Italik Metalware Pvt. Ltd., RAJKOT-GUJARAT V. The Assistant Commissioner of Income Tax, Circle-1, RAJKOT-GUJARAT

MA 37/RJT/2010

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1211 (ITAT-RAJKOT)
• Duration Of Justice: 3 year(s) 1 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-10-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 23-08-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 23-08-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VILAS V SHINDE DR
• Assessee Lawyers: RD LALCHANDANI
• Section: 143(3)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. .. .. BEFORE SHRI T. K. SHARMA JM AND SHRI D. K. SRIVASTAVA AM MA NO. 37/RJT/2010 (ARISING OUT OF MA NO.629/RJT/2009 & ITA NO.130/RJT /2007) / ASSESSMENT YEAR 2003-04. M/S. ITALIK METALWARE PVT. LTD., 6-212, LODHIKA GIDC KALAVAD ROAD, RAJKOT. PAN : AAACI4766Q ( / APPELLANT) THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-1, RAJKOT. / RESPONDENT ! ' #$ / ASSESSEE BY SHRI R. D. LALCHANDANI, ADVOCATE % ! ' #$ / REVENUE BY SHRI VILAS V. SHINDE, DR # & ' ! ( / DATE OF HEARING 23-08-2013 ) ! ( / DATE OF PRONOUNCEMENT 04-10-2013 / ORDER .. , / T. K. SHARMA, J. M. : THIS MISCELLANEOUS APPLICATION IS FOR RECALLING THE ORDER DATED 19.07.2010 IN MA N O.629/RJT/2009 (ARISING OUT OF ITA NO.130/RJT/2007) FOR THE ASSESSMENT YEAR 2003-0 4. THIS MISCELLANEOUS APPLICATION READS AS UNDER:- 1] THE RESPONDENT BEGS TO INVITE REFERENCE TO ORDE R DATED 19-07-2010 RECALLING THE ORDER DATED 24-1-2008. 2] THE HONBLE TRIBUNAL HAS OBSERVED THAT THE RESPO NDENT COULD NOT CONTROVERT THE FACT NARRATED IN MISCELLANEOUS APPLI CATION. 3] THE RESPONDENT SUBMITS THAT THE RESPONDENT HAD P OINTED OUT THE FOLLOWING FACTS ON THE DATE OF HEARING ON 11-6-2010 . [A] THAT FACTUALLY THE MISCELLANEOUS APPLICATION IS NOT CORRECT AS THE RESPONDENT WAS ALLOWED THE 80IA RELIEF FOR AND FROM THE ASSESSMENT YEAR 1994-95 AND NOT FOR THE ASSESSMENT YEAR 1993-94. TH E YEAR 1993-94 WAS ACCOUNTING PERIOD AND NOT THE ASSESSMENT YEAR. [B] THAT THE POINT RAISED FOR THE DEPARTMENT WAS NE ITHER BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) NOR WAS IT RAI SED BEFORE THE HONBLE TRIBUNAL. HENCE THE MISCELLANEOUS APPLICATI ON WAS NOT MAINTAINABLE. [C] ON RECEIPT OF THE NOTICE FOR MISCELLANEOUS APPL ICATION, THE RESPONDENT HAD FILED WRITTEN SUBMISSIONS CONTROVERT ING THE FACT THAT RESPONDENT WAS ALLOWED 80IA RELIEF FOR 10 YEARS. RE FERENCE WAS MADE TO VARIOUS PAPERS BEFORE THE HONBLE TRIBUNAL TO SHOW THAT THE RESPONDENT MA 37-RJT-2010- ITALIK METALWARE PVT LTD 2 HAD CLAIMED AND ALLOWED RELIEF FOR AND FROM THE ASS ESSMENT YEAR 1994-95 AND NOT FOR AND FROM ASSESSMENT YEAR 1993-94. [D] BY WRITTEN SUBMISSIONS DATED 4-2-2010 THE RESPO NDENT HAD ALSO POINTED OUT THAT THE MISCELLANEOUS APPLICATION FILE D BY THE DEPARTMENT WAS NOT MAINTAINABLE AS THE ALLEGED MISTAKE DID NOT ARI SE OUT OF ORDER OF THE HONBLE TRIBUNAL. THIS POINT WAS NEITHER TAKEN IN G ROUNDS OF APPEAL NOR URGED BY THE DEPARTMENT DURING THE COURSE OF HEARIN G OF ORIGINAL APPEAL. [E] DURING THE COURSE OF HEARING ON 11-6-2010, THE HONBLE MEMBERS DIRECT THE DR TO VERIFY AND INFORM THE BENCH WHETHE R 80IA CLAIM HAS BEEN CLAIMED AND ALLOWED FOR AND FROM THE ASSESSMENT YEA R 1994-95. THE CASE WAS FIXED ON 9-7-2010. [F] THE DR DID NOT POINT OUT THIS FACT BEFORE THE H ONBLE BENCH. THE RESPONDENT THEREFORE PRAYS THAT THE ORDER DATED 19-7-2010 MAY PLEASE BE RECALLED AND THE MATTER MAY KINDLY BE REH EARD ON THE SUBMISSION MADE BY THE RESPONDENT. 2. AT THE TIME OF HEARING OF THE AFORESAID MISCELLA NEOUS APPLICATION, ON BEHALF OF THE ASSESSEE SHRI R D LALCHANDANI, ADVOCA TE, APPEARED AND EXPLAINED THAT FOR THE ASSESSMENT YEAR 2003-04 THE ASSESSING OFFICER FRAMED THE ASSESSMENT U/S 143(3) OF THE INCOME-TAX ACT, 1961 O N 13.02.2006, WHEREIN IN PARAGRAPH 3 THE ASSESSING OFFICER HELD THAT THE ASS ESSEE IS NOT ENTITLED TO DEDUCTION CLAIMED U/S 80IA OF THE INCOME-TAX ACT, 1 961 AMOUNTING TO RS.20,95,777/-. ON APPEAL, THE LD CIT(A)-I, RAJKOT IN ORDER DATED 08.11.2006 FOR THE DETAILED REASONS GIVEN IN PARAGRAPH 3, 3.1 & 3. 2 HELD THAT THE ASSESSEE IS ENTITLED TO CLAIM DEDUCTION U/S 80IA OF THE INCOME- TAX ACT, 1961. ON FURTHER APPEAL BY THE DEPARTMENT, THE TRIBUNAL IN ITA NO.13 0/RJT/2007 UPHELD THE ACTION OF THE ASSESSING OFFICER FOR THE DETAILED REASON GI VEN IN PARAGRAPH 16 ON PAGE NO.5 WHICH READS AS UNDER :- 16. WE HAVE HEARD THE PARTIES AND CAREFULLY PERUSE D THE MATERIAL ON RECORD. THE LEARNED CIT (APPEALS) HAS REACHED A FIN DING OF FACT THAT THE ASSESSEE HAS BEEN CLAIMING DEDUCTION U/S.80IA OF TH E ACT FOR THE LAST NINE YEARS AND THE SAME STANDS ALLOWED BY THE DEPARTMENT . THIS POSITION STANDS DULY ADMITTED BY REVENUE. AS THE DEDUCTION A LREADY STANDS ALLOWED IN EARLIER ASSESSMENT, THE SAME, THEREFORE, COULD N OT HAVE BEEN WITHDRAWN IN A SUBSEQUENT YEAR, I.E., IN THE YEAR U NDER CONSIDERATION, WITHOUT WITHDRAWING IT FOR THE EARLIER YEARS. THIS VIEW FINDS SUPPORT FROM THE JUDGMENT RENDERED BY HONBLE BOMBAY HIGH COURT - NAGPUR BENCH IN THE CASE OF CIT VS. PAUL BROTHERS (1995) 216 ITR 54 8 (BOM.). WE, THEREFORE, DO NOT FIND ANY INFIRMITY IN THE DECISIO N REACHED BY THE LD. CIT (APPEALS). THE GROUND RAISED BY THE REVENUE IN APPE AL STANDS REJECTED. MA 37-RJT-2010- ITALIK METALWARE PVT LTD 3 3. THE LD COUNSEL OF THE ASSESSEE POINTED OUT THAT SUBSEQUENTLY THE DEPARTMENT FILED MISCELLANEOUS APPLICATION BEING MA NO.629/RJT/2009. ON THE BASIS OF THIS MISCELLANEOUS APPLICATION, THE TRIBUN AL IN ITS ORDER DATED 19.07.2010 RECALLED THE ORDER DATED 24.01.2008 IN ITA NO.130/R JT/2008. HE SUBMITTED THAT RECALLING THE ORDER IS BAD IN LAW AS THE COUNSEL OF THE ASSESSEE CONTROVERTED THE FACTS RELATED IN THE MISCELLANEOUS APPLICATION OF T HE DEPARTMENT. IN SUPPORT OF THIS, THE