The DCIT, Circle-5,, Ahmedabad v. Nirma Limited, Ahmedabad

ITA 3016/AHD/2009 | 1997-1998
Pronouncement Date: 22-01-2010 | Result: Dismissed

Appeal Details

RSA Number 301620514 RSA 2009
Assessee PAN AAACN5350K
Bench Ahmedabad
Appeal Number ITA 3016/AHD/2009
Duration Of Justice 2 month(s) 13 day(s)
Appellant The DCIT, Circle-5,, Ahmedabad
Respondent Nirma Limited, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 22-01-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 22-01-2010
Assessment Year 1997-1998
Appeal Filed On 09-11-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BEFORE S/SHRI BHAVNESH SAINI JM AND D.C.AGRAWAL A M DY CIT CIR.5 AHMEDABAD 2 ND FLOOR C.U.SHAH CHAMBERS ASHRAM ROAD AHMEDABAD 380 009. V/S . M/S NIRMA LTD.NIRMA HOUSE NEAR INCOME- TAX CIRCLE ASHRAM ROAD AHMEDABAD PAN NO.AAACN 5350K (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI RAJEEV AGARWAL CIT DR RESPONDENT BY:- SHRI HIMANSHU SHAH AR O R D E R PER D.C. AGRAWAL ACCOUNTANT MEMBER. THIS APPEAL HAS BEEN FILED BY THE REVENUE RAISING T HE FOLLOWING GROUNDS :- 1. THE LD. CIT(A)-I AHMEDABAD HAS ERRED IN LAW AND O N FACTS IN DIRECTING THE ASSESSING OFFICER TO EXCLUDE SALE TAX AND EXCISE DUTY FROM TOTAL TURNOVER WHILE COMPUTING THE DEDUCT ION U/S 80 HHC OF THE IT ACT. 2. THE LD. CIT(A)-I AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE ASSESSING OFFICER TO DECIDE THE ISSUE OF EXCLUSION OF INTER DIVISION TRANSFER OF AMOUNT OF RS.2070.55 LACS FROM THE TOTAL TURNOVER AFTER ALLOWING THE APPELLANT AN OPPO RTUNITY OF BEING HEARD. 3. THE LD. CIT(A) I AHMEDABAD HAS ERRED IN LAW AND O N FACTS IN DIRECTING THE ASSESSING OFFICER TO RECALCULATE THE INTEREST U/S 244A AND GRANT THE REFUND UPTO 16.01.2009. ITA NO.3016/AHD/2009 ASST. YEAR :1997-98 2 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE CIT(A) I AHMEDABAD OUGHT TO HAVE UPHELD THE ORDER OF THE ASS ESSING OFFICER. 5. IT IS THEREFORE PRAYED THAT THE ORDER OF THE LD. C IT(A) I AHMEDABAD MAY BE SET ASIDE AND THAT OF THE ASSESSIN G OFFICER BE RESTORED. 2. LD. CIT(A) PASSED AN ORDER ON 15.9.2009 AGAINST ORDER OF A.O. DATED 15.1.2009 BEING ORDER GIVING EFFECT TO THE TR IBUNALS ORDER DATED 30.9.2008 FOR ASSESSMENT YEAR 1997-98. IN THE ORDER GIVING EFFECT TO ITATS ORDER THE ASSESSING OFFICER DID NOT RECOMPUT E THE DEDUCTION UNDER SECTION 80 HHC THOUGH THE SAME WAS DIRECTED B Y THE TRIBUNAL AS PER PARA 36 OF ITS ORDER. THE LD. CIT(A) EXAMINED T HE ORDER OF ASSESSING OFFICER DATED 15.1.2009 AND FOUND THAT HE HAS NOT E XCLUDED SALES TAX AND EXCISE DUTY FROM TOTAL TURNOVER FOR COMPUTING DEDUC TION UNDER SECTION 80 HHC. THE CIT(A) DIRECTED THE ASSESSING OFFICER TO F OLLOW THE ORDER OF THE TRIBUNAL AND EXCLUDE SALES-TAX AND EXCISE DUTY FROM THE TOTAL TURNOVER WHILE COMPUTING DEDUCTION UNDER SECTION 80 HHC. 2.1 IN RESPECT OF OTHER ISSUE ASSESSEE OBJECTED BEF ORE CIT(A) THAT ASSESSING OFFICER HAS NOT CORRECTLY GRANTED INTERES T UNDER SECTION 244A OF THE ACT. HE WOULD TO HAVE GRANTED INTEREST UNDER SE CTION 244A OF THE ACT FROM THE DATE OF THE PAYMENT TILL REFUND ORDER IS I SSUED ON THE REVISED INCOME AS COMPUTED IN THE ORDER DATED 15.1.2009. LD . CIT(A) EXAMINED THE ISSUE AND RULE 119A(B) WHEREIN IT IS LAID DOWN THAT INTEREST IS TO BE CALCULATED FOR EVERY MONTH OR PART OF A MONTH COMPR ISED IN A PERIOD AND ANY FRACTION OF A MONTH SHALL BE DEEMED TO A FULL M ONTH. THE ASSESSING OFFICER HAD ALLOWED INTEREST UPTO 31.12.2008 ONLY W HEREAS AS PER RULE 119A(B) INTEREST SHOULD HAVE BEEN ALLOWED UPTO 16.1 .2009. LD. CIT(A) 3 ACCORDINGLY DIRECTED TO ALLOW THE INTEREST AS PER R ULE 119A(B). THE REVENUE HAS OBJECTED TO THIS ORDER BY RAISING FOLLO WING GROUND :- 3. THE LD. CIT(A) I AHMEDABAD HAS ERRED IN LAW AND ON FACTS IN DIRECTING THE ASSESSING OFFICER TO RECALCULATE THE INTEREST U/S 244A AND GRANT THE REFUND UPTO 16.01.2009. 3. WE HAVE HEARD LD. DEPARTMENTAL REPRESENTATIVE AN D THE LD. AUTHORISED REPRESENTATIVE. THE OBJECTION OF THE DEP ARTMENT IS THAT ORDER DATED 15.1.2009 IS ONLY AN INTERIM ORDER AS THE TRI BUNAL VIDE ITS ORDER DATED 30.9.2008 HAVE DIRECTED TO CARRY OUT CERTAIN ENQUIRIES IN RESPECT OF OTHER ISSUES. SINCE THE ENQUIRIES WERE NOT CARRIED OUT THE ORDER OF THE ASSESSING OFFICER WAS NOT COMPLETE AND THEREFORE LD. CIT(A) WAS IN ERROR IN ENTERTAINING THE APPEAL. WE HOWEVER DO N OT AGREE WITH THIS PROPOSITION OF LD. DEPARTMENTAL REPRESENTATIVE. THE ORDER GIVING APPEAL EFFECT IS AN ORDER APPEALABLE UNDER SECTION 246A AN D THEREFORE CIT(A) WAS JUSTIFIED IN ENTERTAINING THE APPEAL. 4. AS A RESULT APPEAL FILED BY THE REVENUE IS DISM ISSED. SD/- SD/- (BHAVNESH SAINI) (D.C.AGRAWAL) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD DATED : 22/01/2010 MAHATA/- ORDER PRONOUNCED IN OPEN COURT ON 22/01/2010 4 COPY OF THE ORDER FORWARDED TO:- 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD