M/s Meeti Investment & Consultancy Services Pvt. Ltd., Baroda V. The Income tax Officer, Ward-4(1), Baroda

MA 81/AHD/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 8882 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 month(s) 7 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-09-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2001-2002
• Appeal Filed On: 13-04-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D K SINGH SR DR

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD , .'# $ ,%& % ' BEFORE SHRI MUKUL KR.SHRAWAT, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER MA NO.81/AHD/2012 ( ./ ARISING OUT OF I.T.A. NO.1576/AHD/2007) ( # ) # ) # ) # ) / / / / ASSESSMENT YEAR : 2001-02) M/S.MEETI INVESTMENT & CONSULTANCY SERVICES PVT.LTD. 301, PANCHSHEEL 72, SAMPATRAO COLONY ALKAPURI, BARODA (ORIGINAL RESPONDENT) # # # # / VS. THE ITO WARD-4(1) BARODA (ORIGINAL APPELLANT) * %& ./+, ./ PAN/GIR NO. : AABCM 3425 B ( *- / // / APPLICANT ) .. ( ./*- / RESPONDENT ) *- 0 % / APPLICANT BY : SHRI S.NB.SOPARKAR, SR.ADV. WITH SHRI JAIMIN GANDHI (WITHDRAWAL APPLICATION ./*- 1 0 % / RESPONDENT BY : SHRI D.K.SINGH, SR.D.R. #2 1 & / / / / DATE OF HEARING : 21/09/12 3') 1 & / DATE OF PRONOUNCEMENT : 21/09/12 %4 / O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : AGAINST THE ORDER OF THE ITAT D BENCH AHMEDABAD IN ITA NO.1576/AHD/2007 PASSED FOR ASSESSMENT YEAR 2001-02 IN THE CASE OF ITO VS. M/S. MEETI INVESTMENT & CONSULTANCY SERVICE S PVT.LTD. PRONOUNCED ON 30-12-2010, THE ASSESSEE HAS FILED TH E MISCELLANEOUS MA NO.81AHD/2012 ( OUT OF ITA NO.1576/ AHD/2007) M/S. MEETI INVESTMENT & CONSULTANCY SERVICES P.LTD. ASST.YEAR 2001-02 - 2 - APPLICATION (FILED ON 12/04/2012) REQUESTING TO WIT HDRAW THE SAME THOROUGH APPLICATION DATED 23/08/2012 BY SUBMITTING AS UNDER:- THE APPLICANT HEREIN MOST RESPECTFULLY SHEWETH THA T: 1. 'D' BENCH OF THE TRIBUNAL DISPOSED OFF THE ABOVE APPEAL BY THEIR ORDER DATED 30.12.2010 (EXHIBIT-A). THE FOLLOWING P ART OF THE ORDER OF THE TRIBUNAL REPRODUCED HEREIN BELOW IS WHERE TH E APPARENT MISTAKE HAS CREPT IN: '7. WE HAVE HEARD..... ...... THE A SSESSEE HAS ALSO NOT ATTEMPTED TO MAKE OUT A CASE THAT IT FALLS WIT HIN ANY OF THE EXCEPTIONS PROVIDED IN EXPLANATION. ACCORDINGLY WE RESTORE THE MATTER TO THE FILE OF THE A.O. SO AS TO FIND OUT TH E COMPOSITION OF INCOME OF THE ASSESSEE AND GIVE A FINDING AS TO WHA T IS THE MAIN SOURCE OF INCOME OF THE ASSESSEE. WHETHER GROSS TOT AL INCOME OF THE ASSESSEE CONSISTS MAINLY OF INCOME UNDER THE HE ADS (1) INTEREST ON SECURITIES (2) INCOME FROM HOUSE PROPER TY (3) WHETHER THE PRINCIPAL BUSINESS OF THE ASSESSEE IS B ANKING OR GRANTING OF LOANS AND ADVANCES AS PROVIDED IN THE E XPLANATION TO SECTION 73 TO WHOM THESE PROVISIONS WILL NOT BE APP LICABLE. IN OTHER WORDS THERE ARE THREE CATEGORIES OF EXCEPTION S, ONE IS THE ABOVE HEADS UNDER WHICH ASSESSEE IS MAINLY DERIVING ITS INCOME AND SECOND IS WHETHER THE PRINCIPAL BUSINESS IS BAN KING AND THIRD IS WHETHER PRINCIPAL BUSINESS IS OF GRANTING OF LOA NS AND ADVANCES. IF IT IS SO, EXPLANATION TO SECTION 73 WO ULD NOT BE APPLICABLE. ' 2. THE APPLICANT SUBMITS THAT ITS ADVOCATE ON THE D AY OF THE HEARING HAD REQUESTED FOR SOME TIME SO THAT HE CAN FILE THE RELEVANT AND IMPORTANT DOCUMENTS IN THE FORM OF PAP ER BOOK BUT SUCH REQUEST WAS DECLINED AND THE APPEAL WAS PROCEE DED WITH. 3. THE APPLICANT DRAWS ATTENTION TO THE FACT THAT I N THE ABOVE MENTIONED PARA FROM THE ORDER OF THE TRIBUNAL, IT C AN BE SEEN THAT THE TRIBUNAL STATES: 'THE ASSESSEE HAS ALSO NOT ATT EMPTED TO MAKE OUT A CASE THAT IT FALLS WITHIN ANY OF THE EXC EPTIONS PROVIDED IN EXPLANATION.' THE APPLICANT SUBMITS THAT ITS ADV OCATE FOR THIS VERY REASON WAS PRAYING FOR TIME SO THAT THESE VERY DETAILS COULD MA NO.81AHD/2012 ( OUT OF ITA NO.1576/ AHD/2007) M/S. MEETI INVESTMENT & CONSULTANCY SERVICES P.LTD. ASST.YEAR 2001-02 - 3 - BE GIVEN IN THE FORM OF A PAPER BOOK. IT IS WITH RE SPECT ERRONEOUS ON THE PART OF THE TRIBUNAL ON ONE HAND NOT TO GRAN T AN ADJOURNMENT FOR FILING OF THE PAPER BOOK AND ON THE OTHER HAND TO HOLD THAT THE ASSESSEE HAD NOT ATTEMPTED TO MAKE OU T A CASE THAT IT FALLS WITHIN THE EXCEPTIONS PROVIDED IN EXPLANAT ION. THE APPLICANT SUBMITS THAT BY NOT GRANTING AN OPPOR TUNITY TO THE APPLICANT TO FILE A PAPER BOOK AMOUNTED TO A DEEMED EX-PART HEARING AS IT COULD NOT PRODUCE THE RELEVANT DETAIL S, AND HENCE, THE ORDER IS ERRONEOUS AND AN APPARENT MISTAKE HAS CREPT IN WHEN THE HON'BLE BENCH STATES THAT THE ASSESSEE DID NOT MAKE ATTEMPTS TO SHOW THAT IT FELL UNDER THE EXCEPTIONS PROVIDED IN EXPLANATION TO SECTION 73. THIS BEING THE CASE THE ORDER NEEDS TO BE RECTIFIED AND FOR THAT PURPOSE THE ORDER OUGHT T O BE RECALLED AND A PROPER JUDICIOUS HEARING SHOULD BE GRANTED TO THE APPLICANT. 4. THE HON'BLE IT.AT. IN ITS ORDER MENTIONS THAT TH E ASSESSEE IS HAVING INCOME FROM CAPITAL GAINS, INTEREST ON SECUR ITIES OR INTEREST FROM BANK AND WHERE THE ASSESSEE IS DOING COMPOSITE BUSINESS, EXPLANATION TO SEC.73 IS TO BE INVOKED. THIS COMMEN T IS ON PAGE 4 PARA 7 OF THE ORDER WHILE IN THE VERY NEXT PARA O F THE ORDER OF THE HON'BLE IT.AT. IT SUGGESTS TO THE ASSESSING OFF ICER TO FIND OUT COMPOSITION OF INCOME OF THE APPLICANT. THIS IS CON TRADICTORY IN ITSELF, THE APPLICANT SUBMITS THAT WHEN THE HON'BLE IT.AT. HAD ALL THAT DETAILS REGARDING INCOME OF THE APPLICANT AS I T ITSELF STATES THEN THERE WAS NO NEED TO RESTORE THE SO-CALLED ISS UED TO THE FILE OF THE ASSESSING OFFICER. THIS BEING A MISTAKE APPA RENT ON RECORD IS REQUIRED TO BE RECTIFIED. 