Parikh Enterprises Pvt Ltd., Ahmedabad V. Asstt. Commissioner of Income Tax(OSD), Ahmedabad

MA 23/AHD/2015

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5152 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-01-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 1993-1994
• Appeal Filed On: 09-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K MADHUSUDAN HEARING CONCLUDE
• Assessee Lawyers: JYOTISH M SHAH

Judgement Text

M.A. NO.23/ AHD/201 5 ASSESSMENT Y EAR: 1993 - 94 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR AM AND S S GODARA JM] M.A. NO.23/AHD/2015 (IN ITA NO. 636 /AHD/201 1) ASSESSMENT Y EAR : 1993 - 94 PARIKH ENTERPRISES PVT. LTD., ...... ............APPELLANT 442, GI DC, ODHAV, NEW WATER TANK, AHMEDABAD. [PAN: AA A C P 9275 D ] VS A.C.I.T. (OSD), CIRCLE 5, AHMEDABAD . ....... ...........RESPONDENT APPEARANCES BY J YOTISH M. SHAH , FOR THE APPELLANT K. MADHUSUDAN FOR THE RESPONDENT HEARING CONCLUDED ON: 0 6 / 0 1 / 20 17 ORDER PRONOUNCED ON : 24 / 0 1 / 20 1 7 O R D E R PER PRAMOD KUMAR , AM: 1. BY WAY OF THIS RECTIFICATION PETITION, THE ASSESSEE APPELLANT HAS POINTED OUT A MISTAKE APPARENT FROM RECORD IN ORDER DATED 16.01.2015 PASSED BY THE TRIBUNAL. 2. IT IS POINTED OUT THAT IN THE ORDER IMPUGNED BEFORE THE TRIBUNAL, THE LEARNED CIT(A) HAD PARTLY ALLOWED DEDUCTION UNDER SECTION 80I AND THE ASSESSING OFFICER WAS IN APPEAL BEFORE THE TRIBUNAL ON A SHORT POINT AGAINST THE RELIEF SO GRANTED. THE PRECISE GROUND OF APPEAL RAISED BY ASSESSING OFFICER BEFORE THE TRIBUNAL WAS THAT THE L EARNED CI T(A ) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE ASSESSING O FFICER TO RESTRICT THE DEDUCTION CLAIMED UNDER SECTION 80 - I BY EXCLUDING THE AMOUNT OF DUTY DRAW BACK M.A. NO.23/ AHD/201 5 ASSESSMENT Y EAR: 1993 - 94 PAGE 2 OF 4 R ECEIVED FOR COMPUTATION OF THE DEDUCTION UNDER SECTION 80 - I . CLEARLY , THEREFORE , THE GRIEVANCE E OF THE ASSESSING O FFICER WAS CONFINED TO CIT(A ) DIRECTING THE ASSESSING OFFICER TO RESTRICT DEDUCTION UNDER SECTION 80I BY EXCLUDING THE AMOUNT OF DUTY DRAW BACK. HOWEVER, WHILE ADJUDICATING ON THE AFORESAID GROUND OF APPEAL , AS POINTED OUT IN THE RECTIFICATION PETITION , THE T RIBUNAL TRAVELLED MUCH BEYOND THE LIMITED SCOPE OF GROUND OF APPEAL BEFORE THE T RIBUNAL AND RAISED THE ISSUE WITH RESPECT TO SITUATION OF THE CONDITIONS SET OUT UNDER SECTION 80I(I)(IV) AS IS EVIDENT FROM THE FOLLOWING OBSERVATIONS MADE BY THE TRIBUNAL : - 23. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND MATERIAL AVAILABLE ON RECORD. WE FIND THAT IN THE INSTANT CASE, THE ASSESSING OFFICER DISALLOWED THE CLAIM MADE BY THE ASSESSING U/S 80I ON THE GROUND THAT THE CONDITIONS SPECIFIED IN SECTION 80I(I)(IV)WERE NOT FULFILLED. THE CIT(A) DELETED THE DISALLOWANCE WITHOUT RECORDING ANY SPECIFIC FINDING ON THE ABOVE ISSUE. WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) ON THIS ISSUE AND RESTORE THIS ISSUE BACK TO THE FILE OF THE CIT(A) FOR ADJUDICATING THE ISSUE AFRESH BY PASSING A SPEAKING OR DER ON THIS ISSUE AFTER ALLOWING BOTH THE PARTIES REASONABLE OP PORTUNITY OF HEARING. THUS, THIS GROUND OF APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 3. LEARNED COUNSEL SUBMITS THAT THE ISSUE REGARDING SATISFACTION OF CONDITIONS SPECIFIED UNDER SECTION 80I(I)(IV) WAS NOT RAISED BY THE APPELLANT AND , T HEREFORE , THE TRIBUNAL COULD NOT HAVE DEALT WITH THE SAME. IT IS SUBMITTED , THE POWERS OF THE T RIBUNAL ARE CONFINED TO DEALING WITH SUCH ISSUE AS IS SPECIFICALLY RAISED BEFORE THE TRIBUNAL IN THE GROUND OF APPEAL. IT IS IN THIS BACKDROP THE ASSESSEE APPL ICANT PRAYS THAT THE IMPUGNED ORDER BE RECALLED FOR THE LIMITED PURPOSES OF ADJUDICATING UPON THE GROUND OF APPEAL IN QUESTION I.E. GROUND NO.3 IN REVENUE S APPEAL . 4. LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, RELIES UPON THE STAND OF THE TR IBUNAL AND SUBMITS THAT THERE IS N O MISTAKE APPARENT ON RECORD INASMUCH AS IT WAS A CONSIDERED DECISION OF THE TRIBUNAL TO REMIT THE MATTER BACK TO THE FILE OF THE M.A. NO.23/ AHD/201 5 ASSESSMENT Y EAR: 1993 - 94 PAGE 3 OF 4 ASSESSING O FFICER FOR ADJUDICATION AFRESH. IT IS SUBMITTED THAT IN THE COURSE OF ADJUDICATI NG UPON THE RECTIFICATION PETITION , A CONSIDERED AND WELL THOUGHT DECISION OF THE TRIBUNAL CANNOT BE REVISITED AND REVIEWED. H E , THUS , URGED TO DECLINE FROM INTERFERING IN THE MATTER. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON REC ORD. WE FIND THAT IT IS NOT EVEN IN DISPUTE THAT THE POWERS OF THE TRIBUNAL ARE QUITE RESTRICT ED IN THE SENSE THAT IT CAN DECIDE ONLY THE POINTS OR GROUNDS RAISED BEFORE IT AND CANNOT TRAVEL BEYOND SUCH POINTS OR GROUNDS OF APPEAL. WHILE ON THIS ASPECT O F THE MATTER, IT IS USEF UL TO REMEMBER AS WAS HELD BY THE HON BLE GUWAHATI HIGH COURT IN THE CA S E OF JEYPORE TIMBER AND VENEER MILLS PVT. LTD VS. CIT, 137 ITR 115 : - 'PARLIAMENT IN ITS WISDOM HAS CONFERRED UPON THE TRIBUNAL BROAD AND SWEEPING POWERS BUT A T THE SAME TIME CONTROLLED THE POWERS BY REQUISITE CONSTRICTION. THE PROVISION OF S. 254 OF THE ACT IS AN ENABLING AS WELL AS DISABLING PROVISION. A PASSING GLANCE CREATES AN IMPRESSION THAT THE TRIBUNAL HAS BEEN ENDOWED WITH PLENARY POWER UNDER S. 254 OF THE ACT TO PASS ANY ORDER AS IT THINKS FIT. HOWEVER, IT IS NOT SO, AS IT WILL APPEAR IN THE EXPRESSION SUCH ORDERS THEREON AS IT THINKS FIT , IN S. 254. THE WORD THEREON IN THE EXPRESSION IS A SERIOUS CONSTRICTION ON THE EXERCISE OF POWER BY THE TRIBUNA L. IT CAN DECIDE ONLY THE POINTS OR GROUNDS RAISED BEFORE IT WHEREAS THE IT AUTHORITIES CAN TRAVEL BEYOND THE GROUNDS AND CONSIDER THE ENTIRE ASSESSMENT. THE TRIBUNAL HAS NO POWER FOR THE ENHANCEMENT OF ANY PENALTY OR ASSESSMENT NOR CAN IT REMAND A CASE WI TH THE OBJECT OF SUCH ENHANCEMENT.' 6. RESPECTFULLY FOLLOWING THE ABOVE VIEWS AND IN THE LIGHT OF THE F A CT THE LIMITED ISSUE RAISED BEFORE THE TRIBUNAL INDEED WAS WHETHER THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE ASSESSING OFFICER TO RESTRICT THE DEDUCTION CLAIMED UNDER SECTION 80 - I BY EXCLUDING THE AMOUNT OF DUTY DRAW BACK RECEIVED FOR COMPUTATION OF THE DEDUCTION UNDER SECTION 80 - I , IT WAS INDEED A G LARING ERROR ON THE PART OF THE TRIBUNAL TO HAVE TRAVELLED BEYOND THE SCOPE OF A FORESAID GROUND OF APPEAL. THERE CANNOT BE TWO M.A. NO.23/ AHD/201 5 ASSESSMENT Y EAR: 1993 - 94 PAGE 4 OF 4 VIEWS ON THIS ASPECT OF THE MATTER NOR CAN THERE BE ANY DISPUTE ON THE PROPOSITION THAT THE TRIBUNAL DID NOT TRAVEL BEYOND THE SCOPE OF LIMITED GROUND BEFORE IT. THE PLEA TAKEN BY THE APPLICANT ASSESSEE, THE REFORE, IS INDEED WELL TAKEN AND DESERVES TO BE ACCEPTED . WE CONSIDER IT APPROPRIATE TO RECALL THE TRIBUNAL S ORDER DATED 1 6 .01.2015 FOR THE LIMITED PURPOSES OF FRESH ADJUDICATION ON GROUND NO.3 IN REVENUE S APPEAL WHICH AT THE COST OF REPETITION IS REPRO DUCED BELOW: - THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE ASSESSING OFFICER TO RESTRICT THE DEDUCTION CLAIMED UNDER SECTION 80 - I BY EXCLUDING THE AMOUNT OF DUTY DRAW BACK RECEIVED FOR COMPUTATION OF THE DEDUCTION UNDER SECTION 80 - I . 7. THE REGISTRY IS, THEREFORE, DIRECTED TO POST THE MATTER BEFORE THE BENCH FOR THE LIMITED PURPOSES AS ABOVE AND TO THAT EXTENT RECALL THE IMPUGNED ORDER AN D FIX THE APPEAL FOR HEARING O N 6 TH MARCH, 2017. 8 . IN THE RESULT, THE R ECTIFICATI ON P ETITION FILED BY THE ASSESSEE IS ALLOWED IN THE TERMS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT ON THIS 24 TH DAY OF JANUARY, 2017 . SD/ - SD/ - S S GODARA PRAMOD KUMAR (JUDICIAL MEMBER) (AC COUNTANT MEMBER) DATED: 24 TH DAY OF JANUARY, 201 7 . COPIES TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DR (6) GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BEN CHES, AHMEDABAD