DCIT, JHUNJHUNU V. SARAF EXPORTS, SARDARSHAHAR

MA 44/JPR/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3037 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-04-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 29-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: D S BOHRA ADV DH FRFFK
• Section: 80IB

Judgement Text

,E-,-LA-44@TSIH@14&ESALLZ LJKZQ ,DLIKSVZL~] LJNKJ 'KGJ A VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH, JAIPUR JH VKJ-IH-RKSYKUH] U;KF;D LNL; ,OA JH VH-VKJ-EHUK] YSCL; DS LE{K (BEFORE SHRI R.P. TOLANI AND SHRI T.R.MEENA) M.A. NO.44/JP/2014 (A/O ITA NO.390, 679/JP/13 & C.O. 30,52/JP/13) ASSESSMENT YEAR : 2009-10 PAN : AATFS 9394N THE DY.COMMISSIONER OF INCOME TAX, VS. M/S.SARAF EXPORT, JHUNJHUNU. SARDARSHAR. VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT M.A. NO.45/JP/2014 (A/O ITA NO.739/JP/12) ASSESSMENT YEAR : 2009-10 THE ASSTT.COMMISSIONER OF INCOME TAX, VS. M/S.SARA F EXPORT, CIRCLE, JHUNJHUNU. SARDARSHAR. VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT M.A. NO.46/JP/2014 (A/O ITA NO.819/JP/13) ASSESSMENT YEAR : 2009-10 THE ASSTT.COMMISSIONER OF INCOME TAX, VS. M/S.SARA F SEASONING UDYOG, CIRCLE, JHUNJHUNU. SARDARSHAR. VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FOHKKX DH VKSJ LS@ DEPARTMENT BY : SH.KAILASH MANGAL (JCIT) FU/KKZFJRH DH VKSJ LS@ ASSESSEE BY : SH.SURESH OJHA & D.S.BOHRA, (ADV.) LQUOKBZ DH FRFFK@ DATE OF HEARING : 10.04.2015 ?KKS'K.KK DH FRFFK@ DATE OF PRONOUNCEMTNT: 10.04.2015 ,E-,-LA-44@TSIH@14&ESALLZ LJKZQ ,DLIKSVZL~] LJNK J'KGJ - 2 - VKNS'K ORDER PER T.R.MEENA, AM :- THE REVENUE FILED M.A. IN ALL THE CASES WHEREIN I T HAS BEEN CONTENDED THAT HONBLE ITAT, JAIPUR BENCH IN ITS ORDER ITA NO.390/ JP/2013, C.O. 13/JP/13 AND ITA 679/JP/13, C.O.53/JP/13 DATED 27.12.2013 HAS NOT CO NSIDERED THE HONBLE SUPREME COURT DECISION IN CASE OF LIBERTY INDIA 317 ITR 218(SC) THAT DUTY DRAW BACK INCOME IS NOT PART OF 80IB DEDUCTION & RESULTE D PLATENTLY WRONG & IMPROPER DECISION GIVEN BY THE HONBLE ITAT IN ALL THE CASES (A/O ITA NO. 390, 679/JP/13 & C.O. 30, 52/JP/13, 739/JP/12, 819/JP/13) WHICH IS A PPARENT MISTAKE ON THE PART OF HONBLE ITAT. 2. THE LD.A.R. FOR THE ASSESSEES FILE WRITTEN SUBM ISSION AND ARGUED THAT APPLICATION SUBMITTED BY THE A.O. U/S 254(2) OF THE IT ACT IS NOT AT ALL AN APPLICATION. THE ORDER PASSED BY THE HONBLE TRIBU NAL IS A CONSCIOUS ORDER THEREFORE THE APPLICATION IS NOT AT ALL APPLICATION IN PARA 2 OF THIS REVENUE M.A. WORDED THE