The ACIT, Circle-2, RAJKOT-GUJARAT V. ISPL Industries, RAJKOT-GUJARAT

MA 604/RJT/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5946 (ITAT-RAJKOT)
• Duration Of Justice: 1 year(s) 6 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-12-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 1996-1997
• Appeal Filed On: 29-05-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PREM PRAKASH
• Assessee Lawyers: DM RINDANI
• Keywords: Depreciation; Bad and doubtful debts
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI D.T. GARASIA (JM) M.A. NO. 604/RJT/2009 (ARISING OUT OF I.T.A. NO.199 & 200/RJT/2007) (ASSESSMENT YEAR 1996-97) ACIT CIR.2 VS ISPL INDUSTRIES LTD RAJKOT AJI INDUSTRIAL ESTATE BHAVNAGAR ROAD RAJKOT PAN :AAACI6862P (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI PREM PRAKASH RESPONDENT BY : SHRI DM RINDANI O R D E R GARASIA : THIS MISCELLANEOUS APPLICATION FILED BY T HE REVENUE IS STATED TO BE ARISING OUT OF ORDER DATED 18-06-2008 IN ITA NO.199 /RJT/2007 FOR THE ASSESSMENT YEAR 1996-97. 2. IN THE MISCELLANEOUS APPLICATION, THE DEPARTMENT STATES AS FOLLOWS: 2. IN THIS CASE THE ORIGINAL ORDER PASSED U/S 143( 3) OF THE ACT ON 24.03.1999. SUBSEQUENTLY, ORDER U/S 143(3) R.W. S. 250 & 263 OF THE ACT WAS PASSED ON 27.03.2002 DETERMINING THE TO TAL INCOME AT 1,55,71,641/- AFTER MAKING THE ADDITION OF RS.64,88 ,243/- AND RS.25,77,640/- ON ACCOUNT OF BAD DEBT WRITTEN OFF A ND 75% DEPRECIATION, RESPECTIVELY. THE CIT(A)-III, RAJKOT VIDE HIS ORDER NO.XCIT(A)-III/4402/02-03 DATED 13.12.2006 HAS DELE TED THE ADDITION MADE ON ACCOUNT OF BAD-DEBT WRITTEN OFF. A GAINST THE ORDER OF THE CIT(A), THE DEPARTMENT FILED AN APPEAL BEFO RE THE HONBLE ITAT, RAJKOT BENCH, RAJKOT. THE HONBLE ITAT, RAJK OT BENCH, RAJKOT VIDE ITS ORDER NO.ITA NO.200/RJT/01 DATED 24 .10.2008 HAS DISMISSED THE APPEAL OF THE DEPARTMENT ON THE ISSUE OF BAD-DEEBT WRITTEN OFF, RELYING UPON THE DECISION OF HONBLE G UJARAT HIGH COURT IN DHALL ENTERPRISES AND ENGINEERS (P) LTD VS CIT 2 95 ITR 491), WHICH IS IN FAVOUR OF THE REVENUE. AS A RESULT AN ERROR OF LAW HAS CREPT IN THE ORDER OF THE HONBLE ITAT. MA NO.604/RJT/2009 2 3. FURTHER, ORDER U/S 143(3) R.W.S. 254 OF THE ACT WAS PASSED ON 28.03.2006 DETERMINING THE TOTAL INCOME OF RS.1,55, 71,640/- AFTER MAKING THE ADDITION ON ACCOUNT OF BAD-DEBT OF RS.64 ,68,243/-. THE CIT(A)-III, RAJKOT VIDE HIS ORDER NO.CIT(A)-III/011 4/06-07 DATED 13.12.2006 ALLOWED THE APPEAL OF THE ASSESSEE. AGA INST THE ORDER OF THE CIT(A)-III, RAJKOT, THE DEPARTMENT FILED AN APPEAL BEFORE THE HONBLE ITAT, RAJKOT BENCH, RAJKOT. THE HONBLE IT AT, RAKOT BENCH, RAJKOT VIDE ITS ORDER NO.ITA NO.199/RJT/2007 DATED 18.06.2008 HAS SET-ASIDE THE ORDER OF THE CIT(A() A ND RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRES H CONSIDERATION, INCIDENTALLY, RELYING UPON DHALL ENTERPRISES AND EN GINEERS (P) LTD VS CIT (SUPRA). 4. FROM THE ABOVE, IT IS NOTICED THAT HONBLE ITAT, RAJKOT BENCH, RAJKOT HAS SET-ASIDE THE ISSUE OF BAD DEBT W RITTEN OFF VIDE ITS ORDER ITA NO.199/RJT/2007 DATED 18.06.2008 AND ALLOWED THE APPEAL OF THE ASSESSEE BY DELETING THE ADDITION MAD E ON THE SAME ISSUE VIDE ITS ORDER ITA NO.200/RJT/01 DATED 24.10 .2008. THUS, THERE IS DICHOTOMY IN THE ORDER PASSED ON 18.06.200 8 AND 24.1.2008 BY THE HONBLE ITAT, RAJKOT BENCH, RAJKOT ON THE SAME ISSUE. 3. THE LD.DR SUBMITTED THAT THERE ARE TWO CONFLICTI NG DECISION OF THE TRIBUNAL OF THE SAME BENCH ON THE SAME ISSUE. THEREFORE, HE PLEADED THAT THE ORDER DATED 24-10-2008 IN ITA NO.199/RJT/2007 MAY BE RECA LLED. ON THE OTHER HAND THE LD.AR SUBMITTED THAT THE ISSUE OF BAD DEBTS STA NDS SETTLED IN FRAVOUR OF THE ASSESSEE BY THE JUDGMENT OF THE HONBLE SUPREME COU RT BY THE JUDGMENT IN THE CASE OF TRF LTD VS CIT 323 ITRR 397 (SC) WHEREIN IT HAS BEEN HELD THAT THE POSITION OF LAW IS WELL SETTLED AFTER 01 ST APRIL, 1989 AND IT IS NOT NECESSARY FOR ASSESSEE TO ESTABLISH THAT THE DEBT HAS IN FACT BEC OME IRRECOVERABLE. IT IS ENOUGH, IF THE BAD DEBT IS WRITTEN OFF AS IRRECOVER ABLE IN THE ACCOUNTS OF THE ASSESSEE. IN THE LIGHT OF THE APEX COURT JUDGMENT, THE LD.AR CLARIFIED THAT EVEN IF THERE ARE CONFLICTING DECISIONS ON THE ISSUE OF THE TRIBUNAL, THE ONE FAVOURABLE TO THE ASSESSEE PREVAILS OVER THE OTHER AND THE DEPART MENT SHOULD NOT GRUDGE ON THE ACTION OF THE TRIBUNAL SETTING ASIDE THE ISSUE TO THEIR FILE ON THE APPEAL FILED BY THE REVENUE. EVEN AFTER THE SETTING ASIDE OF THE I SSUE, THE ULTIMATE DECISION FROM THE REVENUE IN THAT CASE TOO, HAS TO BE IN FAVOUR O F THE ASSESSEE RESPECTING THE JUDGMENT OF THE HONBLE APEX COURT. MA NO.604/RJT/2009 3 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND ALS O PERUSED THE ORDER OF THE TRIBUNAL. WE DO NOT SEE ANY RECTIFIABLE MISTAK E IN THE IMPUGNED ORDERS OF THE TRIBUNAL. THE CONTENTION OF THE REVENUE THAT I N ITA NO.199/RJT/2007 THE TRIBUNAL HAS RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER TO GIVE EFFECT TO THE JUDGEMENT OF THE HONBLE JURISDICTIONAL HIGH CO URT IN THE CASE OF DHALL ENTERPRISE ENGINEER PVT LTD VS CIT 295 ITR 481 WHE REAS IN ITA NO.200/RJT.2007 THE TRIBUNAL HAS DELETED THE ADDITION. WE ARE OF T HE CONSIDERED VIEW THAT IN EITHER WAY, THE JUDGEMENT OF THE APEX COURT IN THE CASE OF TRF LTD VS CIT (SUPRA) PREVAILS OVER EVERY OTHER JUDGMENTS RENDERE D ON THE ISSUE. SO, WHILE GIVING EFFECT TO THE ORDER OF THE TRIBUNAL THE ASSE SSING OFFICER CANNOT OVERSHADOW THE APEX COURT JUDGMENT. LOOKING FROM A DIFFERENT ANGLE, THE JURISDICTIONAL HIGH COURT ORDER TOO IS IN FAVOUR OF THE ASSESSEE SO ALS O THE APEX COURT JUDGMENT. SO, THE SO-CALLED CONFLICT IN THE DECISIONS OF THE TRIBUNAL HAS NO MATERIAL DIFFERENCE IN EFFECT. AS SUCH, WE DO NOT SEE A REA SON TO HAVE A RELOOK IN THE ORDERS PASSED BY THE TRIBUNAL. THE CONTENTION OF T HE REVENUE IS REJECTED. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION IS REJECTED. ORDER PRONOUNCED IN THE OPEN COURT ON 10-12-2010 SD/- SD/- (A.L. GEHLOT) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DT : 10 TH DECEMBER, 2010 PK/- COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT(A)-III, RAJKOT 4. THE CIT-II, RAJKOT 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT