Income Tax Appellate Tribunal - Ahmedabad
M/S. Jay Chemical Industries Ltd.,, ... vs The Dcit, (Osd)-1 Circle-4,, Ahmedabad on 7 August, 2019
IN THE INCOME TAX APPELLATE TRIBUNAL
AHMEDABAD "D" BENCH
Before: SHRI AMARJIT SINGH, ACCOUNTANT MEMBER &
SMT. MADHUMITA ROY, JUDICIAL MEMBER
M.A. No. 172/Ahd/2019
(IN ITA No. 305/Ahd/2015)
Assessment Year 2011-12
M.A. No. 185/Ahd/2019
(IN CO No. 41/Ahd/2015)
Assessment Year 2011-12
M/s. Jay Chemical Industries DCIT (OSD)-1,
Ltd., Ja y House, Panchavati Circle-4, Ahmedabad &
Circle, Ambawadi, Vs. DCIT, Cir. 2(1)(2),
Ahmedabad- 380006 Ahmedabad
(APPELLANT) (RESPONDENT)
PAN: AAA CJ7 625 J
Revenue b y: Shri Nimesh Vayawala, AR
Assessee by: Shri Vinod Tanwani, Sr. DR
Date of hearin g : 05-07-2019
Date of pronouncement : 07-08-2019
आदे श/ORDER
PER : AMARJIT SINGH, ACCOUNTANT MEMBER:-
The assessee has filed this miscellaneous application against the decision of ITAT vide ITA No. 305/Ahd/ 2015 and C.O. No. 41/Ahd/2015. It is submitted in the miscellaneous application that while referring the decision of West Coast Paper Mills Pvt. Ltd. vs. CIT (2014) 52 taxman.com 268 (Mum-Trib). It is held that "we do not find any error in the decision of M.A. Nos.172/Ahd/2019 & 185/Ahd/2019 2 A.Y. 2011-12 Jay Chemicals Industries Ltd. vs. DCIT the Ld. CIT(A) therefore, this ground of appeal of Revenue is dismissed." It is also submitted that the Co-ordinate Bench has dismissed the C.O. No. 41/Ahd/2015 filed by the assessee stating that Cross Objection has not been pressed.
2. However, it is submitted that decision of West Coast Paper Mills Pvt. Ltd. was referred in connection to the Cross Objection of the assessee for the year under consideration and Ld. CIT(A) has already held that steam was not power for sec. 80IA(iv) and there was no appeal by the Revenue on that ground or point. Considering above the relevant part of the miscellaneous application of the assessee is reproduced as under:-
"Respectfully following the decision of the Co-ordinate Bench of ITAT Mumbai supra on identical issue and facts and after considering the detailed findings of the ld. CIT(A) , we do not find any error in the decision of ld. CIT(A), therefore, this ground of appeal of revenue is dismissed.
Thus, it is clear that ITAT has concurred with the view that steam is power. However, as the CIT(A) has already held that steam is not power for 80IA(iv) there was no appeal by the revenue on that ground or point.
The joint order is passed for A.Y. 2010-11 and 2011-12 The matter nos ITA no. 2693/Ahd/2014 and CO no 01/Ahd/2015 for 2010-11 and ITA no 305/Ahd/2015 and CO no 41/Ahd/2015 2011-12. Both the appeals were heard one after the another.
The CO no 01/Ahd/2015 was not pressed and the hearing for appeal no A.Y. 2010-11 was concluded. Then after the appeal for A.Y. 2011-12 was taken up.
The Hon'ble ITAT has noted that CO 41 /And/2015 was not pressed. In fact only CO no 01/Ahd/2015 for the year was not pressed.
The CO for A.Y. 2011-12 was against the finding of the CIT(A) that steam is not power. In this connection the Hon'ble ITAT with due respect correctly arrived at concurrence with the coordinate bench in the case of west coast paper mills MUM. However, this finding was recorded in connection with the Co of the assessee. The assessee has in the CO raised the following grounds. "The lower authorities ought to have followed the decisions of various benches of Hob'ble ITAT including the decision in 52 taxmann.com 268 and have held M.A. Nos.172/Ahd/2019 & 185/Ahd/2019 3 A.Y. 2011-12 Jay Chemicals Industries Ltd. vs. DCIT that Steam in any form is power and the profit from the same is eligible for deduction vide section 80IA. The lower authorities may be directed to compute the deduction vide section 80IA accordingly after considering that A.Y. 2011-12 being the initial assessment year as held by Ld. CIT(A) the brought forward losses which are already absorbed against other income are not to be deducted for computing the relief vide section 80IA, the finding given on that aspect by learned CIT(A) being correct."
The CO clearly agitates the finding of the lower authorities that steam is not power Thus, it was incorrect to record the finding that CO was not pressed. In fact by referring to various decisions including West Coast Paper Mills Limited the AR did argue the CO in detail. It may be noted that the Hon'ble ITAT has in this order itself reached the conclusion that steam is a form of power and has effectively dispose off the grounds in the CO in favor of the assessee. Thus, there is mistake apparent from record.
After following the decision of west coast paper mills as done by the Hon'ble ITAT the finding ought to be that the issue raised in CO stands allowed The assessee has also relied upon the following decisions in the paper book Deputy C.I.T. vs. Vishal Fabrics Pvt. Ltd. (Page No. 128 to 140 of paper book filled on 11/12/2018) A.C.I.T. Vs. J.H. Kharawala Pvt. Ltd. (Page No. 112 to 123 of paper book filled on 11/12/2018) (both the above decisions allow steam as power for 80 IA) In view of the above the finding of the ITAT that CO no 41/Ahd/2015 was not pressed is a mistake and has to be rectified.
In fact, the CO for A.Y. 2011-12 was argued and hence the reference to West Coast Paper Mills. For the sake of argument, it is taken that CO was not argued then also the decision has to be on merits.
We shall like to place on record that wrong concession by the council is not binding. In fact, the decisions are to be given not on the basis of concessions but on facts and law involved in the matter.
Union of India & Anr v. S.C. Parashar (Supreme Court of India) Appeal (Civil) 1267 of 2006 The Central Council for research v. Dr. K. Santhakumari (Supreme Court of India) Appeal (Civil) 3595 of 2001 M.A. Nos.172/Ahd/2019 & 185/Ahd/2019 4 A.Y. 2011-12 Jay Chemicals Industries Ltd. vs. DCIT The Deputy Commissioner of Income tax v. K.S. Suresh (Madras High Court) Writ Appeal No. 766 to 771 of 2005 We therefore request to rectify the mistake by passing the order vide section 254(2)."
3. In the light of the above facts and circumstances we observe that there is apparent error in adjudication of ground of appeal no. 4 of the Revenue and not adjudicating of C.O. No. 41/Ahd/2015 filed by the assessee. And further the assessee filed his submission dated 21.06.2019 has further referred the other decision which are reproduced as under:-
"In the recent decision in the case of Sun Pharmaceuticals Limited the view has been taken that view of the coordinate bench is to be followed.
In the case of J.H. Kharawala Pvt. Limited, filed in the paper book the bench has taken the view that steam is equivalent to power. The other decision of Vishal Fabrics is also filed in paper book. Thus, in view of the earlier decisions of Ahmedabad Bench the steam is form of power.
As the view of the FAA is not in line with the same the CO was filed. The order requires the modification to that extent. When the ITAT has agreed that steam is in form of power the order has to be modified to that extent As the Ahmedabad ITAT has earlier taken the view the bench cannot differ from the same. Extract from the order of Sun Pharmaceuticals Linrted ITA No. 922/ 929/234/1237 of 2017.
"Moreover, we are bound to follow the order of this Tribunal in the own case of the assessee in the earlier year as the facts are identical in the impugned issue before us. It is also important to note that the Ld. DR has not brought anything on record contrary to the argument advanced by the Ld. Counsel for the assessee and the finding of the Ld. CIT-(A).
