Thermax Ltd., Pune V. Deputy Commissioner of Income-tax,

MA 36/PUN/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3905 (ITAT-PUNE)
• Duration Of Justice: 4 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 18-01-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Assessment Year: 2001-2002
• Appeal Filed On: 18-09-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DHEERAJ KUMAR JAIN
• Assessee Lawyers: H P MAHAJANI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUN E , , !'!! # , $ % BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM '!'! !& / MA NOS. 35 & 36/PN/2015 (ARISING OUT OF ITA NOS. 1247 & 1291/PN/2005) $& ' !(' / ASSESSMENT YEARS : 2000-01 & 2001-02 THERMAX LTD., THERMAX HOUSE, 4, BOMBAY PUNE ROAD, PUNE PAN : AAACT3910D ....... / APPELLANT )& / V/S. DY. COMMISSIONER OF INCOME TAX, CIRCLE 8, PUNE / RESPONDENT ASSESSEE BY : SHRI H.P. MAHAJANI REVENUE BY : SHRI DHEERAJ KUMAR JAIN / DATE OF HEARING : 15-01-2016 / DATE OF PRONOUNCEMENT : 18-01-2016 * / ORDER PER VIKAS AWASTHY, JM : THE MISCELLANEOUS APPLICATIONS HAVE BEEN FILED BY THE ASSESS EE IN THE APPEAL ITA NO. 1247/PN/2005 FOR THE ASSESSMENT YE AR 2000-01 BY THE ASSESSEE AND ITA NO. 1291/PN/2005 FOR THE ASSESSM ENT YEAR 2001-02 OF THE DEPARTMENT, RESPECTIVELY. 2. SHRI H.P. MAHAJANI APPEARING ON BEHALF OF THE ASSESSEE SUBMITTED THAT WHILE ADJUDICATING GROUND NO. 7 IN THE APPE AL OF THE 2 MA NOS. 35 & 36/PN/2015, A.YS. 2000-01 & 2001-02 ASSESSEE FOR ASSESSMENT YEAR 2000-01, THE TRIBUNAL HAS FAILED TO TAKE INTO CONSIDERATION THE DECISION OF HON'BLE SUPREME COURT OF INDIA IN THE CASE OF COMMISSIONER OF INCOME TAX VS. M/S. EXCEL INDUSTRIE S LTD. IN CIVIL APPEAL NO. 125 OF 2013 DECIDED ON 08-102-13. THE ISS UE RAISED BY THE ASSESSEE IN GROUND NO. 7 OF THE APPEAL IS SQUAR ELY COVERED BY THE JUDGMENT OF HON'BLE SUPREME COURT OF INDIA IN THE AFORES AID CASE. SIMILAR ISSUE HAS BEEN RAISED BY THE DEPARTMENT AS GROUN D NO. 2 IN ITA NO. 1291/PN/2005 FOR THE ASSESSMENT YEAR 2001-02. THE NON CONSIDERATION OF THE DECISION OF HON'BLE SUPREME COURT OF I NDIA BY THE TRIBUNAL WHILE ADJUDICATING THE GROUND RAISED IN APPEAL IS A MISTAKE APPARENT FROM RECORD WHICH REQUIRES RECTIFICATION. IN SUPPORT OF HIS SUBMISSIONS, THE LD. AR PLACED RELIANCE ON THE DECISION OF HON'BLE SUPREME COURT OF INDIA IN THE CASE OF A SSISTANT COMMISSIONER OF INCOME TAX VS. SAURASHTRA KUTCH STOCK E XCHANGE LTD. REPORTED AS 305 ITR 227 (SC). THE LD. AR SUBMITTED T HAT IN THE SAID CASE, THE DECISION OF HON'BLE SUPREME COURT OF INDIA WAS NOT CITED BEFORE THE TRIBUNAL AS THE DECISION WAS RENDERED FEW MONT HS PRIOR TO THE ORDER OF TRIBUNAL. THE MISCELLANEOUS PETITION WAS FILED B Y THE ASSESSEE TO PLACE ON RECORD THE DECISION OF HON'BLE SUPR EME COURT OF INDIA. THE TRIBUNAL ACCEPTED THE SAME AND DECIDED THE ISSUE ACCORDINGLY. THE REVENUE CARRIED THE MATTER IN APPEAL B EFORE THE HIGH COURT. THE HIGH COURT CONFIRMED THE ORDER PASSED BY TH E TRIBUNAL. WHEN THE MATTER TRAVELLED TO THE HON'BLE SUPREME COURT OF INDIA, THE HON'BLE APEX COURT UPHELD THE FINDINGS OF THE TRIBUNAL AND THE HON'BLE HIGH COURT. THE CASE OF THE ASSESSEE IS ON A BETTER FOO TING. DURING THE COURSE OF MAKING SUBMISSIONS, A COPY OF ORDER RENDERED IN THE CASE OF COMMISSIONER OF INCOME TAX VS. M/S. EXCEL INDUSTRIES LTD. (S UPRA) WAS 3 MA NOS. 35 & 36/PN/2015, A.YS. 2000-01 & 2001-02 PLACED ON RECORD. HOWEVER, THE SAME WAS NOT CONSIDERED BY THE TRIBUNAL AT THE TIME OF PASSING OF THE ORDER. 3. ON THE OTHER HAND SHRI DHEERAJ KUMAR JAIN REPRESEN TING THE DEPARTMENT SUBMITTED THAT THE ORDER OF TRIBUNAL IS WELL REASONED AND THERE IS NO MISTAKE IN THE ORDER. THE LD. DR PRAYED FOR D ISMISSING THE MISCELLANEOUS PETITIONS FILED BY THE ASSESSEE. 4. WE HAVE HEARD THE SUBMISSIONS MADE BY THE REPRESEN TATIVES OF RIVAL SIDES. THE GROUND NO. 7 RAISED BY THE ASSESSEE IN ITA NO. 1247/PN/2005 FOR THE ASSESSMENT YEAR 2000-01 READS AS UNDER : 7. THE LEARNED CIT(A) ERRED IN CONFIRMING ADDITION OF RS.4,17,888/- AND RS.19,20,000/- TO THE INCOME OF THE APPELLANT I N RESPECT OF LEASE RENTAL INCOME REJECTING THE CONTENTION OF THE APPELLANT THAT SUCH INCOME HAD NOT ACCRUED TO THE APPELLANT EVEN U NDER THE MERCANTILE SYSTEM OF ACCOUNTING FOLLOWED BY THE APP ELLANT. 5. SIMILAR ISSUE HAS BEEN RAISED BY THE DEPARTMENT IN ITA NO. 1291/PN/2005 FOR ASSESSMENT YEAR 2001-02. THE RELEVAN T GROUND RAISED IN THE APPEAL READS AS UNDER: 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) ERRED IN DELETING LEASE RENTAL INCOME OF RS.1,53,21 ,302/-. 6. THE TRIBUNAL IN ORDER DATED 30-06-2015 HAD DEALT WITH THIS ISSUE IN PARAS 13 AND 28 OF THE ORDER. A PERUSAL OF THE ORDER SHOWS THAT THE DECISION OF HON'BLE SUPREME COURT OF INDIA IN THE CASE OF C OMMISSIONER OF INCOME TAX VS. M/S. EXCEL INDUSTRIES LTD. (SUPRA) WAS N OT CONSIDERED BY THE TRIBUNAL WHILE ADJUDICATING GROUND NO. 7 IN APPEAL OF THE ASSESSEE FOR ASSESSMENT YEAR 2000-01 AND GROUND NO. 2 OF APPEAL OF THE DEPARTMENT IN ASSESSMENT YEAR 2001-02. SINCE, T HE ERROR HAS CREPT IN THE ORDER OF TRIBUNAL, WE DEEM IT APPROPRIATE TO RECALL THE ORDER 4 MA NOS. 35 & 36/PN/2015, A.YS. 2000-01 & 2001-02 FOR THE LIMITED PURPOSE OF ADJUDICATING GROUND NO. 7 IN ITA NO. 1247/PN/2005 FOR THE ASSESSMENT YEAR 2000-01 AND GRO UND NO. 2 IN ITA NO. 1291/PN/2005 FOR THE ASSESSMENT YEAR 2001-02, AFRESH AFTER CONSIDERING THE DECISION OF HON'BLE SUPREME COURT OF INDIA IN THE CASE OF COMMISSIONER OF INCOME TAX VS. M/S. EXCEL INDUSTRIES LTD. (SUPRA). 7. IN THE RESULT, THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSEE ARE PARTLY ACCEPTED IN THE AFORESAID TERMS. ORDER PRONOUNCED ON MONDAY, THE 18 TH DAY OF JANUARY, 2016. SD/- SD/- ( . . / R.K. PANDA) ( ! ' / VIKAS AWASTHY) #' / ACCOUNTANT MEMBER $ % #' / JUDICIAL MEMBER / PUNE; &# / DATED : 18 TH JANUARY, 2016 RK *+,$-.'/'(- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ' () / THE CIT(A)-III, PUNE 4. ' / THE CIT-V/IV, PUNE 5. !*+ %%,- , ,- , . /01 , / DR, ITAT, A BENCH, PUNE. 6. + 2 34 / GUARD FILE. // ! % // TRUE COPY// #5 / BY ORDER, %6 ,1 / PRIVATE SECRETARY, ,- , / ITAT, PUNE