The Lakshmi Vilas Bank Limited, Karur V. ACIT, Trichy

MA 30/CHNY/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7996 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-04-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2002-2003
• Appeal Filed On: 20-03-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH A CHENNAI (BEFORE SHRI N.S.SAINI, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER ) .. M.P. NO. 29 & 30/MDS/2012 (IN I.T.A. NO. 552 & 553/MDS/2009) ASSESSMENT YEARS : 2001-02 & 2002-03 THE LAKSHMI VILAS BANK LIMITED, SALEM ROAD, KATHAPARAI, KARUR. PAN : AAACT 4291 P (PETITIONER) V. THE ASSISTNAT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE-I, TRICHY. (RESPONDENT) PETITIONER BY : SHRI G.SEETHARAMAN, CHARTERED ACCOUNTANT. RESPONDENT BY : SHRI SHAJI P. JACOB, ADDL. C.I.T. DR DATE OF HEARING : 20.04.12 DATE OF PRONOUNCEMENT : 2 7.04.12 O R D E R PER N.S.SAINI, ACCOUNTANT MEMBER : THIS IS A MISCELLANEOUS PETITION FILED BY THE ASSESSEE AGAINST THE CONSOLIDATED ORDER OF THE TRIBUNAL DATED 16 TH DECEMBER, 2010 M.P. NO. 29 & 30/MDS/12 2 PASSED IN ITA NOS.552 & 553/MDS./2009 FOR ASSESSMEN T YEARS 2001-02 & 2002-03. IN THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE, THE GRIEVANCE OF THE ASSESSEE IS THAT THE TRIBUNAL IN PARA NO.5 OF ITS ORDER HAS STATED THAT THE ISSUE I S RESTORED TO THE FILE OF THE ASSESSING OFFICER FOR CONSIDERATION AFRESH. THE ASSESSEE HAS SUBMITTED THAT THE APPEAL WAS FILED AGAINST THE ORD ER PASSED BY THE LD. C.I.T U/S.263 OF THE ACT AND THEREFORE, IF TH E ISSUE WAS RESTORED BACK, THEN THE SAME SHOULD BE RESTORED BACK TO THE LD.C.I.T. AND NOT THE FILE OF THE ASSESSING OFFICER. LD. DEPARTMENTA L REPRESENTATIVE, ON THE OTHER HAND, ARGUED THAT THE ISSUE HAS BEEN R IGHTLY RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER AS THE AS SESSING OFFICER HAS TO DO THE COMPUTATION OF DEDUCTION U/S.36(1)(VIIA) AND HENCE, THERE WAS NO MISTAKE IN THE ORDER OF THE TRIBUNAL. 2. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PER USING THE ORDER OF THE TRIBUNAL DATED 16 TH DECEMBER, 2010 PASSED IN ITA NOS.552 & 553/MDS./09, WE FIND THAT THE TRIBUNAL HAS HELD AS UNDER:- 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CONS IDERED THE MATERIAL AVAILABLE ON RECORD. ON A CAREFUL PER USAL OF THE M.P. NO. 29 & 30/MDS/12 3 FACTS AND CIRCUMSTANCES, WE ARE INCLINED TO HOLD TH AT HAVING ALLOWED THE ASSESSEES APPEAL FOR THE IMPUGNED ASSESSMENT YEARS ON THE ORDERS OF THE LD. C.I.T. U/ S.263 OF THE ACT, THE TRIBUNAL HAD NOT SPECIFICALLY CONSIDER ED THE GROUND RELATING TO CLAIM OF DEDUCTION U/S.36(1)(VII A) OF THE ACT IN ORDER TO CONSIDER THE LD. C.I.T.(APPEALS)S ORDER THAT STOOD ALREADY ADJUDICATED AND CONCLUDED THE APPEALS IN FAVOUR OF THE ASSESSEE. WE FIND FORCE IN THE SUBMI SSION OF THE LD. DR THAT THE POINT OF ISSUE ON THE MISTAKE F OR RECTIFICATION WAS MADE BY THE ASSESSEE-APPELLANT AN D NOT BY THE DEPARTMENT IN VIEW OF THE LIMITED CONSIDERATION OF THE ISSUE THAT THE ORDER U/S.263 OF THE ACT HAVING BEEN QUASHED BY THE TRIBUNAL WAS NOT TO BE ACTED UPON BY THE AS SESSING OFFICER. HOWEVER, ON THE BASIS OF INSISTENCE OF TH E ASSESSEE-APPELLANT THAT THE ISSUE REGARDING CLAIM O F DEDUCTION U/S.36(1)(VIIA) OF THE ACT HAD TO BE ADJU DICATED, WHICH IN FACT WAS CONSIDERED BY THE TRIBUNAL AGAINS T THE ASSESSEE, AS SUBMITTED BY THE LD. DR, THE MISTAKE A PPARENT FROM RECORD WAS ON THE BASIS OF FACTS ALONE AS CONS IDERED BY M.P. NO. 29 & 30/MDS/12 4 THE LD. C.I.T.(A) VIS--VIS AS CONSIDERED BY THE LD .C.I.T. IN HIS ORDER U/S.263 OF THE ACT. WE HAVE PERUSED THE ORDE RS OF THE LD. C.I.T.(A) AND LD. C.I.T. WHICH HAVE BEEN PLACED ON RECORD BY THE LD. COUNSEL FOR THE ASSESSEE AND FIND THAT T HE MATTER OR ISSUE WAS NOT FACTUALLY DELIBERATED UPON BY THE LD.C.I.T.(APPEALS) IN THE LIGHT OF THE FINDING OF T HE LD. C.I.T. U/S.263 OF THE ACT. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE HAS NOT BEEN ABLE TO SPECIFICALLY POINT OU T THE COMPUTATION WHICH OUGHT TO BE ALLOWED BY THE ASSESS ING OFFICER VIS--VIS AS CONSIDERED BY THE LD. C.I.T. I N HIS ORDER U/S.263 DIRECTING THE ASSESSING OFFICER TO COMPUTE AS PER RULE 6ABA AS SAID TO HAVE BEEN ADHERED TO BUT DOES NOT FIND ANY MENTION IN THE ORDER OF THE LD. C.I.T.(APP EALS) OR IN THE ORDER OF LD.C.I.T.. IN THE INTEREST OF JUSTICE , WE ARE INCLINED TO HOLD THAT THE ISSUE DOES REQUIRE CONSID ERATION BY THE ASSESSING OFFICER NOT PRIMARILY ON THE BASIS OF GRANTING OF DEDUCTION, BUT ON THE BASIS OF COMPUTATION WHICH EL IGIBILITY ALONE WAS DECIDED BY THE LD.C.I.T.(A), AND QUANTUM CONSIDERED BY THE LD.C.I.T. IN HIS ORDER U/S.263 OF THE ACT. M.P. NO. 29 & 30/MDS/12 5 THE TRIBUNAL HAD ALSO NOTED THAT THE ISSUE ON MERI TS IS NOT IN FAVOUR OF THE ASSESSEE, THEREFORE, REQUIRES CONS IDERATION BY THE ASSESSING OFFICER WHO IS TO COMPUTE THE ACTU AL DEDUCTION IN STRICT COMPLIANCE TO THE PROVISIONS GO VERNING THE SAID CLAIM. 5. AS THE FACTS HAVE NOT BEEN CLARIFIED EITHER BY THE DEPARTMENT OR BY THE ASSESSEE ON THIS ISSUE, IN THE INTEREST OF JUSTICE, THE ISSUE IS RESTORED TO THE FILE OF TH E ASSESSING OFFICER FOR CONSIDERATION AFRESH IN VIEW OF THE FAC T THAT BOTH THE ASSESSMENT YEARS HAVE TO BE CONSIDERED SEPARATE LY ON THE ISSUE INVOLVED, THEREFORE, GIVES A LEGITIMATE R IGHT TO AGITATION BY THE ASSESSEE ON THE APPEAL BEFORE THE TRIBUNAL ON THE ORDER OF THE LD. C.I.T. PASSED U/S.263 OF TH E ACT. FROM THE READING OF THE ORDER OF THE TRIBUNAL, IT I S OBSERVED THAT THE LD. COUNSEL FOR THE ASSESSEE WAS NOT ABLE TO POINT OUT THE COMPUTATION, WHICH WAS TO BE ALLOWED BY THE ASSESSI NG OFFICER AND THAT CONSIDERED BY THE COMMISSIONER OF INCOME TAX I N ITS ORDER U/S.263 DIRECTING THE ASSESSING OFFICER TO COMPUTE AS PER RULE 6ABA M.P. NO. 29 & 30/MDS/12 6 THEREFORE, THE TRIBUNAL HELD THAT THE ISSUE WAS REQ UIRED TO BE CONSIDERED BY THE ASSESSING OFFICER FOR COMPUTING T HE ACTUAL DEDUCTION IN STRICT COMPLIANCE TO THE PROVISIONS GO VERNING THE CLAIM. THEREFORE, THE TRIBUNAL RESTORED THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICER INSTEAD OF TO THE FILE OF LD.C.I. T. HENCE, WE DO NOT FIND ANY MISTAKE OR ERROR IN THE ORDER OF THE TRIBU NAL, WHICH REQUIRES RECTIFICATION BY US. HENCE, MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DISMISSED. 6. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON 27 TH APRIL, 2012. SD/- SD/- (VIKAS AWASTHY) (N.S.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 27 TH APRIL , 2012. K S SUNDARAM . COPY TO: (1) PETITIONER 4. C.I. T. (2) RESPONDENT 5. D.R. (3) CIT(A) 6. GUARD FILE