The ACIT, Circle-1, Ahmedabad V. Cadila Health Care Ltd., Ahmedabad

MA 228/AHD/2010

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8520 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 14 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-06-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 1996-1997
• Appeal Filed On: 25-10-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S P TALATI
• Assessee Lawyers: MUKESH M PATEL
• Section: 154; 15

Judgement Text

MA NOS.228,229,230 & 231/AHD/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH,AHMEDABAD (BEFORE SHRI MUKUL KR. SHRAWAT, J.M. AND SHRI A.MOHAN ALANKAMONY, A.M. ) MA NOS. 228,229,230 &231/AHD/2010 (ARISING OUT OF I.T.A. NOS. 3052,3053,3054 & 3055/ AHD/2004) (AYS: 1996-97,1997-98,1998-99 & 1999-2000) ACIT, CIRCLE-I, AHMEDABAD (APPELLANT) VS. CADILA HEALTH CARE LTD, AHMEDABAD ZYDUS TOWER OPP.ISKON TEMPLE SATELLITE CROSS ROAD, AHMEDABAD PAN: AAACC6253G ( RESPONDENT ) ON BEHALF OF THE ASSESSEE SHRI MUKESH M. PATEL. A .R. ON BEHALF OF THE REVENUE SHRI S.P.TALATI SR. D.R. DATE OF HEARING : 25-05-2012 DATE OF PRONOUNCEMENT : 8/6/12 ( )/ ORDER THESE FOUR MISCELLANEOUS PETITIONS HAVE BEEN FILED BY THE REVENUE IN IDENTICAL MANNER DATED 25-10-2010 ARISING FROM A CO MMON ORDER OF THE TRIBUNAL DATED 12-09-2008. ALMOST IN AN ALIKE WORD ED PETITIONS, THE REVENUE HAS RAISED THE FOLLOWING GRIEVANCE:- 1.1 ON PERUSAL OF THE ORDER DATED 12 TH SEPTEMBER, 2008, IT IS NOTICED THAT THE IN PARA-5 OF THE AFORESAID ORDER IT HAS BEEN MENTIO NED THAT IN VIEW OF THE ID. DR. HAVING NOT PRESSED EVEN THE ADMISSION OF AD DITIONAL GROUNDS, THE SAME ARE REJECTED AS SUCH. 1.2 IN THIS REGARD, IT IS TO SUBMIT THAT THE DEPARTMEN T HAS FILED ADDITIONAL GROUNDS OF APPEAL VIDE THIS OFFICE LETTER NO. ACIT( ODS)/R-1/ITAT/08-09 DTD. 7.4.2008. THIS FACT WAS MENTIONED IN PARA 2. 1 OF THE ITATS ORDER DTD.12..9.2008. MA NOS.228,229,230 & 231/AHD/2010 2 1.3 FURTHER, THE CIT(ITAT)-V, AHMEDABAD IN ITS LETTER D ATED 23.3.2009 HAS COMMUNICATED THAT; THE OBSERVATION OF THE ITAT AT PARA 5 AND 19 OF THE ORDER THAT THE DR DID NOT PRESS THE ADMISSION OF THE ADDITIONAL GROUN DS IS FACTUALLY INCORRECT . 1.4 IN VIEW OF THE ABOVE FACTS, IT IS PRAYED THAT, HON BLE ITAT RECTIFY THE MISTAKE APPARENT FROM THE RECORD IN THE ORDER FOR A .Y. 1996-97 AND ADMIT THE ADDITIONAL GROUNDS TAKEN BY THE REVENUE AND ADJ UDICATE ON THEM. 2.1 FURTHER, IN THE ABOVE REFERRED LETTER DATED 23. 3.2009 OF THE CIT(ITAT)-V, AHMEDABAD HAS FURTHER POINTED OUT IN PARA-2 AS UNDE R:- FURTHER, I MAY ALSO INVITE YOUR ATTENTION TO PARA 13 OF THE ITATS ORDER, WHEREIN REFERENCE WAS MADE TO ORDER U/S. 154 AND PA GE NO. 44 OF ASSESSEES PAPER BOOK. AS SEEN FROM THE PAPER BOOK FILED FOR A.Y. 1996-97 THERE IS NO SUCH ORDER. PAGE NO. 44 OF THE PAPER B OOK CONTAINS ORDER BOOK U/S 154 PERTAINING TO A.Y. 2003-04 AND NOT FOR A.Y. 1996-97. THIS ERROR CREPT INTO PARA 21 OF THE ORDER (PERTAIN ING TO A.Y. 1997-98), PARA 30 (PERTAINING TO A.Y. 1999-00) AND PARA 33 ( PERTAINING TO A.Y.2000- 01), ALSO AS THE ITAT FOLLOWED ITS ORDER FOR A.Y. 1 996-97. 2.2 IN VIEW OF THE ABOVE FACTS, ATTENTION IS INVITED TO PARA 13 OF THEITATS ORDER FOR A.Y. 1996-97, WHEREIN REFERENCE WAS MADE TO ORD ER U/S. 154 AND PAGE NO. 44 OF ASSESSEES PAPER BOOK. AS SEEN FROM THE PAPER BOOK FILED FOR A.Y. 1996-97 THERE IS NO SUCH ORDER. PAGE NO. 44 OF THE PAPER BOOK CONTAINS ORDER U/S. 154 PERTAINING TO A.Y. 2003-04 AND NOT F OR A.Y. 1996-97. 2.3 SINCE, THIS IS A MISTAKE APPARENT FORM RECORD W HICH HAS CREPT IN THE ORDER FOR A.Y.1996-97, IT IS REQUESTED THAT THE SAM E MAY KINDLY BE RECTIFIED. 2. FROM THE SIDE OF THE REVENUE LEARNED SR. DR M R. S.P. TALATI APPEARED AND INFORMED THAT IT WAS INCORRECT ON THE PART OF T HE TRIBUNAL TO COMMENT THAT THE LEARNED D.R. WAS NOT INTERESTED TO PRESS A DDITIONAL GROUND THROUGH WHICH THE QUASHING OF THE REOPENING OF THE ASSESSME NT WAS CHALLENGED. LEARNED D.R. DREW OUR ATTENTION ON A COMMUNICATION DATED 26-02-2008, I.E. A LETTER OF CIT ITAT, AHMEDABAD ADDRESSED TO ACIT, CIRCLE-I AHMEDABAD CIRCLE THROUGH WHICH THE RAISING OF AN ADDITIONAL G ROUND WAS SUGGESTED. ONCE IT WAS SUGGESTED BY D.R. HIMSELF THEN THERE WA S NO QUESTION OF NOT AGITATING THAT GROUND BEFORE THE RESPECTED TRIBUNAL . AN ANOTHER QUESTION MA NOS.228,229,230 & 231/AHD/2010 3 WAS THAT THERE WAS NOT A WRONG REFERENCE OF A FACTU AL ISSUE AND BECAUSE OF THAT REFERENCE THE TRIBUNAL HAS COMMITTED AN ERROR. 3. FROM THE SIDE OF THE RESPONDENT MR. MUKESH M . PATEL, A.R. APPEARED. HE HAS POINTED OUT THAT VIDE PARA 13 OF THE TRIBUNA L THE ACTUAL ISSUE HAS DULY BEEN CONSIDERED. THE REVENUE IS UNNECESSARILY RAIS ING THIS POINT ALTHOUGH THE SAME HAD DULY BEEN CONSIDERED BY THE TRIBUNAL I N THE FOLLOWING MANNER. 13. WITHOUT PREJUDICE TO ABOVE, SO FAR AS MERITS O F THE CASE ARE CONCERNED, THE ASSESSEES CASE IS THAT IT HAS N OT TRANSFERRED THE BENEFITS OF DEPB LICENSE TO ANY PARTY, RATHER H AD USED THE SAME FOR HOUSE CONSUMPTION, THERE IS NO QUESTION OF DISTURBING THE ORDER OF THE CIT(APPEALS). IN SUPPORT OF THESE SUBMISSIONS, THE ID. DR DREW OUR ATTENTION TOWARDS ORDER U/S. 15 4 R.W.S. 250 OF THE ACT DATED 16/04/2007(COPY PLACED AT NO. 44 O F THE ASSESSEES PAPER-BOOK), WHEREAS THE ASSESSING OFFIC ER GAVE EFFECT TO THE ORDER OF THE CIT(APPEALS) ON THIS POI NT, AFTER MAKING VERIFICATION OF THE ASSESSEES CLAIM THAT DE PB LICENSES WERE NOT TRANSFERRED IN ANY MANNER AND NO PROFIT WA S DERIVED FOR THE SAME. THE SPECIFIC OBSERVATIONS OF THE AS SESSING OFFICER AS CONTAINED IN PARAGRAPH NO. 1 OF THE ORDE R U/S. 154(SUPRA), READ AS UNDER:- AS THE CIT(A) HAS IN HIS APPELLATE ORDER DIRECTED T O GRANT THE DEDUCTION AFTER VERIFICATION OF WHETHER DEPB LICENS E RECEIVED BY THE COMPANY WERE NOT TRANSFERRED IN ANY MATTER A ND NO PROFIT WAS DERIVED FROM THE SAME. A LETTER REQUEST ING THE ASSESSEE FOR FURNISHING DETAILS OF THE ABOVE WAS IS SUED ON 04- 04-2007. 