMENTAL PRINCIPLE BEING, THAT POWER OF RECTIFICATION IS FOR JUSTICE AND FAIR PLAY [ACIT V/S. SAURASHTRA KUT CH STOCK KXCHANGE LTD. 262 ITR 146-162 (GUJ)]. 9.3 IT IS NECESSARY THAT EVERY FACT FOR AGAINST T HE ASSESSEE MUST HAVE BEEN CONSIDERED WITH DUE CARE BY THE TRIBUNAL AND IT MUST HAVE GIVEN THE FINDINGS IN A MANNER WHICH WOUL D CLEARLY INDICATE WHAT WERE THE QUESTIONS WHICH AROSE FOR DETERMINATION, WHAT WAS THE EVIDENCE PRO AND CONTRA IN REGARD TO EACH ONE OF THEM AND WHAT WERE THE FINDINGS WHIC H ON THE EVIDENCE ON RECORD BEFORE IT -RAMESHCHANDRA M. LUTH RA V/S. ACIT 257 ITR 460 (GUJ). 9.4 THE CONCLUSION REACHED BY THE TRIBUNAL SHOULD N OT BE COLORED BY ANY IRRELEVANT CONSIDERATIONS OR MATTERS OF PREJ UDICE AND IF THERE ARE ANY CIRCUMSTANCES WHICH REQUIRED TO BE EX PLAINED BY THE ASSESSEE, THE ASSESSEE SHOULD BE GIVEN AN OP PORTUNITY M.A. NO.224/AHD/12, A/O ITA NO. 1629/AHD/2012, A.Y. 09-10 PAGE 4 OF DOING SO. ON NO ACCOUNT WHATEVER SHOULD THE TRIB UNAL BASE ITS FINDINGS ON SUSPICIOUS, CONJUNCTURES OR SURMISE S NOR SHOULD IT ACT ON NO EVIDENCE AT ALL OR IMPROPER REJECTIONS OF MATERIAL AND RELEVANT EVIDENCE OR PARTLY ON EVIDENCE AND PAR TLY ON SUSPICIOUS, CONJUNCTURES OR SURMISES- OMAR SALAY MO HAMED SAIT V/S. CIT 37 ITR 151-170 (SC). 10. THE PROCEDURE REQUIRED TO BE ADOPTED BY THE TR IBUNAL SO AS TO ENSURE THAT THE ORDER IS AN APPELABLE ORDER, MUST B E ONE WHICH REFLECTS NOT ONLY ITS CONCLUSION, BUT THE DEC ISION MAKING PROCESS ALSO. REASONS, HOWEVER BRIEF ARE THE SOUL A ND BACKBONE OF AN ORDER -S.J. & S.P. FAMILY TRUST V/S. DCIT 277 ITR 557 (GUJ). 11. EVERY JUDICIAL / QUASI-JUDICIAL BODY / AUTHORIT Y MUST PASS A REASONED ORDER WHICH SHOULD REFLECT THE APPLICATION OF MIND OF THE CONCERNED AUTHORITY TO THE ISSUES / POINTS RAIS ED BEFORE IT. THE REQUIREMENT OF RECORDING REASONS IN AN IMPORTAN T SAFEGUARD TO ENSURE OBSERVANCE OF THE RULE OF LAW. IT INTRODUCES CLARITY, CHECKS THE INTRODUCTION OF EXTR ANEOUS OR IRRELEVANT CONSIDERATIONS AND MINIMIZES ARBITRARINE SS IN THE DECISION MAKING PROCESS - CIT V/S. PALWAL CO-OP. SU GAR MILLS LTD. 284 ITR 153 (P&H). 12. MERE REFERENCE TO DECISION OF ANOTHER BENCH WIT HOUT MENTIONING THE FACTS OF THAT CASE IS NOT PROPER [CI T V/S. MATRIX INTEL P. LTD. 294 ITR 257 (MAD)]. 13. WHEN PREJUDICE RESULT FROM AN ORDER ATTRIBUTABL E TO TRIBUNAL'S MISTAKE, ERROR OR OMISSION, THEN IT IS DUTY OF TRIB UNAL TO SET IT RIGHT [ HONDA SIEL POWER PRODUCTS LTD. V/S. CIT 295 ITR 466 SC]. 14. NON CONSIDERATION OF MATERIAL ON RECORD IS APPA RENT MISTAKE ON RECORD [CIT V/S. MITHALAL 158 ITR 755 (MP) AND A C1T V/S. SAURASHTRA KUTCH STOCK EXCHANGE LTD. 262 ITR 146 (G UJ)]. 15. YOUR HONOURS ARE THEREFORE PRAYED TO MODIFY / RECALL THE ORDER. M.A. NO.224/AHD/12, A/O ITA NO. 1629/AHD/2012, A.Y. 09-10 PAGE 5 2. WE HAVE HEARD THE RIVAL CONTENTIONS OF THE APPEL LANT AND THE REVENUE AND PERUSED THE MATERIAL ON RECORD AND FIND THAT AT THE TIME OF HEARING ASSESSEE RELIED ON SOME CASE LAWS WHICH INADVERTENT LY WERE NOT CONSIDERED BY US, THEREFORE, A MISTAKE HAS CREPT IN OUR ORDER. THIS BEING MISTAKE APPARENT FROM RECORD, WE RECALL OUR ORDER. 3. FURTHER, IN THE ORDER, ASSESSMENT YEAR IS WRONGL Y MENTIONED AS 2006- 07, WHICH SHOULD BE READ AS A.Y. 2009-10. ACCORDIN GLY, RECTIFICATION TO THAT EXTENT IS PASSED. 4. IN THE RESULT, THE M.A. OF THE ASSESSEE IS ALLOW ED. THIS ORDER PRONOUNCED IN OPEN COURT ON 22.02.2013 SD/- SD/- ( D.K.TYAGI ) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER TRUE COPY S.K.SINHA ! ! ! ! '! '! '! '! / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. '(' ) * / CONCERNED CIT 4. *- / CIT (A) 5. !./ ), ) , 12( / DR, ITAT, AHMEDABAD 6. /45 67 / GUARD FILE. BY ORDER/ , 8/ 1 ': ) , 12( ;