Shri Dhiren P.Shah, Surat V. The Income tax Officer,Ward-6(1), Surat

MA 43/AHD/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1221 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-12-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 06-12-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 27-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: J P JHANGID

Judgement Text

MA NO 43/A/2012 (IN IT A NO. 2414/A/08 . A.Y. 20005- 06 1 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD (BEFORE SHRI D.K. TYAGI, J.M. & SHRI ANIL CHATURVED I, A.M.) M. A. NO. 43/AHD/2012 (IN ITA NO.2414/AHD/2008) (ASSESSMENT Y EAR: 2005-06) SHRI DHIREN P. SHAH, PROP. OF M/S KALA TEXTILES 6/655, MOTI SHERI, LAL DARWAJA, SURAT V/S INCOME- TAX OFFICER, WARD- 6(1), SURAT (APPELLANT) (RESPONDENT) PAN: ACIPS 4081R APPELLANT BY : SHRI S.N. SOPARKAR SR. ADV OCATE WITH URVAS HI SHODHAN A.R. RESPONDENT BY : SHRI J.P. JHANGID. SR. D.R. ( )/ ORDER DATE OF HEARING : 06-12-201 3 DATE OF PRONOUNCEMENT : 13 -12-2013 PER SHRI ANIL CHATURVEDI,A.M. 1. BY THIS M.A. THE ASSESSEE HAS URGED FOR RECALLING O F THE EX-PARTE ORDER OF TRIBUNAL IN ITA NO. 2414/AHD/2008 DATED 31.01.2012. 2. BEFORE US, THE LD. A.R. SUBMITTED THAT HON. TRIBUNA L HAS HELD THAT LD. CIT WAS RIGHT IN HOLDING THAT THE POSSESSION OF MACHINE RY AND PREMISES MA NO 43/A/2012 (IN IT A NO. 2414/A/08 . A.Y. 20005- 06 2 REMAINED WITH THE TWO OWNERS. HE SUBMITTED THAT THI S FINDING IN THE ORDER IS ERRONEOUS AND CONTRARY TO THE FACTS ON RECORD. HE FURTHER SUBMITTED THAT AT THE TIME OF HEARING OF THE APPEAL THE ASSES SEES COUNSEL HAD REFERRED TO THE AGREEMENTS IN QUESTION AND THE HON. TRIBUNAL IN PARA 10 OF THE ORDER HAD ALSO NOTED THAT ITS ATTENTION WAS DRA WN TO THE VARIOUS CLAUSES OF THE AGREEMENT. HE FURTHER SUBMITTED THA T THOUGH THE ATTENTION OF THE HON. TRIBUNAL WAS DRAWN TO THE VARIOUS CLAUS ES OF THE AGREEMENT, THE CLAUSES HAVE NOT BEEN LOOKED INTO WHICH DECIDIN G THE APPEAL AND FURTHER THERE IS NO FINDING OF THE TRIBUNAL ON THOS E CLAUSES. HE THEREFORE SUBMITTED THAT THIS IS AN ERROR APPARENT ON RECORD AND THE SAME REQUIRES TO BE RECTIFIED AND THEREFORE THE ORDER OF HON. TRIBUN AL BE RECALLED. 3. THE LD. D.R. ON THE OTHER HAND SUBMITTED THAT THE F INDING OF HON. TRIBUNAL WAS BASED ON THE MATERIAL ON RECORD AND TH ERE IS NO APPARENT ERROR. HE THUS OBJECTED TO THE REQUEST OF THE A.R. FOR RECALLING OF THE ORDER. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. FROM THE ORDER OF TRIBUNAL, IT IS SEEN THAT THE LD. A.R. HAD INVITED THE ATTENTION OF THE TRIBUNAL TO VARIOUS CLAUSES OF THE AGREEMENT PLACED IN THE PAPER BOOK. THE TRIBUNAL VIDE PARA 12 OF THE OR DER HAS HELD THAT THE PAYMENT BY ASSESSEE TO THE TWO PARTIES WERE IN THE NATURE OF PAYMENT TO A SUBCONTRACTOR ON WHICH TAX HAD TO BE DEDUCTED AT SOURCE AND DEPOSITED IN THE GOVT. ACCOUNT BEFORE THE STIPULATED DATE AND THUS THE ORDER OF CIT(A) WAS CONFIRMED. IT IS SEEN THAT THERE IS NO F INDING ON THE CLAUSES OF THE AGREEMENT ENTERED BETWEEN THE ASSESSEE AND THE OTHER PARTY. WE ARE THEREFORE OF THE VIEW THAT IT IS AN ERROR APPARENT ON RECORD AND THEREFORE MA NO 43/A/2012 (IN IT A NO. 2414/A/08 . A.Y. 20005- 06 3 THE ORDER NEEDS TO THE RECALLED ONLY TO THE EXTENT OF DECIDING GROUND NO. 2 OF ITA NO. 2414/AHD/2008. WE THEREFORE RECALL THE A FORESAID ORDER ONLY FOR THE LIMITED EXTENT STATED HEREINABOVE. 5. IN THE RESULT, THE M.A. OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 13 -12 - 2013. SD/- SD/- (D. K. TYAGI) (ANIL CHATURVEDI) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,A HMEDABAD