14.IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE OPINION THAT THE CIT(APPEALS) WAS QUITE JUSTIFIED IN DIRECTING THE ASSESSING OFFICER TO ALLOW THE ASSESS EES CLAIM AFTER MAKING VERIFICATION AS HAS BEEN REFERRED TO I N THIS ORDER. CONSEQUENTLY, ON MERITS ALSO THE REVENUE APPEAL FAI LS: 4. HAVING HEARD THE SUBMISSIONS OF BOTH THE SIDES, WE FIND NO FORCE IN THIS MISCELLANEOUS PETITION OF THE REVENUE. PRIMA F ACIE IT APPEARS THAT THERE MA NOS.228,229,230 & 231/AHD/2010 4 SHOULD NOT BE ANY GRIEVANCE TO THE REVENUE SPECIALL Y WHEN VIDE PARA 13 THE TRIBUNAL HAS RESTORED THE ISSUE BACK TO AO ONLY TO ALLOW THE ASSESSEES CLAIM AFTER MAKING VERIFICATION. THE REASON ASSIGNED IN THIS MISCELLANEOUS PETITION THEREFORE IS INCORRECT AND ON THAT BASIS NO RECTIFI CATION IS WARRANTED. AS FAR AS THE RAISING OF AN ADDITIONAL GROUND IS CONCERNED , EVEN IN THIS REGARD, NO EVIDENCE IS ON RECORD THAT THE REVENUE HAS IN FACT RAISED ADDITIONAL GROUND BEFORE THE TRIBUNAL. REVENUE HAS MERELY RELIED UP ON THEIR INTERNAL CORRESPONDENCE AND ON THAT BASIS IT IS NOT JUSTIFIA BLE TO HOLD THAT AN ADDITIONAL GROUND IN FACT HAS BEEN RAISED FROM THE SIDE OF THE REVENUE. SINCE THE REVENUE HAS NOT SATISFIED US ABOUT THE RA ISING OF THE ADDITIONAL GROUND THEREFORE, IT DOES NOT MATTER WHETHER THE DR HAS CONTESTED OR NOT. DUE TO THESE REASONS, WE HEREBY HOLD THAT NO MISTAK E, WHAT TO SAY AN APPARENT MISTAKE, WAS COMMITTED BY THE TRIBUNAL. H ENCE ALL THE PETITIONS OF THE REVENUE BEING IDENTICAL IN NATURE ARE HEREBY D ISMISSED. 5. IN THE RESULT, ALL THE FOUR MISCELLANEOUS APPLIC ATIONS ARE DISMISSED. SD/- SD/- ( . ) ( ) ( A. MOHAN ALANKAMONY ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIA L MEMBER AHMEDABAD; DATED 08/ 06 /2012 A.KUMAR/ . . , . . ./ T.C. NAIR, SR. PS MA NOS.228,229,230 & 231/AHD/2010 5 ! ! ! ! ' # ' # ' # ' # / COPY OF THE ORDER FORWARDED TO : 1. ! $% / THE APPELLANT 2. &$% / THE RESPONDENT. 3. ' ( ) / CONCERNED CIT 4. ) ( ! ) / THE CIT(A)-CONCERNED 5. *+ ( , ! ( , ' / DR, ITAT, AHMEDABAD 6. +,- ./ / GUARD FILE. / BY ORDER, & ! //TRUE COPY// 0! 0!0! 0! / ! 1 ! 1 ! 1 ! 1 ( DY./ASSTT.REGISTRAR) ! ! ! ! ( ( ( ( , ' ' ' ' / ITAT, AHMEDABAD 1. DATE OF DICTATION..01.06.12 / 04.06.12 (BY ASHISH KR.,PS) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 01.06.12 / 04.06.12 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S8.6.12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 8.6.12 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