LD COUNSEL OF THE ASSESSEE FILED DETAILED SUBMISSIONS INCLUDING THE COPY OF THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 199 3-94, FROM WHICH IT IS SELF EVIDENT THAT THE ASSESSEE HAD NOT CLAIMED THE DEDUC TION U/S 80IA OF THE INCOME- TAX ACT, 1961 IN THE FIRST YEAR I.E. ASSESSMENT YEA R 1993-94. AS AGAINST THIS, THE LD DEPARTMENTAL REPRESENTATIVE POINTED OUT THAT THE TRIBUNAL IN MA NO.629/RJT/2009 RECALLED ITS ORDER DATED 24.01.2008 IN ITA NO.130/RJT/2007; THEREFORE NO PREJUDICE IS CAUSED TO THE ASSESSEE. T HE LD DEPARTMENTAL REPRESENTATIVE FURTHER SUBMITTED THAT ASSESSEE HAS COMMENCED THE PRODUCTION AND ALSO MADE COMMERCIAL SALE IN THE ASSESSMENT YEA R 1993-94, THEREFORE FIRST YEAR FOR THE CLAIM OF DEDUCTION U/S 80IA IS 1993-94 AND IT WILL NOT MAKE ANY DIFFERENCE WHETHER THE ASSESSEE HAS CLAIMED THE DED UCTION U/S 80IA IN THE ASSESSMENT YEAR 1993-94 OR NOT. THEREFORE, HE SUBMI TTED THAT THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE BE DISMISSED AS IN THIS MISCELLANEOUS APPLICATION THE ASSESSEE IS MERELY SE EKING REVIEW AND THE TRIBUNAL HAS NO POWER TO RECALL ITS ORDER. FINALLY, THE LD DEPARTMENTAL REPRESENTATIVE POINTED OUT THAT NO MISCELLANEOUS AP PLICATION LIES AGAINST THE ORDER IN MISCELLANEOUS APPLICATION U/S 254(2) OF TH E INCOME-TAX ACT, 1961. 4. RIVAL SUBMISSIONS WERE CONSIDERED. IT IS PERTINE NT TO NOTE THAT THE TRIBUNAL HAS MERELY RECALLED ITS ORDER DATED 24.01.2008 IN I TA NO.130/RJT/2007 FOR THE ASSESSMENT YEAR 2003-04 IN DEPARTMENTS MA NO.629/R JT/2009. THEREFORE, THE ASSESSEE CAN PUT FORTH ALL THE ARGUMENTS IN SUPPORT OF ITS CLAIM U/S 80IA OF THE INCOME-TAX ACT, 1961 AT THE TIME OF FRESH HEARING O F ITA NO.130/RJT/2007. FURTHER, NO MISCELLANEOUS APPLICATION LIES AGAINST MISCELLANEOUS APPLICATION AS HELD BY HONBLE ORISSA HIGH COURT IN THE CASE OF CI T V. PRESIDENT, ITAT [192] 63 MA 37-RJT-2010- ITALIK METALWARE PVT LTD 4 TAXMAN 338 (ORI.). THE HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF ACIT V. DR. VED PRAKASH [1994] 209 ITR 448 (AP) HELD THA T A SECOND THOUGHT BY A DIFFERENT BENCH CANNOT BE THE BASIS FOR RECTIFICATI ON U/S 254(2) OF THE INCOME-TAX ACT. 5. IN VIEW OF THE FOREGOING, WE DO NOT FIND ANY MER IT IN THE MISCELLANEOUS APPLICATION; THEREFORE THE SAME IS DISMISSED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD/- SD/- ( *.$. ,% D. K. SRIVASTAVA ) ( .$. -. / T. K. SHARMA) $( #/% / ACCOUNTANT MEMBER #/% /JUDICIAL MEMBER /$- 0/1/ ORDER DATE 04-10-2013. /RAJKOT *BT !'# $%'& / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT- M/S. ITALIK METALWARE PVT. LTD., 6-21 2, LODHIKA GIDC KALAVAD ROAD, RAJKOT. 2. /RESPONDENT-THE ASSISTANT COMMISSIONER OF INCOME-TA X, CIR-1, RAJKOT. 3. #151 & 6 / CONCERNED CIT-I, RAJKOT. 4. & 6 - / CIT (A)-I, RAJKOT.. 5. :;< , , / DR, ITAT, RAJKOT 6. <* >? / GUARD FILE. /$- #$ / BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT