The ACIT, Circle-1, RAJKOT-GUJARAT V. M/s. Perfect Retreads P. Ltd., RAJKOT-GUJARAT

MA 8/RJT/2013

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 1016 (ITAT-RAJKOT)
• Duration Of Justice: 5 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-09-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 30-07-2013
• Assessment Year: misc
• Appeal Filed On: 12-04-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VILAS V SHINDE
• Assessee Lawyers: APPLICANT SHRI D M RINDANI

Judgement Text

IN THE INCOME TAX APPELLATE TRIBU N AL : RAJKOT BENCH : RAJKOT BEFORE SHRI T. K. SHARM A JM AND SHRI D. K. SRIVASTAVA AM M. A . NO . 08 /RJ T/2013 (ARIS I N G OUT OF ITA NO S . 843/RJT/2010, 844 /RJT/201 0 AND CO NO.25/RJT/2010 ) / ASSESSMENT YEAR : 2005 - 06 AND 2 00 6 - 0 7 ACIT, CIRCLE - 1, RAJKOT V. PERFECT RETRE A DS (P) LTD., GONDAL ROAD, NR. RAJKUMAR PETROL PUMP, RAJKOT PAN: AABCP 2763 P DATE OF HEARING : 30 .0 7 .2013 DATE OF PRONOUNCEMENT : 13 . 0 9 . 2013 FOR THE REVENUE : SHR I VILAS V SHINDE, DR FOR THE APPLICANT - ASSESSEE: SHRI D M RINDANI, CA / ORDER D. K. SRIVASTAVA : THE M ISCELLANEOUS A PPLICATION FILED BY THE REVENUE ARISES O UT OF THE COMMON ORDER PASSED BY THIS TRIBUNAL ON 08 .0 2 .201 3 IN ACIT V. PERFECT RETREADS PVT LTD , ITA NO S . 843 - 844 /RJT/201 0 AND IN PERFECT RETREADS PVT . LTD . V ACIT, CO NO.25/RJT/2010 . THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE READS AS UNDER: - 2. IN THIS CASE, THE REVENUE HAD FILED APPEAL BEARING ITA NO.843/RJT/2010 FOR A.Y. 2005 - 06 AND APPEAL BEARING NO. ITA NO.844/RJT/2010 BEFORE THE HONBLE INCOME TAX APPEL LATE TRIBUNAL, RAJKOT AGAINST THE ORDER OF THE LD. CIT (A). THE ASSESSEE FILED CROSS OBJECTION BEARING CO NO.25/RJT/2010. ITA NO.843/RJT/2010: AY 2005 - 06: THE GROUNDS OF APPEAL WERE AS MENTIONED HERE BELOW: - ( I ) THE LD. CIT (A) - I, RAJKOT HAS ERRED IN LAW AND ON FACTS IN DELETING ADDITION MADE ON ACCOUNT OF SUNDRY BALANCE OF RS.9,56,639/ - . ( II ) THE LD. CIT (A) - I, RAJKOT HAS ERRED IN LAW AND ON FACTS IN DELETING ADDITION MADE ON A/C. OF CLOSING STOCK OF RS.15,78,269/ - . ( III ) THE LD. CIT (A) - I, RAJKOT HAS ERRED IN LAW AND ON FACTS, AS HE DELETED THE ABOVE ADDITION OF UNDERVALUATION OF CLOSING STOCK ON THE BASIS OF DETAILS WHICH WERE NOT FILED BEFORE THE AO, THEREFORE, BEFORE DELETING THE ADDITION, THE LD. CIT (A), BY VIRTUE OF POWERS CONFERRED IN HIS HANDS, OUGHT TO HAVE RE MANDED THE PROCEEDINGS U/S.250(4) TO THE AO FOR HIS 2 MA 08 - RJT - 2013 PERFECT RETREDS (P) LTD COMMENTS AND VERIFICATION AS THE DETAILS, SUCH AS, NAME OF THE ITEM, QUANTITY AND THE RATE, ETC. WERE PRODUCED FOR THE FIRST TIME. ( IV ) THE LD. CIT (A) - I, RAJKOT HAS ERRED IN LAW AND ON FACTS IN DELETING ADDIT ION MADE ON ACCOUNT OF DISALLOWANCE OF DISCOUNT OF RS.30,16,334/ - . 3. THE HONBLE INCOME TAX APPELLATE TRIBUNAL, RAJKOT VIDE ORDER DATED 08/02/2013 IN ITA NO. 843 & 844/RJT/2010 HAS ADJUDICATED THE GROUND NO.(1) IN FAVOUR OF THE DEPARTMENT. WITH REGARDS T HE GROUND NO.2 & 3, THE MATTER HAS BEEN RESTORED BACK TO THE FILE OF THE CIT (A) FOR FRESH ADJUDICATION & WITH REGARDS GROUND NO.4, THE MATTER HAS BEEN RESTORED BACK TO THE FILE OF THE A.O. IN ITA NO.844/RJT/2010: AY 2006 - 07: THE FOLLOWING GROUNDS WERE RA ISED BY THE DEPARTMENT BEFORE THE HONBLE ITAT ( I ) THE LD. CIT (A) - I, RAJKOT HAS ERRED IN LAW AND ON FACTS IN DELETING ADDITION MADE ON A/C OF UNDER VALUATION OF CLOSING STOCK OF RS.20,37,478/ - . ( II ) THE LD. CIT (A) - I, RAJKOT HAS ERRED IN LAW AND ON FACTS, AS HE DE LETED THE ABOVE ADDITION OF UNDERVALUATION OF CLOSING STOCK ON THE BASIS OF DETAILS WHICH WERE NOT FILED BEFORE THE AO, THEREFORE, BEFORE DELETING THE ADDITION, THE LD. CIT (A), BY VIRTUE OF POWERS CONFERRED IN HIS HANDS, OUGHT TO HAVE REMANDED THE PROCEED INGS U/S.250(4) TO THE AO FOR HIS COMMENTS AND VERIFICATION AS THE DETAILS, SUCH AS, NAME OF THE ITEM, QUANTITY AND THE RATE, ETC. WERE PRODUCED FOR THE FIRST TIME. ( III ) THE LD. CIT (A) - I, RAJKOT HAS ERRED IN LAW AND ON FACTS IN DELETING ADDITION MADE ON ACCOUN T OF DISALLOWANCE OF DISCOUNT OF RS.42,66,003/ - . 4. THE HONBLE INCOME TAX APPELLATE TRIBUNAL IN ITS ORIGINAL ORDER DATED 08/02/2013, IN PARA 28 (PAGE 9 OF THE IMPUGNED ORDER) HAS GIVEN THE FOLLOWING FINDINGS : WE HAVE ALREADY ADJUDICATED UPON THE ISSUE S UNDER APPEAL IN OUR ORDER FOR ASSESSMENT YEAR 2005 - 06. FOLLOWING THE SAME, THE ISSUES 3 MA 08 - RJT - 2013 PERFECT RETREDS (P) LTD RAISED IN GROUND NOS. 1 TO 3 TAKEN BY THE REVENUE ARE RESTORED TO THE FILE OF THE AO WITH SIMILAR DIRECTIONS AS GIVEN BY US IN OUR AFORESAID ORDER FOR A.Y. 2005 - 06. GRO UND NOS. 1 TO 3 ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ACCORDINGLY, GROUND NO. I & II OUGHT TO HAVE BEEN RESTORED BACK TO THE CIT (A) - I, RAJKOT AND GROUND NO.III OUGHT TO HAVE BEEN RESTORED BACK TO THE FILE OF THE A.O. FOR A FRESH ADJUDICATIO N. 5. THE HONBLE INCOME TAX APPELLATE TRIBUNAL IN ITS ORIGINAL ORDER DATED 08/02/2013, IN PARA 32 (PAGE 10 OF THE IMPUGNED ORDER) H AS GIVEN THE FOLLOWING FINDINGS: THE ISSUE RAISED BY THE ASSESSEE IS INTER - LINKED WITH GROUND NOS.2 AND 3 TAKEN BY THE RE VENUE IN ASSESSMENT YEAR 2005 - 06 AND GROUND NO.1 AND 2 IN ASSESSMENT YEAR 2006 - 07. WE HAVE ALREADY RESTORED THE ISSUE TO THE FILE OF THE AO. IN THIS VIEW OF THE MATTER, THE ISSUE RAISED BY THE ASSESSEE IN ITS MEMORANDUM OF CROSS - OBJECTIONS ALSO STAND RESTO RED TO THE FILE OF THE AO FOR A DECISION IN CONFORMITY WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. ACCORDINGLY, GROUND NO. I & II OUGHT TO HAVE BEEN RESTORED BACK TO THE CIT (A) - I, RAJKOT AND GROUND NO.III OUGHT TO HAVE BEE N RESTORED BACK TO THE FILE OF THE A.O. FOR A FRESH ADJUDICATION. 6. THUS, A MISTAKE HAS CREPT IN THE ORDER OF HONBLE INCOME TAX APPELLATE TRIBUNAL IN ITA NO. 2. WE HAVE HEARD BOTH THE PARTIES. GROUND NOS. 2 AND 3 TAKEN BY THE REVENUE IN ITS APPEAL BEA RING ITA NO.843/RJT/2010 FOR ASSESSMENT YEAR 2005 - 06 AND GROUND NOS. 1 AND 2 TAKEN BY THE REVENUE IN ITS APPEAL BEARING ITA NO.844/RJT/2010 FOR ASSESSMENT YEAR 2006 - 07 RELATE TO A COMMON ISSUE , I.E. , THE ISSUE RELATING TO ADDITION ON ACCOUNT OF VALUATION O F STOCK. WHILE DECIDING THE AFORESAID ISSUE IN BOTH THE ASSESSMENT YEARS UNDER APPEAL, THE ISSUE IN GROUND NOS. 2 AND 3 IN ASSESSMENT YEAR 2005 - 06 WAS RESTORED FOR FRESH ADJUDICATION TO THE FILE OF THE LD . CIT(A) WHILE SIMILAR ISSUE TAKEN BY THE REVENUE IN ASSESSMENT YEAR 4 MA 08 - RJT - 2013 PERFECT RETREDS (P) LTD 2006 - 07 WAS, BY INADVERTEN CE , RESTORED TO THE FILE OF THE ASSESSING OFFICER INSTEAD OF LD . CIT(A). THE ISSUE RAISED IN THE MEMORANDUM OF CROSS - OBJECTIONS ALSO RELATED TO THE VALUATION OF STOCK. THE REVENUE NOW URGES THAT SIMILAR ISSUE IN B OTH THE ASSESSMENT YEARS SHOULD BE RESTORED EITHER TO THE FILE OF THE ASSESSING OFFICER OR TO THE FILE OF THE LD CIT(A) FOR A FRESH ADJUDICATION . 3. WE HAVE CAREFULLY EXAMINED THE SUBMISSIONS MADE BY THE REVENUE. IN OUR OPINION, THE ISSUE RELATING TO VAL UATION OF STOCK IN BOTH THE ASSESSMENT YEARS SHOULD BE RESTORED EITHER TO THE FILE OF THE LD CIT(A) OR TO THE FILE OF THE ASSESSING OFFICER AS SUCH A COURSE WILL ENSURE CONSISTENCY AND UNIFORMITY IN THE DECISION. SINCE OTHER ISSUES RAISED BY THE REVENUE IN BOTH THE A SSESSMENT Y EARS UNDER APPEAL HAVE BEEN RESTORED TO THE FILE OF THE ASSESSING OFFICER, IT WOULD BE MORE APPROPRIATE TO RESTORE THE ISSUE OF VALUATION OF STOCK AS TAKEN BY THE REVENUE IN ITS APPEAL FOR A SSESSMENT Y EARS 2005 - 06 AND 2006 - 07 AND BY T HE ASSESSEE IN ITS MEMORANDUM OF CROSS - OBJECTIONS TO THE FILE OF THE ASSESSING OFFICER. WE ORDER ACCORDINGLY. THE ORDER ISSUE D BY US ON 08.02.2013 SHALL STAND MODIFIED TO THE AFORESAID EXTENT. IT IS NOW THE ASSESSING OFFICER WHO WILL CONSIDER AND DECIDE T HE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS ALLOWED TO THE AFORESAID EXTENT. ORDER PRONOUNCED ON 13 . 0 9 . 201 3 SD/ - SD/ - (T. K. SHA RMA) ( D. K. SRIVASTAVA) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT : . 0 9 . 2013 * BT T D A / COPY OF ORDER FORWARDED TO: - 1 . APPELLANT - ACIT, CIRCLE - 1, RAJKOT 2 RESPONDENT - PERFECT RETREADS (P) LTD., GONDAL ROAD, RAJKOT 3 . CONCERNED CIT - I, RAJKOT 4 . CIT (A ) - I, RAJKOT 5 . DR, ITAT, RAJKOT 6 . GUARD FILE BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT