ACIT, CHENNAI v. M/s. Empee Distilleries Ltd., CHENNAI

MA 88/CHNY/2010 | 1999-2000
Pronouncement Date: 03-12-2010 | Result: Dismissed

Appeal Details

RSA Number 8821724 RSA 2010
Bench Chennai
Appeal Number MA 88/CHNY/2010
Duration Of Justice 7 month(s) 10 day(s)
Appellant ACIT, CHENNAI
Respondent M/s. Empee Distilleries Ltd., CHENNAI
Appeal Type Miscellaneous Application
Pronouncement Date 03-12-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Date Of Final Hearing 03-12-2010
Next Hearing Date 03-12-2010
Assessment Year 1999-2000
Appeal Filed On 23-04-2010
Judgment Text
IN THE INCOMETAX APPELLATE TRIBUNAL: C- BENCH: CHEN NAI (BEFORE SHRI HARI OM MARATHA JUDICIAL MEM BER & SHRI ABRAHAM P. GEORGE. ACCOUNTANT MEMBER) MA NOS. 85 TO 88 /MDS/10 (IN ITA NOS.686 TO 68 8 & 507/MDS/07) ASSESSMENT YEARS 2000-01 TO 200 2-03 & 1999-2000 THE ACIT M/S EMPEE DISTILLEREIES LTD. CENTRAL CIR. I(2) 59 HARRIS RD. PUDUPET CHENNAI CHENNAI 600002 PAN AAACE 1687 (PETITIONER) (RESPONDENT) PETITIONER BY: RESPONDENT BY: SRI SHAJJ P.JACOB NONE ORDER PER SHRI ABRAHAM P. GEORGE ACCOUNTANT MEMBER- THESE ARE MISC. APPLICATIONS FILED BY REVE NUE IN WHICH IT SUBMITS THAT THERE WERE CERTAIN MISTAKES APPARENT FROM RECO RD IN THE ORDER OF THE TRIBUNAL IN ITA NOS. 686 TO 688/MDS/07 & 507/MDS/07 . THE TRIBUNAL HAD DISPOSED OF THE ABOVE APPEALS ALONGWITH CERTAIN OTH ER APPEALS THROUGH A CONSOLIDATED ORDER DATED 29-09-2008. MA NOS.85-88/MDS/10 2 2. ASSESSEES COUNSEL HAS FILED A PETITION FOR ADJO URNMENT WHICH IS REJECTED SINCE NO PROPER REASON HAS BEEN SHOWN AND THE MPS WERE ADJOURNED A NUMBER OF TIMES EARLIER. LD. DR SUPPORT ED THE MPS VEHEMENTLY. 3. MA NO.85/MDS/10 IS TAKEN UP FIRST FOR DISPOSAL. 4. THE ABOVE M.A IS AGAINST THE ORDER OF THE TRIBUN AL RELATING TO REVENUES APPEAL FOR ASST. YEAR 2000-01 IN THE CASE OF M/S EMPEE DISTILLERIES LTD. GRIEVANCE OF THE REVENUE IS THAT THE ADDITIONAL GROUND FILED BY IT ON 07-08-08 (THOUGH IT STATED IN THE MP AS 07 -08-2000 THE ACTUAL DATE AS SEEN FROM RECORDS IS 07-08-2008) WAS NOT CO NSIDERED BY THIS TRIBUNAL THOUGH A REFERENCE WAS MADE BY THE TRIBUN AL IN ITS ORDER ABOUT THE ADDITIONAL GROUND FILED BY REVENUE FOR ASST. Y EAR 2002-03. THE ADDITIONAL GROUND PERTAINED TO ISSUE OF DISALLOWAN CE UNDER SEC. 43A OF THE INCOME-TAX ACT 1961 (THE ACT FOR SHORT) FOR CAS H PAYMENT OF ` 20 000/- AND ABOVE MADE BY THE ASSESSEE WHICH WAS ALLOWED BY THE CIT(A). 5. IN RELATION TO THE ADDITIONAL GROUND FILED BY TH E REVENUE THE RELEVANT PARA -75 OF THE ORDER OF THE TRIBUNAL IS REPRODUCED HEREUNDER: MA NOS.85-88/MDS/10 3 75. THE IMPUGNED APPEALS HAVE BEEN HEARD AND ORDE R RESERVED ON 7 TH JULY 2008. EXACTLY AFTER ONE MONTH ON 7 TH OF AUGUST 2008 THE DY. COMMISSIONER OF INCOME-TAX CO. CIR. II(1) CHE NNAI-34 HAS FILED A SET OF ADDITIONAL GROUNDS IN RESPECT OF THE APPEA L PERTAINING TO ASST. YEAR 2002-03. BUT THE OFFICER HAS NOT EXPLAI NED WHY THESE GROUNDS HAVE NOT BEEN INCORPORATED IN THE ORIGINAL GROUNDS OF APPEAL. IT IS ALSO NOT STATED WHY THESE ADDITIONAL GROUNDS WERE NOT PLACED BEFORE THE TRIBUNAL AT LEAST DURING THE COUR SE OF HEARING OF THE APPEALS IN THE COURT. NOW BY THE TIME THESE PA PERS ARE PLACED BEFORE THE BENCH THROUGH ADMINISTRATIVE CHANNEL TH E DRAFT ORDERS HAVE ALREADY BEEN PROPOSED IN THESE APPEALS WHICH W ERE ALREADY HEARD ON 7 TH OF JULY 2008. THEREFORE NOW AT THIS POINT OF TIM E THESE PAPERS FILED BY THE DY. COMMISSIONER OF INCOME-TAX CANNOT BE TAKEN COGNIZANCE OF. THE PAPERS RELATING TO ADDITIONAL GR OUNDS ARE JUST RECORDED IN THE FILES OF THE TRIBUNAL . IT IS CLEAR FROM THE ABOVE THAT THE ORDERS FOR THE APPEALS WERE ALREADY PROPOSED AND THE APPEALS WERE COMPLETELY HEARD BY 0 7-07-08. THEREFORE WE ARE UNABLE TO UNDERSTAND HOW THE DEPARTMENT CAN SEEK ADMISSION OF ADDITIONAL GROUND FILED ON 07-08-2008. EVEN OTHERWI SE AT PARA-32 OF THE ORDER THIS TRIBUNAL HAD CONSIDERED THE ISSUE RELA TING TO DISALLOWANCE U/S 40A (3) OF THE ACT IN GREAT DETAIL. IT WAS HELD BY THE TRIBUNAL THAT THERE WAS NO CASE WHERE 10000 BOTTLES COULD HAVE BEEN PURCHAS ED THROUGH A SINGLE CASH VOUCHER AND HENCE NO PROBABILITY FOR CASH PAYM ENT EXCEEDING ` 20 000/- PER TRANSACTION. THE TRIBUNAL HAS ALSO GIV EN A FINDING THAT FOR BULK PURCHASE THE ASSESSEE HAD MADE PAYMENT BY CHEQ UE. TRIBUNAL HAS ALSO SPECIFICALLY NOTED IN ITS ORDER THAT VIS--VI S SIMILAR ISSUE IN RELATION TO MA NOS.85-88/MDS/10 4 MISCELLANEOUS EXPENSES CLAIMED BY THE ASSESSEE THE SAME REASONING WOULD APPLY. 6. WE THEREFORE FIND THAT THE REVENUE IS SEEKING A REVIEW. WE DO NOT FIND ANY MISTAKE IN THE ORDER OF THE TRIBUNAL MUCH LESS ANY MISTAKE APPARENT FROM RECORD. MISC. APPLICATION STANDS DISM ISSED. 7. NOW WE TAKE UP MA NO.86/MDS/2010. THIS MA IS DIR ECTED AGAINST THE ORDER OF THE TRIBUNAL IN ITA NO.687/MDS/07. ITS GRIEVANCE NO.1 IS THAT THERE WAS NON-CONSIDERATION OF ADDITIONAL GROUND FI LED ON 07-08-2008. WE HAVE DEALT WITH THIS ISSUE AT PARA-5 ABOVE AND THER EFORE THIS GRIEVANCE OF THE REVENUE IS ILL FOUNDED. 8. SECOND GRIEVANCE IS REGARDING DELETION OF DISALL OWANCE ON ACCOUNT OF INFLATION IN PURCHASE OF OLD BOTTLES WITH REGARD TO WHICH THE TRIBUNAL UPHELD THE ORDER OF THE CIT(A). ACCORDING TO REVENU E THERE WERE FACTUAL AND COMPUTATIONAL ERROR IN THE ORDER OF THE CIT(A) ON THIS ASPECT. SPECIFICALLY ITS GRIEVANCE IS THAT THE UNDER MENTIO NED GROUND HAS NOT BEEN CONSIDERED: IT IS SUBMITTED AS FOUND IN PARA 3.1 THE DELETION TO BE MADE IN RESPECT TO 180ML OLD BOTTLES HAS BEEN WORKED OUT FO R 2 62 18 000 OLD BOTTLES AND A FIGURE OF ` 39 32 700 HAS BEEN ARRIVED AT. BUT THE SAME MA NOS.85-88/MDS/10 5 ITEM OF 180 ML. OLD BOTTLES HAS ONCE AGAIN BEEN FOR THE SAME 2 62 18 000 OLD BOTTLES IN PARA 3.2 ALSO AND FURTHE R RELIEF OF ` 91 76 300 HAS BEEN ALLOWED. HENCE THE ADDITIONAL A ND EXCESS RELIEF OF ` 91 76 300 IS TO BE WITHDRAWN IN RESPECT OF 180ML BOTTLES. HENCE THE DELETION OF THE AMOUNT TO THIS EXTENT IS NOT AC CEPTABLE. 9. THE TRIBUNAL HAD DEALT WITH THE ISSUE REGARDING INFLATION IN PURCHASE OF OLD BOTTLES AT PARAS 24 TO 26 OF ITS ORDER AND P ARA 50 OF ITS ORDER WHICH ARE REPRODUCED HEREUNDER: 24. THE CRUCIAL FINDING EMERGING OUT OF THE A BOVE DISCUSSION IS THAT IF THE BOGUS PURCHASE OF OLD BOTTLES ARE TAKEN TO THE EXTENT COMPUTED BY THE ASSESSING AUTHORITY THEN THE BOTTL ES CONSUMED BY THE ASSESSEE DURING THE PREVIOUS YEAR RELEVANT TO T HE ASST. YEAR WOULD NOT BE SUFFICIENT TO SUPPORT 13 77 732 CASES OF INDIAN MADE FOREIGN LIQUOR. THIS QUANTITATIVE DISPARITY STRAIGH TAWAY DEFLATES THE QUANTUM OF BOGUS PURCHASE WORKED OUT BY THE ASSESSI NG AUTHORITY. THEREFORE AS A MATTER OF FACT WE FIND THAT THE CI T(APPEALS) IS FULLY JUSTIFIED IN HOLDING THAT THE ADDITION OF ` 5 29 34 470/- IS QUITE ARBITRARY AND UNCALLED FOR. ADDITION TO THAT MUCH E XTENT IS NOT JUSTIFIED. 25. APART FROM THE ABOVE QUANTITATIVE DISPA RITY WHICH IS SELF SPEAKING ON THE BASIS OF RECORDS OF THE CASE ANOTH ER ARGUMENT THAT WE FIND ACCEPTABLE FROM THE SIDE OF THE ASSESSEE IS THAT THE OLD BOTTLES ARE NOT PURCHASES FROM ORGANIZED MARKETS OR SUPPLIED BY CORPORATE HOUSES OR BY COMMERCIAL HOUSES. THE OLD B OTTLES ARE COLLECTED BY HAWKERS FROM VARIOUS RETAIL BARS AND T HEN SOLD TO LOCAL WHOLESALERS WHO BRING THEM TO DISTI9LLERIES LIKE TH AT OF ASSESSEE- COMPANY. FROM THE PRIMARY POINT OF COLLECTION OF EM PTY BOTTLES TO THEE POINT OF DELIVERY AT THE DISTILLERIES LIKE THA T OF ASSESSEE A WHOLE CHAIN OF HAWKERS AND VENDORS ARE INVOLVED WHO ARE B Y AND LARGE UNORGANIZED AND WORKING ON CASH TO CASH BASIS. THER EFORE WHEN THESE HAWKERS BRING BUNDLES OF LIQUOR BOTTLES TO TH E SITE OF THE ASSESSEE DISTILLERIES THE PURCHASE IS MADE AGAINST CASH VOUCHERS INSTANTLY MADE THEN AND THERE BY THE EMPLOYEES OF T HE ASSESSEE- COMPANY. THEREFORE TECHNICAL FAULT POINTED OUT BY THE ASSESSING AUTHORITY THAT VOUCHERS ARE SIGNED BY SAME SET OF E MPLOYEES AND MA NOS.85-88/MDS/10 6 PAYMENTS WERE MADE IN CASH AND THE ASSESSEE IS NOT IN A POSITION TO RECONCILE THE PURCHASE STOCK ETC. ARE VERY MUC H INHERENT IN THIS TYPE OF BUSINESS. WE FIND THAT THIS POINT ALSO LEAD S TO SUPPORT THE ARGUMENT ADVANCED BY THE LD. COUNSEL FOR THE ASSESS EE. 26. WHEN WE EXAMINE THE PECULIAR ASPECTS OF THE PRESENT CASE IN THE ABOVE EXPLAINED SCENARIO WE FIND THAT AN ADDITION ON AN ESTIMATE BASIS AS DONE BY THE CIT(A) IS MORE APPROP RIATE FAIR AND JUSTIFIED. AS FAR AS THE PRESENT CASE IS CONCERNED THE CIT(A) HAS ESTIMATED THE BOGUS PURCHASES AT 10% OF THE ACCOUNT ED PURCHASE. WE FIND THAT THIS 10% DISALLOWANCE IS REASONABLE ES PECIALLY IN THE LIGHT OF THE QUANTITY OF CONSUMPTION OF BOTTLES VIS --VIS THE QUANTUM OF PRODUCTION OF LIQUOR DURING THE PREVIOUS YEAR RE LEVANT TO THE ASST. YEAR UNDER APPEAL. THE CIT(A) HAS COMPUTED THE 10% DISALLOWANCE/ADDITION AT ` 1 29 65 645/-. THE COMPANY HAS ALREADY OFFERED A SUM OF ` .74 50 000/- FOR TAXATION UNDER THE SAME HEAD OF BOGUS PURCHASE OF OLD BOTTLES. IT IS ONLY JUST AND REASONABLE THAT THE AMOUNT ALREADY OFFERED BY THE ASSESSEE-COMPANY BE G IVEN CREDIT AND THE BALANCE ADDITION ALONE BE ADDED TO THE INCO ME OF THE ASSESSEE. ON THIS POINT ALSO THE DIRECTION OF THE CIT(A) IS NOTHING BUT JUST AND PROPER. 60. IN THE APPEAL FILED BY THE DEPARTMENT IN ITA NO.687/MDS/2007 THE FIRST ISSUE IS REGARDING THE D ELETION MADE BY THE CIT(A) IN RESPECT OF OLD BOTTLES PURCHASED BY T HE ASSESSEE. FOLLOWING OUR ORDER FOR THE EARLIER ASSESSMENT YEAR 11998-99 WE HOLD THAT THE CIT(A) IS JUSTIFIED IN HIS ORDER AND REJECT THE CONTENTION RAISED BY THE REVENUE. 10. NOW THE DEPARTMENT IS BRINGING UP A LARGE NUMBER OF DIFFERENT FIGURES AND WORK OUT IN ITS EFFORT TO SHOW THAT THE TRIBUNAL HAD COME TO A WRONG CONCLUSION. ITS SUBMISSION MADE THROUGH OTHER ELABORATE ARGUMENTS IN ITS MISC. APPLICATION IS THAT REASONABLE WASTAG E OF 4% WAS CONSIDERED AND ACTUAL EXCESS PRICE TAKEN BY THE AO WAS ONLY ` 11 88 964/-. MA NOS.85-88/MDS/10 7 11. A READING OF THE SUBMISSIONS MADE BY REVENUE ON THIS ISSUE IN ITS MP ITSELF WOULD CLEARLY SHOW THAT IT IS ARGUMENTATI VE IN NATURE AND IT IS SEEKING A REVIEW OF THE ORDER OF THE TRIBUNAL. THE ORDER OF THE TRIBUNAL; WHICH IS A SPEAKING ONE BY ITSELF CANNOT BE DISTURB ED ON A PETITION FILED FOR REVIEW. UNDER THE GUISE OF A MISC. APPLICATION REVE NUE IS TRYING TO REARGUE THE WHOLE ISSUE AGAIN WHICH CANNOT BE PERMITTED SIN CE THE POWERS OF THE TRIBUNAL IS VERY LIMITED U/S 254(2) OF THE ACT. WE DO NOT FIND ANY MISTAKE IN THE ORDER OF THE TRIBUNAL MUCH LESS ANY MISTAKE APP ARENT ON RECORD. GRIEVANCE NO.2 OF THE REVENUE IS DISMISSED. 12. THE THIRD GRIEVANCE RAISED IN THE MA IS REGARDI NG DISALLOWANCE UNDER SEC 43B OF THE ACT DELETED BY THE CIT(A) AND WHICH DELETION WAS SUSTAINED BY THIS TRIBUNAL. ITS GRIEVANCE WAS THAT FOLLOWING GROUND WAS NOT CONSIDERED: THE LD.CIT(A) OUGHT TO HAVE APPRECIATED THE FACT T HAT THE ASSESSEE HAS ADMITTED THAT A REVISED NOTICE WAS ISSUED BY TH E COMMERCIAL TAX OFFICER ASSESSMENT CIRCLE CHENNAI DATED 11-07 -2001 AND ACCORDING TO THAT NOTICE ` 48 43 648/- WAS FOUND BELATEDLY REMITTED ON VARIOUS DATES AND THUS THERE WAS DELAY. THE CIT( A) HAS DELETED THE ENTIRE ADDITION RELYING UPON THE 44AB AUDIT REP ORT FILED BY THE ASSESSEE STATING THAT THE AUDIT HAS CERTIFIED NIL IN RESPECT OF 43B DISALLOWANCE. THE ASSESSEE HAS NOT FURNISHED EVIDEN CE TO SHOW THAT THE ABOVE AMOUNT WAS REMITTED BEFORE THE DUE DATE F OR FILING RETURN OF INCOME UNDER SEC.139(1) OF THE ACT. IN THE ABSEN CE OF EVIDENCE REGARDING REMITTANCE OF SALES-TAX THE ASSESSING OF FICER WAS JUSTIFIED IN MAKING THE ADDITION. MA NOS.85-88/MDS/10 8 13. RELEVANT FINDING OF THE TRIBUNAL IS GIVEN AT PA RA-51 OF ITS ORDER REPRODUCED HEREUNDER: 61. THE SECOND ISSUE RAISED BY THE REVENUE IS AGAI NST THE DELETION OF SUM OF ` 48 43 648/- BEING THE DISALLOWANCE MADE BY INVOKING SEC. 43B OF THE ACT. THE CIT(A) FOUND THAT THE STATUTORY AUDITORS OF THE ASSESSEE-COMPANY IN THEIR REPORT UN DER SEC. 44AB HAS NOT STATED ANY WHERE THAT THE ASSESSEE HAS NOT PAID SALES TAX WITHIN THE DUE DATES. HE ALSO OBSERVED THAT THE AO HAS NOT GIVEN DETAILS AS TO WHAT EXACTLY THE AMOUNT OF SALES TAX WHICH HAS NOT BEEN PAID BY THE ASSESSEE-COMPANY BEFORE FILING OF THE RETURN OF INCOME. ON THE OTHER HAND HE FOUND THAT THE ASSESS EE HAS FURNISHED ALL THE DETAILS OF SALES TAX PAYMENTS WHI CH SHOWED THAT THOSE PAYMENTS WERE MADE BEFORE THE DUE DATE OF FIL ING OF THE RETURN. IT IS FOR THE ABOVE REASON THAT THE CIT(A) DELETED THE ADDITION. WHEN THE ASSESSEE HAS MADE THE PAYMENTS BEFORE THE DUE DATE OF FILING OF RETURNS WE HAVE TO HOLD THAT THE CIT(A) RIGHTLY DELETED THE ADDITION MADE BY THE AO UNDER SEC. 43B. THIS GROUND IS ACCORDINGLY DISMISSED. 14. IT IS CLEAR FROM THE ABOVE THAT THE ISSUE WAS D ULY CONSIDERED BY THE TRIBUNAL. WHAT THE REVENUE NOW SEEKING IS REVIEW O F THAT ORDER. AS ALREADY MENTIONED BY US THIS TRIBUNAL IS NOT HAVIN G ANY POWER OF REVIEW. THE GRIEVANCE RAISED IS GENERAL NOT HAVING ANY MER IT AND IS DISMISSED. 15 IN THE RESULT MA NO.86/MDS/2010 IS DISMISSED. 16. NOW WE TAKE UP MA NO.87/MDS/2010. THIS MA RUNNI NG INTO SIX PAGES IS AGAINST THE ORDER OF THE TRIBUNAL IN ITA N O.688/MDS/07. FIRST GRIEVANCE OF THE REVENUE IS THAT DISALLOWANCE OF ` 36 39 47 500/- BEING PROFIT ON SALE OF SHARES OF M/S EMPEE BREVERIES LTD WAS DELETED BY THE MA NOS.85-88/MDS/10 9 CIT(A) AND SUCH DELETION WAS SUSTAINED BY THE TRIBU NAL. ACCORDING TO THE REVENUE CERTAIN FACTS SUBMITTED BEFORE THIS TRIBUN AL WERE NOT CONSIDERED AND THERE WERE FACTUAL INACCURACIES IN THE ORDER OF THE CIT(A). 17. RELEVANT PARA-68 OF THE ORDER OF THE TRIBUNAL IS REPRODUCED HEREUNDER: 68. THE SECOND ISSUE RAISED BY THE REVENUE IS THAT THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF ` 36 39 47 500/- BEING THE SALE PROCEEDS OF SHARES OF M/S EMPEE BREWERIES LTD. THE AO HAS MADE THE ADDITION MAINLY RELYING ON THE DECISION OF SUPR EME COURT IN THE CASE OF MCDOWELL & CO. LTD. V. CTO (1985) 154 ITR 1 48 (SC) ON THE GROUND THAT THE ASSESSEE WAS INDULGING IN UNLAWFUL TAX PLANNING. AFTER EXAMINING THE FACTS OF THE CASE THE CIT(A) H ELD THAT WHEN THE ASSESSEE HAS SOLD THE SHARES OF M/S EMPEE BREWERIES LTD. ALMOST ONE YEAR EARLIER THE AO WAS NOT JUSTIFIED IN PRESU MING THAT THE ASSESSEE-COMPANY STILL HOLDS THOSE SHARES. THE CIT( A) HAS ALSO OBSERVED THAT SALE OF SHARES WAS MADE BY OBSERVING THE PROVISIONS OF COMPANY ACT AND AFTER DULY NOTIFIED TO THE SECUR ITY EXCHANGE BOARD OF INDIA. IT IS ALSO A FACT ON RECORD THAT TH E ENTIRE SALE PROCEEDS WERE RECEIVED BY M/S ESCL. WHEN THE FACTS ARE SO SPEAKING IN SUPPORT OF THE ARGUMENTS OF THE ASSESSE E-COMPANY THERE IS NO JUSTIFICATION ON RELYING ON THE JUDGEME NT OF THE SUPREME COURT IN THE CASE OF MCDOWELL & CO. LTD. V. CTO (19 85) 154 ITR 148 (SC) AND DISALLOWING THE CLAIM OF THE ASSESSEE ON T HE BASIS OF GENERAL IMPRESSION MADE BY THE AO. ACCORDINGLY WE CONFIRM THE ORDER OF THE CIT(A) ON THIS PINT AND REJECT THE GRO UND RAISED BY THE REVENUE. 18. IT IS CLEAR FROM THE ABOVE THAT THE TRIBUNAL HA D CONSIDERED THE ISSUE CAREFULLY. BY BRINGING IN A NEW ARGUMENT WITH THE P LEADING THAT THERE WERE INACCURACIES IN THE ORDER REVENUE IS SEEKING ONLY A REVIEW OF THE ORDER OF MA NOS.85-88/MDS/10 10 THE TRIBUNAL WHICH CANNOT BE ALLOWED UNDER THE GARB OF A MISC. APPLICATION. 19. SECOND GRIEVANCE OF THE REVENUE IS THAT DISALLO WANCE OF LOSS ON SALE OF SHARES OF M/S EMPEE SUGAR & CHEMICALS LTD WAS DELETED BY THE CIT(A) AND SUCH DELETION WAS SUSTAINED BY THE TRIBU NAL.. HERE ALSO REVENUES SUBMISSION IS THAT RELEVANT FACTS WERE NO T CONSIDERED BEFORE COMING TO SUCH A CONCLUSION. 20. VARIOUS ARGUMENTATIVE SUBMISSIONS HAVE BEEN MAD E BY THE REVENUE IN ITS MA. IF WE GO INTO SUCH ARGUMENTS WIT H DETAILS NOW SUBMITTED BY THE REVENUE IT WOULD BE EQUIVALENT TO A REVIEW OF THE DECISION OF THE TRIBUNAL. 21. THE TRIBUNAL HAD HELD AT PARA- 69 OF ITS ORDER ON THIS ISSUE AS UNDER: 69. THE THIRD ISSUE RAISED BY THE REVENUE IN ITS A PPEAL FOR THE ASST. YEAR 2002-03 IS THAT THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF ` 20 96 65 198/- BEING THE SALE OF SHARES OF M/S EMP EE SUGARS AND CHEMICALS LTD. THE AO HAS MADE THE ADDIT ION BY WAY OF DISALLOWING THE LOSS ON SALE OF SHARES ON THE GROUN D THAT THE TRANSACTIONS WERE ENTERED INTO BY THE ASSESSEE ONLY TO REDUCE ITS TAX ON LONG TERM CAPITAL GAINS. THE CIT(A) HAS AGREED T O THE AO IN RESPECT OF THE ABOVE PROPOSITION. BUT THE CIT(A) F URTHER HELD THAT SUCH AVOIDANCE IS NOT ILLEGAL IN THE PRESENT CASE L IKE THAT OF TAX EVASION FOR THE REASON THAT THE SHARES WERE SOLD AF TER OBSERVING ALL THE LEGAL FORMALITIES. THE CIT(A) HAS ALSO OBSERVED THAT THE MA NOS.85-88/MDS/10 11 TRANSACTIONS WERE MADE AT ARMS LENGTH PRICE AND VE RY MUCH COMPARABLE TO SHARE VALUE PREVALENT IN THE MARKET T HE RELEVANT POINT OF TIME. THEREFORE THE CIT(A) HELD THAT EVEN THOUG H ASSESSEE COULD AVOID TAX BURDEN AND ITS LONG TERM CAPITAL GAINS T HE LOSS CLAIMED BY THE ASSESSEE COULD NOT BE DISALLOWED ONLY ON THAT G ROUND AS OTHERWISE THE TRANSACTIONS HAVE BEEN PROVED TO BE G ENUINE. WE AGREE WITH THE CIT(A). IF THE ASSESSEE HAS PLANNED FOR TAX AVOIDANCE THAT HAS BEEN DONE WITHIN THE FOUR CORNE RS OF LAW. THEREFORE IT IS NOT POSSIBLE TO HOLD THAT LOSS ON SALE OF SHARES WAS NOT BONAFIDE OR FICTITIOUS OR UNACCEPTABLE. THE TRA NSACTIONS HAVE BEEN PROVED BY THE ASSESSEE-COMPANY BY MATERIAL EVI DENCE. THERE IS NO DISPUTE EVEN IN RESPECT OF SALE PRICE OF THE SHARES. THEREFORE IN THE FACTS AND CIRCUMSTANCES OF THE CASE WE FIND THAT THE CIT(A) HAS RIGHTLY DELETED THE SAID ADDITION. THIS GROUND IS ACCORDINGLY REJECTED. 22. WE DO NOT FIND ANY MISTAKE IN THE ORDER OF THE TRIBUNAL WHICH COULD WARRANT ANY INTERFERENCE U/S 254(2) OF THE ACT. 23 IN THE RESULT MA NO.87/MDS/2010 STANDS DISMISS ED. 24. NOW WE TAKE UP LAST OF THE MISC. APPLICATIONS F ILED BY THE REVENUE WHICH IS 88/MDS/2010 AGAINST THE ORDER OF THE TRIBU NAL IN ITA NO.501/MDS/07. THE SOLE ISSUE RAISED BY THE REVENUE IS THAT ADDITIONAL GROUNDS FILED BY IT ON 07-08-2008 WERE NOT CONSIDER ED. 25. ALL FURTHER SUBMISSIONS MADE IN THE MA ARE IN S UPPORT OF SUCH ADDITIONAL GROUNDS. MA NOS.85-88/MDS/10 12 26. WE HAVE ALREADY DEALT WITH THE ISSUE OF ADDITIO NAL GROUND AT PARA-5 OF OUR ORDER ABOVE. WE THUS DO NOT FIND ANY MERIT I N THE MA FILED BY THE REVENUE WHICH IS THEREFORE DISMISSED. 27. BEFORE PARTING WITH THE MPS FILED BY THE REVEN UE IT WOULD BE INAPPROPRIATE IF WE DO NOT PUT ON RECORD THE LIMITA TIONS OF THE POWER OF THIS TRIBUNAL. IT IS WELL SETTLED THAT THE POWER TO REVI EW IS NOT AN INHERENT POWER AND IT MUST BE CONFERRED BY LAW EITHER SPECIFICALLY OR BY NECESSARY IMPLICATION AS HELD BY THE HONBLE AAPEX COURT IN T HE CASE OF PATEL NARSHI THAKERSHI V. PRADYUMANSINGHJI ARJUNSINGHJI AIR 197 0 SC 1273. THE AFORESAID PROPOSITION OF LAW HAS BEEN AFFIRMED BY T HE APEX COURT IN THE CASE OF KEWAL CHAND MIMANI (DECD.) (BY LRS) V. S.K. SEN (2001) 6 SCC 512 IN THE CASE OF CCE V STEELCO GUJARAT LTD. (20 03) 12 SCC 731 IT HAS BEEN HELD BY THE APEX COURT THAT THE POWER OF REVIE W IS NOT AN INHERENT POWER AND MUST BE EXPRESSLY GRANTED. AGAIN IN THE CASE OF KAPRA MAZDOOR EKTA UNION V. BIALA COTTON SPG. & WEAVING M ILLS LTD. (2005) 13 SCC 777 THE HONBLE APEX COURT HAS FILED THAT WHER E A COURT OR QUASI- JUDICIAL AUTHORITY HAVING JURISDICTION TO ADJUDICA TE ON THE MERITS PROCEEDS TO DO SO ITS JUDGMENT OR ORDER COULD BE REVIEWED O N THE MERITS ONLY IF THE COURT OR THE QUASI-JUDICIAL AUTHORITY WAS VESTED WI TH POWER OF REVIEW BY EXPRESS PROVISION OR BY NECESSARY IMPLICATION. MA NOS.85-88/MDS/10 13 28. WITH THE ABOVE REMARKS WE DISMISS ALL THE MISC . APPLICATIONS FILED BY THE REVENUE. ORDER PRONOUNCED IN THE OPEN COURT IMMEDIATELY AFTE R HEARING ON 03-12-2010. SD/- SD/- (HARI OM MARTHA) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI: 8TH DECEMBER 2010. CC: ASSESSEE/ ASSESSING OFFICER/ CIT(A)/CIT/DR/ GUARD FILE. NBR