APPLICATION THAT HONBLE ITATS ORDER IN CASE OF THE ASSESSEES PATENTLY WRONG AND IMPROPER DUE TO FOLLOWING REASO NS. THE LANGUAGE OF APPLICATION ITSELF STATED THAT THE VIEW WHICH IS IN FAVOUR OF DEPARTMENT MUST HAVE BEEN TAKEN. ,E-,-LA-44@TSIH@14&ESALLZ LJKZQ ,DLIKSVZL~] LJNK J'KGJ - 3 - THE DEPARTMENT WANTS TO DECTED HIS CONDITION FOR AC CEPTING THE APPLICATION IN THE MOREOVER IN WHICH THE DEPARTMENT WANTS. THE DEPARTMENT HAD ADMITTED THAT MATTER IS DEBATABLE WHICH CAN NOT BE RECTIFY U /S 254(2) OF THE IT ACT BY RELYING HONBLE SUPREME COURT DECISION IN CASE OF V OKARD INDIA 82 ITR 50 FURTHER DEPARTMENT HAS ADMITTED AS UNDER :- FURTHER IT IS A TRITE THAT WHEN ANY AMENDED PROVISI ON IS NOT CONSIDERED OR FOR THAT MATTER ANY RELEVANT PROVISIO N OF THE ACT IS NOT CONSIDERED WHILE GIVING A JUDGMENT, IT IS TREAT ED AS IN PER CURIUM 3. THE HONBLE TRIBUNAL HAD CONSIDERED THE JUDGEME NT LIBERTY INDIA (SUPRA) IN ABOVE DECISION. THEREFORE HE REQUESTED TO IMPOSE C OST ON AO FOR NOT DRAFTING PROPER APPLICATION FOR RECTIFICATION WITH RESPECT T O HONBLE ITATS ORDER U/S 254(2) OF THE IT ACT AND SAME MAY BE DISMISSED. HE FURTHE R RELIED UPON FOLLOWING CASES:- 1. ITA NO.22 & 23/JODH/2012 M/S.SARAF EXPORT, 2. 82 ITR 50 T.S.BALRAM 3. 237 ITR 165 KESHARI METAL PVT.LTD., 4. 192 ITR 252 INDIAN STEEL & WIRE PRODUCT 5. 247 ITR 274 PRAKASH CHAND NAHTA 6. 168 ITR 809 ITO VS. ITAT 7. M.A.49/JODH./2008 CHOKSI HERAEUS P.LTD., 8. M.A. 10/JU/2009 HANUMANGARH KRAY VIKRAY SAH.SA M. 9. 72 TAXMANN 43 KAMALAKSHI FINANCE CORPN.LTD.,(S C) 4. WE HAVE HEARD THE RIVAL SUBMISSION OF BOTH THE P ARTIES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THIS BENCH HAS CONSI DERED THE HONBLE SUPREME ,E-,-LA-44@TSIH@14&ESALLZ LJKZQ ,DLIKSVZL~] LJNK J'KGJ - 4 - COURT DECISION IN CASE OF LIBERTY INDIA (SUPRA) IN ASSESSEES CASE AND DECIDED ISSUE AS PER THE AMENDED PROVISION OF 80IB OF THE IT ACT. THEREFORE WE DISMISS ALL THE THREE M.A.S FILED BY THE REVENUE. ORDER PRONOUNCED IN THE OPEN COURT ON 10.04.2015 SD/- SD/- (R.P.TOLANI) (T.R.MEENA) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER T;IQJ@ JAIPUR, FNUKAD@ DATE : 10/04/2015 *BASANT* VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO :- 1- MIK;QDR VK;DJ] >QA>QUWA@ THE DCIT, JHUNJHUNU. 2- ESALLZ LJKZQ ,DLIKSVZ] LJNKJ'KGJ@ M/S.SARAF EXPORT, SARDARSHAR. 3- FOHKKXH; IZFRFUF/K] T;IQJ@ THE D.R. ITAT, JAIPUR 4- XKMZ QKBZY@ THE GUARD FILE (IN M.A. NO.44/JP/2014) VKNS'KKUQLKJ BY ORDER LGK;D IATHDKJ@ ASSISTANT REGISTRAR