M/s. Deepak Vegetable Oil Industries,, Manavadar v. The Income Tax Officer, Ward-2(4),, RAJKOT-GUJARAT

MA 4/RJT/2012 | 1994-1995
Pronouncement Date: 30-03-2012 | Result: Allowed

Appeal Details

RSA Number 424924 RSA 2012
Assessee PAN AAACD7571J
Bench Rajkot
Appeal Number MA 4/RJT/2012
Duration Of Justice 1 month(s) 19 day(s)
Appellant M/s. Deepak Vegetable Oil Industries,, Manavadar
Respondent The Income Tax Officer, Ward-2(4),, RAJKOT-GUJARAT
Appeal Type Miscellaneous Application
Pronouncement Date 30-03-2012
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 30-03-2012
Assessment Year 1994-1995
Appeal Filed On 10-02-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH RAJKOT BEFORE SHRI T.K. SHARMA JM AND SHRI D. K. SRIVASTAV A AM. M.A. NOS. 04 & 05/RJT/2012. (ARISING OUT OF ITA 773 & 774/RJT/2010 & CO.26 & 2 7/RJT/2010) (ASSESSMENT YEARS 1994-95 & 1995-96)) M/S. DEEPAK VEGETABLE VS THE I.T.O. OIL INDUSTRIES WARD-2(4) RAJKOT. MANAVADAR JUNAGADH. PAN: AAACD7571J (APPELLANT) (RESPONDENT) DATE OF HEARING : 16-03-2012. DATE OF PRONOUNCEMENT : 30-03-2012. REVENUE BY : SHRI J. M. SAHAY D. R. ASSESSEE BY : SHRI D. M. RINDANI C.A. O R D E R PER T. K. SHARMA J. M. : THESE TWO MISCELLANEOUS APPLICATIONS ARE FILED BY THE ASSSESSEE POINTING OUT THAT THE TRIBUNAL COMMITTED AN APPARENT ERROR IN REMANDING THE MATTER NOT TO CIT(A) BUT TO A.O. IN I TS ORDER DATED 15-12-2011 IN ITA NO.773 & 774/RJT/2010 & CO.NO.26 & 27/RJT/2010. THE ERROR POINTED OUT IN BOTH THE M.A. IS IDENTICAL WE THEREFORE REPRODUCE THE M.A. NO.04/RJT/2012 WHICH IS AS UNDER:- IN THE ABOVE REFERRED APPEAL READ WITH CROSS OBJEC TION THE HONBLE TRIBUNAL WAS PLEASED TO ALLOW BOTH THE APPEAL AS WE LL AS THE C.O. FOR STATISTICAL PURPOSES AND FOR REASONS STATED IN PARA 8 OF THE ORDER OF THE HONBLE TRIBUNAL DATED 15.12.2011. IT MAY BE STATED THAT THE SAID APPEAL BY REVENUE WA S FILED AGAINST ORDER OF CIT(A) ALLOWING THE APPEAL OF ASSSESSEE-APPLICANT O NLY ON THE LEGAL GROUND BY HOLDING THAT THE ORDER U/S.271(1)(C) WAS BARRED BY LIMITATION. ON THE GROUND ON MERITS THAT WAS TAKEN BY THE ASSES SEE BEFORE THE CIT(A) THERE WAS NO ADJUDICATION BY THE CIT(A) AND HENCE THE ASSESSEE PREFERRED C.O. BEFORE THE HONBLE TRIBUNAL. M.A. NOS.04 & 05/RJT/2012. 2 AS THE FINDING ON MERITS WAS NOT RENDERED BY THE CI T(A) DURING THE HEARING BEFORE THE HONBLE TRIBUNAL APART FROM SUBM ISSION ON LEGAL GROUND THE A.R. OF THE APPELLANT ALSO RAISED THE C .O. TO THE EFFECT THAT THE ISSUE ON MERITS WAS NOT DECIDED BY THE CIT(A) AND H ENCE IF THE ASSESSEE DOES NOT SUCCEED BEFORE THE HONBLE TRIBUNAL ON LEG AL ISSUE THE MATTER MAY BE REMANDED TO THE CIT(A) FOR ADJUDICATION ON M ERITS. IT APPEARS THAT THE HONBLE TRIBUNAL HAS REMANDED T HE MATTER TO THE FILE OF THE A.O. THUS THERE APPEARS TO BE AN APPARENT ERRO R IN REMANDING THE MATTER NOT TO THE CIT(A) BUT TO THE A.O. IT MAY BE STATED THAT BOTH O LEGAL ISSUE AND ON MERITS THE A.O. HAS ONCE LEVIED THE P ENALTY AND HENCE CONSIDERING THE C.O. THE MATTER WAS TO BE REMANDED TO THE CIT(A) AS DISCUSSED DURING THE HEARING IN COURT. IN VIEW OF ABOVE IT IS MOST RESPECTFULLY SUBMITTED THAT IF YOUR HOUR SO PLEASE THE AFORESAID ERROR MAY KINDLY BE RECTIFIED . THE APPLICANT SHALL AS ALWAYS BE GRATEFUL FOR CON SIDERING THIS APPLICATION. 2. AT THE TIME OF HEARING OF BOTH THESE MISCELLANEO US APPLICATIONS ON BEHALF OF THE ASSESSEE SHRI D. M. RINDANI C.A. APPEARED AND POINTED OUT THAT FOR BOTH THE ASSESSMENT YEARS THE ASSESSEE HAS ALSO FILED C ROSS OBJECTION N THE GROUND THAT LD. CIT(A) HAS ERRED IN NOT ADJUDICATING THE P ENALTY LEVIED BY AO ON MERITS. HE ACCORDINGLY SUGGESTED THAT KEEPING IN VIEW THIS PLEA RAISED IN GROUND OF CROSS OBJECTION FOR BOTH THE ASSESSMENT YEARS THE MATTER SHOULD HAVE REMANDED TO THE FILE OF LD. CIT(A) AND NOT TO THE FILE OF AO. SHRI J. M. SAHAY D.R. APPEARED FOR THE REVENUE FAIRLY STATED THAT HE HAS NO OBJECTION IN CASE THE APPEAL OF THE ASSESSEE FOR BOTH THE ASSESSMENT YEARS AGAINST LEVY OF PENALTY U/S.271(1)(C) IS REMANDED TO THE FILE OF LD. CIT(A). 3. AFTER HEARING BOTH SIDES WE HAVE CAREFULLY GONE THROUGH BOTH M.AS. IT IS PERTINENT TO NOTE THAT LD. CIT(A) HAS NOT CANCELLED THE PENALTY LEVIED U/S.271(1)(C) ON MERITS. THEREFORE WE ARE OF THE VIEW THAT THER E IS A MISTAKE APPARENT ON THE RECORD IN REMANDING THE PANELTY LEVIED TO THE FILED OF THE AO. WE ACCORDINGLY RECTIFY THE UNINTENDED MISTAKE. AFTER THIS RECTIFI CATION THE PARA-8 OF ORDER OF M.A. NOS.04 & 05/RJT/2012. 3 TRIBUNAL DATED 15-12-2011 IN ITA NOS.773 AND 774/RJ T/2010 WILL BE READ AS UNDER:- 8. WE HAVE HEARD THE LEARNED REPRESENTATIVES OF TH E PARTIES RECORD PERUSED. WE FIND THAT THE CIT(A) HAS DECIDED THE I SSUE ONLY ON LEGAL BASIS AND HAS NOT DECIDED ON MERIT. IT HAS ALSO BE EN NOTICED THAT THE CIT(A) HAS DECIDED THE LEGAL ISSUE WITHOUT CONSIDER ING THE JUDGMENT OF MADRAS HIGH COURT IN THE CASE OF RAYALA CORPORATION (P) LTD. VS. UNION OF INDIA. THERE IS A DEVELOPMENT ON THE ISSUE BY VARIO US JUDGMENTS AND LATEST DECISIONS ON THE ISSUE ARE ALSO REQUIRED TO BE CONSIDERED IN THE LIGHT OF THE FACTS OF THE CASE OF ASSESSEE. SINCE THE IS SUE IS REQUIRED TO BE EXAMINED IN THE LIGHT OF LATEST AVAILABLE DECISIONS ON THE ISSUE INCLUDING THE JUDGMENT OF MADRAS HIGH COURT IN THE CASE OF RA YALA CORPORATION (P) LTD. VS. UNION OF INDIA AND THE JUDGMENT OF SUPRERM E COURT IN THE CASE OF CIT VS. RELIANCE PETRO PRODUCTS PVT. LTD. 322 ITR 1 58(SC) AN ISSUE IS ALSO REQUIRED TO BE DECIDED ON MERIT. WE THEREFORE FIND APPROPRIATE TO SEND BACK THIS MATTER TO THE FILE OF LD. CIT(A) WIT H THE DIRECTION TO DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER CONSI DERING LATEST JUDGMENTS AVAILABLE ON THE ISSUE AND AFTER PROVIDING OPPORTUN ITY OF HEARING TO BOTH SIDES. 4. IN THE RESULT PARA-8 OF ORIGINAL ORDER DATED 15 -12-2011 IS SUBSTITUTED WITH ABOVE AND BOTH THE MISCELLANEOUS APPLICATIONS ARE T REATED AS ALLOWED TO THIS EXTENT. THIS ORDER PRONOUNCED IN THE OPEN COURT ON 30-03-20 12. SD/- SD/- ( D. K. SRIVASTAVA ) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT DT : 30-03-2012. NVA/- M.A. NOS.04 & 05/RJT/2012. 4 COPY TO: 1. M/S. DEEPAK VEGETABLE OIL INDUSTRIES MANAVADAR JUNAGADH. 2. THE I.T.O. WARD-2(4) RAJKOT. 3. .THE CIT-II RAJKOT. 4. THE CIT-III RAJKOT. 5. THE DR I.T.A.T. RAJKOT 6. THE GUARD FILE. (TRUE COPY) BY ORDER ASSTT.REGISTRAR ITAT RAJKOT