Kisan Discretionary Family Trust, Ahmedabad v. The ACIT., Cent.Circle-1(1),, Ahmedabad

MA 79/AHD/2010 | 2002-2003
Pronouncement Date: 16-09-2011 | Result: Partly Allowed

Appeal Details

RSA Number 7920524 RSA 2010
Assessee PAN AAATK2653D
Bench Ahmedabad
Appeal Number MA 79/AHD/2010
Duration Of Justice 1 year(s) 5 month(s) 10 day(s)
Appellant Kisan Discretionary Family Trust, Ahmedabad
Respondent The ACIT., Cent.Circle-1(1),, Ahmedabad
Appeal Type Miscellaneous Application
Pronouncement Date 16-09-2011
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 16-09-2011
Assessment Year 2002-2003
Appeal Filed On 06-04-2010
Judgment Text
. . . . ! ! ! ! ' ' ' ' # # # # IN THE INCOME TAX APPELLATE TRIBUNAL : A BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA J.M. & HONBLE SH RI A.K.GARODIA A.M.) $$ $$ $$ $$ % % % % (M.A.) NO.79/A/2010 : ASSESSMENT YEAR 2002-03 (ARISING OUT OF ITA NO.1261/AHD./2006) KISAN DISCRETIONARY FAMILY TRUST AHMEDABAD .. .. ( / APPLICANT) -VS- PAN: AAATK 2 653D A.C.I.T. CENTRAL CIRCLE-1(1) AHMEDABAD ..( &'() / RESPONDENT) * + /APPLICANT BY : SHRI S.N.SOPARKAR A.R. &'() * + / RESPONDENT BY : SHRI S.K.MEENA SR.D.R. %- * .' / DATE OF HEARING : 12/08/2011 /0 * .' / DATE OF PRONOUNCEMENT : 16/09/2011 / ORDER PER SHRI T.K. SHARMA JUDICIAL MEMBER : THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSE SSEE FOR RECALLING THE ORDER PASSED BY THE I.T.A.T. A BENCH AHMEDABAD IN ITA .NO.1261/AHD./2006 DECIDED ON 22.01.2010. 2. AT THE TIME OF HEARING OF THIS MISCELLANEOUS APP LICATION BEFORE US SHRI S.N. SOPARKAR APPEARING ON BEHALF OF THE ASSESSEE SUBM ITTED AS UNDER: I. THAT BEING AGGRIEVED BY THE ORDER OF ASSESSEE'S APPEAL IN ITA NO.1261/AHD/2006 PASSED BY HON'BLE TRIBUNAL BENCH' A' AHMEDABAD DT. 22.01.2010 FOR ASST. YEAR: 2002-03 APPELLANT IS OF THE VIEW THAT THERE ARE MISTAKES APPARENT ON RECORD GOING TO THE ROOT OF TH IS ORDER RENDERING THE ALTERNATE FINDING ADVERSE TO THE APPELLANT AND HENCE THIS MIS CELLANEOUS APPLICATION IS FILED FOR THE KIND CONSIDERATION OF HON'BLE TRIBUNAL FOR THE YEAR UNDER REFERENCE. 2 M.A.NO. 79-AHD-2010 A. VIDE PARA 38 ON PAGE 26 OF THE APPEAL ORDER ADD ITION ON ACCOUNT OF NOTIONAL INTEREST ON OFCPNS OF NIRMA INDUSTRIES LTD. WAS-DEL ETED FOR RS.2 22 925. THE CORRECT AMOUNT IS RS.2 65 754 WHICH MAY KINDLY BE R ECTIFIED. B. APPELLANT OFFERED LONG TERM CAPITAL GAIN ON TRAN SFER OF SECURITIES OF TATA FINANCE LTD. FOR RS.3 52 19 929. APPELLANT CLAIMED DEDUCTION U/S.54EC AGAINST THIS LONG TERM CAPITAL GAIN. THE LD.A.O. HAS NOT ALLOWED DEDUCTION U/S.54EC OF I NCOME-TAX ACT. VIDE PARA 26 ON PAGE 22 HON'BLE TRIBUNAL DELETED T HE ADDITION OF RS.3 52 19 929. AT PARA 29 ON PAGE 23 HON'BLE TRIBUNAL DISMISSED TH E GROUND REGARDING ALLOWING DEDUCTION U/S.54EC OF INCOME-TAX ACT ON LONG TERM C APITAL GAIN OF RS.3 52 19 929. IT IS HUMBLY SUBMITTED THAT SINCE HON'BLE TRIBUNAL DELETED THE ADDITION OF RS.3 52 19 929 LONG TERM CAPITAL GAIN OFFERED BY T HE APPELLANT IN THE RETURN OF INCOME IS CONTINUED AND THEREFORE DEDUCTION U/S.54 EC OF INCOME-TAX ACT SHOULD BE ALLOWED. IT IS HUMBLY SUBMITTED THAT DEDUCTION U /S.54EC ON LONG TERM CAPITAL GAIN SHOULD BE ALLOWED. TAKING INTO ACCOUNT THE AVERMENTS MADE IN THIS PETI TION IT IS RESPECTFULLY SUBMITTED THAT AFTER HEARING BOTH THE SIDES APPROP RIATE ORDER MAY BE PASSED THEREON FOR WHICH ACT OF KINDNESS THE APPELLANT S HALL REMAIN GRATEFUL. 3. AT THE TIME OF HEARING OF THIS MISCELLANEOUS APP LICATION SHRI S.N.SOPARKAR APPEARED ON BEHALF OF THE ASSESSEE AND DREW OUR ATT ENTION TO PARA 9 AT PAGE 27 OF THE ASSESSMENT ORDER WHEREIN THE AO TAXED RS.2 65 754/- UNDER THE HEAD INCOME FROM OTHER SOURCES. HE FURTHER DREW OUR ATTENTION TO PARA 3 AT PAGE 3 OF THE ASSESSMENT ORDER WHEREIN THE AO MENTIONED THAT INTEREST ACCRUED ON OPTIONALL Y FULLY CONVERTIBLE PREMIUM NOTES (OFCPN) OF NIRMA INDUSTRIES LTD. PURCHASED ON 25.3. 2002 OF RS.22 40 00 000/- IS RS.2 65 754/-. ON THE STRENGTH OF THESE TWO REFEREN CES THE COUNSEL OF THE ASSESSEE POINTED OUT THAT CORRECT AMOUNT OF ACCRUED INTEREST DISALLOWED BY THE AO IN THE ASSESSMENT ORDER IS RS.2 65 754/- AND NOT RS.2 22 9 25/- FOR WHICH THE RELIEF IS ALLOWED BY THE TRIBUNAL VIDE PARA 38 AT PAGE 26 OF THE ORDER. HE POINTED OUT THAT THIS IS A MISTAKE APPARENT FROM THE RECORD WITHIN THE MEANING OF SECT ION 254(2). THEREFORE THE CORRECT AMOUNT OF RS.2 65 754/- BE SUBSTITUTED IN PLACE OF RS.2 22 925/-. 3 M.A.NO. 79-AHD-2010 4. AS AGAINST THE ABOVE SUBMISSIONS OF THE LD. COUN SEL OF THE ASSESSEE SHRI S.K.MEENA SR. D.R. APPEARING ON BEHALF OF THE REV ENUE DREW OUR ATTENTION TO THE ADDITIONAL GROUND OF APPEAL WHICH WAS RAISED AND RE PRODUCED BY THE TRIBUNAL IN PARA 32 AT PAGE 23 OF THE ORDER. THE LD. D.R. POINTED OUT T HAT IN THIS GROUND OF APPEAL THE ASSESSEE CLAIMED RELIEF OF RS.2 22 925/- WHICH HAS BEEN ALLOWED BY THE TRIBUNAL. NOW IN THE MISCELLANEOUS APPLICATION THE ASSESSEE CANNOT PLEAD THAT CORRECT AMOUNT OF RELIEF SHOULD BE RS.2 65 754/-. HE ACCORDINGLY POINTED OUT THAT NO MISTAKE HAS BEEN COMMITTED BY THE TRIBUNAL WHICH CAN BE RECTIFIED WITHIN THE M EANING OF SECTION 254(2) OF THE I.T. ACT. 5. RIVAL SUBMISSIONS WERE CONSIDERED. IN PARA 38 OF PAGE 23 OF THE TRIBUNALS ORDER IT IS STATED THAT THE ASSESSEE RAISED THE FOLLOWING GROUND OF APPEAL: IN LAW AND IN THE FACTS OF THE APPELLANTS CASE TH E ADDITION OF RS.2 22 925/- TREATING AS NOTIONAL ACCRUED INTEREST ON OPTIONALLY FULLY CONVERTIBLE PREMIUM NOTES (OFCPNS) OF NIRMA INDUSTR IES LTD. MAY BE DELETED. 5.1 THE RELIEF CLAIMED IN THIS ADDITIONAL GROUND HA S BEEN ALLOWED AS STATED IN PARA 38 OF PAGE 23 OF THE TRIBUNALS ORDER. NOW IN OUR CON SIDERED OPINION THE ASSESSEE CANNOT SAY THAT THIS FIGURE IS INCORRECT. IN CASE THERE W AS ANY MISTAKE IN MENTIONING THE GROUND OF APPEAL RAISED BY THE ASSESSEE THAT SHOULD HAVE BEEN POINTED OUT BY THE LD. COUNSEL OF THE ASSESSEE AT THE TIME OF HEARING BEFORE THE TRI BUNAL WHICH HAS NOT BEEN DONE IN THIS CASE. THEREFORE IN OUR OPINION BY THIS MISCELLANE OUS APPLICATION ON THIS ISSUE THE ASSESSEE WANTS REVIEW OF THE ORDER OF THE TRIBUNAL. HENCE AS THERE IS NO MISTAKE APPARENT FROM THE RECORD THE ORDER OF THE TRIBUNAL DATED 22 .01.2010 REQUIRES NO MODIFICATION ON THIS ISSUE. RESULTANTLY THIS ISSUE OF THE M.A. IS DISMISSED. 6. THE OTHER MISTAKE POINTED OUT BY THE ASSESSEE IN THE AFORESAID M.A. IS THAT WHILE ADJUDICATING THE GROUND NOS.4 AND 5 VIDE PARA NO.2 6 AT PAGE 22 THE TRIBUNAL DELETED THE ADDITION OF RS.3 52 19 929/- WHEREAS IN PARA 29 AT PAGE 23 THE TRIBUNAL DISMISSED THE 4 M.A.NO. 79-AHD-2010 GROUND NO.5 REGARDING ALLOWANCE OF DEDUCTION UNDER SECTION 54EC OF THE INCOME TAX ACT ON ACCOUNT OF LONG TERM CAPITAL GAIN AMOUNTING TO R S.3 52 19 929/-. HE POINTED OUT THAT THIS FINDING IS CONTRADICTORY. THEREFORE THE TRIBU NAL MAY RECTIFY ITS ORDER. 7. ON THE OTHER HAND THE LD. SR.D.R. APPEARING ON BEHALF OF THE REVENUE CONTENDED THAT THE TRIBUNAL MAY MODIFY PARA 26 AT PAGE 22 WHE REBY IT DELETED THE ADDITION OF RS.3 52 19 929/-. AS AGAINST THIS THE COUNSEL OF T HE ASSESSEE SUGGESTED THAT SINCE FINDING GIVEN IN PARA 26 AT PAGE 22 AND IN PARA 29 AT PAGE 23 ARE CONTRADICTORY THE TRIBUNAL MAY RECALL ITS ORDER AND READJUDICATE THE GROUND NOS.4 AND 5 AFRESH AFTER HEARING BOTH THE SIDES. HE ALSO CLARIFIED THAT NO APPEAL HAS BEEN FI LED BY THE ASSESSEE AGAINST THE DECISION OF THE TRIBUNAL IN ITA NO.1261/AHD/2006 DATED 22.01 .2010 FOR THE ASSESSMENT YEAR 2002-03. 8. RIVAL SUBMISSIONS WERE CONSIDERED. WE FIND CONSI DERABLE FORCE IN THE SUBMISSIONS MADE BY THE LD. COUNSEL OF THE ASSESSEE. THE GROUND NOS.4 AND 5 WHICH ARE REPRODUCED BY THE TRIBUNAL IN ITS ORDER READ AS UNDER: 4. IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APP ELLANTS CASE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN U PHOLDING THE ACTION OF THE LEARNED ASSESSING OFFICER IN CONSIDERING THE LONG T ERM CAPITAL GAIN OF RS.4 51 34 165/- ON SALE OF INTEREST COUPON STRIPS OF TATA FINANCE LTD. AS SHORT TERM CAPITAL GAIN. 5. IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APPELL ANTS CASE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN U PHOLDING THE ACTION OF THE LEARNED ASSESSING OFFICER IN NOT ALLOWING DEDUCTION OF RS.3 52 20 000/- U/S. 54EC OF THE I.T. ACT ON LONG TERM CAPITAL GAINS REFERRED TO IN GROUND NO.4 ABOVE. 8.1 WHILE ADJUDICATING THE GROUND NO.4 IN PARA 26 THE TRIBUNAL STATED THAT THE ADDITION OF RS. 3 52 19 929/- IS DELETED WHEREAS W HILE ADJUDICATING THE GROUND NO.5 IN PARA 29 AT PAGE 23 IT IS MENTIONED THAT NO DEDUCTI ON UNDER SECTION 54EC OF THE ACT CAN BE ALLOWED. IT IS PERTINENT TO NOTE THAT THE ASSESS EE HAS OFFERED THE LONG TERM CAPITAL GAIN AMOUNTING TO RS. 3 52 19 929/- IN THE RETURN OF INC OME. KEEPING IN VIEW THIS FACT WE ARE 5 M.A.NO. 79-AHD-2010 OF THE VIEW THAT IT WILL MEET THE ENDS OF JUSTICE IF THE DECISION OF THE TRIBUNAL REGARDING GROUND NOS. 4 AND 5 ARE RECALLED AND BOTH THESE GRO UNDS ARE READJUDICATED AFRESH AFTER HEARING BOTH THE SIDES. WE ACCORDINGLY RECALL THE O RDER PERTAINING TO GROUND NOS.4 AND 5 AND DIRECT THE REGISTRY TO FIX THIS APPEAL FOR READ JUDICATING THE GROUND NOS.4 AND 5 AFRESH SO THAT CONTRADICTION POINTED OUT BY THE ASSESSEE WHILE ADJUDICATING BOTH THESE GROUNDS IS RESOLVED. WE ORDER ACCORDINGLY. 9. IN THE RESULT THIS MISCELLANEOUS APPLICATION FI LED BY THE ASSESSEE IS PARTLY ALLOWED. 1 * /0 %2 16 / 09 /2011 3 * - 4 THIS ORDER PRONOUNCED IN COURT ON 16/ 0 9/ 2011 . SD/- SD/- (A.K.GARODIA) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER % / DATED : 16/09/ 2011 * ** * &.$ &.$ &.$ &.$ 6$0. 6$0. 6$0. 6$0. / COPY OF ORDER FORWARDED TO:- 1. () / APPELLANT 2. &'() / RESPONDENT 3. . ; / CONCERNED CIT 4. ;- / CIT (A) 5. $? &.% / DR ITAT AHMEDABAD 6. ! B1 / GUARD FILE. BY ORDER/ C/ E TALUKDAR/SR.P.S.