M/s/Pratap Cashew Co.P.Ltd, Kollam V. DCIT, Kollam

MA 90/COCH/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9678 (ITAT-COCHIN)
• Duration Of Justice: 1 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 21-12-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2003-2004
• Appeal Filed On: 05-11-2012
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: T V HARIHARAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND B.R.BASKAR AN, AM M.P. NO. 90/COCH/2012 (ARSG. OUT OF I.T.A NO. 177/COCH/2007) ASSESSMENT YEAR: 2003-04 M/S. PRATAP CASHEW CO. (P) LTD., KOCHUPILAMMOODU, KOLLAM [PAN:AABCP 6100C] VS. THE DEPUTY COMMISSIONER OF INCOME- TAX, CENTRAL CIRCLE, KOLLAM. (ASSESSEE-APPELLANT) (REVENUE- RESPONDENT) ASSESSEE BY SHRI T.V. HARIHARAN, FCA REVENUE BY SMT. S. VIJAYAPRABHA, JR. DR DATE OF HEARING 14/12/2012 DATE OF PRONOUNCEMENT 21/12/2012 O R D E R PER B.R.BASKARAN, ACCOUNTANT MEMBER: BY FILING THIS MISCELLANEOUS APPLICATION, THE ASSE SSEE SEEKS RECALL OF ORDER DATED 10-08-2012 PASSED IN ITA NO.177/COCH/2007 RELATING TO THE ASSESSMENT YEAR 2003-04 IN SO FAR AS IT RELATES TO THE ISSUE OF ADDITION PE RTAINING TO UNDER PRICING IN THE SALE OF KERNELS MADE TO SISTER CONCERNS. 2. THE LD COUNSEL APPEARING FOR THE ASSESSEE SU BMITTED THAT THE TRIBUNAL HAS CONFIRMED THE ADDITION OF RS.65,14,452/- MADE BY TH E ASSESSING OFFICER ON ACCOUNT OF THE UNDER PRICING OF SALE OF KERNELS MADE TO SISTER CONCERNS, VIDE PARAGRAPHS 5 & 6 OF THE ORDER REFERRED SUPRA. THE LD COUNSEL SUBMITTED THAT THE CO-ORDINATE BENCH OF THE TRIBUNAL HAD ALSO CONSIDERED ON AN IDENTICAL ISSUE IN THE CASE OF SMT. PRIYA PRAKASH, PRATYUSH EXPORTS AND THE CO-ORDINATE BENCH HAD ALLOW ED THE APPEAL OF THE ASSESSEE BY REMITTING THE MATTER BACK TO THE CIT(A) FOR A FRESH EXAMINATION. HE SUBMITTED THAT THE DECISIONS OF CO-ORDINATE BENCH (REFERRED SUPRA) WER E BROUGHT TO THE NOTICE OF THE BENCH M.P. NO.90/COCH/2012 2 AT THE TIME OF HEARING. HOWEVER THE TRIBUNAL HAS R ENDERED ITS DECISION IN THE INSTANT CASE WITHOUT CONSIDERING THE DECISIONS RENDERED IN OTHER CASES. HE FURTHER SUBMITTED THAT THE TRIBUNAL OUGHT TO HAVE FOLLOWED THE RATIO LAID DOWN IN THE EARLIER ORDERS OF THE CO-ORDINATE BENCH INSTEAD OF TAKING A CONTRARY VIEW . THE LD COUNSEL PLACED HIS RELIANCE ON THE FOLLOWING DECISIONS IN THIS REGARD. (A) CIT VS. TRAVANCORE TITANIUM PRODUCTS LTD (265 ITR 526)(KER) (B) HONDA SIEL POWER PRODUCTS LTD VS. CIT (295 IT R 466)(SC) 3. ON THE CONTRARY, THE LD D.R SUBMITTED THAT T HE TRIBUNAL HAS TAKEN A CONSCIOUS DECISION ON APPRECIATION OF FACTS SURROUNDING THE A DDITION MADE IN THE INSTANT CASE. SINCE THE TRIBUNAL HAS TAKEN A PARTICULAR VIEW, THE PRESENT PLEA MADE BY THE ASSESSEE WOULD LEAD TO THE REVIEW OF THE DECISION ALREADY TA KEN, WHICH THE TRIBUNAL IS NOT ENTITLED TO DO U/S 254(2) OF THE ACT. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERU SED THE RECORD. ADMITTEDLY, THE ASSESSEE HAD CITED THE DECISION RENDERED BY THE CO- ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF SMT. T.C. USHA (ITA NO.559/COCH/2007) A ND SMT. PRIYA PRAKASH (ITA 241/COCH/2007) BEFORE THE TRIBUNAL AT THE TIME OF H EARING OF THE APPEAL. HOWEVER, IN PARAGRAPH 6 OF THE IMPUGNED ORDER, THE TRIBUNAL HAS SPECIFICALLY POINTED OUT THAT THE ASSESSEE HAS MISERABLY FAILED TO OFFER CONVINCING E XPLANATIONS AS TO THE REASONS THAT COMPELLED HIM TO UNDER PRICE THE SALES PRICE IN RES PECT OF SALES MADE TO SISTER CONCERNS. IN THE CASE OF T.C. USHA AND SMT. PRIYA PRAKASH, TH E CO-ORDINATE BENCH HAS NOT TAKEN ANY DECISION ON THE IMPUGNED ISSUE AND IT HAS SIMPL Y SET ASIDE THE MATTER TO THE FILE OF LD CIT(A). 5. THUS, IT IS NOTICED THAT THE TRIBUNAL, AS P OINTED OUT BY LD D.R, HAS TAKEN A CONSCIOUS VIEW ON THE ISSUE ON THE BASIS OF FACTS S URROUNDING THE SAME DUE TO THE FAILURE ON THE PART OF THE ASSESSEE TO OFFER CONVIN CING EXPLANATIONS. IN OUR VIEW, BOTH THE DECISIONS RELIED UPON BY THE LD A.R CANNOT BE T AKEN SUPPORT OF IN THIS CASE FOR THE REASONS THAT:- M.P. NO.90/COCH/2012 3 (A) IMPUGNED ADDITION DEPENDS UPON THE FACTS OF EA CH CASE. IT IS NOT THE CASE OF THE ASSESSEE THAT THE TRIBUNAL HAS FAILED TO FO LLOW THE DECISION RENDERED IN THE ASSESSEES OWN CASE. (B) THE CO-ORDINATE BENCHES HAVE NOT RENDERED ITS D ECISION ON ANY LEGAL POINT RELATING TO THE IMPUGNED ADDITION, WHICH WOULD HAV E BINDING FORCE ON THIS TRIBUNAL. (C) IN OUR VIEW, THE DECISION RENDERED BY A CO-OR DINATE BENCH ON THE FACTS OF PARTICULAR ISSUE DOES NOT HAVE BINDING FORCE. IN A NY CASE, IN THE OTHER CASES, THE TRIBUNAL HAS NOT TAKEN ANY DECISION ON THE IMPUGNE D ISSUE AND IT HAS BEEN REMITTED TO THE FILE OF LD CIT(A). 6. IN VIEW OF THE FOREGOING DISCUSSIONS, WE ARE OF THE VIEW THAT THE PLEA MADE BY THE ASSESSEE WOULD LEAD TO THE REVIEW OF THE ORDER PASS ED BY THE TRIBUNAL AND THE TRIBUNAL, AS RIGHTLY POINTED OUT BY LD D.R, DOES NOT HAVE POW ER TO REVIEW ITS ORDER UNDER THE PROVISIONS OF SEC. 254(2) OF THE ACT. 7. ACCORDINGLY, WE DISMISS THE MISCELLANEOUS APP LICATION FILED BY THE ASSESSEE. PRONOUNCED ACCORDINGLY ON 21-12-2012 SD/- SD/- (N.R.S.GANESAN) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 21ST DECEMBER, 2012 GJ COPY TO: 1. M/S. PRATAP CASHEW CO. (P) LTD., KOCHUPILAMMOODU , KOLLAM 2. THE DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL C IRCLE, KOLLAM. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, KOCH I. 4. THE COMMISSIONER OF INCOME-TAX, CENTRAL, KOCHI. M.P. NO.90/COCH/2012 4 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T., COCHIN