Purna SSK Ltd.,, Hingoli v. ACIT, Cir.-1,, Aurangabad

MA 23/PUN/2011 | 2002-2003
Pronouncement Date: 04-03-2011 | Result: Partly Allowed

Appeal Details

RSA Number 2324524 RSA 2011
Assessee PAN AAAAP0899B
Bench Pune
Appeal Number MA 23/PUN/2011
Duration Of Justice 2 month(s) 21 day(s)
Appellant Purna SSK Ltd.,, Hingoli
Respondent ACIT, Cir.-1,, Aurangabad
Appeal Type Miscellaneous Application
Pronouncement Date 04-03-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 04-03-2011
Assessment Year 2002-2003
Appeal Filed On 13-12-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE SHRI I.C. SUDHIR J UDICIAL MEMBER AND SHRI D. KARUNAKARA RAO A CCOUNTANT M EMBER M ISCELLANEOUS APPLICATION . NO. 23 /PN/ 20 1 1 (ARISING OUT OF ITA NO. 1 75 /PN/20 1 0 ) ( ASSTT. YEAR : 200 2 - 03 ) M /S. PURNA S.S.K. LTD. APP LICA NT BASMATNAGAR TAL - BASMAT . DIST HINGOLI PAN : AA AAP0899B VS. ACIT CIRCLE - 1 RESPONDENT AURANGABAD APP LIC ANT BY : SHRI S. N . DOSHI RESPONDENT BY : SHRI HARESHWAR SHARMA ORDER PER D KARUNAKARA RAO AM THE MISCELLANEOUS APPLICATION UNDER CONSIDERATION IS ARISING OUT OF APPEAL ITA NO. 1 75/PN/2010 FOR A.Y. 2002 - 03 . AT THE OUTSET COUNSEL FOR ASSESSEE MENTIONED THAT THE SAID ORDER IS DATED NIL AND IT MUST BE A TYPOGRAPHICAL MISTA KE. ON EXAMINING THE ORIGINAL RECORDS WE FIND THE ORDER IS ACTUALLY DATED 13/12/2010 . ACCORDINGLY AFTER THE AMENDMENT THE IMPUGNED ORDER SHALL BE READ AS DATED 13/12/2010 WHERE EVER IT IS APPLICABLE . THUS THE REQUEST OF THE AR IN THIS REGARD IS ALLO WED. FURTHER THE COUNSEL MENTIONED THAT THE TRIBUNAL HAS DECIDED ON AN ISSUE ABOUT THE TAXABILITY OF SUM O F RS. 3.2 CRORE AS INCOME ACCRUED TO THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION WITHOUT CONSIDERING A CITED JUDGMENT OF THE APEX COURT . AS PE R THE COUNSEL THE TRIBUNAL RELIED ON OTHER JUDGMENTS SUPREME COURT IN THE CASE OF CENTRAL INDIA ELECTRICITY SUPPLY COMPANY 247 ITR 55 AND STATE BANK OF TRAVANCORE 158 ITR 132 AND THE BOMBAY HIGH COURT JUDGMENT IN THE CASE OF INDIA FINANCE AND CONSTRUCT ION COMPANY PVT. LTD. V/S. B.N. PANDA 200 ITR 710 WHILE CONFIRMING THE ADDITIONS. FURTHER THE TRIBUNAL ALSO DISTINGUISHED THE JUDGMENT OF SUPREME COURT IN THE CASE OF UNITED COMMERCIAL BANK WHILE HOLDING THAT THE SUM OF RS. 3.2 CRORES HAS ACCRUED TO THE ASSESSEE AND THEREFORE TAXABLE FOR THE YEAR UNDER CONSIDERATION. IN THIS BACKGROUND THE COUNSEL ARGUED THAT THE TRIBUNAL ERRED IN NOT CONSIDERING SUPREME COURT JUDGMENT IN THE CASE OF SARDAR ARJUN SINGH AHUWALIA 240 ITR 693 FOR THE PROPOSITION THAT IN COME OF THAT ASSESSEE IS LIABLE TO BE ASSESSED IN SUBSEQUENT ASSESSMENT YEARS I.E. A.YS. 66 - 67 AND 67 - 68 AND IN THE YEAR 46 - 47 AND 47 - 48 M.A. NO. 23 /PN/ 2011 PUR NA SSK LTD. (ARISING OUT OF ITA NO. 1757 / PN/2010 ) ( A.Y 200 2 - 03) . 2 AND FACTS OF THE CASE RELATES TO TAXABILITY OF THE ARREARS OF SALARY U/S 15(C ) OF I T ACT 1961. ON GOING THROUGH THE ORDERS AS WELL AS THE SAI D JUDGMENTS RELIED UPON BY THE COUNSEL WE ARE OF THE OPINION THAT THE SAID SUPREME COURT JUDGMENT IS DISTINGUISHED ON FACTS. FURTHER WE FIND THE ORDER OF TRIBUNAL IS A SPEAKING ONE AND A REASONED ORDER AND ANY INTERFERENCE IN TH E SAID ORDER IN OUR OPINION AMOUNT S TO THE REVIEW OF OUR OWN ORDER WHICH IS IMPERMISSIBLE UNDER THE LAW . THEREFORE W E ARE OF THE OPINION THAT THE CITATIONS RELIED UPON BY THE LD COUNSEL I.E 24 0 ITR 693 AND 6 7 ITR 11 MAY NOT BE HAVE THE EFFECT OF ALTER ING THE DECISION OF THE TRIBUNAL . ACCORDINGLY WE FIND NO MISTAKE APPARENT FROM THE RECORD IN THE ORDER OF THE TRIBUNAL. THEREFORE THIS PART OF THE PRAYER IS DISMISSED . 2. ANCILLARY TO THE ARGUMENTS ON THE ISSUES RAISED AND DISCUSSED ABOVE THE ASSESS EES COUNSEL RAISED ANOTHER ARGUMENT THAT THE SAID AMOUNT OF RS. 3.2 CRORES BECAME A BAD DEBT IN THE YEAR UNDER CONSIDERATION ITSELF AND THEREFORE THE AMOUNT HAS TO BE ALLOWED AS BAD DEBT TO THE ASSESSEE IN THIS YEAR ITSELF . IN OUR OPINION THE ISSUE OF B AD DEBTS HAS TO BE DECIDED CONSIDERING DIFFERENT FACTS AND THE JUDICIAL PRONOUNCEMENT ON THAT TOPIC. AS SUCH THIS IS A NEW ARGUMENT RAISED BY THE COUNSEL FOR THE FIRST TIME BEFORE US AND HENCE IT IS OUTSIDE THE SCOPE OF THE PROVISIONS OF SECTION 254(2) OF THE ACT . THEREFORE THE PRAYER OF THE ASSESSEE IS TO DECIDE THE ISSUE IN HIS FAVOUR ON THIS NEW ARGUMENT IS OUTSIDE THE SCOPE OF PROVI SIONS OF SEC. 254(2) OF THE ACT AND HENCE THE SAME IS DISMISSED . 4. COMING TO THE 4 TH PRAYER IN THE MA WE FIND THAT THE ISSUE RELATE TO THE APPLICABILITY OF THE PROVISIONS OF SEC. 43B OF THE ACT READ WITH THE RATIO IN THE CASE OF AL O M EXTRUSIONS LTD. 319 ITR 306(SC). AS PER THE COUNSEL OF THE ASSESSEE THE CIT(A) ERRED IN REMANDING INSTEAD OF DISPOSING OF THIS ISSUE R ELYING ON THE SAID APEX COURT JUDGMENT. CIT(A) RESTORED THE MATTER TO THE FILES OF THE A.O FOR FRESH ORDER. I N OUR OPINION I T IS A DECIDED ISSUE BY VIRTUE OF THE SAID JUDGMENT THAT THE EMPLOYEES CONTRIBUTIONS TO P.F. IF PAID PRIOR TO THE DUE DATE FOR FI LING THE RETURN OF INCOME THE ASSESSEE IS ENTITLED TO DEDUCTION IN VIEW OF DELETION OF PROVISO AS HELD BY THE ABOVE REFERRED SUPREME COURT JUDGMENT. THEREFORE CONSIDERING THE FACT THAT ASSESSEE MADE CONTRIBUTIONS BEFORE THE DUE DATE FOR FILING OF THE R ETURN ASSESSEE IS ENTITLED TO RELIEF AND THE ORDER OF THE TRIBUNAL IN PARA 7.2 IS REQUIRED TO BE AMENDED. IN OUR OPINION FAILURE TO CONSIDER A BINDING APEX COURT JUDGMENT BY THE CIT(A) CONSTITUTES A MISTAKE APPARENT FROM THE RECORDS. THEREFORE THIS PAR T OF THE PRAYER IS ALLOWED IN FAVOUR OF THE ASSESSEE. M.A. NO. 23 /PN/ 2011 PUR NA SSK LTD. (ARISING OUT OF ITA NO. 1757 / PN/2010 ) ( A.Y 200 2 - 03) . 3 5. IN THE RESULT MISCELLANEOUS APPLICATION IS PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 4TH MARCH 2010 . SD/ - SD/ - ( I.C. SUDHIR ) (D. KARUNAKARA RAO) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE DATED THE 4TH MARCH 201 1 US COPY OF THE ORDER IS FORWARDED TO : 1. A PPLICAN T 2. RESPONDENT 3. CIT(A) - AURANGABAD 4. CIT CONCERNED 5. D.R. ITAT A BENCH 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL PUNE