Dy. Commissioner of Income Tax-Cir.2(1)(2), Surat V. S. N. Tradelink Private Limited, Surat

MA 28/SRT/2019

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5773 (ITAT-SURAT)
• Duration Of Justice: 8 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-12-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 11-04-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MRS ANUPAMA SINGLA
• Assessee Lawyers: SANJAY SHAH
• Keywords: Depreciation; Rectification of order
• Section: 13

Judgement Text

GUJARAT NARMADA VALLEY FERTILIZERS CO. LTD V. DCIT, BHARUCH RANGE, BHARUCH/AY. 2008-09 PAGE 1 OF 4 , , IN THE INCOME TAX APPELLATE TRIBUNAL-SURAT-BENCH-SURAT BEFORE SHRI SANDEEP GOSAIN, JUDICIUAL MEMBER AND SHRI O.P.MEENA, ACCOUTANT MEMBER M.A. 28/SRT/2019 [ARISING OUT OF . . /. I.T.A NO.2930/AHD/2013] / ASSESSMENT YEAR:2008-09 GUJARAT NARMADA VALLEY FERTILIZERS & CHEMICALS LIMITED, P.O-NARMADA NAGAR, DIST-BHARUCH, BHARUCH-392 015. [PAN:AAHHK 4703 R] VS. D EPUTY C OMMISSIONER OF INCOME TAX, BHARUCH RANGE, BHARUCH. APPELLANT / RESPONDENT /ASSESSEE BY SHRI SANJAY SHAH AR /REVENUE BY MRS. ANUPAMA SINGLA, SR.(D R ) / DATE OF HEARING: 13 - 12 - 20 19 /PRONOUNCEMENT ON: 30 - 12 - 2019 /O R D E R PER O. P. MEENA, AM: 1. BY WAY OF THIS MISCELLANEOUS APPLICATION PETITION, THE ASSESSEE IS SEEKING TO RECALL OF THE ORDER OF TRIBUNAL PASSED IN ITA NO.2930/AHD/2013 BY ASSESSEE [ITA NO.2921/AHD/2013 BY DEPARTMENT] FOR ASSESSMENT YEAR 2008-09, IN RELATION TO SETTING ASIDE THE MATTER TO THE FILE OF THE LD. AO/LD. CIT(A), WITH RESPECT TO EXPENDITURE ON CONSUMPTION AND STORES AND ITS SPARES. 2. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IN GROUND NO 1 OF THE DEPARTMENT POINTED OUT THAT WHEN DECIDING THE GROUND NO.2 IN ITA NO. 2930/AHD/2013 REGARDING CLAIM OF DEPRECIATION ON GOODWILL AT PARA NO. 9 OF THE ORDER HAS REMITTED BACK FILE TO THE AO RELYING ON ITAT GUJARAT NARMADA VALLEY FERTILIZERS CO. LTD V. DCIT, BHARUCH RANGE, BHARUCH/AY. 2008-09 PAGE 2 OF 4 ORDER FOR ASSESSMENT YEAR 2007-08. HOWEVER, AFTER SUCH DECISION, THE HONBLE BENCH AT PARA 12 OF THE ORDER HAS INADVERTENTLY MENTIONED THAT MATTER IS REMITTED BACK TO THE FILE OF AO FOR GROUND NO. 2 OF ASSESSEES APPEAL. THUS, IN ESSENCE THE HONBLE TRIBUNAL WANTS TO FOLLOW THE ORDER OF HONBLE TRIBUNAL FOR AY. 2007-08 AND REMIT BACK THE MATTER TO THE FILE OF CIT(A), BUT THERE IS AN AMBIGUITY CREATED AS IN PARA NO. 12, THE HONBLE BENCH HAS INADVERTENTLY MENTIONED THAT MATTER IS REMITTED BACK TO THE FILE OF AO. 3. PER CONTRA , THE LD. SR. DR HAS NO OBJECTION TO THE PROPOSE RECTIFICATION OF MISTAKE. 4. WE HAVE CONSIDERED THE FACTS AND FIND THAT THE TRIBUNAL WHILE DECIDING GROUND NO. 2 WANTED TO REMIT BACK THE MATTER TO THE FILE OF THE CIT(A). HOWEVER, DUE TO INADVERTENT MISTAKE IN PARA 12, THE BENCH HAS MENTIONED THAT MATTER BE REMITTED BACK TO THE FILE OF THE AO. THEREFORE, CONSIDERING THE INTEND OF THE TRIBUNAL, THE MATTER NEEDS TO BE SET-ASIDE TO BACK TO THE FILE OF THE CIT(A). ACCORDINGLY, GROUND NO. 2 OF THE TRIBUNAL ORDER IS AMENDED AND THUS THE SAID GROUND NO.2 IS RESTORED BACK TO THE FILE OF THE LD. CIT(A) FOR RE-CONSIDERATION AS PER DIRECTION THEREIN, BY TRIBUNAL IN A.Y. 2007-08. 5. THE NEXT MISTAKE HAS BEEN POINTED OUT BY THE LD. COUNSEL IS THAT IN ITA NO.2921/AHD/2013, THE TRIBUNAL HAS DISCUSSED THE ISSUE INVOLVED IN GROUND NO. 1 AT PARA 10 OF THE ORDER THAT THE ISSUE OF CONSUMPTION OF STORES AND SPARES PARTS IS DECIDED BY THE TRIBUNAL IN ASSESSEES OWN CASE IN ASSESSMENT YEAR 2006-07. IN THAT YEAR, THE ISSUE GUJARAT NARMADA VALLEY FERTILIZERS CO. LTD V. DCIT, BHARUCH RANGE, BHARUCH/AY. 2008-09 PAGE 3 OF 4 WAS REMITTED TO THE FILE OF THE AO, AS IT CAN BE SEEN FROM PARA 2 AT PAGE NO. 6 IN LAST TWO LINES WHICH READS AS UNDER. THE AO HAS DIRECTED TO RE-EXAMINATION THE NATURE OF EXPENDITURE ITEM-WISE AND TAKE DECISION AS PER LAW. HOWEVER, AFTER SUCH DISCUSSION, THE TRIBUNAL HAS INADVERTENTLY OMITTED TO MENTION ITS DECISION IN THE SENSE THAT IT IS NOT MENTIONED CLEARLY AS TO WHETHER THE GROUND OF APPEAL HAS BEEN ALLOWED OR DISALLOWED AND TO WHOSE FILE THE ISSUE IS RESTORED. THUS, THERE IS EFFECTIVELY NO DISPOSAL OF THIS GROUND AS DISCERNIBLE FROM THE ORDER OF TRIBUNAL. HOWEVER, IN THE ESSENCE THE TRIBUNAL WANTED TO FOLLOW THE ORDER OF HONBLE TRIBUNAL IN ASSESSEES OWN CASE FOR THE EARLIER ASSESSMENT YEAR 2006-07 FOR THIS ISSUE. BUT, THE SAME IS NOT SPELT OUT IN CLEAR TERMS AND ALSO IT IS NOT CLEARLY MENTIONED AS TO WHOSE FILE THE ISSUE IS RESTORED. WHEREAS, THE SAME IS REQUIRED TO THE REMIT BACK AND THE FILE OF THE AO AS THE CROSS GROUND NO. 1 IN ASSESSEES APPEAL NO. 2930/AHD/2013 IS RESTORED TO FILE OF AO VIDE PARA NO.7 OF THE ORDER. 6. WE HAVE CONSIDERED THE FACTS AND ARE OF THE VIEW THAT THE TRIBUNAL HAS NOT GIVEN ITS DECISION, HOWEVER, CONSIDERING THE FACTS THAT IN EARLIER ASSESSMENT YEAR 2006-07, THE SAME ISSUE WAS SET-ASIDE TO THE FILE OF THE AO. ACCORDINGLY, THIS ISSUE ALSO ON SAME LINE SET-ASIDE TO THE FILE OF THE AO HAS DONE IN ASSESSMENT YEAR 2006-07. 7. THE NEXT MISTAKE HAS BEEN POINTED OUT BY THE LD. COUNSEL IS THAT THERE SEEMS TO BE TYPOGRAPHICAL MISTAKE AS NAMES OF THE AR AND SR. DR ARE INVERSELY MENTIONED. THIS BEING THE MISTAKE APPARENT FROM RECORD, GUJARAT NARMADA VALLEY FERTILIZERS CO. LTD V. DCIT, BHARUCH RANGE, BHARUCH/AY. 2008-09 PAGE 4 OF 4 IT IS BEING REQUIRED TO BE CHANGED. IN VIEW OF ABOVE, THE NAME FOR ASSESSEE SHOULD BE READ AS SHRI SANJAY R. SHAH AND FOR REVENUE SHRI JAMES KURIAN, SR. DR. 8. IN THE RESULT, MISC. APPLICATION FILED BY THE ASSESSEE IS ALLOWED 9. THE ORDER PRONOUNCED IN THE OPEN COURT ON 30-12-2019. SD/- SD/- (SANDEEP GOSAIN) (O.P.MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER SURAT: DATED: 30 TH DECEMBER, 2019/S.SAMANTA, PS COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/ GUARD FILE OF ITAT. BY ORDER // TRUE COPY // ASSISTANT REGISTRAR, SURAT