DCIT CIR 6(2), V. GOODLASS MEROLAC PAINTS LTD.,

MA 435/MUM/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 1689 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-03-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2001-2002
• Appeal Filed On: 03-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M L PERUMAL
• Assessee Lawyers: ARTHI VISAANJI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH G, MUMBAI BEFORE SHRI P.M.JAGTAP, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER MA NO. 435/MUM/2013 ( ARISING OUT OF APPEAL NO. ITA 2519 /MUM/2005) ASSESSMENT YEAR: 2001-02 DCIT, CIRCLE(2), ROOM NO.563, 5 TH FLOOR, AAYAKAR BHAWAN, M.K.ROAD, MUMBAI-400 020. VS. M/S. GOODLASS NEROLAC PAINTS LTD, NEROLAC HOUSE, LOWER PAREL, MUMBAI-400 013. PAN: AAACG 1376 N (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI M.L.PERUMAL RESPONDENT BY : SMT. ARTHI VISAANJI DATE OF HEARING : 21.03.2014 DATE OF PRONOUNCEMENT : 21.03.2014 O R D E R PER DR. S.T.M. PAVALAN, JM: THIS MISCELLANEOUS APPLICATION U/S 254(2) OF THE I NCOME TAX ACT HAS BEEN FILED BY THE REVENUE SEEKING FOR CLARIFICATORY DIRECTIONS IN PURSUANCE OF THE ORDER OF THE TRIBUNAL DATED 07.06.2013 PASSED IN ITA NO. 2519/MUM/2005. 2. DURING THE PROCEEDINGS BEFORE US, THE LD.DR HAS BROUGHT OUR ATTENTION TO THE MISCELLANEOUS APPLICATION AND STATED THAT THERE IS A NEED FOR ISSUING SOME CLARIFICATORY DIRECTIONS IN RESPECT OF THE ORDER OF THE TRIBUNAL DATED 07.06.2013 PASSED IN ITA NO. 2519/MUM/2005. THE CLARIFICATORY DIRECTION SOUGHT B Y THE DR PERTAINS TO THE ADJUDICATION OF THE ISSUE PERTAINING TO THE ADDITION OF UNUTILIZ ED MODVAT CREDIT OF RS.3,86,76,373/- MADE BY THE AO AND THE SAME PARTLY SUSTAINED BY THE LD.CIT(A), WHICH HAS BEEN RAISED BY THE ASSESSEE IN ITS APPEAL VIDE GROUND NO VI. WH ILE ADJUDICATING THE SAID ISSUE, THE TRIBUNAL VIDE THE SAID ORDER AFOREMENTIONED, HAS SE T ASIDE THE ORDER OF THE LD.CIT(A) AND RESTORED THE MATTER BACK TO THE AO FOR DECIDING THE ISSUE AFRESH IN ACCORDANCE WITH THE PROVISIONS OF SECTION 145A AND IN THE LIGHT OF THE DECISIONS OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. MAHALAXMI GLASS WORKS PVT. LTD . [(2009) 318 ITR 116 (BOM.)] AND THE HONBLE DELHI HIGH COURT IN THE CAS E OF CIT VS. MAHAVIR ALLUMINIUM [(2008) 297 ITR 77 (DEL.)]. THE RELEVANT FINDINGS O F THE TRIBUNAL IS STATED IN PARA 4.1 OF MA NO. 435/MUM/2013 ( ARISING OUT OF APPEAL NO. ITA 2519 /MUM/2005) M/S. GOODLASS NEROLAC PAINTS LTD. ASSESSMENT YEAR: 2001-02 2 THE SAID ORDER. IN THIS CONNECTION, THE LD.DR HAS S TATED THAT MAKING ADJUSTMENTS IN THE OPENING AND CLOSING STOCK OF THIS YEAR I.E., 2001-0 2 WITHOUT MAKING SUCH ADJUSTMENTS IN THE OPENING AND CLOSING STOCK OF THE EARLIER YEARS WILL RESULT IN UNDER ASSESSEMENT OF INCOME FOR THE AY 2001-02. THEREFORE, GOING BY THE SPIRIT OF THE RATIO OF MAHALAXMI GLASS WORKS PVT. LTD (SUPRA), ADJUSTMENTS TO THE CLOSING AND OPENING STO CK ALSO NEEDS TO BE MADE W.E.F 01.04.1999, I.E., THE DATE FROM WHEN SEC TION 145A WAS BROUGHT TO THE STATUTE. HENCE, THE LD.DR HAS PRAYED FOR ISSUING NECESSARY C LARIFICATORY DIRECTIONS PERMITTING THE AO TO MAKE ADJUSTMENTS IN RESPECT OF OPENING AND CL OSING STOCK OF THE YEARS STARTING FROM THE AY 1999-2000. 3. HAVING HEARD BOTH THE PARTIES AND PERUSED THE MA TERIAL ON RECORD, IT IS PERTINENT TO MENTION THAT THE TRIBUNAL VIDE THE SAID AFOREMENTIO NED ORDER, ON THE ISSUE PERTAINING TO THE ADDITION OF UNUTILIZED MODVAT CREDIT, HAS SET A SIDE THE ORDER OF THE LD.CIT(A) AND RESTORED THE MATTER BACK TO THE AO FOR DECIDING THE ISSUE AFRESH IN ACCORDANCE WITH THE PROVISIONS OF SECTION 145A AND IN THE LIGHT OF THE DECISIONS OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. MAHALAXMI GLASS WORKS PVT. LTD. AND THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. MAHAVIR ALLUMINIUM (SUPRA). THE SAID DECISION HAS BEEN RENDERED BY THE TRIBUNAL IN CONNECTION WITH THE ASS ESSMENT YEAR 2001-02. HOWEVER, THE CLARIFICATORY DIRECTION SOUGHT BY THE REVENUE IN TH E PRESENT MISCELLANEOUS APPLICATION IS IN RESPECT OF THE ASSESSMENT YEARS 1999-2000, 2000-01, WHICH IN OUR VIEW IS NOT LEGALLY TENABLE AS THE TRIBUNAL CANNOT TINKER WITH THE ACCO UNTS OF THE ASSESSEE IN RESPECT OF AN ASSESSMENT YEARS WHICH WERE NOT IN DISPUTE BEFORE I T. MOREOVER, WE ARE OF THE CONSIDERED OPINION THAT THE IMPUGNED ORDER DOES NOT SUFFER FRO M ANY INFIRMITY DUE TO MISTAKE APPARENT ON THE RECORD FOR THE PURPOSES OF SECTION 254(2) OF THE INCOME TAX ACT AND ALSO THE DIRECTION SOUGHT BY THE REVENUE IS UNSUSTAINABL E CONSIDERING THE LIMITED SCOPE PROVIDED TO THE TRIBUNAL UNDER THE PROVISIONS OF SE CTION 254 CLAUSE 2 OF THE ACT. THEREFORE, WE DO NOT FIND ANY MERIT IN THE MISCELLA NEOUS APPLICATION AND THE SAME IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 21 ST DAY OF MARCH, 2014. SD/- SD/- (P.M.JAGTAP) (DR. S.T.M. PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 21.03.2014. MA NO. 435/MUM/2013 ( ARISING OUT OF APPEAL NO. ITA 2519 /MUM/2005) M/S. GOODLASS NEROLAC PAINTS LTD. ASSESSMENT YEAR: 2001-02 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR G BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.