Deepkiran Foods Pvt.Ltd.,, Ahmedabad v. The ACIT.,Range-1,, Ahmedabad

MA 240/AHD/2012 | 2008-2009
Pronouncement Date: 05-07-2013 | Result: Partly Allowed

Appeal Details

RSA Number 24020524 RSA 2012
Assessee PAN AABCD2018F
Bench Ahmedabad
Appeal Number MA 240/AHD/2012
Duration Of Justice 6 month(s) 7 day(s)
Appellant Deepkiran Foods Pvt.Ltd.,, Ahmedabad
Respondent The ACIT.,Range-1,, Ahmedabad
Appeal Type Miscellaneous Application
Pronouncement Date 05-07-2013
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 05-07-2013
Assessment Year 2008-2009
Appeal Filed On 28-12-2012
Judgment Text
M.A. NO 240/A/2012(I N ITA NO1451/A/2012 . A.Y. 2008- 09 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD (BEFORE SHRI G.C.GUPTA VICE PRESIDENT & SHRI ANIL C HATURVEDI A.M.) M.A. NO. 240 /AHD/2012 (IN ITA NO. 1 451/AHD/2012) (ASSESSMENT YEAR: 2008-09) DEEPKIRAN FOODS PVT. LTD. 101 ASTRON TECH PARK OPP. FUN REPUBLIC SATELLITE AHMEDABAD-380015 (APPELLANT) VS. THE A.C.I.T. RANGE-1 AHMEDABAD (RESPONDENT) PAN: AABCD 2018F APPELLANT BY : SHRI A.C. SHAH A.R. RESPONDENT BY : SHRI RAHUL KUMAR SR. D.R. ( )/ ORDER DATE OF HEARING : 15-03-20 13 DATE OF PRONOUNCEMENT : 05 -07-2013 PER SHRI ANIL CHATURVEDI A.M. 1. IN THIS CASE ASSESSEE HAS FILED MISC. APPLICATI ON DATED 27.12.2012 ARISING OUT APPEAL OF ASSESSEE IN ITA NO. 1451/AHD/2012 ORD ER DATED 14.10.2012 FOR ASSESSMENT YEAR 2008-09. 2. IN THE APPLICATION THE ASSESSEE HAS INTERALIA PO INTED OUT ALLEGED MISTAKES WHICH ACCORDING TO IT ARE APPARENT ON RECORD AND WH ICH NEEDS TO BE RECTIFIED AND THEREFORE THE ORDER MAY BE RECALLED. M.A. NO 240/A/2012(I N ITA NO1451/A/2012 . A.Y. 2008- 09 2 3. ACCORDING TO THE APPLICATION THE FIRST MISTAKE IN THE ORDER WAS IN PARA NO. 11 ON PAGE 11. IN THE THIRD LINE FROM BOTTOM IT WAS ME NTIONED TO ATTAIN TEMPERATURE OF 18 DEG.C. SO AS TO MAINTAIN ITS SH ELF LIFE OF 2 YEARS. IN THE APPLICATION IT HAS BEEN STATED THAT THE AMBIENT TEM PERATURE IS -18 DEG. C AND NOT 18 DEG. C. IT WAS THEREFORE SUBMITTED THAT THE MINUS SHOULD BE PREFIXED TO THE WORD 18 DEG.C. THE SECOND MISTAKE WHICH HAS BEEN POINTED OUT IN THE APPLICATION IS THAT DURING THE COURSE OF HEARING TH E ASSESSEE HAD PLACED RELIANCE ON THE DECISION OF GUJARAT HIGH COURT IN T HE CASE OF PRABHUDAS KISHORDAS TOBACCO PRODUCTS PVT. LTD. 282 ITR 568 AN D ALSO ON OTHER DECISIONS IN SUPPORT OF ITS CONTENTION THAT THE OUT SOURCED ITEMS WERE MANUFACTURED UNDER ITS SUPERVISION AND CONTROL OF T HE ASSESSEE AND THEREFORE THE ASSESSEE SHOULD BE ALLOWED THE DEDUCTION EVEN O N THE PROFIT EARNED ON OUTSOURCE ITEMS. THE THIRD MISTAKE WHICH HAS BEEN POINTED OUT IS THAT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE WITH RESPE CT TO INCOME FROM EXPORT INCENTIVES AND INTEREST INCOME WAS NOT ADJUDICATED AND THE SAME WAS DISMISSED AS NOT SERIOUSLY PRESSED. THE LEARNED A. R. SUBMITTED THAT THE ISSUE OF DEDUCTION ON THE AFORESAID INCOME IS COVER ED IN ITS FAVOUR BY SPECIAL BENCH DECISION OF INDORE TRIBUNAL IN THE CASE OF MA RAL OVERSEAS LTD. VS. ADDL.CIT 16 ITR (TRIB) 565 INDORE SPECIAL BENCH. TH E LEARNED A.R. THUS SUBMITTED THAT THE AFORESAID MISTAKE ARE APPARENT F ROM RECORD AND THEREFORE THE ORDER BE MODIFIED/RECALLED. THE LEARNED D.R. ON THE OTHER SUBMITTED THAT APART FROM THE TYPOGRAPHICAL ERROR POINTED OUT BY L EARNED A.R THE OTHER SO CALLED MISTAKES DO NOT FALL IN THE CATEGORY OF MIST AKE APPARENT FROM RECORD AND THEREFORE OPPOSED THE PLEA OF LEARNED A.R. TO RECALL THE ENTIRE ORDER. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. ON PERUSING THE ORDER WE FIND THAT ON PAGE 11 IN THE THIRD LAST LINE IT IS STATED TO ATTAIN TEMPERATURE OF 18 DEG.C SO AS TO MAINTAIN IT S SHELF LIFE OF 2 YEARS WHICH ACCORDING TO US IS A TYPOGRAPHICAL ERROR. AC CORDINGLY THE MISTAKE IS M.A. NO 240/A/2012(I N ITA NO1451/A/2012 . A.Y. 2008- 09 3 CORRECTED AND THEREFORE THE SENTENCE SHOULD READ AS TO ATTAIN TEMPERATURE OF -18 DEG.C SO AS TO MAINTAIN ITS SHELF LIFE OF 2 YEA RS. 5. WITH RESPECT TO PROFITS ON THE ITEMS OUTSOURCED AND NOT MANUFACTURED BY THE ASSESSEE. WE FIND THAT ON PAGE 12 AND 13 THE MATTER HAS BEEN DISCUSSED IN THE FOLLOWING WORDS. FROM THE FLOW CHART OF MANUFACTURING PROCESS IN TH E CASE OF MATHIA/CHORAFALI SUBMITTED BY THE LD. A.R. WE F IND THAT THE PROCESS IS DESCRIBED AS UNDER:- RECEIVING OF MATHIA / CHORAFALI IN BULK PACKA GING FROM SUPPLIER IN THE PRODUCTION AREA THEREAFTER THE PROCESS OF SORTING TAKES PLACE AND THEN PACKING IN CONSUMER PACKS AND THEREAFTER FREEZING T O -18O C IN DEEP STORAGE FREEZER. THUS FROM THE FLOW CHART IT APPEARS THAT IN THE CAS E OF MATHIA AND CHORAFALI THE ASSESSEE DOES REPACKAGING. FURTHER FROM THE DE TAILS OF SALES SUBMITTED BY THE ASSESSEE WE FIND THAT THE SALES INCLUDES SAL E OF CORDIANDER LEAVES CHORAFALI CUSTARD APPLE PULP MAGAJ LADU I QF SHREDDED COCONUT AND MISC. ITEMS. FROM THE DETAILS IT APPEARS THAT TH E AFORESAID ITEMS ARE SOURCED READY MADE AND NOT MANUFACTURED IN THE FACT ORY OF ASSESSEE. THE TOTAL SALES OF SUCH ITEMS AS PER THE SUMMARY IS RS. 85 68 942/-. WE ARE OF THE VIEW THAT FOR THE AFORESAID ITEMS WHICH HAVE BE EN OUTSOURCED AND NOT MANUFACTURED IN THE PREMISES OF THE ASSESSEE BUT HA VE ONLY BEEN REPACKAGED WITH SOME OTHER CONNECTED ACTIVITIES AT THE ASSESSEES PREMISES CANNOT BE CONSIDERED TO BE A MANUFACTURING ACTIVITY BY THE ASSESSEE. 6. CONSIDERING THE ABOVE FACTUAL POSITION THE PROF IT EARNED FROM OUTSOURCE ITEM WAS NOT CONSIDERED TO BE MANUFACTURING ACTIVITY BY THE ASSESSEE. THIS BEING A FACTUAL FINDING WE ARE OF THE VIEW THAT THERE IS NO APPARENT MISTAKE ON THIS GROUND AND FOR WHICH WE FIND SUPPORT IN THE DECISIO N IN THE CASE OF CIT VS. MALWA TEXTURISING P. LTD. (2007) 292 ITR 488 (MP) W HERE THE HON. COURT HAS HELD UNDER SUB-SECTION (2) OF SECTION 254 OF THE I.T. ACT 1961 THE APPELLATE M.A. NO 240/A/2012(I N ITA NO1451/A/2012 . A.Y. 2008- 09 4 TRIBUNAL CAN ONLY RECTIFY ANY MISTAKE APPARENT FROM THE RECORD AND CANNOT REHEAR AN APPEAL AND REVERSE ITS FINDINGS ON THE CO NTENTIONS RAISED BY THE PARTIES AT THE TIME OF HEARING THE APPEAL. 7. WITH RESPECT TO THE ADDITIONAL GROUND BEING DIS MISSED WITHOUT ANY FINDING THE ASSESSEE HAS SUBMITTED THAT PROFIT FROM EXPORT INCENTIVES AND INTEREST INCOME IS COVERED IN ITS FAVOUR BY THE DECISION OF MARAL OVERSEAS LTD. VS. ADDL. CIT 16 ITR (TRIB) 565 INDORE SPECIAL BENCH. IN VIEW OF THESE FACTS WE ARE OF THE VIEW THAT THIS MATTER BE REMITTED TO THE FILE OF ASSESSING OFFICER FOR EXAMINING THE FACTS IN THE CASE OF ASSESSEE WITH TH AT OF AFORESAID DECISION OF MARAL OVERSEAS LTD. VS. ADDL. CIT 16 ITR (TRIB) 565 INDORE SPECIAL BENCH AND THEREAFTER DECIDE THE ISSUE AS PER LAW AND AFTE R GIVING A REASONABLE OPPORTUNITY OF HEARING TO ASSESSEE. 8. THUS THIS M.A. OF THE ASSESSEE IS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 05- 07 -2013. SD/- SD/- (G.C.GUPTA) (ANIL CHATURVEDI) VICE PRESIDENT ACCOUNTANT MEMBER AHMEDABAD. TRUE COPY RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR. ITAT AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT AHMEDAB