VINATI ORGANICS LTD, V. DCIT RG 8(3),

MA 438/MUM/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7865 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 03-02-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2001-2002
• Appeal Filed On: 24-08-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V V SHASTRI
• Keywords: Additional evidence

Judgement Text

6IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B, MUMBAI BEFORE SHRI R.S. SYAL, A.M. AND SHRI V. DURGA RAO, J.M. M.A NO. 438/MUM/2011 (IN ITA NO. 1934/M/2005 ASSESSMENT YEAR: 2001-02) VINATI ORGANICS LTD., APPLICANT SHIV ASHISH, 2 ND FLOOR ANDHERI KURLA ROAD SAKINAKA, MUMBAI (PAN AAACV6538K) VS. DY. COMMISSIONER OF INCOME TAX-8(3), RESPONDENT MUMBAI. APPLICANT BY : MR. VIJAY MEHTA RESPONDENT BY : MR. V.V. SHASTRI . ORDER PER V. DURGA RAO, J.M.: THIS MISCELLANEOUS APPLICATION FILED BY THE ASSESSE E ARISES OUT OF THE ORDER OF ITAT A BENCH, MUMBAI BENCHES, MUM BAI, IN APPEAL ITA NO. 1934/MUM/2005 DATED 29TH JULY, 2011. THE AS SESSEE IN THE M.A., STATED THAT THE ISSUE OF DISALLOWANCE OF DEDU CTION CLAIMED U/S 35(1) OF THE ACT, AROSE IN THE ASSESSEES OWN CASE FOR AY 2000-01, WHICH WAS DISALLOWED BY THE AO ON THE GROUND THAT T HE RELEVANT DOCUMENTS AS PRESCRIBED IN THE RULES WERE NOT FURNI SHED. THE CIT(A) UPHELD THE ACTION OF THE AO. WHEN THE MATTER REACHE D TO ITAT, THE ASSESSEE PRODUCED THE ADDITIONAL EVIDENCE VIZ. RELE VANT DOCUMENTS, FORM NO. 3CG, 3CH AND 3CI PRESCRIBED IN THE RULE 6 AND THE ITAT SET ASIDE THE MATTER TO THE FILE OF THE AO. DURING TH E YEAR UNDER CONSIDERATION, THE CLAIM WAS MADE U/S 35(2AA), WHIC H WAS DULY SUPPORTED BY NECESSARY EVIDENCE AS PRESCRIBED IN TH E RULES. HOWEVER, THE AO DISALLOWED THE CLAIM FOLLOWING HIS EARLIER O RDER IN 2000-01. M.A. NO. 438 /M/11 VINATI ORGANICS LTD. 2 CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE ON THE GRO UND THAT THE FACTS OF EARLIER YEAR WERE DIFFERENT AND ALL THE NECESSAR Y DOCUMENTS HAD BEEN FILED BEFORE THE AO AND BEFORE HIM. HE FURTHER OBSERVED THAT THE ISSUE WAS EXAMINED U/S 35(1) IN AY 2000-01 WHEREAS IN AY 2001-02 THE CLAIM MADE U/S 35(2AA) OF THE ACT. WHEN THE DEP ARTMENT FILED APPEAL BEFORE THE ITAT, THE ITAT REMITTED THE MATTE R BACK TO THE FILE OF THE AO WITH A DIRECTION TO VERIFY THE CLAIM OF T HE ASSESSEE WHETHER THE CLAIM IS U/S 35(1) OR U/S 35(2AA) AS THE CLAIM U/S 35(2AA) IS NOT BORN OUT OF FROM THE ORDER OF THE AO. THEREFORE, TH E ASSESSEE IN MA SUBMITTED THAT THE CONCLUSIONS OF THE TRIBUNAL IS E RRONEOUS IN AS MUCH AS THE CLAIM U/S 35(2AA) IS VERY MUCH BORNE OU T FROM THE ORDER OF THE AO AND THE ORDER OF ITAT NEEDS RECTIFICATION . 2. WITH THE ABOVE BACKGROUND, THE LEARNED COUNSEL F OR THE ASSESSEE SUBMITTED THAT IN AY 2000-01, SINCE THE AS SESEE HAS NOT FILED THE REQUIRED DOCUMENTS PERTAINING TO ITS CLAI M U/S 35(1), THE AO DISALLOWED AND THE SAME WAS UPHELD BY THE CIT(A). W HEN THE DETAILS FILED BEFORE THE ITAT, THE ITAT REMITTED THE MATTER BACK TO THE FILE OF THE AO FOR FRESH DECISION. HE FURTHER SUBMITTED TH AT IN THE YEAR UNDER CONSIDERATION I.E. IN AY 2001-02, THE CLAIM W AS MADE U/S 35(2AA), THOUGH THE DETAILS WERE FURNISHED PERTAINI NG TO THIS CLAIM, THE AO FOLLOWING HIS DECISION IN AY 2000-01 DISALLO WED THE CLAIM. HOWEVER, THE CIT(A) ALLOWED THE CLAIM OF THE ASSESS EE ON THE GROUND THAT THE FACTS ARE DIFFERENT IN THE YEAR 2001-02. W HEN THE DEPARTMENT FILED APPEAL BEFORE THE ITAT, THE ITAT REMITTED THE ISSUE TO THE FILE OF THE AO WITH A DIRECTION TO EXAMINE WHETHER THE CLA IM MADE U/S 35(1) OR 35(2AA). HE, THEREFORE, CONTENDED THAT THE ORDER OF THE TRIBUNAL IS ERRONEOUS IN AS MUCH AS THE CLAIM U/S 35(2AA) IS VE RY MUCH BORN OUT FROM THE ORDER OF THE AO, THEREFORE, THE ORDER NEED S RECTIFICATION. 3. ON THE OTHER HAND, THE LEARNED DR SUBMITTED THAT THE ASSESSEE HAS NOT FILED ALL THE DETAILS IN RESPECT OF ITS CLA IM MADE BY HIM AND HE SPECIFICALLY POINTED OUT THAT THE ASSESSEE FILED FO RM 3CG, 3CH AND 3CI M.A. NO. 438 /M/11 VINATI ORGANICS LTD. 3 PRESCRIBED IN THE RULE 6, THEREFORE, THE TRIBUNAL H AS RIGHTLY REMITTED THE MATTER BACK TO THE FILE OF THE AO FOR FRESH DEC ISION. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORD. IN AY 2000-01 THE CLAIM OF THE ASSESSEE U/S 35(1) WAS REM ITTED TO THE FILE OF THE AO AND IN THE YEAR CONSIDERATION THE CLAIM MADE U/S 35(2AA). THE AO WAS DISALLOWED AND THE CIT(A) ALLOWED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT IN AY 2000-01 THE CLAIM WAS MADE U /S 35(1) AND IN THE YEAR UNDER CONSIDERATION THE CLAIM WAS MADE U/S 35(2AA) AND ALL THE DETAILS WERE FILED. IN THE ASSESSMENT ORDER, TH E AO HAS, SPECIFICALLY, POINTED OUT THAT THE ASSESSEE HAD FAI LED TO SUBMIT REPORT IN FORM NO. 3CJ VIDE RULE 6(1A). IN VIEW OF THE ABO VE CONTRADICTORY FINDINGS, THE OPINION OF THE TRIBUNAL WAS THAT TO M EET THE ENDS OF JUSTICE, MATTER WAS REMITTED BACK TO THE FILE OF TH E AO TO DECIDE AFRESH. WE, THEREFORE, FIND THAT THERE IS NO MISTAK E APPARENT ON RECORD AS HAS BEEN SUBMITTED BY THE LEARNED COUNSEL FOR TH E ASSESSEE. ACCORDINGLY, THE M.A. FILED BY THE ASSESSEE IS DISM ISSED. 5. IN THE RESULT, M.A. FILED BY THE ASSESSEE IS DIS MISSED. PRONOUNCED IN THE OPEN COURT ON THIS 3 RD DAY OF FEBRUARY, 2012. SD/- SD/- (R.S. SYAL) (V. DURGA R AO) ACCOUNTANT MEMBER JUDI CIAL MEMBER MUMBAI, DATED: 3 RD FEBRUARY, 2012. M.A. NO. 438 /M/11 VINATI ORGANICS LTD. 4 COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE, B BENCH, I.T .A.T., MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR, I.T.A.T., MUMBAI. KV