Nabros Pharma Pvt.Ltd., Ahmedabad V. The Jt.CIT.,(OSD)Circle-5, Ahmedabad

MA 3/AHD/2013

• Counselvise Citation: [2013] 123 COUNSELVISE.COM (IT) 9903 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-03-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 04-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR
• Keywords: Competent authority
• Section: 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD D BENCH AHMEDABAD BEFORE SHRI G.C.GUPTA , VICE PRESIDENT AND SHRI T.R. MEENA, ACCOUNTANT MEMBER M.A. NO. 3 /AHD/ 201 3 ASSESSMENT YEAR : 2009-10 (ARISING OUT OF ITA NO. 3316/AHD/2011) ASSESSMENT YEAR :2009-10 NABROS PHARMA PVT. LTD. NABROS TOWER, OPP. ART GALLERY, LAW GARDEN, ELLIS BRIDGE, AHMEDABAD V/S . JT.COMMISSIONER OF INCOME- TAX (OSD), CIRCLE 5, AHMEDABAD PAN NO. AA A C N7886N (APPELLANT) .. (RESPONDENT) BY APPELLANT SHRI S. N. SOPARKAR, A.R. /BY RESPONDENT SHRI RAHUL KUMAR, SR.D.R. /DATE OF HEARING 15.03.2013 /DATE OF PRONOUNCEMENT 22.03.2013 O R D E R PER : T.R.MEENA, ACCOUNTANT MEMBER THIS M.A. IS FILED BY THE ASSESSEE AGAINST THIS BEN CH ORDER DATED 31.08.2012 IN RESPECT OF REVENUES APPEAL IN ITA NO .3316/AHD/2011 FOR A.Y. 2009-10, WHERE THE ASSESSEE FILED C.O. AGAINST THE ORDER OF CIT(A)-XI, AHMEDABAD, DATED 19.10.2011. THE REVENUES APPEAL IS PARTLY ALLOWED AND NOW THE ASSESSEE MOVED THIS M.A. NO. 3/ AHD/ 2013, WHICH IS REPRODUCED AS UNDER: APPLICATION U/S 254(2) OF THE INCOME TAX ACT, 1961 1. THE APPELLANT ABOVE NAMED FILES THE PRESENT APPL ICATION AGAINST THE ORDER DATED 26/07/2012 PASSED BY THIS HON'BLE M.A. NO.3/AHD/13, A/O ITA NO. 3316/AHD/2011, A.Y. 09-10 PAGE 2 TRIBUNAL PARTLY ALLOWING THE APPEAL FILED BY THE RE SPONDENT (ORIGINAL APPELLANT). IT IS MOST RESPECTFULLY SUBM ITTED THAT IN THE SAID ORDER OF THE HON'BLE ITAT, THERE ARE ERROR S APPARENT ON THE RECORD. 2. THE HON'BLE TRIBUNAL PROCEEDED TO ADJUDICATE THE APPEAL FILED BY THE RESPONDENT (ORIGINAL APPELLANT) ON THE ISSUE OF DIRECTION GIVEN BY ID. CIT (A) TO AO TO VERIFY THE EVIDENCE PRODUCED BY THE APPELLANT AND TO ALLOW DEDUCTION U/ S 10B IF FOREIGN EXCHANGE WAS REALIZED WITHIN EXTENDED PERIO D BY THE COMPETENT AUTHORITY AS IN PARA 6/7 ON PAGE 3 OF THE ORDER: - '6. WE HAVE PERUSED THE ORDERS OF THE AUTHORITIES B ELOW AND GONE THROUGH THE CASE LAW AND CIRCULAR CITED BY ID. COUN SEL FOR THE ASSESSEE. WE HAVE CONSIDERED VIEW THAT THE ASSESSEE IS FULLY ENTITLED TO GET THE EXEMPTION U/S 10B OF THE IT ACT ON THE BASIS OF ORDER FOR EXTENSION OF COMPETENT AUTHORITY. THE ID. CIT (A) WAS ALSO JUDICIOUS IN GIVING THE DIRECTION TO THE A.O. TO AL LOW THE ASSESSEE'S CLAIM BY ACCEPTING EVIDENCE FOR EXTENSION OF COMPET ENT AUTHORITY. THEREFORE, THE A.O. IS DIRECTED TO ALLOW THE EXEMPT ION U/S 10B ON THE BASIS OF CANARA BANK LETTERS DATED 28.12.201 0 AND29.12.2010 FOR BILL AMOUNT USD 28750 (RS. 11,47, 125/-), USD 22250 (RS. 11,11,500/-), USD 28750 (RS. 12,21,875/- ), USD 90000 (RS. 44,46,000/-), USD 180000 (RS. 88,92,000/-) & U SD 23600 (RS. 11,18,640/-) IN TOTAL 1,78,91,140/-. THE APPELLANT HAS NOT PRODUCED THE EVIDENCE FOR EXTENSION OF RS. 52,90,75 1/- BEFORE US. 7. IN RESULT, THE REVENUE'S APPEAL IS PARTLY ALLOWE D' 3. IT IS RESPECTFULLY SUBMITTED THAT THE HON'BLE B ENCH INADVERTENTLY MADE TWO ARITHMETICAL ERRORS. FIRSTLY IT ERRED IN DIRECTING AO TO ALLOW EXEMPTION U/S 10B OF THE ACT AT RS. 1,78,91,140/- ON THE BASIS OF CANARA BANK LETTERS D ATED 28.12.2010 & 29.12.2010 WHEREAS BILL AMOUNTS A S PER THE M.A. NO.3/AHD/13, A/O ITA NO. 3316/AHD/2011, A.Y. 09-10 PAGE 3 ABOVE LETTERS TOTALS TO RS. 1,79,37,140/-. THE SECOND ARITHMETICAL MISTAKE COMMITTED BY THE HON'BLE BENCH IS THAT DIFFERENCE FOR WHICH, ACCORDING TO THE HON'BLE BENC H, THE APPELLANT DID NOT GIVE EXTENSION LETTERS WAS RS. 52 , 90, 751/-. THIS IS INCORRECT. THE CORRECT FIGURE WOULD BE RS. 48.21, 554/- (RS. 2, 27, 58, 694/- LESS RS. 1, 79, 37, 140/-) IT IS PRAYED THAT THE ERRORS BEING TYPOGRAPHICAL/ARITHMETICAL ERROR A CORRIGENDUM TO THE ORDER CORRECTING THE SAME MAY KINDLY BE PASS ED BY THE HON'BLE BENCH. 4. IT IS SUBMITTED THAT THE HON'BLE BENCH DENIED E XEMPTION OF RS. 52,90,751/- (CORRECT FIGURE RS. 48, 21, 554/-) ON THE BASIS THAT THE APPELLANT DID NOT PRODUCE EVIDENCE FOR EXT ENSION GRANTED BY COMPETENT AUTHORITY. THIS ADJUDICATION I S FACTUALLY INCORRECT SINCE CHART ON PAGE 19 OF THE PAPER BOOK GIVING DETAILS OF EXTENSION GRANTED BY CANARA BANK DULY SU PPORTED BY ADVICES DATED 05.01.2011 & 15.01.201 1 FOR INVOI CE OF $ 47225 (AT PAGE 21), OF $ 49210 (AT PAGE 23) & $ 10, 000(AT PAGE 23) IS OVERLOOKED BY THE HON'BLE BENCH. IN VIE W OF THIS IT IS OBVIOUS THAT THE HON'BLE BENCH FACTUALLY ERRED I N HOLDING THAT THE APPELLANT HAS NOT PRODUCED THE EVIDENCES F OR EXTENSION OF TIME TO REALIZE RS. 52,90,751/- (CORRE CT FIGURE RS. 48, 21, 554/-) BEFORE THE HON'BLE BENCH. 5. IN LIGHT OF THE ABOVE DISCUSSION THE ORDER OF LD. C IT (A) TAKING ALL EVIDENCES INTO CONSIDERATION OUGHT TO HA VE BEEN CONFIRMED AND APPEAL FILED BY REVENUE OUGHT TO STAND DISMISSED. 6. THE APPLICANT THEREFORE, RESPECTFULLY SUBMITS THAT IN THE LARGER INTEREST OF JUSTICE THE HON'BLE TRIBUNAL BE PLEASED TO ACCEPT THE PRAYER OF THE APPLICANT/ APPELLANT BY MODIFYING THE IMPUGNED ORDER AS STATED ABOVE SO AS TO APP RECIATE THE M.A. NO.3/AHD/13, A/O ITA NO. 3316/AHD/2011, A.Y. 09-10 PAGE 4 CORRECT FACTS AND RELIEF BE GRANTED TO THE APPLICA NT BY PASSING APPROPRIATE ORDERS. 2. WHILE WE HOLD THAT DEDUCTION U/S.10B IS ALLOWABL E TO THE ASSESSEE BUT WE DIRECT THE A.O. TO VERIFY THE EVIDENCE PRODUCED BY THE ASSESSEE AND TO QUANTIFY THE DEDUCTION ALLOWABLE TO THE ASSESSEE. THE OTHER CLAIMS OF THE ASSESSEE WITH REGARD TO THE DEDUCTION OF AMOUNTING TO RS.48,21,554/-, WE DIRECT THE A.O. TO VERIFY THE EVIDENCES AND ALLOW T HE CLAIM OF THE ASSESSEE AFTER VERIFICATION AND AFTER GIVING REASONABLE OPPO RTUNITY OF BEING HEARD TO THE ASSESSEE. 3. IN THE RESULT, THE M.A. OF THE ASSESSEE IS ALLOW ED. THIS ORDER PRONOUNCED IN OPEN COURT ON 22.03.2013 SD/- SD/- (G.C.GUPTA) (T.R. MEENA) VICE PRESIDENT ACCOUNTANT MEMBER TRUE COPY S.K.SINHA ! ! ! ! '! '! '! '! / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. '(' ) * / CONCERNED CIT 4. *- / CIT (A) 5. !./ ), ) , 12( / DR, ITAT, AHMEDABAD 6. /45 67 / GUARD FILE. BY ORDER/ , 8/ 1 ': ) , 12( ;