AKASAKA ELECTRONICS LTGD, V. ACIT CEN CIR 37,

MA 656/MUM/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 4285 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 2 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-01-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 22-09-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M VINAY SETHY

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A, MUMBAI. BEFORE SHRI D. MANMOHAN, VICE-PRESIDENT AND SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER. M.A. NO. 656/MUM/2009 (IN ITA NO. 3921/MUM/2007) ASSESSMENT YEAR : 2004-05. M/S AKASAKA ELECTRONICS LTD., DY. COMMISSIONER OF 13-A, NAND BHAVAN, INDL. ESTATE, VS. INCOME-TAX, CENTRAL CIR.-37, MAHAKALI CAVES ROAD, MUMBAI. ANDHERI (E), MUMBAI 400 093. PAN : AAACA4420F APPLICANT RESPONDENT APPLICANT BY : SHRI M. VINAY SETHY. RESPONDENT BY : SHRI AARSI PRASAD. O R D E R PER J. SUDHAKAR REDDY, A.M. BY THIS MISCELLANEOUS APPLICATION, THE ASSESSEE S UBMITS THAT A MISTAKE APPARENT ON RECORD CREPT INTO THE ORDER O F THE TRIBUNAL IN ITA NO.392/MUM/2007 DATED 03-02-2009. 2. THE LEARNED COUNSEL FOR THE ASSESSEE SHRI VINAY SETHY, SUBMITTED THAT THE AO HAS TREATED UNUTILIZED MODVAT CREDITED AS INCOME WITHOUT CONSIDERING THE FACT THAT ADJUSTMENTS ARE R EQUIRED AS PER SECTION 145A. ON APPEAL, THE FIRST APPELLATE AUTHORITY CAME TO A CONCLUSION THAT IN THE CASE OF THE ASSESSEE COMPANY NO ADJUSTMENT IS R EQUIRED U/S 145A. IN THE REVENUES APPEAL, IT WAS SUBMITTED, THAT THE TR IBUNAL RELIED ON THE 2 DECISION IN THE CASE OF M/S CYANAMID AGRO LTD. IN ITA NOS. 5181 & 7164/M/03 DATED 12-01-2009 WITHOUT PUTTING THE SAME TO THE ASSESSEE. HE ALSO SUBMITTED THAT THE DECISION IN THE CASE OF CYANAMID AGRO LTD. IS NOT APPLICABLE TO THE FACTS OF THE CASE AS HELD BY THE A-BENCH OF THE MUMBAI TRIBUNAL IN ITA NO. 3921/MUM/2007 IN THE CAS E OF DCIT VS. M/S AKASAKA ELECTRONICS LTD. 2009-TIOL-409-ITAT-MUM , ORDER DATED 3 RD FEB., 2009. HE SUBMITTED THAT THE DECISION IN THE CASE OF CYANAMID AGRO LTD. IS NOT APPLICABLE AS IT RELATES TO THE AS SESSMENT YEAR 1994-95 WHEN SECTION 145A IS NOT IN THE STATUTE BOOK. HE PR AYED THAT THE ORDER BE RECALLED. 3. THE LEARNED DR SHRI AARSI PRASAD ARGUED THAT TH ERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TR IBUNAL 4. AFTER HEARING THE RIVAL CONTENTIONS, WE FIND TH AT THE A-BENCH OF THE MUMBAI TRIBUNAL IN THE CASE OF M/S AKASAKA E LECTRONICS LTD. (SUPRA) AT PARA 14 HELD THAT THE DECISION OF THE TR IBUNAL IN THE CASE OF M/S CYANAMID INDIA LTD. (SUPRA) RELATES TO ASSESSMENT Y EAR 1994-95, WHEN SECTION 145A WAS NOT ON THE STATUTE BOOK. THIS BENC H OF THE TRIBUNAL IN THE IMPUGNED ORDER IN ITA NO. 3921/MUM/2007 AT PARA 5, DIRECTED THE AO TO FOLLOW THE DIRECTIONS OF THE TRIBUNAL INDICAT ED IN THE CASE OF M/S CYANAMID AGRO LTD. THIS OBSERVATION, IN OUR HUMBLE OPINION, IS A MISTAKE APPARENT ON RECORD REQUIRING RECTIFICATION. 5. THE ISSUE IN QUESTION HAS BEEN DEALT WITH BY TH E MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF HAWKINS COOKER S LTD. VS. ITO IN ITA NO. 505/2004 FOR ASSESSMENT YEAR 1999-2000 THE OBSERVATION OF WHICH HAS BEEN BROUGHT IN THE TRIBUNAL ORDER. THUS WE RECTIFY THE ORDER OF THIS BENCH DATED 3 RD FEB., 2009 BY DIRECTING THE AO TO ALLOW AN OPPORTUNITY TO THE ASSESSEE TO PREPARE THE TRADING ACCOUNT AS PER THE 3 DIRECTIONS OF THE TRIBUNAL INDICATED IN THE CASE OF HAWKINS COOKERS LTD. (SUPRA) AND SEE IF ANY ADDITION IS WARRANTED. 6. THUS, THE MISCELLANEOUS APPLICATION IS ALLOWED. ORDER PRONOUNCED ON THIS 25 TH DAY OF JANUARY, 2010. SD/- SD/- (D. MANMOHAN) (J. SUDHAKAR REDDY) VICE-PRESIDENT. ACCOUNTANT MEMBER. MUMBAI, DATED : 25 TH JANUARY, 2010. WAKODE COPY FORWARDED TO : 1. APPLICANT 2. RESPONDENT 3. C.I.T. 4. CIT(A) 5. DR, A-BENCH (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, MUMBAI BENCHES