Swaminarayan Vijay Carry Trade Pvt. Ltd., Bhuj V. The Income Tax Officer, Ward-1, GANDHIDHAM

MA 54/RJT/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6746 (ITAT-RAJKOT)
• Duration Of Justice: 9 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 24-06-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 17-06-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 23-09-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PREM PRAKASH
• Assessee Lawyers: M P SARDA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) M.A. NO.53 & 54/RJT/2010 (ARISING OUT OF I.T.AS. NO.159/RJT/2007 & 24/RJT/20 08) (ASSESSMENT YEARS 2003-04 & 2004-05) SWAMINARAYAN VIJAY CARRY TRADE P LTD VS THE ITO, W D.2 SVCT HOUSE, BHUJ MIRZAPUR ROAD BHUJ BHUJ PAN :AADCS0141C (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI MP SARDA RESPONDENT BY: SHRI PREM PRAKASH O R D E R PER N.R.S. GANESAN, JM THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS A PPLICATIONS ON THE GROUND THAT THERE IS AN ERROR IN THE ORDERS OF THIS TRIBUNAL BOTH DATED 19-07-2010. 2. SHRI MP SARDA, THE LD REPRESENTATIVE FOR THE ASS ESSEE SUBMITTED THAT THIS TRIBUNAL WHILE CONSIDERING GROUND NO.3 RAISED BY TH E ASSESSEE WITH REGARD TO DISALLOWANCE OF RS. 3,13,885 FOR AY 2003-04 HAS DIS CUSSED THE MATTER AT PARAGRAPH 8 OF THE ORDER AND WITHOUT GIVING ANY REA SON FOUND THAT THE CIT(A) DISCUSSED THE ISSUE IN DETAIL AND CONSIDERING THE O RDER OF THE CIT(A) UPHELD THE DISALLOWANCE MADE BY CIT(A) AT 10%. THE ORDER FOR ASSESSMENT YEAR 2004-05 WAS FOLLOWED WHILE UPHOLDING THE DISALLOWANCE OF RS . 1,42,923 FOR ASSESSMENT YEAR 2004-05. ACCORDING TO THE LD.REPRESENTATIVE A T LINE NO.9 OF PARAGRAPH 8, THE TRIBUNALS REASONING SUPPORTS THE CONTENTION OF THE ASSESSEE. SUDDENLY AT LINES 10 & 12 THE TRIBUNAL FOUND THAT THE CIT(A) DISCUSSE D THE ISSUE IN DETAIL; ACCORDINGLY IT WAS UPHELD. THE LD.AR FURTHER SUBMI TTED THAT THE CIT(A) BRIEFLY JUSTIFIED THE PART DISALLOWANCE AND THE ASSESSEE HA S MADE ELABORATE SUBMISSION BEFORE THE BENCH AT THE TIME OF HEARING IN SUPPORT OF ITS CONTENTION HOW THE DISALLOWANCE AT 10% / 12.5% IS NOT WARRANTED. DURI NG THE COURSE OF HEARING THE MA NOS.53 & 54/RJT/2010 2 MEMBERS, WHO CONSTITUTED THE BENCH BROADLY INCLINED TO ACCEPT THE CONTENTION OF THE ASSESSEE BUT INDICATED THAT SMALL DISALLOWANCE ON LUMP SUM BASIS MAY BE NECESSARY TO TAKE CARE OF THE EXCESSIVE CLAIM OF TH E EXPENSES. ACCORDING TO THE LD.REPRESENTATIVE WHAT WAS HAPPENED DURING THE COUR SE OF HEARING NEEDS TO BE CONSIDERED AND THEREFORE THE ORDER OF THE TRIBUNAL IS REQUIRED TO BE RECALLED. 3. ON THE CONTRARY, SHRI PREM PRAKASH, THE LD.DR SU BMITTED THAT THIS TRIBUNAL, AFTER CONSIDERING THE ISSUE ELABORATELY F OUND THAT 10% / 12.5% DISALLOWANCE MADE BY CIT(A) IS TO BE UPHELD. ACCOR DINGLY THE GROUND RAISED BY THE ASSESSEE AS GROUNDS 3 & 4 RESPECTIVELY WERE REJ ECTED. THEREFORE, THERE WAS NO ERROR IN THE ORDER OF THIS TRIBUNAL. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE. THE MAIN CONTENTION OF THE ASSESSEE IS THAT THIS TRIBUNAL HA S NOT GIVEN ANY REASONING TO UPHOLD THE DISALLOWANCE MADE BY THE CIT(A) AT 10% / 12.5%. MOREOVER, IT WAS INDICATED BY THE MEMBERS, WHO CONSTITUTED THE BENCH AT THE TIME OF HEARING THAT THE CASE OF THE ASSESSEE WOULD BROADLY NEED TO BE A CCEPTED, HOWEVER, A SMALL DISALLOWANCE SHALL BE MADE WITH REGARD IN VIEW OF E XCESSIVE CLAIM OF EXPENSES. UNDER SECTION 254(2) OF THE INCOME-TAX ACT, THIS TR IBUNAL IS EMPOWERED TO RECTIFY AN ERROR WHICH IS APPARENT ON THE FACE OF THE RECOR D. THE MEMBERS, WHO HEARD THE APPEAL ORIGINALLY WAS TRANSFERRED AND THEREFORE , THE MEMBERS, WHO HEARD THE MISCELLANEOUS APPLICATIONS HAVE NO OCCASION TO KNOW WHAT WAS HAPPENED IN THE EARLIER BENCH. THE PRESENT MEMBERS, WHO CONSTITUTE D THE BENCH HAVE CO- ORDINATE POWER AS THAT OF THE OTHER MEMBERS, WHO CO NSTITUTED THE BENCH AT THE TIME OF HEARING OF THE APPEALS. THEREFORE, THE PRE SENT MEMBERS HAVE NO JURISDICTION TO INVESTIGATE WHAT IS HAPPENED DURING THE COURSE OF HEARING BEFORE THE OTHER MEMBERS. MAKING SUCH AN INVESTIGATION WO ULD AMOUNT TO EXERCISING THE APPELLATE POWER WHICH WAS THE EXCLUSIVE JURISDI CTION OF THE APPELLATE AUTHORITY. THEREFORE, WE ARE UNABLE TO ACCEPT THE CONTENTION OF THE ASSESSEE THAT THE EARLIER MEMBERS INDICATED THAT THE CASE OF THE ASSESSEE HAS TO BE BROADLY ACCEPTED. FURTHERMORE, IT IS FOR THE MEMBERS, WHO HEARD THE CASE TO DRAFT THE MA NOS.53 & 54/RJT/2010 3 ORDER IN THE WAY THEY FOUND IT FIT. THE PRESENT ME MBERS CANNOT DICTATE TERMS TO OTHER MEMBERS HOW TO DRAFT THE ORDER. THEREFORE, T HE EARLIER MEMBERS, WHO HEARD THE CASE DRAFTED THE ORDER TO THE EXTENT OF T HEIR UNDERSTANDING OF THE MATTER / ISSUE. THEREFORE, WE CANNOT EXPRESS ANY OPINION ON THE WAY IN WHICH THE ORDER WAS DRAFTED. IN OUR OPINION, IT IS THE EXCLUSIVE F UNCTION OF THE APPELLATE COURT TO RECORD ITS OPINION WITH REGARD TO THE MANNER IN WHI CH ORDER NEEDS TO BE DRAFTED. THEREFORE, WE DO NOT FIND ANY MERIT IN THE CONTENTI ON OF THE ASSESSEE THAT THE TRIBUNAL HAS NOT RECORDED ANY REASON IN THE ORDER. IN OUR OPINION, THERE IS NO ERROR MUCH LESS PRIMA FACIE ERROR AS POINTED OUT BY THE LD.REPRESENTATIVE FOR THE ASSESSEE WHICH NEEDS TO BE RECTIFIED U/S 254(2) OF THE ACT. ACCORDINGLY, THE APPLICATION OF THE ASSESSEE HAS NO MERIT. 5. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIO NS FILED BY THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 24-06-2011. SD/- SD/- (A.L. GEHLOT) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT, DT : 24 TH JUNE, 2011 PK/- COPY TO: 1. ASSESSEE 2. REVENUE 3. THE CIT(A)-II, RAJKOT 4. THE CIT-I, RAJKOT 5. THE DR, I.T.A.T., RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT