The DCIT, Circle-4, Ahmedabad V. Gujarat Apollo Industries Ltd., Ahmedabad

MA 242/AHD/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5976 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-12-2017
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 18-09-2017
• Court: TRIBUNAL
• Department Lawyers: MEHUL K PATEL
• Assessee Lawyers: MAHESH JIWADE

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH (BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER) M.A. NO: 242/AHD/2017 (IN ITA NO. 200/AHD/2013) (ASSESSMENT YEAR: 2009-10) THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE- 4[NOW CIRCLE-2(1)(1)] AHMEDABAD V/S GUJARAT APOLLO INDUSTRIES LIMITED APOLLO HOUSE, NR. MITHAKHALI CIRCLE, NAVRANGPURA, AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AAACG7248P APPELLANT BY : SHRI MAHESH JIWADE, SR. D .R. RESPONDENT BY : SHRI MEHUL K. PATEL ( )/ ORDER DATE OF HEARING : 15 -12-201 7 DATE OF PRONOUNCEMENT : 18 -12-2017 PER N.K. BILLAIYA, ACCOUNTANT MEMBER: 1. WITH THIS MISCELLANEOUS APPLICATION, THE REVENUE HA S POINTED OUT THAT A RECTIFIABLE ERROR HAS CREPT IN THE ORDER OF THE TRI BUNAL IN ITA NO. 200/AHD/2013. M.A NO. 242/ AHD/2017 (IN ITA NO. 200/AHD/2013) . A.Y. 2009-1 0 2 2. IT IS THE SAY OF THE REVENUE THAT WHILE DISPOSING T HE APPEALS BY A CONSOLIDATED ORDER DATED 16.01.2017 IN ITA NO. 199 & 241/AHD/201 3 FOR A.Y. 2008-09 AND ITA NO. 200 & 242/AHD/2013 FOR A.Y. 2009-10. TH E ADDITIONAL GROUNDS RAISED VIDE LETTER DATED 13.03.2013 REMAINED TO BE UNADJUDICATED. 3. WE HAVE CAREFULLY GONE THROUGH THE MISCELLANEOUS AP PLICATION OF THE REVENUE VIS--VIS THE ORDER OF THE TRIBUNAL. A PERUSAL OF T HE ORDER SHOWS THAT THE ADDITIONAL GROUNDS RAISED VIDE LETTER DATED 13.03.2 013 REMAINED UNADJUDICATED WHICH DESERVE TO THE RECTIFIED. 4. WE ACCORDINGLY RECALL THE IMPUGNED ORDER OF THE TRI BUNAL FOR THE LIMITED PURPOSE OF ADJUDICATING THE FOLLOWING ADDITIONAL GR OUNDS:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DEL ETING DISALLOWANCE OF EXPENSES OF RS. 54,900/- INCURRED IN CONNECTION WITH BOUNUS SHARE WITHOUT APPRECIATING THE FACT THAT THE EXPENSES DOES NOT FALL WITHIN THE AMBIT OF SECTION 35D AND BEING PART OF EXPENSE RELATED TO ISSUE OF SHARE CAPITAL. 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DEL ETING DISALLOWANCE OF EXPENSES OF RS. 40,84,,911/- INCURRED ON LATE DELIVERY CHARG ES WITHOUT APPRECIATING THE FACT THAT THE EXPENSES ARE IN THE NATURE OF PENALTY IMPO SED BY THE DIFFERENT PARTIES ON THE ASSESSEE COMPANY ON ACCOUNT OF DELAYED DELIVERY OR LATE COMPLETION OF THE TERM AND CONDITIONS OF THE CONTRACT. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 4. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER MAY BE RESORTED TO THE ABO VE EXTENT. M.A NO. 242/ AHD/2017 (IN ITA NO. 200/AHD/2013) . A.Y. 2009-1 0 3 5. THE APPEAL WILL BE HEARD ON 28/02/2018 FOR THE ADJU DICATION OF THE AFOREMENTIONED ADDITIONAL GROUNDS. M.A. IS ACCORDIN GLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 18 - 12- 20 17 SD/- SD/- (MAHAVIR PRASAD) (N. K. BILLAIYA) JUDICIAL MEMBER TRUE COPY ACCOUNTANT MEMBER AHMEDABAD: DATED 18 /12/2017 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD