THE DCIT, CIRLCLE-5,, Ahmedabad v. RELIANCE PETROPRODUCTS PVT.LTD.,, Ahmedabad

MA 274/AHD/2009 | 2005-2006
Pronouncement Date: 13-01-2010 | Result: Allowed

Appeal Details

RSA Number 27420524 RSA 2009
Assessee PAN AAACR2185C
Bench Ahmedabad
Appeal Number MA 274/AHD/2009
Duration Of Justice 5 month(s)
Appellant THE DCIT, CIRLCLE-5,, Ahmedabad
Respondent RELIANCE PETROPRODUCTS PVT.LTD.,, Ahmedabad
Appeal Type Miscellaneous Application
Pronouncement Date 13-01-2010
Appeal Filed By Department
Order Result Allowed
Bench Allotted B
Tribunal Order Date 13-01-2010
Assessment Year 2005-2006
Appeal Filed On 13-08-2009
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL : B BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA J.M. & HONBLE SH RI N.S. SAINI A.M.) M.A. NO. 274 /AHD./2009 (ARISING OUT OF I.T.A. NO. 3948/AHD./2008) ASSESSMENT YEAR : 2005-2006 DEPUTY COMMISSIONER OF INCOME TAX -VS.- M/S. RELIANCE PETRO PRODUCTS PVT. LTD. CIRCLE-5 AHMEDABAD AHMEDABAD (PAN : AAACR 218 5 C) (APPLICANT) (R ESPONDENT) APPLICANT BY : SHRI M.C. PANDIT SR. D.R. RESPONDENT BY : N O N E O R D E R PER SHRI T.K. SHARMA JUDICIAL MEMBER :- THIS MISCELLANEOUS APPLICATION FILED BY THE DEPART MENT UNDER SECTION 254(2) OF INCOME TAX ACT 1961 FOR TH E ASSESSMENT YEAR 2005-06 IS ARISING OUT OF THE DECISION DATED 04.02.2009 OF THE ITAT B BENCH A HMEDABAD IN I.T.A. NO. 3948/AHD./2008. THE CONTENTS OF THE MISCELLANEOUS APPLICATION FILED BY THE DEPARTMENT READ AS UNDER :- 2. IN THE ABOVE CASE THE HON'BLE ITAT VIDE ITS O RDER DATED 04.02.2009 HAS DISMISSED THE APPEAL FILED BY REVENUE IN A.Y. 2005- 06 AGAINST THE DECISION OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) IN DEL ETING THE ADDITION MADE U/S. 14A OF THE ACT OF RS.8 45 562/-. 3. THE HON'BLE ITAT HAS DISMISSED THE APPEAL OF REV ENUE HOLDING THAT THE TAX EFFECT INVOLVED IN THIS CASE IS BELOW RS.2 LAKHS AN D THEREFORE THE APPEAL IS NOT MAINTAINABLE. HOWEVER IT IS NOTICED THAT THE HON'B LE ITAT HAS NOT CONSIDERED THE NOTIONAL TAX EFFECT INVOLVED IN THIS CASE WHICH IS RS.3 09 412/-. THEREFORE THIS MISCELLANEOUS APPLICATION IS BEING FILED WITH A RE QUEST TO DECIDE THE ISSUE ON MERITS AND ALSO TO REQUEST YOU TO RECALL THE ORDER PASSED BY YOU IN ITA NO. 3948/AHD./2008 DATED 04.02.2009. 4. THIS MISCELLANEOUS APPLICATION IS BEING FILED WI TH THE PRIOR APPROVAL OF THE CIT AHMEDABAD-III AHMEDABAD VIDE HIS LETTER NO. HQ-TEC H.III/RPPPL/2009-10 DATED 02.07.2009. 2. NOTICE OF HEARING POSTING THE AFORESAID MISCELLA NEOUS APPLICATION FILED BY THE REVENUE ON 04.12.2009 WAS SERVED ON THE ASSESSEE VIDE A/D CARD PLACED ON RECORD. DESPITE THE SERVICE OF NOTICE THROUGH REGISTERED POST ON THE DATE FIXED FOR HEAR ING OF THIS MISCELLANEOUS APPLICATION NEITHER ANYB ODY APPEARED FROM THE SIDE OF ASSESSEE NOR AN APPLICATI ON FOR ADJOURNMENT WAS RECEIVED. WE THEREFORE PROCEED TO DECIDE THIS MISCELLANEOUS APPLICATION ON THE BASIS OF SUBMISSION MADE BY THE LD. DEPARTMENTAL REPRESENTATIVE AND MATERIAL AVAILABLE ON RECORD. 2 3. AT THE TIME OF HEARING OF THIS MISCELLANEOUS APP LICATION SHRI M.C. PANDIT LD. SENIOR D.R. APPEARED ON BEHALF OF THE REVENUE AND OBJECTED TO T HE DISMISSAL OF APPEAL IN LIMINE BECAUSE WHEN THE INCOME IS ASSESSED AT NIL LOSSES MAY BE CARRIED FO RWARD TO NEXT YEAR WHICH WILL AFFECT THE CHARGE OF TAX. IN SUPPORT OF THIS THE LD. D.R. RELIED ON THE INST RUCTION NO. 5 OF 2008 DATED 15.05.2008 ISSUED BY CB DT WHEREIN CBDT IN PARA 4 HAS STATED THAT IN LOSS CASE S NOTIONAL TAX EFFECT SHOULD BE TAKEN INTO ACCOUNT . THE NOTIONAL TAX EFFECT IN THIS CASE IS RS.3 09 412/- WHICH IS MORE THAN MONETARY LIMIT FOR FILING THE AP PEAL IS FIXED BY THE CBDT. THE LD. D.R. ALSO RELIED ON THE DECISION OF THE HON'BLE GUJARAT HIGH COURT IN THE C ASE OF CIT VS.- CONCORD PHARMACEUTICALS REPORTED IN (2 008) 220 CTR (GUJ.) 117 WHEREIN IT WAS HELD THAT WHEN DEPARTMENT OBJECTS TO DISMISSAL OF APPEAL TRI BUNAL HAS NO OPTION BUT TO DECIDE THE APPEAL OF REVENUE ON MERIT. IN THIS CASE AT THE TIME OF HEAR ING OF THE APPEAL SHRI P.M. SHUKLA LD. D.R. OBJEC TED TO THE DISMISSAL OF THE REVENUES APPEAL IN LIMINE ON THE BASIS OF TAX EFFECT BEING LESS THAN RS.2 LAKHS. THE APPEAL WAS FILED BY THE REVENUE ON 04.12.2008 AFTER CONSIDERING THE INSTRUCTION NO. 5 OF 2008 DATED 15.05.2008 ISSUED BY THE CBDT. THEREFORE TRIBUNAL HAS COMMITTED A MISTAKE IN DISMISSING THE APPEAL IN LIMINE TRIBUNAL MAY RECALL ITS ORDER DATED 04.02.2 009 FIX THE APPEAL OF THE REVENUE FOR DECIDING THE SAME AFRESH ON MERITS IN ACCORDANCE WITH LAW. 4. HAVING HEARD THE LD. DEPARTMENTAL REPRESENTATIVE WE HAVE CAREFULLY GONE THROUGH THE CONTENTS OF MISCELLANEOUS APPLICATION AS WELL AS THE DECISIO N OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS.- CONCORD PHARMACEUTICALS (SUPRA) AS WELL AS IN STRUCTION NO. 5 OF 2008 DATED 15.05.2008 ISSUED BY THE CBDT. THE LEARNED COMMISSIONER OF INCOME TAX(AP PEALS) DELETED THE ADDITION OF RS.8 45 562/- MADE BY THE A.O. ON ACCOUNT OF DISALLOWANCE OF INTE REST EXPENDITURE UNDER SECTION 14A OF THE INCOME TAX ACT. THE TAX EFFECT AS PER INSTRUCTION NO. 5 OF 2008 DATED 15.05.2008 OF CBDT IS RS.3 09 412/-. TH E TAX EFFECT IS MORE THAN RS.2 LAKHS. THE APPEAL WAS FILED KEEPING IN VIEW THE INSTRUCTION NO. 5 OF 2008 DATED 15.05.2008 (SUPRA) ISSUED BY THE CBDT. THERE FORE IN OUR OPINION TRIBUNAL HAS COMMITTED THE MISTAKE IN DISMISSING THE APPEAL OF THE REVENUE BY IGNORING THE LATEST INSTRUCTION NO. 5 OF 2008 DATED 15.05.2008 ISSUED BY THE CBDT. IN VIEW OF THIS WE HEREBY RECALL THE DECISION OF THE TRIBUNAL DATED 04.02.2009 AND DIRECT THE REGISTRY TO FIX THE APPEA L OF THE REVENUE SO THAT IT MAY BE DECIDED ON MERIT S AFTER GIVING OPPORTUNITY OF BEING HEARD TO BOTH THE SIDES . THE REGISTRY IS DIRECTED ACCORDINGLY. 5. IN THE RESULT BOTH THE MISCELLANEOUS APPLICAT ION FILED BY THE REVENUE IS ALLOWED. THE ORDER PRONOUNCED IN THE COURT ON 13.01.2010. SD/- SD/- (N.S. SAINI) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 13 / 01 / 2010 3 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT 3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R. ITAT AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT AHMEDABAD LAHA/SR.P.S.