38.1 We also place our reliance on the judgment of Hon'ble Madras High Court in the case of CIT v. L.G. Ramamurthi 1977 CTR (Mad.) 416 : [1977] 110 ITR 453 (Mad.). The relevant extract has been reproduced in the preceding paragraph. In the light of the ratio decidendi in the above-said judgment, we are of the considered opinion that the view adopted by the co-ordinate bench as discussed above shall be applied in the case on hand with full strength. The Id. DR and the Id. AR has not brought any decisions varying from similar or identical facts or circumstances. Therefore, the ratio decidendi rendered by the earlier ITA M.A. Nos.172/Ahd/2019 & 185/Ahd/2019 5 A.Y. 2011-12 Jay Chemicals Industries Ltd. vs. DCIT Nos.922 & 1234/Ahd/2017 (By Revenue) and ITA Nos.929 & 1237/Ahd/2017 (By Assessee) DCIT vs. Sun Pharmaceuticals Inds. Ltd. vs. DCIT Asst Years - 2010-11 & 2012.
Order of the Tribunal has necessarily to be followed by us in line and tune with the judicial discipline and decorum. In view of the above and respectfully following the ITAT order as discussed above, we allow the ground of appeal of the assessee and dismiss the ground of appeal of the Revenue."
In the end we shall like to mention that an inadvertent error of the ITAT should not prejudice any litigant. The reliance is placed upon,
1. Honda Siel Powr Products Ltd. v. Commissioner of Income Tax 165 TAXMAN 307 (Supreme Court of India)
2. Apex Therm Packaging (P.) Ltd. v. Income Tax Officer 42 taxmann.com 98 (High Court of Gujarat)
3. Hindustan Lever Ltd. v. Joint Commissioner of Income Tax, Special Range-2, Calcutta 104 taxmann.com 215 (High Court of Calcutta)"
4. Considering the material referred by the assessee in his submission and the material fact that Cross Objection of the assessee was dismissed on the ground that it was not pressed, we allow the miscellaneous application of the assessee to the limited extent of ground no. 4 of the Revenue, however, C.O. No. 41/Ahd/2015 of the assessee to be adjudicated a fresh after considering the material referred by the assessee. In respect of ground no. 4 of the Revenue it is noticed that Para No. 17 and Para No. 18 of the order are mistakenly reported while adjudicating the ground no. 4 of the Revenue, therefore in place of Para 17 and Para 18 the findings of the ITAT be read as under:-
"We have heard the rival contentions and perused the material on record. After considering the decisions of Co-ordinate Benches of the ITAT Ahmedabad as reported in Para 4 of the order Ld. CIT(A) we do not find any error in the decision of the Ld. CIT(A). Therefore, ground no. 4 of appeal of Revenue is dismissed."
Since there is no specific adjudication of C.O. No. 41/Ahd/2015 of the assessee and it is required to be adjudicated specifically by speaking order, M.A. Nos.172/Ahd/2019 & 185/Ahd/2019 6 A.Y. 2011-12 Jay Chemicals Industries Ltd. vs. DCIT therefore, we consider that there is apparent mistake in the order of ITAT for adjudicating the C.O. No. 41/Ahd/2015 filed by the assessee. Accordingly, miscellaneous application of the assessee is allowed to the extent of correcting the finding of the ITAT as above in respect of ground no. 4 of the Revenue. The C.O. No. 41/Ahd/2015 of the assessee is to be adjudicated a fresh as the same was dismissed on the ground that it was not pressed. Accordingly, the Registry is directed to fix the case for hearing in due course for adjudicating the C.O. No. 41/Ahd/2015 filed by the assessee. In the result, Cross Objection of the assessee is allowed to the term and condition as mentioned above in this order.
5. In the result, miscellaneous application filed by the assessee is allowed.
Order pronounced in the open court on 07-08-2019
Sd/- Sd/-
(MADHUMITA ROY) (AMARJIT SINGH)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Ahmedabad: Dated 07/08/2019
TANMAY TRUE COPY
आदे श क त ल प अ े षत / Copy of Order Forwarded to:-
1. Assessee
2. Revenue
3. Concerned CIT
4. CIT (A)
5. DR, ITAT, Ahmedabad
6. Guard file.
By order/आदे श से,
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