The Dy.CIT, Circle-1(2), Baroda V. M/s. IWI Cryogenic Vaporization Systems India Pvt. Ltd., Baroda

MA 337/AHD/2019

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 4192 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 2 month(s) 30 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-01-2024
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 18-01-2024
• Assessment Year: 2009-2010
• Appeal Filed On: 24-10-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL

Judgement Text

MA No.337/Ahd/2019 Assessment Year: 2009-10 Page 1 of 4 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD “C” BENCH, AHMEDABAD BEFORE Ms. SUCHITRA KAMBLE, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER MA No.337/Ahd/2019 (In ITA No.1593/Ahd/2014) Assessment Year: 2009-10 The Deputy Commissioner of Income Tax, Circle – 1(2), Baroda. Vs. M/s. IWI Cryogenic Vaporization System (I) Pvt. Ltd., A-36, Ganshyam Nagar Society, No.2, GIDC Road, Manjalpur, Baroda (Gujarat). [PAN – AAACI 4408 B] (Appellant) (Respondent) Assessee by Shri Hemant Suthar, AR Revenue by Shri J.L. Bhatia, Sr. DR Da te o f He a r in g 19.01.2024 Da te o f P ro n o u n ce m e n t 24.01.2024 O R D E R This Miscellaneous Application is filed by the Revenue against order dated 30.04.2019 passed by the Tribunal. 2. The Ld. DR submitted that there is an error in paragraph no.12 in respect of the quantity of loss of Argon Gas which was mentioned as 81006 Kgs. instead of 18000 Kgs. The Ld. DR has filed the details vide letter dated 29.09.2023 which is as follows :- “2. In this respect, it is submitted that the department has preferred above MA being mistakes in quantification of relief allowed by Hon'ble ITAT vide order dated 30.04.2019 in ITA No.1508 & 1593/Ahd/2014 i.e. confirmed the addition on account of total loss of Argon Gas of 81006 Kgs. @ Rs.29/-per Kgs. but had quantified at Rs.5,22,174/-, however correct addition comes to Rs.23,49,174/-. 3. Vide the captioned letter, Ld. DR “C” Bench, ITAT has enclosed the submission dated 30.05.2022 filed by AR of the submitting that there is no error in the quantum of addition confirmed by the ITAT i.e Rs.5,22,174/-. The error occurred in the value of loss of Argon Gas, which is mentioned MA No.337/Ahd/2019 Assessment Year: 2009-10 Page 2 of 4 81006 Kgs. in place of correct value of 18000 Kgs. Accordingly, directed to file a rejoinder mentioning all the details relating to the issue discussed above in the ITAT, Ahmedabad. 4. On examination of submission of the assessee as well as facts and detail available in case record, ii is submitted that case was assessed u/s.143(3) of the IT Act.1961 vide order dated 29.12.2011 estimating gross profit of Rs.6,84,35,210/- @ 32.77% rejecting books of account, however assessee was allowed Administrative & other expenses at Rs.4,16,86,691/- Out of the administrative expenditure allowed Rs. 88,97 ! 302/-(Replacement of 6 unit of LNG Vaporizers, Liquidated damages deducted by BOC India Ltd. & Loss of repairs deducted by M/s. Air Liquide Newzealand, Loss on Argon Gas) allowed as abnormal expenditures. The loss of Argon gas computed at Rs.23,52,414/- (81006 x 29.04 per Kgs.). 5. Aggrieved by the order of A.O, the assessee has preferred an appeal to the Ld. CIT(A). On the issue of loss of Argon gas allowed at Rs.23,52,414/- the Ld.CIT(A) in Page-34, para-4.3.8 of appellate order dated 26.02.2014 held as under: "The appellant's explanation in this regard has not found to be fully correct... ...Besides, no explanation is available on account of specific instances of loss of 42500 Kgs. of Argon gas on account of two transactions relating to export. The explanations regarding other losses except for loss of 95000 kgs. are also general in nature and are not backed up any evidences......... ...Thus, the benefit allowed by the A.O on account of loss of Argon gas amounting to Rs.23,52,414/- is also not fully correct.” 6. Aggrieved by the order of Ld. CIT(A) the assessee has preferred further appeal to the Hon’ble ITAT. In Para-12 of appellate order dated 30.04.2019 the Hon’ble ITAT has held as under: “As per CIT(A) page no.34 has held that the total loss of GAS 81006 Kgs. and rate of the Argon Gas is Rs.29 per Kg. and it cornea to Rs.5,22,174/-. Therefore, we confirmed the addition of Rs.5,22,174/- and remaining addition is directed to be deleted.” 7. Now, vide the submission dated 30.05.2022 the assessee has referred para-4.2.9 and 4.3.1 of CIT (A) order. In the para-4.3.1 it is mentioned that loss of Argon gas of 19500 kgs. Export to Nigeria quite obvious. Further, assessee has refer para-4 of the Hon’ble Tribunal order submitting that Tribunal fond 20.999 Kgs. is a normal loss and is to be accepted. As regards the loss of Argon gas in export is concerned. 19,500 Kgs. is accepted on the basis of findings of the Ld.CIT(A). For the balance of 40,507 Kd.s (60.007 Kgs. minus 19,500 Kgs.), the loss is identified as pertaining to the following transaction: i) MJC Global Services 22,500 Kgs. ii) Metal House Ltd. 18,000 Kgs. Total 40,500 Kgs. MA No.337/Ahd/2019 Assessment Year: 2009-10 Page 3 of 4 Of the above, the loss pertaining to MJC Global Services is accepted relying on the documents placed at Page Nos.93-95 of the Paper Book (Copies enclosed) Thus, only 18,000 Kgs. was found to be unexplained, the value of which was determined at Rs.5,22,174/- (18,000 Kg. X 29.00 per Kg,) and the same is confirmed. Accordingly, there is no error in the order of the Hon’ble Tribunal as claimed in the Miscellaneous Application. 8. Vide the submission assessee has referred para-4.2.9 & Para 4.3.1 of Ld.CIT (A) however, the Ld.CIT(A) has concluded the issue of loss of Argon Gas in Para-4.3.8 mentioning that loss of Argon gas of 19500 kgs. are general in nature and are not backed up any evidences as well as for rest of the quantity, the explanation has not found to be fully correct by the Ld. CIT(A), accordingly, loss allowed at Rs.23,52,414/- on account of loss of Argon gas by the A.O was not found fully correct in the appellate order by the Ld.CIT(A). Further, assessee has referred para-4 of Hon’ble ITAT order. In this respect it is seen that the Hon’ble ITAT has adjudicated the impugned issue from para-4 & 5 accepting the loss of Argon gas in transit at 20,999 Kgs. against domestic sales and 40,500 Kgs, on exports, However, in the concluding para-12 the Hon’ble ITAT relied on page-34 computing total loss of Argon Gas of 81006/- @ 29 per Kg. computed at Rs.5,22,174/- and confirmed the addition of Rs.5,22,174/- and directed to delete the remaining addition. Thus, it is clear that there are contradictory facts recorded in Para-4 & 5 and concluding para-12. 9. In view of the contrary facts recorded in different para of Hon'ble ITAT order the MA preferred by the department. Thus, considering the facts and details of the case, it is prayed that the MA of the department may upheld and rectify the contrary facts recorded in the order dated 30.04.2023. Submitted. Yours faithfully Sd/- (Raju D. Thakur) Asst. CIT, Circle – 1(1)(1), Vadodara.” 3. The Ld. AR submitted that there is an error related to the loss of Argon Gas mentioned in Paragraph No.12 as that is a typographical error. 4. We have heard both the parties and perused all the relevant material available on record. It is pertinent to note that there is a typographical error in Paragraph No.2 in respect of loss of gas mentioned as 81006 Kgs., but in fact the same has to be read as 18000 Kgs. Thus, the Miscellaneous Application to that MA No.337/Ahd/2019 Assessment Year: 2009-10 Page 4 of 4 extent is allowed. Paragraph No.12 of the order dated 30.04.2019 should be read as under :- “12. As per CIT(A) page no.34 has held that the total loss of Gas 18000 Kgs. and rate of the Argon Gas is Rs.29 per Kg. and it comes to Rs.5,22,174/-. Therefore, we confirm the addition of Rs.5,22,174/- and remaining addition is directed to be deleted.” 5. In the result, Miscellaneous Application filed by the Revenue is allowed. Order pronounced in the open Court on this 24 th January, 2024. Sd/- Sd/- (WASEEM AHMED) (SUCHITRA KAMBLE) Accountant Member Judicial Member Ahmedabad, the 24 th January, 2024 PBN/* Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) Departmental Representative (6) Guard File By order UE COPY Assistant Registrar Income Tax Appellate Tribunal Ahmedabad benches, Ahmedabad