ITO, Ward-1(2), Bhavnagar V. Apollo Vikas Steels Pvt.Ltd., Bhavnagar

MA 9/AHD/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4675 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-03-2019
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 11-01-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJESH MEENA
• Assessee Lawyers: VASHIK R CHOKSHI
• Keywords: Tax effect
• Section: 143(3); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND MS. MADHUMITA ROY, JUDICIAL MEMBER MA NO.9/AHD/2019 AY 2010-11 ( IN ITA NO.2153/AHD/2014 AY 2010-11 ) THE ITO WARD-1(2) BHAVNAGAR / VS. M/S. APPOLO VIKAS STEEL PVT.LTD. JIVAN MENTION LATI BAZAR BHAVNAGAR ./ ./ PAN/GIR NO. : AAFCA 9760 M ( / APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI RAJESH MEENA, SR.DR / RESPONDENT BY : SHRI VASHIK R. CHOKSHI, AR / DATE OF HEARING 15/03/2019 !'# / DATE OF PRONOUNCEMENT 20 /03/2019 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE REVENUE BY WAY OF THIS MISCELLANEOUS APPLICATIO N IS SEEKING TO RECALL THE ORDER OF THE TRIBUNAL DATED 20/08/201 8 BEARING ITA NO. 2153/AHD/2014 FOR ASST YEAR 2010-11 ON THE GROUND THAT THERE IS AN APPARENT MISTAKE IN THE ORDER. 2. THE LD. DR BEFORE US HAS SUBMITTED AS UNDER: FACTS OF THE CASE THE ASSESSEE HAD FILED RETURN OF INCOME FOR THE A.Y . 2010-11 DECLARING TOTAL INCOME AT RS.4,12,45,630/-.- ASSESSMENT U/S 143(3) OF THE INC OME TAX ACT, 1961 WAS FINALIZED ON MA NO.9/AHD/2019 (IN ITA NO.2153/AHD/14) ITO VS. M/S. APPOLO VIKAS STEEL PVT.LTD. ASS T.YEAR 2010-11 - 2 - 4/03/2013 DETERMINED ASSESSED INCOME AT RS. 5,68,74 ,320/- AFTER MAKING FOLLOWING ADDITIONS/DISALLOWANCES. (I) UNACCOUNTED SALES OF DG SET : RS. 55,00,000/- (II) UNDISCLOSED OIL SALE : RS. 21,99,935/- (III) DISALLOWANCE U/S 14A OF THE ACT, : RS. 7,51,151/- (IV) RECYCLING CHARGES : RS. 11,45,000/- (V) UNDER VALUATION OF STOCK : RS. 8,50,400/- (VI) EARLIER YEAR DUTY EXPENSES : RS. 12,68,498/- (VII) EARLIER YEARS PLOT DEVELOPMENT EXPS. : RS. 2,11,500/- 2. BEING AGGRIEVED WITH THE ASSESSMENT ORDER , THE ASSESSEE FILED AN APPEAL BEFORE LD. CIT(A)-XX, AHMEDABAD. THE ID. CIT (A), VIDE ORDER N O. CIT(A)-XX/13/13-14 DTD. 16/05/2004 PARTLY ALLOWED THE APPEAL OF THE ASSESSEE THEREBY R ELIEF ALLOWED ON THE ADDITION/DISALLOWANCE MADE IN THE ASSESSMENT AS UNDER :- (VIII) UNACCOUNTED SALES OF DG SET : RS.45,00,000/- (IX) UNDISCLOSED OIL SALE : RS. 17,99,935/- (X) DISALLOWANCE U/S 14A OF THE ACT, : RS. 6,56,313/- (XI) RECYCLING CHARGES : RS. 11,45,000/- (XII) EARLIER YEAR DUTY EXPENSES : RS. 12,68,498/- (XIII) EARLIER YEARS PLOT DEVELOPMENT EXPS. : RS. 2,11,500/- 3. BEING AGGRIEVED WITH THE ORDER OF ID. CIT(A), RE VENUE HAS FILED APPEAL BEFORE THE HON'BLE TRIBUNAL AND CROSS OBJECTION WAS FILED BY THE ASSES SEE. THE HON'BLE TRIBUNAL VIDE ORDER IN ITA NO. 2153/AH/2014/ & CO NO. 2272/AHD/2014 DTD. 2 0/08/2018, DISMISSED THE APPEAL OF THE DEPARTMENT OBSERVING THAT THE TAX EFFECT INVOLV ED IN THE PRESENT CASE IS BELOW THE PRESCRIBED LIMIT AS PER CIRCULAR NO. 03/2018 DTD. 1 1/07/2018 ISSUED BY THE CBDT. 4. ON VERIFICATION OF RECORDS, IT IS NOTICED THAT T HE TAX EFFECT INVOLVED IN THE CASE IS RS. 21,41,347/- WHICH IS ABOVE THE PRESCRIBED LIMIT AS PER CIRCULAR NO.3 OF 