Gujarat H.C : Whether the Tribunal was right in law and on facts in rejecting the miscellaneous application which was preferred by the Revenue on the ground that no approval under s. 10(15)(iv)(c) of the Act was communicated to the AO ?

High Court Of Gujarat

CIT & Anr. vs. Virat Shipping Corporation & Anr.

Section 254(2), 260A

Y.R. Meena, C. J. & B.N. Mehta, J.

Tax Appeals Nos. 943 & 945 of 2007

11th January, 2008

Counsel Appeared :

Manish R. Bhatt, for the Appellant : None, for the Respondents

JUDGMENT

By the court :

The following common question has been proposed for the admission of these appeals :

“Whether the Tribunal was right in law and on facts in rejecting the miscellaneous application which was preferred by the Revenue on the ground that no approval under s. 10(15)(iv)(c) of the Act was communicated to the AO ?”

The basic issue raised is whether the assessee is entitled for exemption under s. 10(15)(iv)(c) of the Act. The appeal of the Revenue was dismissed. Thereafter, miscellaneous application was moved claiming that no approval was taken for allowing the exemption to the assessee under s. 10(15)(iv) (c) of the Act. The Tribunal has rejected that miscellaneous application holding that there is no apparent mistake. The relevant part of the order reads as under : “These miscellaneous applications have been filed by the Revenue on the ground that the Tribunal has given a finding that the Department’s appeal has been dismissed on the ground that the assessee has paid interest under s. 10(15)(iv)(c) and necessary approval from the concerned authority, i.e., from the Government of India, Ministry of Finance, Department of Revenue, as required under s. 10(15)(iv)(c) of the Act. But no such approval has been communicated to the AO as is the practice to send a copy of it to the AO. Therefore, the finding of the Tribunal that the assessee has the obtained the approval requires reconsideration and the order passed, vide para 5 in this context requires suitable modification.

Having heard the learned Departmental representative and perusing the record, we find the Tribunal has given its finding on the facts and there is no mistake in the order of the Tribunal. However, we observe that if the approval was not received by the AO as stated in the miscellaneous application, it cannot be a ground for rectification of the order of the Tribunal. In such event, i.e., non-receipt of a copy of the approval by the AO, we may suggest the AO to take appropriate steps in that regard instead of approaching the Tribunal for rectification of order in the manner as suggested and requested in the miscellaneous application.”

4. The learned counsel for the Revenue has failed to show us whether any argument was taken by the Departmental representative at the time of hearing of appeal that no approval was taken as required under s. 10(15)(iv)(c) of the Act for exemption. When that fact is not on record, it cannot be said that there is apparent mistake. We see no merit in these appeals. The appeals stand dismissed.

[Citation : 327 ITR 257]