The Gujarat Tea Depot Co.,, Ahmedabad v. The CIT.,A'abd-VI,, Ahmedabad

MA 145/AHD/2011 | 2006-2007
Pronouncement Date: 02-12-2011 | Result: Allowed

Appeal Details

RSA Number 14520524 RSA 2011
Assessee PAN AAAFT5356J
Bench Ahmedabad
Appeal Number MA 145/AHD/2011
Duration Of Justice 2 month(s) 27 day(s)
Appellant The Gujarat Tea Depot Co.,, Ahmedabad
Respondent The CIT.,A'abd-VI,, Ahmedabad
Appeal Type Miscellaneous Application
Pronouncement Date 02-12-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 02-12-2011
Assessment Year 2006-2007
Appeal Filed On 05-09-2011
Judgment Text
-1- IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH 'C' BEFORE SHRI D K TYAGI JUDICIAL MEMBER & SHRI A MOHAN ALANKAMONY- AM M A NO.145/AHD/2011 [ARISING OUT OF ITA NO.2864/AHD/2009 (ASSESSMENT YEAR:-2006-07) THE GUJARAT TEA DEPOT CO. WAGH BAKRI HOUSE NR. JMC HOUSE OPP. PARIMAL GARDEN AMBAWADI AHMEDABAD V/S THE COMMISSIONER OF INCOME TAX- VI AHMEDABAD PAN: AAAFT 5356 J [APPLICANT] [ORIGINAL APPELLANT] [RESPONDENT] [ORIGINAL RESPONDENT] APPLICANT BY :- SHRI J P SHAH AR RESPONDENT BY:- SHRI A K PATEL SR. DR DATE OF HEARING:- 25-11-2011 DATE OF PRONOUNCEMENT:- 02-12-2011 O R D E R PER A MOHAN ALANKAMONY (AM) :- BY THIS MISCELLANEOUS APPLICATION THE ASSESSEE HAS REQUESTED FOR THE REC ALLING OF THE ORDER OF THE ITAT IN ITA NO.2864/AHD/2009 DATED 22 -07-2011. 2 IN THE MISCELLANEOUS APPLICATION THE ASSESSEE HA S SUBMITTED AS UNDER: THE ABOVE APPEAL WAS HEARD ON 14.07.2011 BY 'C' BE NCH OF THE TRIBUNAL CONSISTING OF HON'BLE SHRI O.K. TYAGI AND HON'BLE SHRI A.M. ALANKAMONY. DURING THE COURSE OF HEARING OF THE APP EAL THE APPLICANT'S COUNSEL J.P. SHAH DREW ATTENTION TO THE NOTICE OF THE ASSESSING OFFICER U/S. 142(1) ASKING WHY UNDER SECT ION 14A SOME_ EXPENDITURE SHOULD NOT BE DISALLOWED AGAINST EXEMPT DIVIDEND OF 2 RS.9 13 440/- THEN HE DREW ATTENTION TO PAGE 4 BEI NG THE REPLY OF THE APPLICANT TO THE ASSESSING OFFICER PARTICULARLY POI NTING OUT THAT 'THE APPLICANT HAD INVESTED IN THE UNITS OF MUTUAL FUNDS IN THE EARLIER YEAR OUT OF THE SURPLUS FUNDS AVAILABLE WITH THE APPLICA NT AND NOT OUT OF ANY MONEYS BORROWED FROM OUTSIDE PARTIES. IN THE A.Y. 2 005-06 THIS SUBMISSION WAS ACCEPTED AND THE ADDITION MADE U/S 1 4A WAS RESTRICTED TO ONLY A SUM OF RS.9100 BY THE C.I.T.(A).' IT WAS FURTHER POINTED OUT THAT THE DEPARTMENT HAS ACCEPTED THE ABOVE DECISION OF ASST. YEAR 2005-06 AND THAT RS.9100 IS THE INTEREST OF THE LA ST 3 CAYS STARTING FROM 29.03 2005 TO 31.03.2005 PAYABLE TO HDFC BANK FOR OVERDRAFT OF RS.47 LACS; WHEREAS THE UNITS OF MUTUAL FUNDS WE RE ACQUIRED MUCH EARLIER AND THEREFORE RS.9100 HAS NOTHING TO DO W ITH THE INVESTMENT INTO MUTUAL FUNDS DONE MUCH EARLIER. IN FACT TOTAL INVESTMENT OF RS.3.30 CRORES AS ON 31.03.2005 IN MUTUAL FUNDS WAS REDUCED TO RS.1.00 CRORE AS ON 31.03.2006. IT WAS FURTHER POIN TED OUT TO THE TRIBUNAL THAT HAVING CONSIDERED THE ABOVE REPLY OF THE APPLICANT TO HIS 142(1) NOTICE AND BEARING IN MIND THAT THE DECISION OF C.I.T.(APPEALS) IN ASST. YEAR 2005-06 HAS BEEN ACCEPTED BY C.I.T.(A PPEALS) THE ASSESSING OFFICER DID NOT MAKE ANY ADDITION U/S 14A IN SECTION 143(3) ORDER FOR ASST. YEAR 2004-05. WHEN ALL THESE FACTS WERE POINTED OUT TO THE HON'BLE BENCH THE HON'BLE BENCH POINTED OUT TH AT IF A CONSIDERED VIEW IS TAKEN BY THE ASSESSING OFFICER AFTER HAVING GIVEN 142(1) NOTICE AND AFTER HAVING CONSIDERED APPLICANT'S REPL Y SUCH AN ORDER CANNOT BE SUBJECT MATTER OF SEC.263 AND TOLD THE CO UNSEL NOT TO ARGUE ANY FURTHER AND THE COUNSEL DID NOT. THE COUNSEL A LSO HANDED DOWN A DIRECT DECISION OF AHMEDABAD TRIBUNAL IN THE MATTER OF DISHMAN PHARMACEUTICALS & CHEMICALS LTD. VS. DEPUTY CIT - ( 2011) 45 SOT 37 (AHD) BUT THERE IS NO REFERENCE TO IT IN THE ORD ER. THE COUNSEL ALSO RELIED ON TWO SUPREME COURT DECISIONS IN MALABAR IN DUSTRIAL CO. LTD. VS. CIT - (2000) 243 ITR 83 (SC) JANC[ CIT VS. MAX INDIA LTD. - (2007) 295 ITR 282. IT WAS ALSO POINTED OUT THAT IN VIEW OF THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CA SE OF GODREJ & BOYCE MFG. CO. LTD. REPORTED IN 328 ITR 81 RULE 8D CANNOT BE APPLIED IN ASST. YEAR 2006-07 AS DIRECTED BY C.I.T. (APPEALS) BUT THIS HAS ALSO NOT BEEN REFERRED TO IN THE ORDER. 2. THE APPLICANT HAS GOT AN INTERNET COPY ON 22ND I NST. AND IMMEDIATELY DRAFTED OUT THIS APPLICATION BECAUSE TH E HONBLE BENCH QUITE CONTRARY TO WHAT TRANSPIRED IN THE OPEN COURT DECIDED THE APPEAL AGAINST THE APPLICANT AND IN THE SUBMISSION OF THE APPLICANT THIS IS AN APPARENT ERROR WHICH HAS CAUSED INJUSTICE TO THE AP PLICANT WHICH CAN 3 ONLY BE CURED BY A NECESSARY RECTIFICATION ORDER F OR WHICH ACT OF KINDNESS THE APPLICANT SHALL FOREVER PRAY AND REMA IN GRATEFUL. 3 THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED BE FORE US THAT HE WAS UNDER THE IMPRESSION THAT THE BENCH WAS OF A FAVOURABLE VIEW ALLOWING THE APPEAL OF THE ASSESSEE SINCE THE ORDER OF THE LEARNED CIT PASSED U/S 263 WAS ON CHAL LENGE AND THEREFORE DID NOT ARGUE THE CASE. THE LEARNED COUN SEL FOR THE ASSESSEE SUBMITTED THAT AN OPPORTUNITY MAY BE PROVI DED TO PROPERLY EXPLAIN THE FACTS OF THE CASE BEFORE THE B ENCH. 4 THE LEARNED DR OBJECTED TO THE SUBMISSIONS OF THE LEARNED AR AND STATED THAT THE BENCH CANNOT BE REVIEW ITS O WN DECISION AS PER THE PROVISIONS OF THE ACT. HE PRAYED THAT TH E MISCELLANEOUS APPLICATION MAY BE DISMISSED. 5 WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED T HE MATERIAL ON RECORD. FROM THE FACTS OF THE CASE IT A PPEARS THAT THE LEARNED AR DID NOT ARGUE THE CASE BASED ON WRONG AS SUMPTION. THEREFORE IN THE INTEREST OF JUSTICE WE RECALL TH E ORDER OF THE TRIBUNAL DATED 22-07-2011. 6 IN THE RESULT THE MISCELLANEOUS APPLICATION IS A LLOWED. ORDER PRONOUNCED IN THE COURT TODAY ON 02-12-2011 SD/- SD/- (D K TYAGI) JUDICIAL MEMBER (A MOHAN ALANKAMONY) ACCOUNTANT MEMBER DATE : 02-12-2011 4 COPY OF THE ORDER FORWARDED TO: 1. THE GUJARAT TEA DEPOT CO. WAGH BAKRI HOUSE NR. JMC HOUSE OPP. PARIMAL GARDEN AMBAWADI AHMEDABAD 2. THE ADDL. CIT RANGE-12 AHMEDABAD 3. CIT-VI AHMEDABAD CONCERNED 4. CIT(A) CONCERNED 5. DR ITAT AHMEDABAD BENCH-C AHMEDABAD 6. GUARD FILE BY ORDER DEPUTY REGISTRAR ASSISTANT REGISTRAR ITAT AHMEDABAD