DCIT 1(1), V. GRINDWELL NORTON LTD,

MA 563/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0929 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 08-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2004-2005
• Appeal Filed On: 31-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAJI V PANT

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL G B ENCH, MUMBAI . . , , !'#$ , % & BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER M.A. NO. 563/MUM/2012 (ARISING OUT OF I.T.A. NO. 406/MUM/2009) ( ' ' ' ' / ASSESSMENT YEAR : 2004-05 M/S. GRINDWELL NORTON LTD., 5 TH LEVEL, LEELA BUSINESS PARK, ANDHERI KURLA ROAD, ANDHERI (E), MUMBAI-400 059 THE DY. CIT -1(1), AAYAKAR BHAVAN, MUMBAI-400 020 ( % ./ ) ./PAN/GIR NO. : AAACG 8752E ( (* /APPELLANT ) .. ( +,(* / RESPONDENT ) (* - / DEPARTMENT BY : ` SHRI RAJIV PANT +,(* . - /ASSESSEE BY : SHRI M.M. GOLVALA . /0% / DATE OF HEARING :2.08.2013 12' . /0% / DATE OF PRONOUNCEMENT :08.08.2013 3 / O R D E R PER N.K. BILLAIYA, AM: THIS MISCELLANEOUS APPLICATION ARISES OUT OF THE OR DER OF THE TRIBUNAL IN ITA NOS. 434 & 406/M/2009 AND C.O. NO. 231/M/09 PERTAINING TO ASSESSMENT YEAR 2004-05. THE DATE OF THE ORDER OF THE TRIBUNAL IS 7.3.2011. THIS M.A. IS PREFERRED BY TH E REVENUE AGAINST THE AFOREMENTIONED ORDER OF THE TRIBUNAL. M.A. NO.563/M/2012 2 2. IT IS THE SAY OF THE REVENUE THAT THE TRIBUNAL D ECIDED THE ISSUE RELATING TO THE TREATMENT OF SCRAP SALES AND SALES TAX REFUND BY DISMISSING THE DEPARTMENTAL APPEAL RELYING UPON THE JUDGEMENTS OF KODAK INDIA PVT. LTD. IN ITA NO. 8123/M/04 AND DIAMOND DYECHEM LTD. IN ITA NO. 3342/M/06. HOWEVER, ON PERUSAL OF PARA-20 AND 21 O F THE JUDGEMENT OF THE TRIBUNAL IN THE CASE OF KODAK INDIA PVT. LTD., ACCORDING TO THE REVENUE, THE GROUND RAISED IN THAT CASE IS MATERIAL LY DIFFERENT FROM THE ONE RAISED BY THE DEPARTMENT IN THE IMPUGNED CASE. ACCORDING TO THE REVENUE, THIS WRONG APPLICATION AND RELIANCE ON THE DECISION IN THE CASE OF KODAK INDIA PVT. LTD., THE ORDER OF THE TRIBUNAL IS ERRONEOUS AND DESERVES TO BE RECALLED. 3. THE LD. COUNSEL FOR THE ASSESSEE STATED THAT THE REVENUE HAS MISINTERPRETED THE DECISION OF THE TRIBUNAL. THE R ELEVANT PARA RELIED UPON BY THE TRIBUNAL IN THE CASE OF KODAK INDIA IS NOT P ARA NO. 20 & 21 AS ALLEGED BY THE REVENUE. BUT THE RELEVANT PARA IS 4 8 AT PAGE-19 OF THE ORDER OF THE KODAK INDIA. SIMILARLY, THE ISSUE REL ATING TO THE SALES TAX REFUND HAS BEEN DECIDED BY FOLLOWING THE DECISION I N THE CASE OF DIAMOND DYECHEM LTD. THEREFORE, THE ORDER OF THE TRIBUNAL IS PROPER AND THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE DESE RVES TO BE REJECTED. 4. WE HAVE CONSIDERED THE SUBMISSIONS AND CAREFULLY PERUSED THE ORDERS OF THE TRIBUNAL. WE FIND FORCE IN THE CONTE NTION OF THE LD. COUNSEL THAT THE TRIBUNAL WHILE DECIDING THE ISSUE HAS RELIED UPON PARA- 48 AT PAGE-19 OF THE ORDER OF THE TRIBUNAL IN THE C ASE OF KODAK INDIA LTD., WHEREIN WE FIND THAT IN THAT CASE, THE TRIBUNAL HAS FOLLOWED THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF C IT VS HARJIVANDAS JUTHABHAI ZAVERI, 258 ITR 785 AND THE HONBLE MADRA S HIGH COURT IN THE CASE OF FENNER (INDIA) LTD. VS CIT 241 ITR 803. TH AT BEING THE FACT OF M.A. NO.563/M/2012 3 THE MATTER, WE DO NOT FIND ANY ERROR IN THE ORDER O F THE TRIBUNAL SO FAR AS ISSUE RELATING TO SALE OF SCRAP IS CONCERNED. 5. COMING TO THE SALES TAX REFUND, WE FIND THAT THE TRIBUNAL HAS RIGHTLY RELIED UPON THE DECISION OF DIAMOND DYECHEM . IN THAT CASE, WE FIND THAT THE ISSUE RELATING TO SALES TAX REFUND HA S BEEN CONSIDERED BY THE TRIBUNAL AT PARA-6 AND 7 OF ITS ORDER WHICH HAS BEE N FOLLOWED BY THE TRIBUNAL IN THE IMPUGNED ORDER. AGAIN, WE DO NOT F IND ANY ERROR IN THE FINDINGS OF THE TRIBUNAL. ACCORDINGLY, MISCELLANEO US APPLICATION FILED BY THE REVENUE IS DISMISSED. 6. BEFORE PARTING, WE FIND THAT THE REVENUE HAD PRE FERRED AN APPEAL AGAINST THE ORDER OF THE TRIBUNAL BEFORE HONBLE JU RISDICTIONAL HIGH COURT. WE HAVE THE BENEFIT OF GOING THROUGH THE OR DER OF THE HONBLE JURISDICTIONAL HIGH COURT IN ITA NO. 1845 OF 2011. IF THE REVENUE WAS AGGRIEVED BY THE FINDINGS OF THE TRIBUNAL, NOTHING PREVENTED THE REVENUE TO AGITATE THE SAME MATTER BEFORE THE HONBLE HIGH COURT WHICH WE FIND HAS NOT BEEN QUESTIONED BEFORE THE HIGH COURT. THI S ITSELF SHOWS THAT REVENUE HAD NO GRIEVANCE WITH THE FINDINGS OF THE T RIBUNAL. ORDER PRONOUNCED IN THE OPEN COURT ON 8 TH AUGUST, 2013 . 3 . 2' % 4 56 8.8.2013 2 . 7 SD/- SD/- (I.P. BANSAL ) (N .K. BILLAIYA ) /JUDICIAL MEMBER % / ACCOUNTANT MEMBER MUMBAI; 5 DATED 08/ 08/2013 . . ./ RJ , SR. PS M.A. NO.563/M/2012 4 3 3 3 3 . .. . +/! +/! +/! +/! 8!'/ 8!'/ 8!'/ 8!'/ / COPY OF THE ORDER FORWARDED TO : 1. (* / THE APPELLANT 2. +,(* / THE RESPONDENT. 3. 9 ( ) / THE CIT(A)- 4. 9 / CIT 5. !:7 +/ , , / DR, ITAT, MUMBAI 6. 7; < / GUARD FILE. 3 3 3 3 / BY ORDER, ,!/ +/ //TRUE COPY// = == = / > > > > (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI