Nandi Steels Limited, Bangalore V. ACIT, Bangalore

MA 8/BANG/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7944 (ITAT-BANGALORE)
• Duration Of Justice: 2 month(s) 25 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 27-04-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 27-04-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 02-02-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K AMBASTHA
• Assessee Lawyers: RAMASUBRAMANIAN
• Keywords: Reopening of assessment
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH A BEFORE SHRI N.K. SAINI, ACCOUNTANTMEMBER AND SHRI GEORGE GEORGE K, JUDICIAL MEMBER MISC.APPLN.NO.8/BANG/2012 (IN ITA NO.546/BANG/2008) (ASSESSMENT YEAR: 2003-04) M/S.NANDI STEELS LTD., F4, RICHMOND PLAZA, RICHMOND CIRCLE, BANGALORE - 25. VS. APPLICANT ASST. COMMISSIONER OF INCOME - TAX, CIRCLE 12(2), BANGALORE. RESPONDENT APP LICANT BY: SHRI RAMASUBRAMANIAN, CA . RESPONDENT BY : SHRI S.K.AMBASTHA, CIT - DR DATE OF HEARING: 27 - 4 - 2012. DATE OF PRONOUNCEMENT: 27 - 4 - 2012. O R D E R PER N.K.SAINI, AM: THIS MISCELLANEOUS APPLICATION (M.A) ARISING OUT OF ORDER DATED 19-1-2012 IN ITA NO.546/BANG/2008 HAS BEEN FI LED BY THE ASSESSEE. IN THIS M.A. THE ASSESSEE CONTENDS A S UNDER: THE APPLICANT HEREIN SEEKS THE LEAVE OF HONBLE TRIBUNAL TO FILE AN APPLICATION U/S 254(2) OF THE A CT. THE APPLICANT SUBMITS THAT IT HAS RAISED FOLLOWING ADDITIONAL GROUND. THAT THE LEARNED ASSESSING OFFICER ERRED IN LAW AND ON FACTS IN LEVYING INTEREST U/S 234D M.A.NO.8/BANG/2012 PAGE 2 OF 4 THE APPLICANT SUBMITS THAT THE HONBLE DIVISION BENCH, WHICH HEARD THE CASE EARLIER IN 2008 HAD ALLOWED THIS GROUND. THE ONLY ISSUE REFERRED TO THE SPECIAL BENCH WAS WITH RESPECT TO THE QUESTION OF SETTING OFF THE CARRIED FORWARD BUSINESS LOSS AGAIN ST LONG TERM CAPITAL GAINS. THE HONBLE SPECIAL BENCH ANSWERED THIS QUESTION IN FAVOUR OF THE REVENUE. WHILE DISPOSING OF THE MATTER IN ACCORDANCE WITH DECISION OF HONBLE SPECIAL BENCH, THE HONBLE DIVISION BENCH IN ITS ORDER DATED 19.01.2012 DID NO T DISPOSE OF THE ADDITIONAL GROUNDS RAISED REGARDING VALIDITY OF LEVY OF INTEREST U/S 234D OF THE ACT. HENCE, IT IS PRAYED THAT THE HONBLE TRIBUNAL BE PLEASED TO ALLOW THE ADDITIONAL GROUND REGARDING INTEREST U/S 234D BY PASSING AN APPROPRIATE ORDER U /S 254(2) OF THE ACT. 2. DURING THE COURSE OF HEARING, LEARNED COUNSEL FO R THE ASSESSEE REITERATED THE CONTENTS OF THE AFORESAID M .A. AND PRAYED TO RECTIFY THE ORDER DATED 19-1-2012 PASSED IN ITA NO.546/BANG/2008. 3. IN HIS RIVAL SUBMISSIONS, LEARNED CIT-DR SUBMIT TED THAT THE EARLIER ORDER PASSED BY THE DIVISION BENCH WHICH HAS BEEN REFERRED BY THE LEARNED COUNSEL FOR THE ASSESS EE WAS NOT SERVED TO THE DEPARTMENT. THEREFORE, IT CANNOT BE SAID THAT THERE IS A MISTAKE IN THE ORDER OF THE TRIBUNAL. 4. WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PARTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVA ILABLE ON RECORD. IN THE PRESENT CASE, IT IS NOTICED THAT THE ASSESSEE THOUGH IT HAS BEEN INTRODUCED W.E.F.01.06.2003 AND IS APPLICABLE ONLY FROM ASSESSMENT YEAR 2004-05 ONWARDS. M.A.NO.8/BANG/2012 PAGE 3 OF 4 ORIGINALLY RAISED SIX GROUNDS IN ITS APPEAL IN ITA NO.546/BANG/2008 AND RAISED AN ADDITIONAL GROUND RE LATING TO INTEREST U/S 234D OF THE IT ACT. THE APPEAL OF THE ASSESSEE WAS EARLIER HEARD BY THE DIVISION BENCH ON GROUND NOS.1 TO 4 AND THE ADDITIONAL GROUND. HOWEVER, GROUND NOS.5 AND 6 RELATING TO SET OFF OF CARRIED FORWARD BUSINESS LOSS AGAINST LO NG TERM CAPITAL GAINS WERE REFERRED TO THE DECISION OF THE SPECIAL BENCH, THESE GROUNDS WERE DECIDED VIDE ORDER DATED 9-12-2011 AND THE OTHER ISSUES VIDE GROUND NOS.1 TO 4 RELATING TO VAL IDITY OF THE REOPENING OF ASSESSMENT U/S 147 OF THE ACT AND THE ADDITIONAL GROUND RELATING TO CHARGING OF INTEREST U/S 234D WE RE EARLIER DISPOSED OF BY DIVISION BENCH VIDE ORDER DATED 11-1 2-2008. HOWEVER, THE SAID ORDER WAS NOT PRONOUNCED SINCE OT HER GROUNDS I.E. GROUND NOS.5 AND 6 WERE REFERRED TO TH E SPECIAL BENCH. NOW, ALL THE ISSUES HAD BEEN DISPOSED OF I. E. GROUND NOS.1 TO 4 AND ADDITIONAL GROUND BY THE DIVISION BE NCH AND GROUND NOS.5 & 6 BY THE SPECIAL BENCH, THEREAFTER, THE MATTER WAS PLACED BEFORE THIS BENCH OF THE TRIBUNAL FOR PA SSING CONSEQUENTIAL ORDER AND THIS BENCH OF THE TRIBUNAL PASSED ITS ORDER ON 19-1-2012. HOWEVER, DUE TO OVERSIGHT AND INADVERTENTLY THE ISSUE RAISED BY THE ASSESSEE VIDE ADDITIONAL GROUND WHICH WAS EARLIER DISPOSED OF THE DIVISION B ENCH COULD NOT BE INCORPORATED IN THE ORDER DATED 19-1-2012. NOW, WE INCLUDE THE SAME IN PARA.3 OF THE SAID ORDER AS UND ER: M.A.NO.8/BANG/2012 PAGE 4 OF 4 THE ISSUE RAISED BY THE ASSESSEE RELATING TO CHARG ING OF INTEREST U/S 234D HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE FOLLOWING THE ORDER OF THE SPECIAL BENCH I N THE CASE OF ITO VS. EKTA PROMOTERS PVT. LTD.(2008) 113 ITD 790. 4. WE ALSO MODIFY THE RESULT OF THE APPEAL WHICH WA S EARLIER MENTIONED IN PARAGRAPH 8 AS UNDER: IN THE RESULT, THE APPEAL IS DISMISSED NOW THE SAME SHALL BE READ : IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. 5. IN THE RESULT, THE MA FILED BY THE ASSESSEE IS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH APRIL, 2012. SD/- SD/- (GEORGE GEORGE K) JUDICIAL MEMBER (N.K. SAINI) ACCOUNTANT MEMBER EKS COPY TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A) CONCERNED 4. CIT 5. DR, ITAT, BANGALORE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE