Gausia Cold Storage Pvt Ltd, Mumbai vs Assessee

Gausia Cold Storage Pvt. Ltd. Asst. CIT-6(3) 133, Kazi Sayed Street, 5th Floor, 522, Aaykar Bhavan, M. K. Road, बनाम/ Guru Krupa Bldg., Masjid Bunder, Mumbai-400 020 Mumbai-400 003 Vs.

थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. AAACG 2115G (अपीलाथ /Appellant) : ( यथ / Respondent)

अपीलाथ क ओर से / Appellant by : None

यथ क ओर से/Respondent by : Shri Vivek Perampurna

सन ु वाई क तार ख / : 22.10.2014 Date of Hearing घोषणा क तार ख / : 16.01.2015 Date of Pronouncement

आदे श / O R D E R Per Sanjay Arora, A. M.:

This is an Appeal by the Assessee directed against the Order u/s. 264 of the Income Tax Act, 1961 ('the Act' hereinafter) dated 08.02.2011 for the assessment year (A.Y.) 2006-07, dismissing its application under the said section.

2. None appeared for and on behalf of the assessee when its appeal was called out for hearing, nor any adjournment application stands received. Even on earlier occasions there had been no representation for and on behalf of the assessee despite due service of notice 2 ITA No. 1895/Mum/2011 (A.Y. 2006-07) Gausia Cold Storage Pvt. Ltd. vs. Asst. CIT

of hearing. Under the circumstances, it was only considered fit and proper to proceed with the matter, and decide the appeal after hearing the party before us.

3. The assessee company sought revision of its assessment, finalized u/s.143(3) on 03.12.2008, accepting the returned income of Rs.35,19,179/-, u/s.264 of the Act on the ground that the deduction u/s.80-IB, to which it was entitled, had not been allowed per the impugned assessment. The deduction, for which it was otherwise eligible since the first year of operating a cold storage, i.e., A.Y. 1998-99, could not be claimed up to the immediately preceding year on account of continued losses. The assessee returning profit for the first time for the current year, forgot to prefer the claim u/s.80-IB, and hence its petition u/s.264. The ld. CIT, as a competent authority, rejected the same on the ground that the said claim had not been made either per the return of income for the year or even during the assessment proceedings, so that the application for revision u/s.264, as made, is misconceived and not maintainable. Reliance was also placed by him on the decision in the case of Goetze (India) Ltd. vs. CIT [2006] 284 ITR 323 (SC). Aggrieved, the assessee is in appeal.

4. We have heard the party before us, and perused the material on record. Without doubt, the impugned order is not a speaking order, i.e., not dilating on the scope of the revision u/s.264, on the maintainability or otherwise in law of the petition under which the fate of the assessee's appeal would lie. The assessee, on the other hand, has cited several decisions by the higher courts of law, including by the apex court, qua the scope of provision u/s.264, viz. Dwarka Nath vs. ITO [1965] 57 ITR 349 (SC); Ramdev Exports vs. CIT [2001] 251 ITR 873 (Guj); Parekh Brothers vs. CIT [1984] 150 ITR 105 (Ker); and M. Chettyappan & Ors. v. CIT [1977] 110 ITR 684 (Mad).

Under the circumstances, we only consider it fit and proper to restore the matter back to the file of the ld. CIT to adjudicate the assessee-appellant's application afresh in accordance with the law per a speaking order and after allowing a reasonable opportunity of hearing to it. We decide accordingly.

3 ITA No. 1895/Mum/2011 (A.Y. 2006-07) Gausia Cold Storage Pvt. Ltd. vs. Asst. CIT

5. In the result, the assessee's appeal is allowed for statistical purposes.

प रणामतः नधा रती क अपील सां यक य उ े य के लए वीकृत क जाती है ।

Order pronounced in the open court on January 16, 2015

Sd/- Sd/-

(D. Manmohan) (Sanjay Arora) उपा य /Vice President लेखा सद य / Accountant Member मुंबई Mumbai; दनांक Dated : 16.01.2015 व. न.स./Roshani, Sr. PS

आदे श क त ल प अ े षत/Copy of the Order forwarded to :

1. अपीलाथ / The Appellant

2. यथ / The Respondent

3. आयकर आयु त(अपील) / The CIT(A)

4. आयकर आयु त / CIT - concerned

5. वभागीय त न ध, आयकर अपील य अ धकरण, मुंबई / DR, ITAT, Mumbai

6. गाड फाईल / Guard File आदे शानस ु ार/ BY ORDER,

उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई / ITAT, Mumbai