Deputy Commissioner of Income tax, Srinagar V. M/s. Manzoor Ahmad Walvir, Srinagar

MA 57/ASR/2013

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3373 (ITAT-AMRITSAR)
• Duration Of Justice: 2 year(s) 2 month(s) 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-09-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 28-08-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 17-06-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Question of law

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR [BEFORE S/SHRI A.D. JAIN, JM AND T. R. MEENA, AM] M. A. NO. 57/ASR/2013 [IN ITA NO.417/ASR/2013] AY: 2009-10 THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-3, SRINAGAR VS. M/S. MANZOOR AHMAD WALVIR, SRINAGAR APPLICANT RESPONDENT FOR THE APPLICANT: SHRI TARSEM LAL, DR FOR THE RESPONDENT: SHRI R. K. GUPTA, AR DATE OF HEARING: 28-08-2015 DATE OF PRONOUNCEMENT: 16-09-2015 ORDER PER T. R. MEENA, AM IN THIS ASSESSEES CASE THIS BENCH HAS DECIDED VAR IOUS ISSUES IN ITA NO.358/ASR/2012 FOR ASSESSMENT YEAR 2009-10 AND IN CROSS APPEALS VIDE ORDER DATED 31-05-2013. THE ASSESSEE FILED MISC. APPLICATION AG AINST THIS ORDER, PRAYING FOR RECTIFICATION OF THE SAID ORDER U/S 254(2) OF THE I NCOME TAX ACT, 1961 (THE ACT) AS UNDER:- IN THE AFORESAID CASE, THE HONBLE BENCH HAS ALLOW ED THE APPEAL OF THE REVENUE BY RELYING THE JUDGMENT OF HONBLE HIGH COURT OF CA LCUTTA IN THE CASE OF COMMISSIONER OF INCOME TAX, KOLKATA-IV VS CRESCENT EXPORT SYNDICATE (ITA NO.20 OF 2013, GA 190 OF 2013). IN THIS REGARD WE W OULD LIKE TO REPRESENT AS UNDER:- ALTHOUGH THE HONBLE BENCH HAS PASSED THE ORDER BY PUTTING RELIANCE ON CALCUTTA HIGH COURT IN THE CASE AS AFORESAID YET HAS OMITTED TO CONSIDER AND DISCUS ITS OWN DECISION IN THE CASE OF JAMKASH VEHICLEADES PVT . LTD. VS ADDITIONAL COMMISSIONER OF INCOME TAX, RANGE-2, JAMMU IN ITA N O.136/ASR/2012 PLACED AT PAGE 64 TO 67 OF THE PAPER BOOK WHICH WAS HEAVIL Y RELIED UPON DURING THE COURSE OF HEARING. IT CONSTITUTED A MISTAKE APPAREN T FROM RECORD. FURTHER, NEITHER THE AUTHORIZED REPRESENTATIVE NOR THE DEPARTMENTAL REPRESENTATIVE HAVE BROUGHT TO THE KNOWLEDGE OF HON BLE BENCH THE FATE OF THE DECISION ON A SIMILAR ISSUE IN THE CASE OF DEPUTY C OMMISSIONER OF INCOME TAX, 2 I.T.A.NO.57 /ASR/2013 (IN ITA NO.417/ASR/2013 AYS: 2009-10 CIRCLE-2 JAMMU & JAMKASH VEHICLEADES PVT. LTD. IN W HICH REVENUE WAS IN APPEAL BEFORE THE HONBLE HIGH COURT OF JAMMU & KAS HMI9R AGAINST THE ORDER OF THE HONBLE ITAT (THIS IS A CASE PERTAINING TO ASSE SSMENT YEAR 2006-07). THE COPY OF THE ORDER OF THE HONBLE HIGH COURT IS ENCL OSED FOR THE SAKE OF CONVENIENCE. SINCE THE HONBLE HIGH COURT OF JAMMU & KASHMIR I N ITA NO.11/2013 IN THE CASE OF COMMISSIONER OF INCOME TAX VS. JAMKASH VEHI CLEADES PVT. LTD. HAS DISMISSED THE APPEAL OF THE REVENUE AND UPHELD THE DECISION OF HONBLE ITAT, AMRITSAR BY NOT ADMITTING THE APPEAL OF REVENUE BY HOLDING THAT WE REGRET OUR INABILITY TO ACCEPT THAT ANY QUESTION OF LAW MUCH L ESS A SUBSTANTIVE QUESTION OF LAW WOULD IMMERGE FOR ADMISSION OF THE APPEAL PARTI CULARLY WHEN THERE WAS HARDLY AN LOSS OF REVENUE. UNDER THE CIRCUMSTANCES THIS APPLICATION OF 254 LIE S BEFORE THE HONBLE BENCH TO ADJUDICATE THE APPEAL OF THE REVENUE AFRESH AFTER D ULY CONSIDERING THE JUDGMENT OF HONBLE HIGH COURT WHICH DECISION IS BINDING BEC AUSE IT IS A DECISION OF JURISDICTIONAL HIGH COURT AND JURISDICTIONAL HIGH C OURT HAS UPHELD THE DECISION OF THE HONBLE ITAT. THE DECISION OF THE HONBLE ITAT IN THIS CASE WAS THAT IF EXPENDITURE HAS ALREADY BEEN PAID DURING THE YEAR A ND IS NOT PAYABLE AT THE YEAR THEN THE PROVISIONS OF SEC 40(A)(IA) OF THE INCOME TAX ACT, 1961 ARE NOT APPLICABLE. IN THIS CASE THE HONBLE COURT HAS CONF IRMED THE DECISION OF HONBLE ITAT AND ITS DECISION IN RELYING THE CASES OF JAIPU R VIDYUT VITRAN NIGAM LTD. VS. DEPUTY COMMISSIONER OF INCOME TAX (123 TTJ (JP)888( 2009) & M/S. TEJA CONSTRUCTION VS. ASSTT. COMMISSIONER OF INCOME TAX (129TTJ (HYD) (UO)57 92010). IN VIEW OF THE ABOVE MENTIONED AND CIRCUMSTANCES OF THE CASE THE MISC. APPLICATION MAY PLEASE BE ALLOWED AND APPEAL ADJUDI CATED EARLIER MAY PLEASE BE RECALLED. 2. THE LEARNED COUNSEL ARGUED THAT HONBLE J&K HIG H COURT HAS GIVEN RULINGS IN THE CASE OF CIT VS JAMKASH VEHICLEADES PVT. LTD. IN ITA ITA NO.11/ASR/2013 ORDER DATED 20-02-2013, WHICH IS PRIOR TO THE ORDER OF THE TRIB UNAL WHICH WAS ALSO NOT REFERRED TO BY HIM. BEING JURISDICTIONAL HIGH COURTS DECISION ON SECTION40A (IA) OF THE ACT. HE FURTHER ARGUED THAT THE HONBLE SUPREME COURT HAS HELD IN T HE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD., 262 ITR 146 (GUJ) THAT NON-CONSIDERATION OF THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT [OR THE HONB LE SUPREME COURT) IS A MISTAKE APPARENT ON RECORD IS RECTIFIABLE U/S. 254(2) OF T HE ACT. THE DECISION OF THE HONBLE HIGH COURT ON THE POINT RENDERED A FEW MONTHS PRIOR TO H AVING NOT BEEN BROUGHT BROUGHT TO 3 I.T.A.NO.57 /ASR/2013 (IN ITA NO.417/ASR/2013 AYS: 2009-10 THE NOTICE OF THE TRIBUNAL, THE ORDER OF THE TRIBUN AL IS RECTIFIABLE U/S 354 (2) OF THE ACT. THEREFORE, HE REQUESTED FOR RECALLING OF THE ABOVE ORDER OF THE TRIBUNAL. 3. THE LEARNED DR ARGUED THAT THE DEPARTMENT HAS NO T ACCEPTED ORDERS OF THE TRIBUNAL PASSED BY VARIOUS BENCHES ON THIS ISSUE AN D THE DEPARTMENT HAS GONE IN APPEAL BEFORE DIFFERENT HONBLE HIGH COURTS. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS ON RECORD. THE HONBLE J & K HIGH COURT HAS DECIDED THIS ISSUE ON 22-02-2013 WHICH HAS NOT BEEN CONSIDERED BY THIS BENCH AS HELD BY THE HONBLE SUP REME COURT IN THE CASE OF ACIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. (SUPRA). THAT THIS IS AN APPARENT MISTAKE ON RECORD AND IS RECTIFIABLE U/S 254 (2) OF THE ACT. A CCORDINGLY, WE RECALL THE AFORESAID ORDER OF THIS BENCH TO THAT EXTENT. THE REGISTRY IS DIRECTED TO FIX THE CASE IN DUE COURSE. 5. IN THE RESULT, THE MISC. APPLICATION IS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN THE OPEN COURT ON 16-09-2015 SD/- SD/- (A. D. JAIN) (T. R.MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED, AMRITSAR, 16 TH SEPTEMBER, 2015 LK DEKA LK DEKA LK DEKA LK DEKA/ // /SR. PS SR. PS SR. PS SR. PS COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT: 2. THE RESPONDENT: 3. THE CIT, 4. THE CIT(A), 5. DR, ITAT, AMRITSAR 6. GUARD FILE. TRUE COPY// BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH, AMRITSAR