The Additional Commissioner of Income Tax, Junagadh Range-1, JUNAGADH V. Gujarat Sidhee Cement Ltd., Veraval

MA 33/RJT/2020

AI Insights

The case involves a Miscellaneous Application by the Revenue seeking rectification of an earlier Tribunal order dated 11-09-2019, which mistakenly allowed an appeal ground instead of dismissing it. The dispute centered on the correct treatment of business promotion expenses in the assessment year 2008-09, where a disallowance of 35% was initially made based on consistency with a previous Tribunal order for the assessment year 2006-07. The Tribunal acknowledged the mistake in the earlier order and corrected the disallowance amount to match the findings of a subsequent case for the assessment year 2009-10, thus recalling the earlier decision for a fresh assessment.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 124060 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 4 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-10-2023
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-09-2023
• Assessment Year: 2008-2009
• Appeal Filed On: 26-05-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHI KUMAR PAND EY
• Keywords: Business income

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT [CONDUCTED THROUGH VIRTUAL COURT] Before: Ms. Suchitra Kamble, Judicial Member And Shri Waseem Ahmed, Accountant Member Th e ACIT, Jun agadh Rang e-1, Jun agadh (Appellant) Vs M/s. Gujarat S id dhee Cement Ltd. Sidheegram, Veraval Kodin ar Ro ad, Veraval PAN: AAA CG8057 G (Resp ondent) Asses see by : Shri Vimal Desai, A. R. Revenue by : Shri Ashi sh Kumar Pand ey, Sr. D.R. Date of hearing : 29-09 -2 023 Date of pronouncement : 06-10 -2 023 आदेश /ORDER PER : SUCHITRA KAMBLE, JUDICIAL MEMBER:- This Miscellaneous Application is filed by the Revenue in respect of order dated 11-09-2019. M.A. No. 33/Rjt/2020 (In ITA No. 370/Rjt/2014) Assessment Year 2008-09 M.A. 33/Rjt/2020 (In I.T.A No. 370/Rjt/2014) A.Y. 2008-09 Page No ACIT vs. M/s. Gujarat Sidhee Cement Ltd. 2 2. The ld. Departmental Representative submitted that in para 4 of the order dated 11-09-2019 there is mistake wherein the ground of appeal should have been “dismissed” instead the word “allowed”. The ld. Authorized Representative expressed that it is a mistake. 3. We have heard both the sides and perused all the relevant materials available on record. It appears that in para 4 of order dated 11-09-2019, there is a mistake apparent on record and therefore para 4 is rectified as under and the same be read as:- “4. In parity with the same we dismiss this ground of appeal of the assessee.” 4. As regards second issue, the ld. Departmental Representative submitted that the Tribunal dismissed this ground of appeal of Revenue stating the CIT(A) made disallowance of 35% on total sales promotion expenses on the principle of consistency and on the basis of order of Tribunal in assessee’s own case for assessment year 2006-07. However, no addition under the under business promotion expenses is made by the Assessing Officer in assessment year 2006-07. Further, while adjudicating the ground of appeal taken by the assessee in respect of disallowance out of business promotion expenses confirmed to the tune of Rs. 58,65,250/- by the CIT(A), the Tribunal held that we disallowed to the tune of Rs. 58,65,250/-. The ld. Departmental Representative submitted that in the order of the M.A. 33/Rjt/2020 (In I.T.A No. 370/Rjt/2014) A.Y. 2008-09 Page No ACIT vs. M/s. Gujarat Sidhee Cement Ltd. 3 Tribunal in ITA 154 and 253/Rjt/2015 for assessment year 2009-10, the Tribunal observed that the Assessing Officer made disallowance of Rs. 71,02,289/- out of the total sales promotion expenses. The ld. Departmental Representative submitted that to reconsider decision of disallowing 35% of amount of Rs. 58,65,250/- as the same is not in parity with Tribunal order in ITA Nos. 154/Rjt/2015 dated 25-04-2019 of the Tribunal order in assessee’s own case for assessment year 2006-07. 5. The ld. Authorized Representative submitted that though the facts are not discussed for assessment year 2008-09 in order dated 11-09-2019, the Department cannot ask for rectification in the assessee’s appeal through the present Miscellaneous Application is filed in Revenue’s appeal. The ld. Authorized Representative relied upon the order dated 11-09-2019. 6. We have heard both the sides and perused the materials on record. It appears that the Tribunal in para 6 though expressed that in parity with the order in assessment year 2009-10 but the finding is not in consonance with the said order dated 25-04-2019. Therefore, there is mistake apparent on record and we are recalling the order dated 11-09-2019 to the extent of the ground of appeal in respect of ITA 370/Rjt/2014 filed by the Revenue regarding the issue of disallowance out of business promotion expenses to the extent of Rs. 58,61,250/-. The order dated 11-09-2019 is recalled for specific issue stated hereinabove. The Registry is directed to place ITA No. 370/Rjt/2014 for fresh hearing on 06-11-2012. M.A. 33/Rjt/2020 (In I.T.A No. 370/Rjt/2014) A.Y. 2008-09 Page No ACIT vs. M/s. Gujarat Sidhee Cement Ltd. 4 7. In the result, the Miscellaneous Application filed by the Revenue is allowed. Order pronounced in the open court on 06-10-2023 Sd/- Sd/- (WASEEM AHMED) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER Ahmedabad : Dated 06/10/2023 आदेश क त ल प अ े षत / Copy of Order Forwarded to:- 1. Assessee 2. Revenue 3. Concerned CIT 4. CIT (A) 5. DR, ITAT, Ahmedabad 6. Guard file. By order, Assistant Registrar, Income Tax Appellate Tribunal, Rajkot