2018. THE DETAILED WORKING OF TAX EFFECT OF THIS APPEAL IS AS UNDER :- TOTAL INCOME AS PER RETURN INCOME RS. 4,12,45,630 /- DISPUTED ADDITIONS : - A) LUMPSUM ADDITION ON ACCOUNT OF UNACCOUNTED SALES(DG SET) RS. 45,00,000/ - B) LUMPSUM ADDITION ON ACCOUNT OF UNACCOUNTED SALES. (OIL) RS. 17,99.935 / - MA NO.9/AHD/2019 (IN ITA NO.2153/AHD/14) ITO VS. M/S. APPOLO VIKAS STEEL PVT.LTD. ASS T.YEAR 2010-11 - 3 - TOTAL RS 62,99,935/ - TAX ON DISPUTED ADDITION @ 30% RS. 18,89,980/ - SURCHARGE 10% RS. 1,88,998/ - EDUCATION CESS @ 3% RS. 62,369/ - TOTAL TAX EFFECT RS. 21,41, 347/ - GROUNDS IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, THE TAX EFFECT INVOLVED IS ABOVE THE LIMIT AS PRESCRIBED VIDE CIRCULAR NO. 3 OF 2018 OF CBDT, THEREFORE IT IS PRAYED THAT THE SAID ORDER IS REQUIRE TO BE AMENDED/RECALLED. PRAYER IT IS THEREFORE, PRAYED THAT THE HBN'BLE ITAT BE PL EASED:- (A) TO ADMIT THIS MISC. APPLICATION. (B) TO MODIFY/CANCEL/RECALL THE ORDER NO. 2153 /AH/2014/ & CO NO. 2272/AHD/2014 DTD. 20/08/2018. (C) TO PASS ANY FURTHER ORDERS AS MAY BE DEEMED FIT AND PROPER. 3. ON THE OTHER HAND, THE LD.AR FAIRLY CONCEDED THA T THE TAX EFFECT IN THE APPEAL FILED BY THE REVENUE EXCEEDS RS. 20 LACS . THEREFORE, THE SAME CANNOT BE DISMISSED DUE TO LOW TAX EFFECT AS PER CI RCULAR NO. 03/2018 DATED 11/07/2018 ISSUED BY THE CBDT. 4. HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATE RIALS AVAILABLE ON RECORD. AFTER PERUSING THE FACTS AS DISCUSSED ABO VE, THERE IS NO DISPUTE THAT THE APPEAL FILED BY THE REVENUE WAS OUTSIDE TH E PURVIEW OF THE CIRCULAR ISSUED BY THE CBDT AS DISCUSSED ABOVE. TH US, WE HOLD THAT THE ITAT HAS COMMITTED AN ERROR INADVERTENTLY WHICH IS APPARENT ON RECORD MA NO.9/AHD/2019 (IN ITA NO.2153/AHD/14) ITO VS. M/S. APPOLO VIKAS STEEL PVT.LTD. ASS T.YEAR 2010-11 - 4 - BY HOLDING THAT THE APPEAL OF THE REVENUE IS NOT MA INTAINABLE IN VIEW OF THE CIRCULAR NO.3/2018 DATED 11/07/2018 ISSUED BY T HE CBDT. THEREFORE, WE ARE INCLINED TO RECALL THE ORDER OF T HE ITAT FOR FRESH HEARING. THE REGISTRY IS DIRECTED TO FIX THE REVENU ES APPEAL ON 26/04/2019 . 5. AS THE DATE OF HEARING HAS BEEN PRONOUNCED IN TH E OPEN COURT, NO SEPARATE NOTICE SHALL BE SERVED TO ANY OF THE PARTY . HENCE, THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE IS A LLOWED. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 20/03/2019 SD/- SD/- (MS.MADHUMITA ROY) (WASEEM AH MED) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 20/03/2019 &. ., .(. . / T.C. NAIR, SR. PS MA NO.9/AHD/2019 (IN ITA NO.2153/AHD/14) ITO VS. M/S. APPOLO VIKAS STEEL PVT.LTD. ASS T.YEAR 2010-11 - 5 - / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ) *+ , / CONCERNED CIT 4. , ( ) / THE CIT(A)-XX, AHMEDABAD 5. /01 ((*+ , *+# , ) / DR, ITAT, AHMEDABAD 6. 145 6 / GUARD FILE. / BY ORDER, / ( //TRUE COPY// / ( DY./ASSTT.REGISTRAR) !' #, / ITAT, AHMEDABAD 1. DATE OF DICTATION 15.3.2019 (DICTATION PAD 4- PA GES ATTACHED AT THE END OF THIS APPEAL-FILE) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 18.3.2019 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.20.3.19 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 20.3.19 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