M/S Camphor & Allied Products Ltd, Baroda v. The Dy.CIT.,Baroda Circle-1,, Baroda

MA 35/AHD/2010 | 1998-1999
Pronouncement Date: 31-08-2010 | Result: Dismissed

Appeal Details

RSA Number 3520524 RSA 2010
Bench Ahmedabad
Appeal Number MA 35/AHD/2010
Duration Of Justice 6 month(s) 6 day(s)
Appellant M/S Camphor & Allied Products Ltd, Baroda
Respondent The Dy.CIT.,Baroda Circle-1,, Baroda
Appeal Type Miscellaneous Application
Pronouncement Date 31-08-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 31-08-2010
Assessment Year 1998-1999
Appeal Filed On 22-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH ' AHMEDABAD BENCH ' AHMEDABAD BENCH ' AHMEDABAD BENCH 'D DD D' '' ' BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI T. K. SHARMA JUDICIAL MEMBER T. K. SHARMA JUDICIAL MEMBER T. K. SHARMA JUDICIAL MEMBER T. K. SHARMA JUDICIAL MEMBER AND AND AND AND SHRI N.S. SAINI ACCOUNTANT MEMBER SHRI N.S. SAINI ACCOUNTANT MEMBER SHRI N.S. SAINI ACCOUNTANT MEMBER SHRI N.S. SAINI ACCOUNTANT MEMBER MISCELLANEOUS APPLICATION NO MISCELLANEOUS APPLICATION NO MISCELLANEOUS APPLICATION NO MISCELLANEOUS APPLICATION NO. .. .35 3535 35 /AHD/20 /AHD/20 /AHD/20 /AHD/201 11 10 00 0 (ARISING OUT OF (ARISING OUT OF (ARISING OUT OF (ARISING OUT OF ITA ITAITA ITA. .. . NO. NO. NO. NO.1955 1955 1955 1955 / // /AHD/ AHD/ AHD/ AHD/200 200 200 2001 11 1) )) ) (ASSESSMENT YEAR : 1998 (ASSESSMENT YEAR : 1998 (ASSESSMENT YEAR : 1998 (ASSESSMENT YEAR : 1998- -- -99) 99) 99) 99) CAMPHOR AND ALLIED PRODUCTS LTD. PLOT NO.3 G.I.D.C. ESTATE NANDESARI BARODA. V/S DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-1 AAYAKAR BHAVAN NR. RACE COURSE CIRCLE BARODA. [ APPELLANT ] [ RESPONDENT ] PAN NO. PAN NO. PAN NO. PAN NO. B Y RE VENUE SHRI C.N.SHAH B Y ASSESSEE SHRI K. MADHUSUDAN SR.D.R. ORDER ORDER ORDER ORDER PER N. S. SAINI ACCOUNTANT MEMBER THIS IS A MISCELLANEOUS APPLICATION FILED BY THE AS SESSEE AGAINST THE ORDER OF THE TRIBUNAL DATED 27-11-2009 PASSED IN ITA. NO.1955/AHD/2001. 2. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE THE TRIBUNAL VIDE ITS ORDER DATED 27-11-2009 PASSED IN ITA NO.1955/AH D/2001 HELD AS UNDER :- 79 THUS ON A PERUSAL OF THE ABOVE TWO DECISIONS O F THE HON'BLE SUPREME COURT WE FIND THAT IN A CASE WHERE VALUE OF EACH OF THE ASSETS IS IDENTIFIED SEPARATELY AT THE TIME OF TRANSFER OF THE ASSET THEN SUCH TRANSFER IS TRANSFE R OF INDIVIDUAL ASSETS BY THE ASSESSEE AND IN A CASE WHERE THE TRAN SFER IS MADE AT A CONSOLIDATED PRICE WITHOUT IDENTIFYING CO NSIDERATION FOR EACH OF THE ASSETS SEPARATELY THEN THE SAME IS A CASE OF SLUM SALE OR SALE OF INDUSTRIAL UNDERTAKING. WE FIN D THAT THE LEARNED ASSESSING OFFICER HAS STATED THAT SALE PRIC E EXCEPT FOR INVENTORIES DEPOSITS AND ADVANCES AND UNEXPIRED POL ICY OF INSURANCE WAS AGREED FOR A SUM OF RS.521 LACS AND I T IS ALSO -2- OBSERVED THAT ASSESSEE HAS SHOWN SALE PRICE OF LAND AT RS.71 LACS BY BIFURCATING THE CONSOLIDATED SALE PRICE. LE ARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS OBSERVED TH AT SALE CONSIDERATION WITH REGARD TO VARIOUS ASSETS HAS BEE N INDICATED IN THE SALE AGREEMENT ITSELF. THUS WE FIND THAT OB SERVATIONS OF BOTH THE LOWER AUTHORITIES ARE CONTRADICTORY. WE F IND THAT LEARNED COMMISSIONER OF INCOME TAX(APPEALS) HAS BRO UGHT NO MATERIAL ON RECORD IN SUPPORT OF HIS ABOVE FINDINGS TO THE EFFECT THAT SALE CONSIDERATION OF VARIOUS ASSETS WA S INDICATED IN THE AGREEMENT TO SALE. TO RESOLVE THIS ISSUE O NE HAS TO GO THROUGH THE SAID AGREEMENT AND OTHER CONNECTED DOCU MENTS. HOWEVER WE FIND THAT BOTH THE PARITIES BEFORE US H AVE NOT FILED COPY OF THE SALE AGREEMENT AND THE CONNECTED DOCUMENTS. IN ABSENCE OF THE SAME IT IS NOT POSSIB LE FOR US TO ADJUDICATE THE ISSUE COMPLETELY. IN THE ABOVE CIRC UMSTANCES IN OUR CONSIDERED OPINION IT SHALL BE FAIR AND IN THE INTEREST OF JUSTICE TO RESTORE THIS ISSUE BACK TO THE FILE OF T HE LEARNED ASSESSING OFFICER FOR PROPER VERIFICATION AND THERE AFTER ADJUDICATION OF THE ISSUE AFRESH IN LIGHT OF THE AB OVE MENTIONED TWO DECISIONS OF THE HON'BLE SUPREME COUR T. WE THEREFORE SET ASIDE THE ORDERS OF THE LOWER AUTHOR ITIES IN RESPECT OF THIS ISSUE AND RESTORE THE MATTER BACK T O THE FILE OF THE LEARNED ASSESSING OFFICER FOR ADJUDICATION AFRE SH IN THE LIGHT THE DECISION MADE HEREINABOVE AFTER ALLOWING REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THUS THIS GROUND OF APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PU RPOSES. 3. THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE SUBMITTED THAT THE OBSERVATION OF THE TRIBUNAL TO T HE EFFECT THAT BOTH THE PARTIES HAVE NOT FILED BEFORE IT COPY OF SALE AGREEMENT AND CONNECTED DOCUMENTS IS ERRONEOUS AS THE COPY OF MOU WAS FILED BY THE ASSESSEE IN ITS PAPER BOOK AT PAGE NO.48 TO 61. FURTHER HE SUBMITTED THAT FROM THE MOU IT IS CLEAR THAT CONSID ERATION OF EACH ITEM OF ASSET WERE FIXED SEPARATELY. 4. WE FIND THAT THE DOCUMENTS NOW POINTED OUT BY TH E LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE WERE NOT REFERRED IN THE COURSE OF DELIBERATION BEFORE THE TRIBUNAL AT THE T IME OF THE ORIGINAL HEARING BY EITHER OF THE PARTIES. IN THIS CONNECTI ON IT IS OBSERVED THAT RULE 18(6) OF THE INCOME TAX APPELLATE TRIBUNA L RULES READS AS UNDER :- -3- DOCUMENTS THAT ARE REFERRED TO AND RELIED UPON BY THE PARTIES DURING THE COURSE OF ARGUMENTS SHALL ALONE BE TREAT ED AS PART OF THE RECORD OF THE TRIBUNAL. 5. THUS IN VIEW OF THE ABOVE RULE AND IN VIEW OF TH E FACT THAT THE DOCUMENT IN QUESTION WAS NOT REFERRED TO OR RELIED UPON BY EITHER OF THE PARTIES DURING THE COURSE OF THE ORIGINAL HEARI NG AND THEREFORE THERE WAS NO MISTAKE IN THE FINDING OF THE TRIBUNAL IN THIS RESPECT. FURTHER THE LEARNED AUTHORISED REPRESENTATIVE OF T HE ASSESSEE RELIED UPON PAGE NO. 63 OF THE PAPER BOOK OF THE MO U FOR HIS SUBMISSION THAT CONSIDERATION FOR EACH ASSET TRANSF ERRED WERE DETERMINED SEPARATELY. THE SAID PARA READS AS UNDE R :- (` IN LACS) 1) LAND. 71.00 2) BUILDING 120.00 3) PLANT & MACHINERY FURNITURE & FIXTURES VEHICLES STORES & SPARES TRADE NAMES ETC. 330.00 ----------- 521.00 ===== 6. IT IS OBSERVED THAT THE TOTAL CONSIDERATION AS P ER THIS PARA OF THE MOU COMES TO `.5 21 000/- WHEREAS THE UNDISPUTE D FACTS OF THE CASE IS THAT THE TOTAL SALE CONSIDERATION RECEIVED BY THE ASSESSEE WAS `.6 46 93 531/-. THE ABOVE DISCREPANCY COULD NO T BE EXPLAINED BY THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASS ESSEE BEFORE US AND SIMPLY SUBMITTED THAT FULL DETAILS ARE IN MOU. IN THE ABOVE FACTS AND CIRCUMSTANCES WE DO NOT FIND ANY APPARENT ERRO R IN THE ORDER OF THE TRIBUNAL WHICH COULD BE RECTIFIED UNDER SECTION 254(2) OF THE ACT. 7. THUS THIS MISCELLANEOUS APPLICATION OF THE ASSE SSEE IS DISMISSED. ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 31 ST DAY OF AUGUST 2010. SD/- SD/- (T. K. SHARMA) (N.S. SAINI ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED THIS 31 ST DAY ON AUGUST 2010 COMPILED AND COMPARED BY :-PATKI. -4- COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS) 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD DATE INITIALS 1. DRAFT DICTATED ON 30-8-2010 --- -------------- 2. DRAFT PLACED BEFORE AUTHORITY 30-8- 201 ----------------- 3. DRAFT PROPOSED & PLACED 30-8-2010 ------------------ JM BEFORE THE SECOND MEMBER 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER --------------- JM/AM 5. APPROVED DRAFT COMES TO P.S ----------------- 6. KEPT FOR PRONOUNCEMENT ON ----------------- 7. FILE SENT TO THE BENCH CLERK ----------------- 8. DATE ON WHICH FILE GOES TO THE ------- ---------- 9. DATE OF DISPATCH OF ORDER - ----------------