Appeal details
Counselvise Citation
[2015] 124 COUNSELVISE.COM (IT) 3109 (ITAT-AHMEDABAD)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
11 month(s) 21 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
24-06-2015
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
B
Next Hearing Date
19-06-2015
Assessment Year
2008-2009
Appeal Filed On
03-07-2014
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH BEFORE: S H RI N.S. SAINI , ACCOUNTANT MEMBER AND SHR I RAJPAL YADAV , JUDICIAL MEMBER M/S. TML INDUSTRIES LTD, 301, B TOWER, ALKAPURI ARCADE, R. C. DUTT ROAD, BARODA - 390007 PAN: AABCT0793K (APPELLANT) VS THE ACIT , BARODA CIRCLE - 4 , BARODA (RESPONDENT) ASSESSEE BY: S H RI SANJAY R. SHAH , A.R. REVENUE BY: S MT. SONI YA KUMAR , SR. D.R. DATE OF HEARING : 19 - 06 - 2 015 DATE OF PRONOUNCEMENT : 24 - 0 6 - 2 015 / ORDER P ER : RAJPAL YADAV , JUDICIAL MEMBER : - THE PRESENT TWO MISCELLANEOUS APPLICATIONS ARE DIRECTED AT THE INSTANCE OF ASSESSEE POINTING OUT APPARENT ERROR IN THE ORDER OF THE M.A. NOS. 99 & 100/AHD/2014 (IN I T A NO . 2596 - 2597 / A HD/20 12 ) A SSESSMENT YEAR 2008 - 09 & 2009 - 10 MA NO. 99 - 100/AHD/2014 (IN I.T.A NO. 2596 - 97/AHD/2012 ) A.Y. 2008 - 09 & 2009 - 10 PAGE NO M/S. TML INDUSTRIES LTD VS. ACIT 2 TRIBUNAL DATED 11 - 10 - 2013 PASSED IN ITA NOS. 2596 - 97/AHD/2012 FOR ASSE SSMENT YEARS 2008 - 09 & 2009 - 10 RESPECTIVELY. 2. IN THE FIRST FOLD OF APPARENT MISTAKE , ASSESSEE HAS PLEADED THAT , WHILE DISPOSING OF GROUND NO. 2 OF THE REVENUE S APPEAL IN ASSESSMENT YEAR 2008 - 09 AND GROUND NO. 1 IN ASSESSMENT YEAR 2009 - 10 , TRIBUNAL , T HOUGH , ARRIVED AT CORRECT CONCLUSION , BUT NARRATED THE FACTS WRONGLY. THE APPLICATIONS ON THIS ISSUE ARE VERBATIM, THEREFORE, IN ORDER TO PIN POINT THE APPARENT MISTAKE, WE TAKE NOTE THE PLEADINGS MADE BY THE ASSESSEE IN ASSESSMENT YEAR 2008 - 09. IT READS AS UNDER: - 1.0 BEFORE THE HON'BLE ITAT THE DEPARTMENT HAD RAISED THE FOLLOWING GROUND NO 2 IN ITS APPEAL NO. 2596/AHD/2012 FOR A.Y. 2008 - 9. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN EXCLUDING THE INVES TMENTS MADE IN SHARES OF M/S. NIBHANA LTD., PRAGATI SAHAKARI BANK, ALKAPURI ARCADE PREMISES OWNERS CO - OPERATIVE SOCIETY LTD. AND MUMUKSHU FINANCE & SERVICES LTD. WITHOUT CONSIDERING THE FACT THAT THE ASSESSEE WAS NOT ABLE TO GIVE JUSTIFICATION WITH THE SUP PORTING EVIDENCES TO SHOW THAT NO INTEREST BEARING FUND WAS DIVERTED TO MAKE INVESTMENT.' 2.0 THE HON'BLE BENCH HAS REJECTED THE AFORESAID GROUND FILED BY DEPARTMENT AND ADJUDICATED VIDE PARA 10 ON PAGE 7 OF THE ORDER. THE CONCLUSION PART IS REPRODUC ED HEREUNDER. 'WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD IN BOTH THE YEARS. THE DIVIDEND IN CASE OF NIBBANA LTD. IS TAXABLE BEING A FOREIGN COMPANY, WHEREAS INVESTMENTS IN PRAGATI SAHAKARI BANK LTD AND ALKAPURI ARCADE PREMISES ONU S CO - OP. SOCIETY LTD. WERE MADE FOR BUSINESS PURPOSES AS THE ASSESSEE PURCHASED THE MAJORITY SHARES OF THE COMPANY TO CONTROL THE MANAGEMENT, IN CASE OF ALKAPURI ARCADE PREMISES ONUS CO - OP, SOCIETY LTD. THE INVESTMENT IS ONLY RS.1,500/ - OF 30 SHARES AND IN CASE OF PRAGATI SAHAKARI BANK LTD. RS.50,000/ - . THE INVESTMENT IN SHARES OF NIBBANA LTD. IS RS.3.02 CRORE WHICH WERE PURCHASED BY THE ASSESSEE COMPANY IN THE YEAR 1997 - 98 FROM ICD LOAN, WHICH WAS RE - PAID IN A. Y. 2003 - 04 FROM OWN FUNDS, WHICH HAS BEEN MA NO. 99 - 100/AHD/2014 (IN I.T.A NO. 2596 - 97/AHD/2012 ) A.Y. 2008 - 09 & 2009 - 10 PAGE NO M/S. TML INDUSTRIES LTD VS. ACIT 3 ACC EPTED BY DEPARTMENT IN PRECEDING YEARS. THE ASSESSEE ALSO RELIED IN CASE OF RELIANCE UTILITIES WHICH IS SQUARELY APPLICABLE IN CASE OF ASSESSEE AS IT HAS SHARE CAPITAL RESERVES AND SURPLUS AND OPERATING PROFIT DURING THE CURRENT YEAR. THUS, AFTER CONSIDERI NG THE SUBMISSION AND FACTS OF THE CASE, WE UPHOLD THE ORDER OF CIT(A).' IN THE ABOVE PARA, YOUR HONOUR HAS MENTIONED THE FACTS THAT THE INVESTMENTS MADE IN PRAGATI SAHAKARI BANK LTD. AND ALKAPURI ARCADE PREMISES ONUS CO - OP. SOCIETY LTD. WERE MADE FOR PUR POSE OF BUSINESS TO CONTROL THE MANAGEMENT WHICH ARE NOT CORRECT. THE CORRECT FACTS ARE THAT INVESTMENTS MADE IN PRAGATI SAHAKARI BANK LTD. AND ALKAPURI ARCADE PREMISES ONUS CO - OP. SOCIETY LTD, WERE YIELDING TAXABLE INCOME. THE RE FORE, SHOULD NOT BE CONSID ERED FOR THE PURPOSE OF CALCULATING DISALLOWANCE U/S 14A. THESE FACTS HAVE BEEN STATED IN THE WRITTEN SUBMISSIO N BEFORE THE CIT(A) IN A.Y. 2008 - 9 (ON PAGE NO. 10 OF PAPER BOOK) AND IN PARA 7.3.5 ON PAGE 35 OF CIT(A) 'S ORDER FOR A.Y. 2008 - 09 . THIS BEING MISTAKE APPARENT FROM RECORD, YOUR HONOURS ARE REQUESTED TO RECTIFY THE SAME THOUGH IN OUR RESPECTFUL SUBMISSION, CONCLUSION WILL NOT CHANGE. MOREOVER, IN THE SAME PARA; YOUR HONOURS HAVE MENTIONED THAT THE INVESTMENT IN SHARES OF NIBBANA LTD. IS RS.3. 02 CRORE WHICH WERE PURCHASED BY THE ASSESSEE COMPANY IN THE YEAR 1997 - 98 FROM ICD LOAN, WHICH WAS RE - PAID IN A.Y. 2003 - 04 FROM OWN FUNDS HAS BEEN ACCEPTED BY DEPARTMENT IN PRECEDING YEARS. IN THIS REGARD, APPELLANT WOULD LIKE TO DRAW ATTENTION OF HONB'BL E BENCH THAT THE FACTS REGARDING THE INVESTMENT OF RS.3.02 CRORE ARE THE FACTS OF MUMUKSHU FINANCE & SERVICES LTD. AND NOT FOR NIBBANA LTD. THIS BEING MISTAKES APPARENT FROM RECORD, YOUR HONOUR IS REQUESTED TO RECTIFY THE NAME. FOR THIS PURPOSE YOUR HON'BL E BENCH MAY REFER FOR A.Y.2008 - 09 TO CIT(A) ORDER PARA 7.3.6 & 7 PAGE 35 & 36 AND WRITTEN SUB MISSIONS BEFORE CIT(A) AT PAGE 12 OF IT AT PAPER BOOK 2.1 IDENTICAL PLEADINGS ARE MADE IN ASSESSMENT YEAR 2009 - 10. MA NO. 99 - 100/AHD/2014 (IN I.T.A NO. 2596 - 97/AHD/2012 ) A.Y. 2008 - 09 & 2009 - 10 PAGE NO M/S. TML INDUSTRIES LTD VS. ACIT 4 3 . WITH THE ASSISTANCE OF LD. REPRESENTATIV ES, WE HAVE GONE THROUGH THE RECORD CAREFULLY. THE POWER OF RECTIFICATION U/S. 254(2) OF THE INCOME TAX ACT CAN BE EXERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT WHICH IS APPARENT FROM THE RECORD AND NOT A MISTAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS. WE FIND THAT ASSESSEE HAS POINTED OUT THE APPARENT ERRORS IN THE ORDER OF THE TRIBUNAL. THESE ERRORS ARE BEING EXPUNGED AND THE TRUE FACTS PLEADED BY THE ASSESSEE IN PARA 2 SUB - PARA 2 BE READ AS PART OF THE TRIBUNAL S ORDER. THESE FACTS ARE AS UNDER: - THE CORRECT FACTS ARE THAT INVESTMENTS MADE IN PRAGATI SAHAKARI BANK LTD. AND ALKAPURI ARCADE PREMISES ONUS CO - O P. SOCIETY LTD, WERE YIELDING TAXABLE INCOME. THEREFORE, SHOULD NOT BE CONSIDERED FOR THE PURPOSE OF CALCULATING DISALLOWANCE U/S 14A. IN THIS REGARD, APPELLANT WOULD LIKE TO DRAW ATTENTION OF HONB'BLE BENCH THAT THE FACTS REGARDING THE INVESTMENT OF R S.3.02 CRORE ARE THE FACTS OF MUMUKSHU FINANCE & SERVICES LTD. AND NOT FOR NIBBANA LTD. 3.1 THEY BE READ IN THE ORDER OF THE TRIBUNAL INSTEAD OF THE FACTS NOTICED IN PARA 10. 4 . AS FAR AS THE SECOND MISTAKE POINTED OUT BY THE ASSESSEE IS CONCERNED, IT HAS PLEADED THAT TRIBUNAL HAS ERRED IN SE TTING ASIDE THE ISSUE REGARDING COMPUTATION OF DISALLOWANCE FOR THE PURPOSE OF SECTION 14A . T O OUR MIND , IT IS NOT AN APPARENT ERROR RATHER IN THE GARB OF POINTING OUT ERROR , ASSESSEE IS TRYING TO REVIEW THE ORDER OF THE TRIBUNAL , THEREFORE , WE DO NOT MA NO. 99 - 100/AHD/2014 (IN I.T.A NO. 2596 - 97/AHD/2012 ) A.Y. 2008 - 09 & 2009 - 10 PAGE NO M/S. TML INDUSTRIES LTD VS. ACIT 5 FIND ANY ERROR ON THIS ISSUE. THE MISCELLANEOUS APPLICATIONS OF THE ASSESSEE ARE ALLOWED AS INDICATED ABOVE. ORDER PR ONOUNCED IN THE OPEN COURT ON 24 - 06 - 2015 SD/ - SD/ - ( N.S. SAINI ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD : DATED 24 /06 /2015 AK / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AH MEDABAD 6. GUARD FILE. BY ORDER/ , / ,
Mehul