The Dy. Commr. Of Income Tax, Morbi Circle, Morbi V. M/s Fact Paper Mills Ltd., Morbi

MA 24/RJT/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 1271 (ITAT-RAJKOT)
• Duration Of Justice: 9 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-12-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 28-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S RATHI
• Assessee Lawyers: MJ RANPURA
• Keywords: Audit objection; Tax effect
• Section: 143(3); 115JB; 251; 254(2); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RAJKOT BENCH, RAJKOT (THROUGH WEB-BASED VIDEO CONFERENCING PLATFORM) BEFORE SHRI RAJPAL YADAV, VICE PRESIDENT AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER MA NO. 24/RJT/2020 (ARISING OUT OF MA NO.15/RJT/2016 IN ITA NO. 508/RJT/2015) ASSESSMENT YEAR : 2007-08 THE ASSISTANT COMMISSIONER OF INCOME-TAX, MORBI CIRCLE, MORBI V/S . M/S. FACT PAPER MILLS LTD, SURVEY NO.289-290, LILAPAR ROAD, MORBI [PAN : AAACF 7140 B] (APPLICANT) .. (RESPONDENT) REVENUE BY : SHRI S.S. RATHI, SR. DR ASSESSEE(S) BY : SHRI M.J. RANPURA, AR / DATE OF HEARING : 16/12/2020 /DATE OF PRONOUNCEMENT : 16/12/2020 / O R D E R PER RAJPAL YADAV, VICE PRESIDENT: 1. THE PRESENT MISCELLANEOUS APPLICATION IS DIRECTE D AT THE INSTANCE OF THE REVENUE POINTING OUT AN APPARENT ERROR IN THE ORDER OF THE TRIBUNAL DATED 28.08.2019 PASSED IN MA NO. 15/RJT/2016. 2. THE BRIEF FACTS OF THE CASE ARE THAT REVENUE HAS FILED AN APPEAL BEARING ITA NO.508/RJT/2015 AGAINST THE ORDER OF THE LEARNED CI T(A) DATED 26.08.2015. AN ORDER UNDER SECTION 154 OF THE INCOME-TAX ACT, 1961 DATED 03.10.2011 WAS PASSED BY THE ASSESSING OFFICER UNDER SECTION 154 OF THE I NCOME-TAX ACT. THIS ORDER OF RECTIFICATION WAS CHALLENGED BY THE ASSESSEE BEFORE THE LEARNED CIT(A) AND THE LEARNED CIT(A) HAS ALLOWED THE APPEAL OF THE ASSESS EE BY WAY OF THE IMPUGNED ORDER. APPEAL OF THE REVENUE WAS DISMISSED BY THE TRIBUNAL ON THE GROUND THAT THE TAX EFFECT WAS LESS THAN THE PRESCRIBED LIMIT F OR CHALLENGING SUCH ORDER BEFORE MA NO. 24/RJT/ 2020 ACIT VS. FACT PAPER MILLS LTD AY 2007-08 - 2 - THE TRIBUNAL. THE TAX EFFECT WAS LESS THAN RS.10 L AKHS AND THE TRIBUNAL HAS APPLIED THE INSTRUCTION BEARING NO.21 OF 2015 DATED 10.12.2015. 3. DISSATISFIED WITH THE ORDER OF THE TRIBUNAL DATE D 16.12.2015, A MISCELLANEOUS APPLICATION BEARING NO.15/RJT/2016 WA S FILED BY THE REVENUE. THIS MISCELLANEOUS APPLICATION WAS DISMISSED BY THE TRIBUNAL VIDE ITS ORDER DATED 28.08.2019 OBSERVING THEREIN THAT THE REVENUE FAILED TO POINT OUT ANY APPARENT ERROR. THE TRIBUNAL FURTHER FOUND FROM TH E MISCELLANEOUS APPLICATION THAT THE TAX PAYABLE UNDER SECTION 115JB OF THE ACT WAS AT RS.2,91,379/- ON THE BOOK PROFIT OF RS.42,67,183/-. THE GRIEVANCE OF TH E REVENUE WAS THAT THE DEFERRED TAX LIABILITY OF RS.16,67,219/- WAS TO BE ADDED TO THE BOOK PROFIT FOR THE PURPOSE OF CALCULATING TAX LIABILITY UNDER SECTION 115JB OF THE ACT. THE TRIBUNAL WAS OF THE VIEW THAT, SINCE THE MONITORY LIMIT FOR CHALLENGING THE ORDER OF THE LEARNED CIT(A) BEFORE THE TRIBUNAL WAS ENHANCED FRO M RS.10 LAKHS TO RS.50 LAKHS BY CBDT INSTRUCTION NO.17 OF 2019 AND, THUS, EVEN I F ON ACCOUNT OF HIGHER TAX LIABILITY AVAILABLE, THEN ALSO THE APPEAL WOULD BE AGAIN DISMISSED AFTER RECALLING THE EARLIER ORDER. IN ALL EVENTUALITY, IT WILL FAL L BELOW RS.50 LAKHS; BECAUSE EVEN THE GROSS AMOUNT OF DEFERRED TAX LIABILITY SOUGHT T O BE ADDED BY THE ASSESSING OFFICER UNDER SECTION 154 IS TO BE CONSIDERED AT RS .16,67,219/-, IT WILL BE STILL LESS THAN RS.50 LAKHS FOR CHALLENGING THE ORDER OF THE L EARNED CIT(A). IN OTHER WORDS, THE AMOUNT CONSIDERED BY THE ASSESSING OFFICER FOR MAKING ADDITION IN THE BOOK PROFIT IS CONSIDERED AS RELIEF GIVEN BY THE LEARNED CIT(A), THEN ALSO THE TAX LIABILITY WOULD BE LESS THAN RS.50 LAKHS. 4. IN THE FRESH MISCELLANEOUS APPLICATION, THE REVE NUE HAS SUBMITTED THAT THERE WAS AN AUDIT OBJECTION AND, THEREFORE, THE CA SE OF THE REVENUE FALLS WITHIN THE EXCEPTION CLAUSE. MA NO. 24/RJT/ 2020 ACIT VS. FACT PAPER MILLS LTD AY 2007-08 - 3 - 5. AFTER HEARING LEARNED DEPARTMENTAL REPRESENTATIV E, WE DO NOT FIND ANY MERIT IN THE MISCELLANEOUS APPLICATION FOR THE FOLL OWING REASONS:- A) THERE CANNOT BE ANY MISCELLANEOUS APPLICATION UNDER SECTION 254(2) OF THE ACT FOR RECTIFICATION OF THE ORDER ON AN ORDER PASS ED UNDER SECTION 254(2) OF THE ACT. IN OTHER WORDS, THERE CANNOT BE ANY MISCE LLANEOUS APPLICATION ON MISCELLANEOUS APPLICATIONS ORDER. WE RELY UPON TH E JUDGMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF MENTHA & AL LIED PRODUCTS CO. (P.) LTD VS. ITAT [2000] 244 ITR 470, HONBLE ANDHRA PRA DESH HIGH COURTS JUDGMENT IN THE CASE OF CIT VS. IDEAL ENGINEERS [20 01] 251 ITR 743 AND ALSO THE JUDGMENT OF HONBLE ORISSA HIGH COURT IN THE CA SE OF CIT VS. ITAT, REPORTED IN [1992] 196 ITR 838. B) APART FROM THE ABOVE, IT IS PERTINENT TO NOTE THAT ORIGINALLY THE ASSESSMENT WAS PASSED UNDER SECTION 143(3) OF THE ACT AND FACT OF ANY AUDIT OBJECTION IS NOT DISCERNIBLE. IT IS NOT A CASE THAT THE ASSE SSMENT HAS BEEN REOPENED ON ACCOUNT OF AUDIT OBJECTION. IN THE FIRST ROUND OF L ITIGATION THE DEPARTMENT FAILED TO POINT OUT ANY SUCH EXCEPTION; EVEN AGAIN IT HAS NOT PLACED ON RECORD COPY OF SUCH AUDIT OBJECTION. WE, THEREFORE , DO NOT FIND ANY ERROR IN THE ORDER OF THE TRIBUNAL. 6. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 16 TH DECEMBER 2020 AT AHMEDABAD. SD/- SD/- (AMARJIT SINGH) ACCOUNTANT MEMBER (RAJPAL YADAV) VICE-PRESIDENT AHMEDABAD; DATED /12/2020 BIJU T., SR.PS MA NO. 24/RJT/ 2020 ACIT VS. FACT PAPER MILLS LTD AY 2007-08 - 4 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ! / CONCERNED CIT 4. ! ( ) / THE CIT(A) 5. $ '' , , / DR, ITAT, RAJKOT 6. - / GUARD FILE. / BY ORDER, TRUE COPY / ( DY./ASSTT. REGISTRAR) , / ITAT, RAJKOT 1. DATE OF DICTATION- 16.12.2020.. 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER .16.12.2020 OTHER MEMBER 16.12.2020. 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S. - 16.12.2020. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 16.12.2020 5. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK16.1 2.2020 6. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 7. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER 8. DATE OF DESPATCH OF THE ORDER