GHCL Limited, Ahmedabad V. The ACIT., Circle-4, Ahmedabad

MA 44/AHD/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0710 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 6 month(s) 28 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-09-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 20-09-2013
• Assessment Year: 2002-2003
• Appeal Filed On: 29-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K C MATHEW
• Section: 14A; 115JB

Judgement Text

, , , , A, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, A BENCH . .. . . .. . , !' !' !' !', , , , #$ #$ #$ #$ . .. . . .. .% %% %, ,, , &' ( & ' &' ( & ' &' ( & ' &' ( & ' BEFORE S/SHRI G.C. GUPTA, VICE-PRESIDENT AND B.P. JAIN, ACCOUNTANT MEMBER) MA NO.44/AHD/2012 IN ITA NO.1290/AHD/2006 [ASSTT.YEAR : 2002-2003] GHCL LIMITED GHCL HOUSE OPP: PUNJAB HALL NR.NAVRANGPURA BUS STAND NAVRANGPURA, AHMEDABAD. /VS. ACIT, CIR.4 AHMEDABAD. ( (( (*+ *+ *+ *+ / APPELLANT) ( (( (,-*+ ,-*+ ,-*+ ,-*+ / RESPONDENT) ./ 0 1 &/ ASSESSEE BY : MS.URVASHI SHODHAN ( 0 1 &/ REVENUE BY : SHRI K.C. MATHEW, SR.DR 3 0 /4'/ DATE OF HEARING : 20 TH SEPTEMBER, 2013 567 0 /4'/ DATE OF PRONOUNCEMENT : 27.09.2013 &8 / O R D E R PER B.P. JAIN, ACCOUNTANT MEMBER : THIS MISC. APPLICATION OF THE ASSESSEE IS ARISING FROM THE ORD ER OF THE ITAT IN ITA NO.1290/AHD/2006 DATED 30.12.2011. THE ASSE SSEES MA IS REPRODUCED HEREINBELOW FOR THE SAKE OF CONVENIEN CE: MA NO.44/AHD/2012 -2- '1. THE PRESENT APPLICATION IS FILED BY THE APPLICA NT/ APPELLANT ABOVE NAMED FOR SETTING ASIDE THE ORDER D ATED 30/12/2011 PASSED BY THIS HON'BLE ITAT PARTLY ALLOW ING THE APPEAL FILED BY THE APPELLANT (ORIGINAL APPELLANT). IT IS MOST RESPECTFULLY SUBMITTED THAT IN THE SAID ORDER OF THE HON'BLE ITAT, THERE ARE ERRORS APPARENT ON THE RECO RD. 2. THE HON'BLE ITAT WHILE DISPOSING OF GROUND NO. I CHALLENGING DISALLOWANCE OF RS. 55.15 LACS U/S 14A OF THE ACT, ON PAGE 5 PARA 5 NOTED THAT ON IDENTICA L ISSUE, THE ASSESSEE HAD BEEN ALLOWED RELIEF IN ASSESSMENT YEAR 2001 02 BY ITAT IN ITS ORDER IN ITA NO. 473 & 492/AHD/2005. THE HONBLE ITAT DESPITE NOTING THE SAME HELD ON PAGE 8 AS UNDER '....THEREFORE, SUCH DISALLOWANCE HAS TO BE ON RATIONALE BASIS BY THE AO FOR REASONABLY ESTIMATING AS NEARLY AS POSSIBLE THE EXPENDITURE INCURRED FOR EARNING THE TAX FREE INCOME KEEPING IN VIEW THE RESERVE AND SURPLUS AND THE PROFIT WHICH ARE INTERE ST FREE AND ACCORDINGLY MAKE THE DISALLOWANCE ON ESTIMATE BASIS IF AT ALL DISALLOWANCE IS POSSIBLE T O BE MADE, FOLLOWING, THE DECISION OF HONBLE HIGH KERAL A COURT IN THE CASE OF KATHOLIC SYRIAN RANK LTD. & OTRS. (SUPRA). THE IN AFTER IS RESTORED TO THE FILE OF THE AO WHO IS- DIRECTED TO GIVE AN OPPORTUNIST' OF BEIN G HEARD TO THE ASSESSEE BEFORE DECIDING THE ISSUE.' 3. THE APPLICANT RESPECTFULLY SUBMITS THAT AS IT CA N BE OBSERVED FROM THE PARAGRAPH REPRODUCED ABOVE THAT THE HON'BLE ITAT DESPITE NOTING THAT ON IDENTICAL FACTS RELIEF WAS ALLOWED TO THE APPELLANT BY ORDERS FOR EARLIER YEARS, OVERLOOKED IN TAKING COGNIZANCE OF ORDER OF HONBLE ITAT FOR A.Y. 2000/01 HEARING ITA # 4043/AHD/2003 AFFIRMED BY THE HONBLE GUJARAT HIGH COURT BY DISMISSING APPEAL FILED BY THE REVENU E IN TAX APPEAL NO. 1290 OF 2009, TO RESTORE THE ISS UE TO THE TILE OF AO WITHOUT DISTINGUISHING IN ANY MAN NER THE DECISIONS OF CO ORDINATE BENCH. THE ASSESSEE HA D ALSO RELIED UPON ITS BALANCE SHEET AS ON 31ST MARCH MA NO.44/AHD/2012 -3- 2002 TO SHOW THAT IT HAD USED INTEREST FREE FUNDS AVAILABLE AND ITS PROFITS AND LOSS ACCOUNT TO DEMONSTRATE THAT IT HAD USED PROFITS EARNED (LURING THE YEAR UNDER CONSIDERATION. AS SUCH NOT FOLLOWING DECISION OF CO ORDINATE BENCH AND ABOVE ALL JUDGMENT OF THE JURISDICTIONAL HIGH COURT IN ASSESSEE'S OWN CASE FOR EARLIER YEAR CONSTITUTES MISTAKE IN THE ORDER OF THE TRIBUNAL. 4. SECONDLY IT IS MOST RESPECTFULLY SUBMITTED THAT THE HON'BLE TRIBUNAL WHILE DISPOSING OF THE APPEAL SET ASIDE THE ISSUE TO THE FILE OF AO WITHOUT TAKING COGNIZANCE OF THE JUDGMENTS CITED, THE ASSESSEE SUBMITS THAT THE ORDER SUFFERS FROM FOLLOWING APPARENT ERRORS:- (1)THE APPLICANT RELIED UPON THE JUDGMENT IN CIT VS. JINDAL DRILLING AND INDUSTRIES LTD. 301 ITR 304(DEL) AS ALSO SUPREME COURT JUDGMENT IN THE CASE OF MUNJAL SALES CORPORATION VS. CIT 298 ITR 298(SC). THE SAME HAVE NOT BEEN REFERRED TO. THE MATTER STANDS CONCLUDED BY THE SAID JUDGMENTS IN FAVOUR OF THE APPLICANT. (2)EVEN OTHERWISE THE ISSUE STANDS CONCLUDED BY THE JUDGMENT OF GUJARAT HIGH COURT IN THE CASE OF CIT VS. RAGHUVIR SYNTHETICS LTD. IN TAX APPEAL NO 829 OF 2007 DELIVERED ON 05/12/2011. IN VIEW OF THIS, THE ASSESSEE SUBMITS THAT THE ORDE R OF THE TRIBUNAL IN THIS REGARD, NEEDS TO BE RECTIFI ED AND ADDITION DESERVES TO BE DELETED. 5. IN GROUND NO. 2 THE APPLICANT DISPUTED ADDITION OF RS.55.15 LACS TO ITS `BOOK PROFITS' FOR ITS LIABILI TY U/S I15JB OF THE ACT. THIS ISSUE WAS CONSEQUENTIAL UPON THE FIRST ISSUE NAMELY FINDING OF THE LOWER AUTHORITIES THAT AMOUNT OF RS.55.15 LACS WAS REQUIRED TO BE DISALLOWED U/S 14A OF THE ACT. THE TRIBUNAL HAS CONFIRMED THE SAID ADDITION WHICH IS, FOR THE FOLLOWING REASONS EX FACIE ERRONEOUS:- MA NO.44/AHD/2012 -4- (1)RS.55.15 LACS COMPRISE OF TWO AMOUNTS NAMELY RS. 53.95 LACS INTEREST AND RS.1.20 LACS ADMINISTRATIVE CHARGES. OF THESE TWO AMOUNTS RS.1.2 0 LACS BEING ADMINISTRATIVE CHARGES IS DIRECTED TO BE DELETED AS PER PARA 6 ON PAGE 9 OF THE ORDER. CONSEQUENTIALLY THE SAME OUGHT TO HAVE BEEN DELETED EVEN FOR THE PURPOSE OF MAT COMPUTATION. THE DISALLOWANCE OF INTEREST OF RS.53.95 LACS IS SE T ASIDE BY THE TRIBUNAL VIDE PARAGRAPH 5 OF THE ORDER (I.E. THE SUBJECT MATTER OF PARA 1 OF THIS APPLICATION). IF THE SET ASIDE IS WITHDRAWN AND THE ADDITION IS DELETED OBVIOUSLY EVEN THAT AMOUNT WOUL D HAVE TO BE DELETED FOR THE PURPOSE OF MAT COMPUTATION. HOWEVER, EVEN IF THE PARAGRAPH 5 OF TH E ORDER IS RETAINED AND THE SET ASIDE ORDER IS CONTIN UED, THE CONFIRMATION OF ADDITION FOR MAT PURPOSE IS ERRONEOUS BECAUSE IN THAT EVENT EVEN THIS ISSUE WHI CH IS CONSEQUENTIAL TO THAT ISSUE WILL ALSO HAVE TO BE SET ASIDE. IN LIGHT OF THE ABOVE, THERE IS INCONSISTENCY BETWE EN THE FINDINGS IN PARA 5 (SET ASIDE) AND PARA 6 (DELETION) ON ONE HAND AND PARA 7 WHICH IS CONSEQUENTIAL UPON THE FINDING IN PARA 5 & 6, THE ISSUE IS CONFIRMED. 6. THE APPLICANT THEREFORE, RESPECTFULLY SUBMITS TH AT IN THE LARGER INTEREST OF JUSTICE THE HON'BLE TRIBUNAL BE PLEASED TO ACCEPT THE PRAYER OF THE APPLICANT/APPEL LANT AND MODIFY THE ORDER AS STATED ABOVE SO AS TO APPRECIAT E THE CORRECT FACTS. 2. THE LEARNED COUNSEL FOR THE ASSESSEE ARGUED ON S IMILAR LINE AS SUBMITTED IN THE MA. SHE ARGUED THAT NOW THERE IS AN ORDER OF HONBLE JURISDICTIONAL HIGH COURT, WHEREIN THE DECI SION OF THE ITAT, AHMEDABAD FOR A.Y.2001-2002, IN ASSESSEES OW N CASE MA NO.44/AHD/2012 -5- HAS BEEN AFFIRMED BY THE HONBLE JURISDICTIONAL HIG H COURT DISMISSING THE APPEAL FILED BY THE REVENUE, AS MENT IONED IN THE APPLICATION. THEREFORE, THERE IS A MISTAKE APPAREN T FROM THE RECORD IN NOT FOLLOWING THE DECISION OF THE ITAT, A HMEDABAD FOR THE ASSESSMENT YEAR 2001-2002 IN ASSESSEES OWN CAS E. SHE ARGUED THAT SECOND MISTAKE, AS MENTIONED HEREINABOV E, IS DEPENDENT UPON THE OUTCOME OF FIRST MISTAKE POINTED OUT HEREIN ABOVE. 3. THE LEARNED DR, ON THE OTHER HAND, ARGUED THAT N O JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT W AS AVAILABLE IN THE ASSESSEES OWN CASE, AT THE TIME OF HEARING OF THE APPEAL. AS REGARDS THE JUDGMENT OF THE HONBLE KERALA HIGH COURT IN THE CASE OF CIT VS. CATHOLIC SYRIAN BANK LTD. & ORS., ( 2011) 237 CTR 164 (KER), THE SAID JUDGMENT WAS RELIED UPON BY THE ASSESSEE ITSELF THROUGH AUTHORISED REPRESENTATIVE, DURING THE COURSE OF HEARING OF THE APPEAL, WHICH JUDGMENT IN FACT WAS NOT AVAILABLE BEFORE THE ITAT, AHMEDABAD WHILE DECIDING THE APPEAL FOR ASSESSMENT FOR A.Y.2001-2002. A CONSCIOUS DECI SION HAS BEEN TAKEN BY THE BENCH WHILE DECIDING THE APPEAL V IDE ORDER DATED 30.12.20012. THE LEARNED AR IS TRYING TO GET THE ORDER REVIEWED UNDER THE GRAB OF MA, WHICH IS NOT PERMITT ED. ACCORDINGLY, THE LEARNED DR PRAYED TO REJECT THE AP PLICATION FILED BY THE ASSESSEE. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE FACTS OF THE CASE. WE ARE CONVINCED WITH THE ARGUMENTS OF T HE LEARNED MA NO.44/AHD/2012 -6- DR OF THE REVENUE THAT THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN ASSESSEES OWN CASE WAS NOT AVAILABLE BEFORE US, AT THE TIME OF HEARING OF THE APPEAL. AS REGARDS, THE DECISION OF THE HONBLE KERALA HIGH COURT, AS MENTIONED IN OUR ORDE R DATED 30.12.2011, THE SAME WAS NOT AVAILABLE WHILE PASSIN G ORDER OF THE ITAT FOR A.Y.2001-2002. THE ASSESSEE ITSELF, THROU GH AUTHORISED REPRESENTATIVE HAS RELIED UPON THE DECISION OF THE KERALA HIGH COURT IN THE CASE OF CATHOLIC SYRIAN BANK LTD. & OR S. (SUPRA) IS NOT UNDER DISPUTE. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE FIND NO MISTAKE APPARENT FROM THE RECORD, AND THE A PPLICATION FILED BY THE ASSESSEE WILL TANTAMOUNT TO REVIEW OF OUR OWN ORDER, WHICH IS OUTSIDE THE SCOPE OF SECTION 254(2) OF THE I.T.ACT. THUS, THE MA FILED BY THE ASSESSEE IS DISMISSED. 5. AS REGARDS, THE ADDITION OF RS.55.15 LAKHS TO IT S BOOK PROFITS, FOR ITS LIABILITY UNDER SECTION 115JB OF T HE ACT, THE SAME IS CONSEQUENTIAL TO OUR DECISION IN THE FIRST MISTA KE, AS POINTED OUT BY THE LEARNED COUNSEL OF THE ASSESSEE. IN THE PRESENT FACTS AND CIRCUMSTANCES OF THE CASE, AND ON PERUSAL OF TH E RECORD, WE FIND THAT THERE IS NO MISTAKE APPARENT FROM RECORD. ACCORDINGLY, THE SECOND MISTAKE POINTED OUT BY THE ASSESSEE IS A LSO DISMISSED. 6. IN THE RESULT, THE MA NO.44/AHD/2012 IS DISMISSE D. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- SD/- ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT ( . .. . . .. .% %% % / B.P.JAIN) &' ( &' ( &' ( &' ( /ACCOUNTANT MEMBER