The DCIT(OSD),Range-1, Ahmedabad V. M/S Atul Ltd (Atul Products Ltd), Ahmedabad

MA 393/AHD/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4319 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 month(s) 15 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-03-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 1991-1992
• Appeal Filed On: 11-11-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Difference of opinion; Change of opinion; Reassessment proceedings
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLLATE TRIBUNAL AHMEDABAD BENCHES C, AHMEDABAD BEFORE S/ SHRI N.S.SAINI , ACCOUNTANT MEMBER, & SH RI MAHAVIR SINGH , JUDICIAL MEMBER M.A.NO.393/AHD/2009 (ARISING OUT ITA NO.1756/AHD/1999 ASSESSMENT YEAR: 1991-92 DATE OF HEARING: 26.3.10 DRAFTED: 26.3.10 THE DY. COMMISSIONER OF INCOME- TAX (OSD), RANGE-1, AHMEDABAD VS. ATUL LTD. ASHOKA CHAMBERS, RASALA MARG, MITHAKHALI, CROSS ROAD, ELLISBRIDGE, AHMEDABAD PAN NO.AABCA2390M (APPELLANT) (RESPONDENT) (ORIGINAL APPELLANT) (ORIGINAL RESPONDENT) APPELLANT BY : SHRI DIPAK P RIPOTE, D R RESPONDENT B Y: SHRI J.P. SHAH, AR ORDER PER MAHAVIR SINGH, J.M. BY WAY OF THIS MISCELLANEOUS APPLICATION (MA), THE REVENUE HAS REQUESTED FOR RECTIFYING THE MISTAKES COMMITTED BY THE TRIBUNAL APPARENT FROM RECORD IN ITS ORDER IN ITA NO.1756/AHD/1999 DATED 27-03-2009. 2. THE MA OF THE REVENUE READS AS UNDER:- THE REVENUE HEREIN RECEIVED THE COMBINED ORDER IN ITA NO.1756/AHD/1999 FOR A.Y. 1991-92 AND 1873/AHD/1999 FOR A.Y. 1990-91 DATED 27/03/2009, CONFIRMING THE APPEAL OF THE ASSE SSEE IN APPEAL NO.1756/AHD/1999 AND DISMISSING THE APPEAL NO.1873/ AHD/1999 FILED BY THE REVENUE. THIS MISCELLANEOUS APPLICATION IS ARIS ING OUT OF ABOVE REFERRED ORDER. 2. FOR A.Y. 19910-92, THE AO HAS MADE AN ADDITION O F RS.37,45,918/- BEING INTEREST ON REFUND FOR THE A.Y. 1985-86 RECEI VED BY THE ASSESSEE IN THE MONTH OF MAY, 1990 BY REOPENING THE ASSESSMENT. THE LD. CIT(A) HAD CONFIRMED THE AFORESAID ADDITION AND DELETED THE PR OTECTIVE ADDITION OF RS.37,45,918/- MADE BY THE AO FOR A.Y. 1990-91. ON PERUSAL OF THE 2 COMMON ORDER PASSED BY THE LD. ITAT IN THE ABOVE CA SE FOR A.Y. 1991-92 AND 1990-91, IT IS SEEN THAT THE ITAT HAS QUASHED T HE REASSESSMENT FAMED U/S.147 FOR A.Y. 1991-92 AND AT THE SAME TIME UPHELD THE ORDER OF THE CIT(A) DELETING THE ADDITION OF RS.37,45,918/- MADE FOR A.Y 1990-91. HENCE, IF THE DECISION OF THE HONBLE ITAT IS ACCEP TED, THEN THE AFORESAID INTEREST WILL NOT BE TAXED EITHER IN A.Y. 1990-91 O R IN A.Y. 1991-92. 3. IT IS, THEREFORE SUBMITTED THAT THE HONBLE ITAT HAS COMMITTED A MISTAKE APPARENT FROM RECORDS BY NOT CONSIDERING THE ABOVE INTEREST ON REFUND FOR TAXATION IN ANY OF THE ASSESSMENT YEAR I.E. IN A.Y. 1991-92 OR IN A.Y. 1990-91. 4. SINCE THE MISTAKE IS APPARENT FROM THE RECORDS, IT IS REQUESTED THAT THE HONBLE TRIBUNAL MAY KINDLY RECTIFY THE MISTAKE AND PASS NECESSARY ORDER ACCORDINGLY. 3. AFTER HEARING BOTH THE SIDES, WE FIND THAT THE T RIBUNAL IN ASSESSMENT YEAR 1990-91 WHILE DECIDING REVENUES APPEAL HAS DECIDED THIS ISSUE OF INTEREST ON REFUNDS ON MERITS FOLLOWING THE DECISION OF HONBLE APEX COURT IN THE CASE OF APOLLO TYRES LTD. V. CIT (2002) 255 ITR 273 (SC) AND HELD AS UNDER:- 20. WE FIND THAT THE HONBLE SUPREME COURT IN APOL LO TYRES LTD. VS CIT, 255 ITR 273 (SC) HAS HELD THAT THE A.O DOES NOT HAV E POWER TO ALTER THE BOOK PROFIT UNLESS SPECIFICALLY EMPOWERED U/S.115J OF THE ACT. THEREFORE, THE ADJUSTMENTS NOT BEING WITHIN THE PURVIEW OF COM PUTATION OF BOOK PROFIT U/S.115J, THE LD. CIT(A) WAS JUSTIFIED IN DIRECTING THE A.O TO DELETE THE ADDITION OF RS.37,45,915/- BEING THE INTEREST ON RE FUND FROM COMPUTATION OF BOOK PROFIT U/S.115J. AS REGARDS TO ASSESSMENT YEAR 1991-92 THE TRIBUNAL HAS QUASHED THE REASSESSMENT PROCEEDINGS BY HOLDING AS UNDER:- 14. IN VIEW OF THE RATIO LAID DOWN BY THE COURTS A S ALSO THE INTERPRETATION ON THE AMENDED PROVISIONS OF SECTION 147 AS INTERPR ETED BY CBDT, WE HOLD THE A.O DOES NOT ASSUME JURISDICTION FOR FRAMI NG THE RE-ASSESSMENT MERELY ON THE CHANGE OF OPINION. SINCE IN THE PRESE NT CASE, THOUGH THE INCOME WAS EXCLUDED IN THE ORIGINAL ASSESSMENT, THE SAME IS SOUGHT TO BE TAXED MERELY ON CHANGE OF OPINION WHICH IS NOT PERM ISSIBLE UNDER THE LAW. CONSEQUENTLY, THE RE-ASSESSMENT FRAMED U/S.147 OF T HE ACT BY THE A.O AS CONFIRMED BY THE LD. CIT(A) IS HEREBY QUASHED. EVEN NOW BEFORE US THE LD.-DR HAS NOT STATED THAT T HERE IS MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL AND IN WHI CH YEARS ORDER OF TRIBUNAL. HE MERELY STATED THAT THE INTEREST HAS NOT BEEN TAXED IN ANY OF THE ASSESSMENT YEARS I.E. NEITHER IN ASSESSMENT YEAR 1991-92 NOR I N ASSESSMENT YEAR 1990-91. 3 4. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL, WHICH CAN BE RECTIFIED. AS THERE IS NO MISTAKE APP ARENT FROM RECORD, THIS MA OF THE REVENUE IS DISMISSED. 5. IN THE RESULT, REVENUES MA IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26/03/2010. SD/- SD/- ( N.S.SAINI ) ( MAHAVIR SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: AHMEDABAD. DATE : 26/03/2010 DKP* COPY OF THE ORDER FORWARDED TO :- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A)-XII, AHMEDABAD 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE (IN DUPLICATE) BY ORDER, /TRUE COPY/ DR / AR, ITAT, AHMEDABAD