ICENJAY HORATY CULTUARE P.LTGD, v. ITO WD 12(1)(3),

MA 707/MUM/2009 | 1998-1999
Pronouncement Date: 05-03-2010 | Result: Dismissed

Appeal Details

RSA Number 70719924 RSA 2009
Assessee PAN AAACE3374L
Bench Mumbai
Appeal Number MA 707/MUM/2009
Duration Of Justice 4 month(s) 13 day(s)
Appellant ICENJAY HORATY CULTUARE P.LTGD,
Respondent ITO WD 12(1)(3),
Appeal Type Miscellaneous Application
Pronouncement Date 05-03-2010
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 05-03-2010
Assessment Year 1998-1999
Appeal Filed On 22-10-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B MUMBAI BEFORE SHRI D.MANMOHAN VP AND SHRI R.S.SYAL AM M.A.NO.707/MUM/2009 (ARISING OUT OF ITA NO.1464/MUM/2006 : ASST.YEAR 19 98-99) M/S.ESJAY HORTICULTURE PRIVATE LIMITED 11 TH FLOOR C.G.HOUSE ROOM NO.553 DR.ANNIE BESANT ROAD WORLI COLONY MUMBAI 400 030. PA NO.AAACE3374L. VS. THE INCOME TAX OFFICER WARD 2(1)(3) MUMBAI. (APPLICANT) (RESPONDENT) APPLICANT BY : SHRI M.SUBRAMANIAN RESPONDENT BY : SHRI VIRENDRA OJHA O R D E R PER R.S.SYAL (AM) : THIS MISCELLANEOUS APPLICATION U/S. 254(2) OF THE I NCOME-TAX ACT 1961 HAS BEEN MOVED BY THE ASSESSEE PRAYING FOR THE RECTIFIC ATION OF THE ORDER OF THE TRIBUNAL DATED 21.10.2008 IN ITA NO.1464/MUM/2006. 2. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED T HAT THE TRIBUNAL ERRED IN RESTORING THE MATTER TO THE FILE OF THE ASSESSING O FFICER QUA THE ADDITION MADE U/S.2(22)(E) OF THE ACT. IT WAS STATED THAT THE ORD ER OF THE TRIBUNAL IN SMT.SUJATHA VENKATESHWARAN VS. ACIT [(1997)61 ITD 485 (MAD.)] RELIED ON BY THE ASSESSEE BEFORE THE TRIBUNAL WAS NOT TAKEN INTO CONSIDERATIO N WHILE DECIDING THE ISSUE. HE PLACED RELIANCE ON THE JUDGEMENT OF THE HONBLE SUP REME COURT IN THE CASE OF HONDA SIEL POWER PRODUCTS LTD. VS. CIT [(2007) 295 ITR 466 (SC)] TO CONTEND THAT THE NON-CONSIDERATION OF A DECISION BY THE TRI BUNAL OF CO-ORDINATE BENCH LED TO A MISTAKE APPARENT FROM RECORD. HE FURTHER REFER RED TO PARA 5 OF THE IMPUGNED ORDER BY WHICH IT WAS RECORDED THAT THE LD. AR WAS READY TO FURNISH ACTUAL WORKING IN THE MATTER AS CONTEMPLATED UNDER EXPLANATION (2) TO SECTION 2(22)(E) OF THE ACT FOR THE PURPOSE OF COMPUTATION OF THE CORRECT AMOUN T OF ACCUMULATED PROFITS. HE MA NO.707/MUM/2009 M/S.ESJAY HORTICULTURE PVT. LTD. 2 STATED THAT NO SUCH STATEMENT WAS MADE BY THE ASSES SEE DURING THE COURSE OF HEARING. IT WAS THEREFORE URGED THAT THE SAID ORD ER BE RECALLED OR SUITABLY AMENDED. 3. IN THE OPPOSITION THE LEARNED DEPARTMEN TAL REPRESENTATIVE CONTENDED THAT THE TRIBUNAL HAS SIMPLY RESTORED THE MATTER TO THE FILE OF A.O. AS THE RELEVANT FACTS WERE NOT AVAILABLE ON RECORD. HE SUBMITTED THAT THE RE WAS NOTHING WRONG IN THIS ORDER REQUIRING RECTIFICATION. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD WE FIND THAT NO DOUBT THERE IS A REFERENCE T O THE ORDER PASSED BY MADRAS BENCH IN THE ORDER OF THE LEARNED CIT(A) AND THE SAME HAS NOT BEEN REFERRED TO IN THE IMPUGNED ORDER. BUT THE BENCH TOOK INTO CONSIDE RATION THE JUDGEMENT OF THE HONBLE JURISDICTIONAL HIGH COURT ON THE POINT I N THE CASE OF CIT VS. MRS. MAYA B.RAMCHAND [162 ITR 460 (BOM.)] WHICH WAS RELIED ON BY THE LEARNED DEPARTMENTAL REPRESENTATIVE AND RELEVANT TO THE ISS UE. THE JUDGMENT OF THE HONBLE SUPREME COURT IN HONDA SIEL (SUPRA) HAS NO WHERE LAID DOWN THAT THE JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT BE LOST SIGHT OF. THE RATIO DECIDENDI OF EACH CASE HAS TO BE SEEN IN THE BACKGROUND OF THE FACTS IN WHICH IT WAS RENDERED. 5. ON MERITS ALSO WE DO NOT FIND ANY SUBST ANCE IN THE SUBMISSION ADVANCED ON BEHALF OF THE ASSESSEE FOR THE REASON THAT THE L EARNED CIT(A) RECORDED IN PARA 8 OF HIS ORDER THAT IT WOULD BE REASONABLE TO COMPUTE PROFIT ON EACH DAY OF DISTRIBUTION AS HELD BY THE MADRAS BENCH BUT THE SA ME EXERCISE WAS NOT DONE BY THE A.O. IT INDICATES THAT THE ISSUE WAS NOT PROPERLY EXAMINED BY THE AO AS WELL. EVEN IN THE CASE OF SMT.SUJATHA VENKATESHWARAN (SUPRA) RELIED ON BY THE LD. CIT(A) THE CASE WAS REMANDED BACK TO THE FILE OF A.O. WITH THE DIRECTION THAT HE SHALL PROCEED WITH THE COMMERCIAL PROFITS OF THE YEAR AND ARRIVE AT THE PROFITS UP TO THE DAY OF DISTRIBUTION AND ARRIVE AT THE DEEMED DIVIDE NDS. IN THE IMPUGNED ORDER THE MA NO.707/MUM/2009 M/S.ESJAY HORTICULTURE PVT. LTD. 3 TRIBUNAL HAS SIMPLY SET ASIDE THE ORDER OF THE LEA RNED CIT(A) AND RESTORED THE MATTER TO THE FILE OF A.O. FOR FRESH ADJUDICATION O F THE CASE AS PER LAW AFTER AFFORDING PROPER AND REASONABLE OPPORTUNITY TO THE ASSESSEE. IN THE FRESH PROCEEDINGS THE ASSESSEE IS AT LIBERTY TO TAKE UP ANY LEGAL PLEA BEFORE THE A.O. 6. IN THE RESULT THE M.A. IS DISMISSED. ORDER PRONOUNCED ON THIS 5 TH DAY OF MARCH 2010. SD/- SD/- ( D.MANMOHAN ) ( R.S.SYAL ) VICE PRESIDENT ACCOUNTANT ME MBER MUMBAI : 5 TH MARCH 2010. DEVDAS* COPY TO : 1. THE APPLICANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) - II MUMBAI. 5. THE DR/ITAT MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI. MA NO.707/MUM/2009 M/S.ESJAY HORTICULTURE PVT. LTD. 4 DATE INITIAL 1. DRAFT DICTATED ON 05.03.2010 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 05.03.2010 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 9. DATE OF DISPATCH OF ORDER. *