Nirma Limited, Ahmedabad V. The ACIT, Circle-5, Ahmedabad

MA 74/AHD/2015

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 3804 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-01-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 01-01-2016
• Assessment Year: 2001-2002
• Appeal Filed On: 09-10-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH SR D R

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD , , BEFORE SHRI PRAMOD KUMAR, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER MA NO.74/AHD/2015 AY 2001-02 ( IN ./ IN I.T.A. NO.558/AHD/2005 ( / ASSESSMENT YEAR : 2001-02) NIRMA LIMITED NIRMA HOUSE ASHRAM ROAD AHMEDABAD / VS. THE ASST.CIT CENTRAL CIRCLE-1(1) AHMEDABAD ./ ./ PAN/GIR NO. : AAACN 5350 K ( ' / APPLICANT ) .. ( #' / RESPONDENT ) ' $ / APPLICANT BY : SHRI S.N. SOPARKAR, A.R. #' % $ / RESPONDENT BY : SHRI DINESH SINGH, SR.DR &'( % ) / DATE OF HEARING 01/01/2016 *+, % ) / DATE OF PRONOUNCEMENT 20/01/2016 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E ASSESSEE ON 09.10.2015 (ARISING OUT OF ITA NO.558/AHD/2005 FOR AY 2001-02- ASSESSEES APPEAL) FOR SEEKING MODIFICATION/RECALLI NG THE TRIBUNALS ORDER (ITAT A BENCH, AHMEDABAD) DATED 26/02/2014. 2. THE SR.LD.COUNSEL FOR THE ASSESSEE REITERATED T HE SUBMISSIONS AS WERE MADE IN THE MISCELLANEOUS APPLICATION AND SUBM ITTED THAT THE MA NO.74/AHD/2015 ( IN ITA NO.558 /AHD/2005 ) NIRMA LTD. VS. ASST.CIT ASST.YEAR 2001-02 - 2 - OBSERVATION OF THE TRIBUNAL IS FACTUALLY INCORRECT AND THEREBY THERE IS INADVERTENT MISTAKE APPARENT ON RECORD GOING TO THE ROOT OF THE ORDER RENDERING THE ALTERNATIVE FINDING ADVERSE TO THE AP PLICANT. HE SUBMITTED THAT THIS TRIBUNAL WAS PLEASED TO PARTLY ALLOW THE ASSESSEES APPEAL (ITA NOS.541 & 558/AHD/2005 FOR AY 2001-02 (REVENUES AP PEAL & ASSESSEES APPEAL RESPECTIVELY). HE POINTED OUT TH AT IN ITA NOS.541 & 558/AHD/2005, THE TRIBUNAL HAD OBSERVED IN PARA-38 OF ITS ORDER DATED 26/02/2014 THAT NO MATERIAL WAS BROUGHT BEFORE THE TRIBUNAL TO SHOW THAT THE MANUFACTURING ACTIVITIES AT TRIKAMPURA UNIT WER E CARRIED OUT UNDER THE CONTROL AND SUPERVISION OF THE ASSESSEE. HE SUBMITTED THAT IN THE PAPER-BOOK, THE AGREEMENT WAS DULY ENCLOSED AND, TH EREFORE, THE AGREEMENT AS FILED BY THE ASSESSEE WAS NOT CONSIDER ED BY THE TRIBUNAL WHILE DECIDING THE ISSUE. THIS HAS RESULTED INTO M ISTAKE APPARENT ON RECORD. 2.1. ON THE CONTRARY, THE LD.SR.DR SHRI DINESH SING H VEHEMENTLY OPPOSED THE SUBMISSIONS OF THE ASSESSEE AND SUBMITT ED THAT THERE IS NO MISTAKE APPARENT ON RECORD. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIAL AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THIS TRIBUNAL IN ITA NO.558/AHD/2005 FOR AY 2001-02 (ASSESSEES APPEAL) VIDE ORDER DATED 26/02/2014 WAS PLEASED TO PARTLY ALLOW THE ASSESSEES APPEAL. MA NO.74/AHD/2015 ( IN ITA NO.558 /AHD/2005 ) NIRMA LTD. VS. ASST.CIT ASST.YEAR 2001-02 - 3 - 3.1. WE FIND THAT THIS TRIBUNAL IN ITA NO.558/AHD/2 005 FOR AY 2001- 02 (ASSESSEES APPEAL) VIDE ORDER DATED 26/02/2014 HAS HELD AS UNDER:- 38. WE FIND THAT NO MATERIAL WAS BROUGHT BEFORE U S TO SHOW THAT THE MANUFACTURING ACTIVITIES AT TRIKAMPURA UNIT WER E CARRIED OUT UNDER THE CONTROL AND SUPERVISION OF THE ASSESSEE. NO COPY OF THE AGREEMENT ENTERED INTO BY THE ASSESSEE WITH THE LES SEE OF THE UNIT COULD BE PRODUCED BY THE ASSESSEE. THE ASSESSEE BR OUGHT NO MATERIAL TO CONTROVERT THE FINDING OF THE LD.CIT(A) THAT THE APPELLANT COMPANY HAS ALSO NOT BEEN ABLE TO ESTABLI SH THAT THE JOB WORKERS ARE THE SPECIFIC AGENT OF THE TRIKAMPURA IN DUSTRIAL UNDERTAKING AND THE APPELLANT WAS EXERCISING ANY QU ALITY CONTROL AS NO EMPLOYEES WERE THERE IN THE SAID DIVISION TO EXERCISE ANY CONTROL OVER THE PRODUCTION. 3.2. THE RELEVANT PORTION OF THE WRITTEN SUBMISSION DATED 06/10/2015 SUBMITTED BY THE ASSESSEE READS AS UNDER:- IV. THE APPELLANT HAD CLAIMED DEDUCTION U/S.80IA FOR RS.12,53,61,668 (BEING 30% OF RS.41,78,72,227) AS PER DETAILED WORKING GIVEN IN ANNEXURE C OF ACCOUNTS. THE COP Y THEREOF IS ENCLOSED HEREWITH FOR YOUR HONOURS KIND PERUSAL (A NNEXURE-D). THE AMOUNT WAS CORRECTLY STATED IN CIT(A)S ORDER D TD. 10-12-2004 AT PARA ON PAGE 3 AS WELL AS IN THE ASSE SSMENT ORDER DTD. 31-03-2004 AT PARA 2.1 ON PAGE 3. VIDE DISCUS SION AT PARA 34 OF THE TRIBUNALS ORDER DTD. 26-02-2014, THE CLAIM OF DEDUCTION U/S.80IA CLAIMED BY THE APPELLANT HAS BEEN INADVERT ENTLY STATED AT RS.41,43,43,356 INSTEAD OF RS.12,53,61,668, WHICH R EQUIRES MODIFICATION. 3.3. THE SR.LD.COUNSEL FOR THE ASSESSEE HAS POINTED OUT THAT THE AGREEMENT IS DULY ENCLOSED IN THE PAPER-BOOK WHICH GOES TO SHOW THAT MA NO.74/AHD/2015 ( IN ITA NO.558 /AHD/2005 ) NIRMA LTD. VS. ASST.CIT ASST.YEAR 2001-02 - 4 - THERE WAS AGREEMENT EXISTING BETWEEN THE ASSESSEE-C OMPANY AND M/S.NISARG ENTERPRISE PVT.LTD. THE LD.COUNSEL FOR THE ASSESSEE HAS DRAWN OUR ATTENTION TOWARDS PAGE NOS.53 TO 57 & 58 & 59 O F THE PAPER-BOOK. IT IS THE CONTENTION THAT IF THESE EVIDENCES WERE CONS IDERED, THEN THE CLAIM OF THE ASSESSEE FOR DEDUCTION U/S.80IA OF THE ACT W OULD HAVE BEEN ALLOWED. UNDER THESE FACTS, WE DEEM IT PROPER TO R ECALL TRIBUNALS ORDER DATED 26/02/2014 PASSED IN ITA NO.558/AHD/2005 FOR AY 2001-02 AND FIX THE ASSESSEES APPEAL TO DECIDE THE ISSUE FOR T HE LIMITED PURPOSE IN THE LIGHT OF THE AGREEMENT AND OTHER EVIDENCES AS PLACE D BY THE ASSESSEE ON RECORD. THE REGISTRY IS DIRECTED TO FIX THE ASS ESSEES APPEAL IN ITA NO.558/AHD/2005 FOR AY 2001-02 FOR HEARING THE ISSU E IN DUE COURSE. ACCORDINGLY, NOTICE BE ISSUED TO BOTH THE PARTIES. 4. IN THE RESULT, THE MISCELLANEOUS APPLICATION FI LED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON WEDNESDAY, THE 20 TH DAY OF JANUARY, 2016 AT AHMEDABAD. SD/- SD/- ( ) ( ) ( PRAMOD KUMAR ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 20/ 01 /2016 0)..& , '.&../ T.C. NAIR, SR. PS MA NO.74/AHD/2015 ( IN ITA NO.558 /AHD/2005 ) NIRMA LTD. VS. ASST.CIT ASST.YEAR 2001-02 - 5 - !'#$%&%# / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPLICANT 2. #' / THE RESPONDENT. 3. 123 4 / CONCERNED CIT 4. 4 ( ) / THE CIT(A)-I, AHMEDABAD 5. 5'6 &23 , ) 23 , , 1 / DR, ITAT, AHMEDABAD 6. 689 :( / GUARD FILE. / BY ORDER, //// TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION .. 15.1.16 (AS PER MA 73/AHD/20 15DICTATION) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER .. 20.1.16 3. OTHER MEMBER... 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.20/1/16 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 20/1/16 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER .. 10. DATE OF DESPATCH OF THE ORDER