The DCIT,(OSD), Circle-8, Ahmedabad V. M/s. Transwind Infrastructure Pvt.Ltd., Ahmedabad

MA 45/AHD/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 6420 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 14-02-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 05-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: JIGNESH PAREKH
• Keywords: Tax effect
• Section: 201; 254(2)

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER AND SHRI WASEEM AHMED , ACCOUNTANT MEMBER M.A NO .45/AHD/2018 IN ./ ITA NO .1882 / AHD / 2013 / ASSTT. YEAR: 2009 - 2010 A.C.I.T, CIRCLE - 4(1)(2), AHMEDABAD VS M/S TRANSWIND INFRASTRUCTURE PVT. LTD. , 92, NEW YORK TOWER - A , SARKHEJ GANDHINAGAR , HIGHWAY, THALTEJ, AHMEDABAD. PAN: AABCT3026D (APPLICANT) ( RESPON D ENT ) REVENUE BY : SHRI VINOD TANWANI , SR. D.R ASSESSEE BY : SHRI JIGNESH PAREKH, A.R / DATE OF HEARING : 16 / 1 1 /201 8 / DATE OF PRONOUNCEMENT: 14 / 02 /201 9 / O R D E R PER MAHAVIR PRASAD, JUDICIAL MEMBER : T HE INSTANT MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS ARISING OUT OF ORDER DATED 23/08/2017 , PASSED BY THE CO - ORDINATE BENCH, IN ITA BEARING NO .1882 / AHD /2013 FOR THE ASSESSMENT YEAR 2009 - 20 10 . 2. THE REVENUE BY WAY OF THIS MISCELLANEOUS APPLICATION IS SEEKING TO RECALL THE ORDER PASSED BY THE ITAT IN ITA NO.1882/AHD/2013 M.A NO .45/AHD/2018 IN ITA NO .1882/AHD/2013 A.Y .2009 - 10 2 PERTAINING TO THE ASSESSMENT YEAR 2009 - 10 VIDE ORDER DATED 23/08/2017. 3. THE REVENUE IN ITS MISCELLANEOUS APPLICATION , HAS SUBMITTED AS UNDER: THE APPLICANT HAS RECEIVED THE ORDER DATED 26.10/2017 ITA NO. 1882/AHD/2013 & ITA NO. 1492/AHD/2013 FOR A.Y.2009 - 10. THE MISCELLANEOUS APPLICATION IS ARISING OUT OF THE ABOVE REFERRED ORDER (COPY ENCLOSED). 2. ON PERUSAL OF THE ORDER IT IS SEEN TH AT ITA NO. 1882/AHD/2013 FOR A.Y. 2009 - 10 DEPARTMENTS HAS FILED APPEAL BEFORE HON'BLE ITAT ON FOLLOWING GROUND . I) THE LD CIT(A) - XIV, AHMEDABAD HAS ERRED IN LAW AND FACTS IN DELETING THE ADDITION OF RS. 93,93,467/ - MADE ON AMOUNT OF UNPAID LIABILITY TOWARDS LABOURERS AND OUGHT TO HAVE GRANTED TELESCOPING BENEFIT IN RESPECT O FG.P. REDUCTION.' II) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE ID CIT(A) - XIV, AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. THE HON'BLE ITAT HAS DISCUSSED THE GROUND OF APPEALS BUT HAS NOT DECIDED THE ABOVE MENTIONED GROUND IN ORDER. 3. FURTHER, IN THIS CASE ASSESSEE'S APPEAL IN ITA NO. 1492/AHD/2013 FOR A. Y. 2009 - 10 IS ON FOL LOWING GROUNDS: I) ' THE LD CIT(A) - XIV, AHMEDABAD HAS ERRED IN LAW AND FACTS IN CONFIRMING THE ACTION OF THE AO IN REJECTING THE BOOKS OF ACCOUNT UNDER SECTION 145(3) OF THE ACT.' II) ' THE LD CIT(A) - XIV, AHMEDABAD HAS ERRED IN LAW AND FACTS IN CONFIRMING THE ACTION OF THE AO IN MAKING ADDITION OF RS. 23,66,067/ - BY ESTIMATING THE INCOME @8% OF THE TOTAL OPERATIONAL INCOME.' THE HON'BLE ITAT HAS DECIDED APPEALS OF THE ASSESSEE IN ITA NO. 1492/AHD/2013 FOR AY 2009 - 10. 4. THE ABOVE MISTAKE OF NOT - GIVING DECISION ON THE REVENUE'S GROUNDS OF APPEAL IS APPARENT ON RECORDS. THEREFORE, IT IS REQUESTED THAT THE HON'BLE ITAT MAY KINDLY RECTIFY THE MISTAKE AND PASS NECESSARY ORDER ACCORDINGLY. IT IS REQUESTED TO RESTORE BACK DEPARTMENT APPEAL ITA NO. 1882/ AHD/2013 FOR A.Y.2009 - 10 AND M.A NO .45/AHD/2018 IN ITA NO .1882/AHD/2013 A.Y .2009 - 10 3 ADJUDICATE THE SAME ON MERITS. ON VERIFICATION, IT IS FOUND THAT THE TAX EFFECT INVOLVED IS RS.31,74,484/ - WHICH IS ABOVE THE LIMIT FOR FILING APPEAL BEFORE THE TRIBUNAL AS PER CBDT INSTRUCTION NO. 21/2015. 5. MISCELLANEOU S APPLICATION IS BEING FILED ON THE FOLLOWING GROUND. 'WHETHER THE HON'BLE ITAT HAS ERRED IN LAW AND ON FACTS IN NOT DECIDING THE ISSUE OF REVENUE'S APPEAL ON ACCOUNT OF UNPAID LIABILITY TOWARDS LABOURERS AND OUGHT TO HAVE GRANTED TELESCOPING BENEFIT IN R ESPECT OF G. P. REDUCTION.' 6. COPY OF AUTHORIZATION GRANTED BY THE PCIT - 4, AHMEDABAD VIDE LETTER NO.PR.CIT - 4/HQ/CIT(A)/RECO./TIPL/2017 - 18 DATED.30.01.2018 FOR FILING MISCELLANEOUS APPLICATION IS ENCLOSED HEREWITH ALONG WITH COPY OF HON'BLE ITAT'S ORDER. 4. ON THE OTHER HAND THE LD. AR VEHEMENTLY SUPPORTED THE ORDER OF ITAT. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL S AVAILABLE ON RECORD. ON PERUSAL OF THE ITAT ORDER , AS DISCUSSED ABOVE, WE NOTE THAT ITAT HAS NOT ADJUDICATED THE GROUND OF APPEAL OF THE REVENUE IN ITS ORDER DATED 23/08/2017 INADVERTENTLY. THUS, THE MISTAKE COMMITTED BY THE ITAT IN ITS ORDER IS APPARENT FROM RECORD WITHIN MEANING OF SECTION 254(2) OF THE ACT. 5.1 WE ALSO WANT TO MAKE IT CLEAR THAT THE IMPUGNED APPEAL WAS HEARD ALONG WITH THE CROSS - APPEAL OF THE ASSESSEE BEARING ITA NO.1492/AHD/2013 PERTAINING TO ASSESSMENT YEAR 2009 - 10 AND THERE WAS NO MISTAKE POINTED OUT BY THE LD.DR, IN THE ORDER OF THE ITAT. IN VIEW OF THE ABOVE , WE ARE INCLINED TO RECALL TH E ORDER PASSED BY THE ITAT AS DISCUSSED ABOVE. THE REGISTRY IS DIRECTED TO FIX THE CASE FOR FRESH HEARING IN DUE COURSE OF TIME. HENCE THE GROUND RAISED BY THE REVENUE IN THE MISCELLANEOUS APPLICATION IS ALLOWED. M.A NO .45/AHD/2018 IN ITA NO .1882/AHD/2013 A.Y .2009 - 10 4 6. IN THE RESULT, MISCELLANEOUS APPLICATI ON FILED BY THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 14 / 02 / 201 9 AT AHMEDABAD. - SD - ( WASEEM AHMED ) ACCOUNTANT MEMBER - SD - ( MAHAVIR PRASAD ) JUDICIAL MEMBER (TRUE COPY) AHMEDABAD; DATED 14 / 02 / 201 9 MANISH / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A), AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD