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Income Tax Appellate Tribunal - Lucknow

M/S J.K. Synthetics Ltd., Kanpur vs Astt. Commissioner Of Income Tax-4, ... on 19 March, 2018

                                                   M.A. No.29/Lkw/2016
                                                                             1
                                               Assessment year:1992-93

               IN THE INCOME TAX APPELLATE TRIBUNAL
                    LUCKNOW BENCH 'A', LUCKNOW

     BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER AND
     SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER

                   Misc. Application No.29/Lkw/2016
                (Arising out of I.T.A. No.563/Lkw/2010)
                        Assessment year:1992-93

 M/s J. K. Synthetics Ltd.,          Vs. A.C.I.T.-4,
 E-23, Kamla Tower,                      Kanpur.
 Kanpur.
 PAN:AAACJ 4988 M
            (Applicant)                                (Respondent)


 Applicant by                       Shri Rakesh Garg, Advocate
 Respondent by                      Ch. Arun Kumar Singh, D.R.
 Date of hearing                    16/03/2018
 Date of pronouncement              19/03/2018

                                   ORDER

PER T. S. KAPOOR, A.M.

This Misc. Application has been filed by the assessee against the order of Hon'ble Tribunal dated 21/08/2015 passed in I.T.A. No.563/Lkw/2016.

2. At the outset, Learned A. R. invited out attention to the order of the Tribunal at page No. 10 where ground No. 7 of Revenue's appeal was noted vide para 36 and was decided by the Tribunal in favour of the Revenue vide para No. 37 and 38. Learned A. R. submitted that vide para No. 37, it has been observed by the Tribunal that the issue raised vide ground No. 7 was similar to ground No. 1 of Revenue's appeal in assessment year 1987-88 and therefore, following the same the matter was decided in favour of the Revenue. Learned A. R. submitted that in fact the M.A. No.29/Lkw/2016 2 Assessment year:1992-93 facts of the two years were exactly the opposite and in this regard Learned A. R. filed the order of the Tribunal for the assessment year 1987-88. Learned A. R. stated that during assessment year 87-88 there was excess of refunds made over receipts but in assessment year 1992-93 there was excess of receipts over refunds made in cops deposit account. Learned A. R. in support of his contention refers to the order of the Assessing Officer for assessment year 87-88 who in her order dated 26/07/94 at pages 4 & 5 has held that there was excess of refund over receipt at Rs.9,00,502/-. It was submitted that the findings of Hon'ble Tribunal that both parties had agreed that facts in both years are identical is not correct. Therefore, it was argued that there has occurred a mistake apparent from record which needs to be rectified.

3. Learned D. R., on the other hand, relied on the orders of Hon'ble Tribunal.

4. We have heard the rival parties and have gone through the material placed on record. We find that in I.T.A. No.563 Hon'ble Tribunal vide a consolidated order dated 21/08/2015 has noted in respect of ground No. 7 vide para 36 to 38 as follows:

"36. Ground No. 7 of the Revenue is as under:

"On the facts and in the circumstances of the case, the Ld CIT (A) has erred in holding that surplus receipts over refunds in the cops deposits account was not the income of the assessee and thereby deleting the addition of Rs. 19,55,735/-."

37. It was agreed by both sides that identical issue was raised in the appeal of the revenue for the A.Y. 1987 - 88 as per Ground No. 1 and this appeal was heard on 23.03.2015 and therefore, in the present year, this ground can be decided on similar line as per tribunal order in that year.

Assessment year:1992-93

38. We find that in A.Y. 1987 - 88, this issue was decided by the tribunal in favour of the revenue and against the assessee as per Para No. 3 of the tribunal order in A. Y. 1987 - 88. No difference in facts could be pointed out by any side and therefore, in the present year also, this issue is decided on similar line. Accordingly, this Ground No. 7 of the revenue is allowed."

We further find that though in assessment year 87-88 the Revenue has taken similar grounds of appeal and Hon'ble Tribunal relying on the Tribunal order in assessment year 86-87 has allowed the issue in favour of the Revenue. However, examination of assessment order for assessment year 87-88 reveals that Assessing Officer in that year vide order dated 26/07/94 at pages 2 to 5 has observed as under:

"The assessee is in the practice of accepting security deposit on cops from customers to whom it sends its cops (around which yearn is wound) during its sale of yarn. This security deposit is refunded when the said cops are received back.

In the year under consideration, the assessee has received Rs.4,55,85,030/- as security deposit of cops and a sum of Rs.4,64,85,532/- worth of security deposit has been refunded in this year. Therefore, the excess of refunds over receipts is Rs.9,00,502/-.

In earlier assessment years. Department has taken security deposit received against cops as trading receipts of the assessee company. Consequently, the security deposit received in excess of the refund has been added to the assessee's income. Even though such addition made by the Assessing Officer has been deleted by Appellate authorities, the department has not accepted the orders of appellate authorities and has filed ref.'/appeal against such deletions.

In the year under consideration, there is excess refund over receipts and the assessee has claimed deduction in respect of this excess refund which comes to Rs.9,00,502/- (4,64,85,532 - 4,55,85,030). Details of the calculation of this security deposit has been filed vide Annex. 33 which has been examined.

Assessment year:1992-93 The claim of the assessee for a deduction of Rs. 9,00,502 is rejected as even this stand taken by the assessee in earlier years has not been accepted by the department. However, no addition is made this year because refunds exceed receipts."

4.2 From the above facts noted by the Assessing Officer, we find that during assessment year 87-88 the issue was regarding excess refund over receipts whereas during the year under consideration the issue was regarding surplus receipts over refund which is exactly opposite to the facts of the assessment year 87-88.

4.3 In view of these facts and circumstances, a mistake has occurred in the order of the Tribunal dated 21/08/2015 so far as ground No. 7 relates. Therefore, for the limited purpose of readjudication on ground No. 7, the said order of the Tribunal dated 21/08/2015 is recalled. The registry is directed to fix the case for limited purpose of adjudicating on ground No. 7 by issuing notice to both the parties. In view of the above, the Misc. Application of the assessee stands allowed.

5. In the result, the Misc. Application of the assessee is allowed.

(Order pronounced in the open court on 19/03/2018) Sd/. Sd/.

(PARTHA SARATHI CHAUDHURY)                             ( T. S. KAPOOR )
     Judicial Member                                 Accountant Member

Dated:19/03/2018
*Singh


Copy of the order forwarded to :
1.  The Appellant
2. The Respondent.
3.  Concerned CIT
4.  The CIT(A)
5.  D.R., I.T.A.T., Lucknow