5. THE HON'BLE IT.AT. IS ALSO VERY MUCH AWARE THAT THE APPLICANT HAS SUBSTANTIAL CAPITAL LOSS FROM SHARE TRANSACTION S AND THIS AMOUNT FORMS SUBSTANTIAL PART OF THE COMPOSITION OF INCOME, AND HENCE, IT.AT. SHOULD HAVE DECIDED THE MATTER ITSELF INSTEAD OF SETTING IT ASIDE TO THE ASSESSING OFFICER. THIS ALS O BEING THE MISTAKE APPARENT ON RECORD IS REQUIRED TO BE RECTIF IED BY THE HON'BLE IT.AT. MA NO.81AHD/2012 ( OUT OF ITA NO.1576/ AHD/2007) M/S. MEETI INVESTMENT & CONSULTANCY SERVICES P.LTD. ASST.YEAR 2001-02 - 4 - 6. ALL THE DETAILS WERE VERY MUCH AVAILABLE BE FORE THE ASSESSING OFFICER AS WELL AS THE CIT (APPEALS) AS C AN BE SEEN FROM THESE ORDERS, AND HENCE, THE SETTING ASIDE OF THE ISSUE I S A MISTAKE APPARENT ON RECORD, AND HENCE, THE ORDER IS REQUIRED TO BE RECALLED AND ON SEEING THE DETAILS THE ISSUE MUST B E DECIDED. 7. THE APPLICANT MOST HUMBLY PRAYS THAT THE ABOVE A PPARENT ERRORS MAY KINDLY BE RECTIFIED IN THE INTEREST OF JUSTICE, FOR WHICH ACT OF KINDNESS THE APPLICANT SHALL FOREVER PRAY AND REMAI N GRATEFUL. FOR MEETI INVESTMENT & CONSULTANCY SERVICES PVT. LT D. PLACE : SD/- DATE : 12.04.2012 DIRECTOR 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT HE DOES NOT WANT TO PRESS THE MISCELLANEOUS APPLICATION FILED B Y THE ASSESSEE AND, THEREFORE, HE MAY BE PERMITTED TO WITHDRAW THE SAME . 3. IN VIEW OF THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE, THIS MISCELLANEOUS APPLICATION IS DISMISSED, AS WI THDRAWN. ORDER PRONOUNCED IN THE OPEN COURT ON 21/ 09/ 2012 SD/- SD/- ( .'# $ ) ( ) %& ( A. MOHAN ALANKAMONY ) ( MUKUL KR. SHRAWAT ) ACCOUNTANT MEMBER JUDICIA L MEMBER 5..#, .#../ T.C. NAIR, SR. PS MA NO.81AHD/2012 ( OUT OF ITA NO.1576/ AHD/2007) M/S. MEETI INVESTMENT & CONSULTANCY SERVICES P.LTD. ASST.YEAR 2001-02 - 5 - %4 1 .6 7%6) %4 1 .6 7%6) %4 1 .6 7%6) %4 1 .6 7%6)/ COPY OF THE ORDER FORWARDED TO : 1. *- / THE APPELLANT 2. ./*- / THE RESPONDENT 3. 8 / CONCERNED CIT 4. 8() / THE CIT(A)-III, BARODA 5. 6;< .# , , / DR, ITAT, AHMEDABAD 6. < =2 / GUARD FILE. %4# %4# %4# %4# / BY ORDER, /6 . //TRUE COPY// > >> >/ // / + + + + ( DY./ASSTT.REGISTRAR) , , , , / ITAT, AHMEDABAD 1. DATE OF DICTATION (COPY MATTER) ON 21.9.12 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 21.9.12 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S24.9.12 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 24.9.12 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER