Newton Engineering & Chemicals Ltd., Baroda V. The Income tax Officer, Ward-4(1), Baroda

MA 49/AHD/2010

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4784 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 18 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-08-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2001-2002
• Appeal Filed On: 10-03-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K M MAHESH SRDR
• Keywords: Gift
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH D AHMEDABAD BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI A.N. PAHUJA, ACCOUNTANT MEMBER M.A.NO.49/AHD/2010 (ARISING OUT WITH ITA NO.1230/AHD/2006 ASSESSMENT YEAR:2001-02 DATE OF HEARING:27.8.10 DRAFTED::27.8 .10 NEWTON ENGINEERING & CHEMICALS LTD., 864/B,GIDC, MAKARPURA, BARODA PAN NO.AAACH5391Q V/S . INCOME TAX OFFICER, WARD-4(1), BARODA (ORIGINAL APPELLANT) (ORIGINAL RESPONDENT) (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SMT. URVASHI SODHAN, AR RESPONDENT BY:- SHRI K.M.MAHESH, SR-DR O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- BY WAY OF THIS MISCELLANEOUS APPLICATION (MA), THE ASSESSEE HAS REQUESTED FOR RECALLING THE TRIBUNALS ORDER PASSED IN ITA NO.1230/AHD/2006 DATED 31-11- 2009. 2. THE ONLY GRIEVANCE OF THE ASSESSEE IS THAT IN AS SESSMENT YEAR 2001-02 IN ITA NO.1230/AHD/2006 , THE GROUND AS REGARDS TO THE ISSUE OF DISALLOWANC E ON ACCOUNT OF NON-PAYMENT OF CENTRAL SALES TAX AND GUJARAT SAL ES TAX BY INVOKING THE PROVISION OF SECTION 43B OF THE INCOME-TAX ACT, 196 1 HAS NOT BEEN ADJUDICATED. THE FOLLOWING GROUNDS WERE RAISED IN APPEAL:- 2.0 THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) ERRED IN LAW AND ON FACTS HAS CONFIRMED THE ADDITIONS OF RS.11,49,064/- ON ACCOUNT OF THE ALLEGED NON PAYMENT OF CENTRAL SALES TAX AND GUJARAT SALES TAX BY INVOKING THE PROVISIONS OF SECTION 43B OF THE INCOME TAX ACT, 19 61. MA NO.49/AHD/2010 (A/O ITA NO.1230/AHD/2006) A.Y.01-02 NEWTON ENGINEERING & CHEMICALS LTD. V. ITO WD-4(1) , BRD PAGE 2 2. 1 THE APPELLANT SUBMIT THAT THE COMPANY IS CLAIM ING SET OFF OF CST AND GST AGAINST WORKS CONTRACT TAX PAYABLE BY IT AND HE NCE THERE WAS NO LIABILITY UNDER SECTION 43B OF THE INCOME TAX ACT, 1961. THE ASSESSEE STATED THAT THE PRESENT APPLICATION FO R SETTING ASIDE THE ORDER FOR A.Y. 2001-02 DATED 30-11-2009 PASSED BY THIS TRIBUNAL PA RTLY ALLOWING THE APPEAL FILED BY THE ASSESSEE IS AS REGARDS TO THE SAID ORDER OF THE ITAT, THERE IS AN ERROR APPARENT FROM THE RECORD. ACCORDING TO THE LD. COUNSEL, THE TRIBUNAL ADJUDICATED THE ISSUE OF ADDITION CHALLENGED BY THE ASSESSEE OF RS19,26,520/ - MADE ON ACCOUNT OF LATE PAYMENT OF P.F./EPF/ESIC ETC. U/S.43B OF THE ACT ON PAGES 4 & 5 IN PARA 5 TO 7 OF THE ORDER ALLOWING THE CLAIM OF THE ASSESSEE AND AL SO THE TRIBUNAL FURTHER ADJUDICATED THE ISSUE CHALLENGED BY THE APPLICANT O F DISALLOWANCE OF AMOUNT DEBITED FOR GIFTS AND PRESENTATION ON PAGES 6 & 7 IN PARA 8 TO 10 OF THE ACT. BUT THE GROUND 2.0 & 2.1 RAISED BY THE APPLICANT IN GROUNDS OF APP EAL THROUGH OVERSIGHT HAS BEEN LEFT OUT TO BE ADJUDICATED BY THE TRIBUNAL THAT IS REPRODUCED AS UNDER:- 2.0 THE LEARNED COMMISSIONER OF INCOME TAX (APPEAL S) ERRED IN LAW AND ON FACTS HAS CONFIRMED THE ADDITIONS OF RS.11,49,064/- ON ACCOUNT OF THE ALLEGED NON PAYMENT OF CENTRAL SALES TAX AND GUJARAT SALES TAX BY INVOKING THE PROVISIONS OF SECTION 43B OF THE INCOME TAX ACT, 19 61. 2.1 THE APPELLANT SUBMIT THAT THE COMPANY IS CLAIMI NG SET OFF OF CST AND GST AGAINST WORKS CONTRACT TAX PAYABLE BY IT AND HENCE THERE WAS NO LIABILITY UNDER SECTION 43B OF THE INCOME TAX ACT, 1961. THE LD. COUNSEL FOR THE ASSESSEE STATED THAT AN IDE NTICAL GROUND RAISED FOR ASSESSMENT YEAR 2002-03 IN APPEAL BEARING ITA NO.1231/AHD/2006 HAS BEEN ADJUDICATED BY THE TRIBUNAL ON PAGES 1 TO 3 PARA 2 TO 4 OF THE IMPUGNED ORDER, SINCE THERE WAS A COMMON ORDER PASSED FOR BOTH THE YEARS I.E. ASSESSMENT YEARS 2001-02 AND 2002-03 ALLOWING THE SAID GROUND FOR STATISTICA L PURPOSES BY SETTING IT ASIDE TO THE FILES OF ASSESSING OFFICER. ACCORDING TO HER, I N VIEW OF THE ABOVE, THERE IS AN ERROR APPARENT ON THE RECORD AND THE SAME REQUIRES TO BE RECTIFIED BY THE TRIBUNAL BY ADJUDICATING GROUNDNO.2 RAISED BY THE ASSESSEE. THE REFORE, THE ORDER OF THE TRIBUNAL IS REQUIRED TO BE RECALLED AND MODIFIED TO THE EXTE NT SO THAT THE CLAIM OF THE ASSESSEE MAY BE EXAMINED ON THE BASIS OF ADJUDICATION OF THE ISSUE IN ASSESSMENT YEAR 2002- 03 IN APPEAL BEARING ITA 1231/AHD/2006. MA NO.49/AHD/2010 (A/O ITA NO.1230/AHD/2006) A.Y.01-02 NEWTON ENGINEERING & CHEMICALS LTD. V. ITO WD-4(1) , BRD PAGE 3 3. WE FIND THAT FROM THE ABOVE PLEA THAT THE TRIBUN AL HAS NOT ADJUDICATED THIS ISSUE. HENCE, WE ARE OF THE VIEW THAT TAKING A CONS ISTENT VIEW, AS IN APPEAL IN ITA NO.1231/AHD/2006 MAY BE SUBSTITUTED AND THE ISSUE RAISED IN GROUND NO. 2.0 AND 2.1 IS SET ASIDE TO THE FILE OF ASSESSING OFFICER AND A CCORDINGLY ASSESSING OFFICER IS DIRECTED TO DECIDE ACCORDING TO THE DECISION IN ITA NO.1231/AHD/2006 ACCORDINGLY THIS MA OF ASSESSEE IS ALLOWED. 4. IN THE RESULT, ASSESSEE MA IS ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 27/08 /2010 SD/- SD/- (A.N. PHAUJA) (MA HAVIR SINGH) (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) AHMEDABAD, DATED : 27/08/2010 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)-III, SURAT 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD