The DCIT, Circle-2,, JAMNAGAR v. Saurashtra Cement Ltd.,, PORBANDAR

MA 33/RJT/2008 | misc
Pronouncement Date: 10-12-2010 | Result: Allowed

Appeal Details

RSA Number 3324924 RSA 2008
Bench Rajkot
Appeal Number MA 33/RJT/2008
Duration Of Justice 2 year(s) 8 month(s) 15 day(s)
Appellant The DCIT, Circle-2,, JAMNAGAR
Respondent Saurashtra Cement Ltd.,, PORBANDAR
Appeal Type Miscellaneous Application
Pronouncement Date 10-12-2010
Appeal Filed By Department
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 10-12-2010
Date Of Final Hearing 10-12-2010
Next Hearing Date 10-12-2010
Assessment Year misc
Appeal Filed On 25-03-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI D.T. GARASIA (JM) M.A. NO. 33/RJT/2008 (ARISING OUT OF ITA NO.131/RJT/2001) (ASSESSMENT YEAR 1989-90) THE ADDL CIT SR-1 VS M/S SAURASHTRA CEMENT LTD RAJKOT NR RLY STATION RANAVAV PAN :NOT AVAILABLE (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI VIMAL DESAI RESPONDENT BY : SHRI AVINASH KUMAR O R D E R GARASIA : BY THIS MISCELLANEOUS APPLICATION THE REV ENUE SUBMITS THAT THERE IS MISTAKE APPARENT IN ORDER OF THE TRIBUNAL DATED 29-03-2005 PASSED IN ITA NO.131/RJT/2001 FOR THE ASSESSMENT YEAR 1989-90. 2. IN THE MISCELLANEOUS APPLICATION THE REVENUE STA TES AS FOLLOWS: 5. ON PERUSAL OF ITATS ORDER IT IS SEEN THAT THE ITAT HAS OBSERVED THAT CIT(A) HAS DELETED THE DISALLOWANCE OF EXPENSE S OF RS.45 44 630/- AND HE HAS NOT RESTORED THIS ISSUE TO THE FILE OF T HE AO. ACCORDINGLY ITAT HAS CONFIRMED THE ORDER OF THE CIT(A). THE OBSERVATION OF THE ITAT THAT THE CIT(A) HAS DEL ETED THE DISALLOWANCE OF EXPENSES OF RS.45 44 680/- IS FACTUALLY INCORREC T. ON PERUSAL OF ACIT(A)S ORDER IT IS SEEN THAT IN FACT THE ASSESS EE PRESSED AGAINST DISALLOWANCE OF RS.37 07 099/- ONLY AS AGAINST DISALLOWANCE OF RS.45 44 630/- MADE BY THE AO. THE CIT(A) GAVE HIS FINDING REGARDING PREVIOUS YEAR EXPENSES A MOUNTING TO RS.31 08 821/- OUT OF RS.37 07 099/- PRESSED BY THE ASSESSEE. THE SUMMARY OF CIT(A)S FINDING IS AS UNDER: (I) ALLOWED IN FAVOUR OF ASSESSEE RS. 15 98 499/- (II) ALLOWED IN FAVOUR OF DEPARTMENT RS. 12 46 468 /- (III) RESTORED BACK TO THE AO RS. 2 63 854/- THUS OUT OF DISALLOWANCE OF RS.45 44 630/- RS.15 9 8 499/- HAS BEEN ALLOWED IN FAVOUR FO THE ASSESSEE. AN AMOUNT OF RS .26 82 277/- HAS BEEN DISALLOWED AND HELD IN FAVOUR OF REVENUE AS UN DER:- RS.8 37 591 NOT PRESSED BY THE ASSESSEE PAGE NO. 6 & 7 RS.12 46 468/- DISALLOWED BY THE CIT(A) PAGE NO.7 T O 10 MA NO.33/RJT/2008 2 RS. 5 98 218/- ASSESSEE COULD NOT SUBSTANTIATE ITS CLAIM PAGE NO.11 AT PARA-4 OF THE LD.ITAT RAJKOTS ORDER DATED 29.3 .2005 THE LD.ITAT HAS GIVEN THE FINDINGS THAT WE THEREFORE CONFIRM THE DISALLOWANCE OF EXPENSES OF RS.45 44 630/- AS MADE BY THE CIT(A). HOWEVER AS IT CAN BE SEEN ABOVE THAT CIT(A) HAS NOT ALLOWED THE FULL CLAIM OF THE ASSESSEEE OF RS. 45 44 630/-. 6. IN VIEW OF THE ABOVE IT IS REVEALED THAT THIS I S A MISTAKE APPARENT FROM RECORD AND IT IS LIABLE TO BE CORRECTED AS HEL D BY THE GUJARAT HIGH COURT IN THE CASE OF SAHRID GEIGY LTD VS COMMISSION ER OF SUR TAX (237- ITR-834). 3. WE HAVE HEARD THE PARTIES AND PERUSED THE ORDER OF THE TRIBUNAL DATED 29-03- 2005. WE ARE IN AGREEMENT WITH THE SIDE OF THE REV ENUE THAT THE ORDER OF THE TRIBUNAL SUFFERS FROM FACTUAL INCONSISTENCIES AND INCORRECTN ESS WHICH REQUIRES TO BE RECTIFIED. HOWEVER THE MISTAKES POINTED OUT BY THE DEPARTMENT CANNOT BE CORRECTED IN AN ORDER AGAINST MISCELLANEOUS APPLICATION. THE INCONSISTEN CIES AND THE INCORRECTNESS IN THE FACTUAL FINDINGS RECORDED BY THE TRIBUNAL REQUIRE D ELIBERATION. THEREFORE WE DEEM IT NECESSARY TO RECALL THE ORDER OF THE TRIBUNAL DATED 29-03-2005 PASSED IN ITA NO.131/RJT/2001. THE APPEAL IS RESTORED IN ITS ORI GINAL NUMBER. THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARING IN DUE COURSE. 4. IN THE RESULT THE MISCELLANEOUS APPLICATION FIL ED BY THE REVENUE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10-12-2010. SD/- SD/- (A.L. GEHLOT) (D.T. GARASIA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DT : 10 TH DECEMBER 2010 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-VI AHMEDABAD 4. THE CIT CONCERNED 5. THE DR (TRUE COPY) BY ORDER ASSTT.REGISTRAR ITAT RAJKOT MA NO.33/RJT/2008 3