Gujarat Ambuja Proteins Limited v. Dy. Commissioner Of Income Tax....opponent(S

O/TAXAP/529/2007 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO. 529 of 2007 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ GUJARAT AMBUJA PROTEINS LIMITED....Appellant(s) Versus DY. COMMISSIONER OF INCOME TAX....Opponent(s) ================================================================ Appearance: MRS SWATI SOPARKAR, ADVOCATE for the Appellant(s) No. 1MRS MAUNA M BHATT, ADVOCATE for the Opponent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERIandHONOURABLE MR.JUSTICE K.J.THAKER Date : 17/12/2014 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1.By way of this appeal, the assessee has challenged the judgment and order dated 28.11.2006 passed by the Income Tax Appellate Tribunal, Ahmedabad in ITA No. 112/Ahd/1999 for AY 1993-94. 2.While admitting this appeal on on 14.12.2007, this Court has framed the following substantial question of law: “Whether in the facts and circumstances of the case the Income Tax Appellate Tribunal was right in law in holding that expenditure on the issue of convertible debentures is a capital expenditure ?” 3.The facts of the present case are that the return of income was filed by the assessee on 27.9.94 declaring total income of Rs. 11,67,821/-. The return filed was processed under sec. 143(1)(a) of the Act on the same total income. Thereafter, notice u/s. 143(2) was issued and served on the assessee for scrutiny of assessment. Notice u/s. 143(2) and 142(1) were issued along with letter dated 25.8.95 in form of questionnaire. Notice u/s. 142(1) was issued on 4.9.95 calling specific information and evidence in support of genuineness of the transaction of purchase and sale of Soyabean DOC (Yellow) etc. to the group concerned. In response to the notice issued by the Revenue, the assessee has furnished the necessary details. Thereafter, after considering the material on record, the assessment order came to be passed. Against the said order of assessment, the assessee has preferred appeal before the CIT(Appeals) which came to be partly allowed. Against the said order of CIT(Appeals), the assessee has preferred an appeal before the ITAT, which has been dismissed. Being aggrieved by the said order of ITAT, the assessee has preferred present Tax Appeal before this Court. 4.Heard the learned advocates appearing for the parties and considered the submissions. The question posed for consideration of this Court in this Tax Appeal is squarely covered by the decision of this Court dated 2.7.2009 rendered in Tax Appeals No. 481 of 1999 and 482 of 1999, which we have followed in Tax Appeal No. 73/2002. Para-11 and 12 of the judgment rendered in Tax Appeal No. 73 of 2002 reads as under: 11. Having gone through the aforesaid judgment of the Division Bench of this Court, we do not find that any other view of the matter can be taken than the one taken by the Division Bench of this appeal before the ITAT, which has been dismissed. Being aggrieved by the said order of ITAT, the assessee has preferred present Tax Appeal before this Court. 4.Heard the learned advocates appearing for the parties and considered the submissions. The question posed for consideration of this Court in this Tax Appeal is squarely covered by the decision of this Court dated 2.7.2009 rendered in Tax Appeals No. 481 of 1999 and 482 of 1999, which we have followed in Tax Appeal No. 73/2002. Para-11 and 12 of the judgment rendered in Tax Appeal No. 73 of 2002 reads as under: 11. Having gone through the aforesaid judgment of the Division Bench of this Court, we do not find that any other view of the matter can be taken than the one taken by the Division Bench of this O/TAXAP/529/2007 JUDGMENT Court in its decision dated 02.07.2009, and therefore, we are of the opinion that the matter does not require to be referred to the Larger Bench and rather same deserves dismissal. However, while doing so we do agree with the submission of Mr. Soparkar that the assessee be given an opportunity to carry the matter before the Apex Court. 12. In the result, present appeal stands dismissed. However, in view of the fact that there are different views expressed by the different High Courts on the subject-matter of this appeal, we deem dismissed. However, in view of the fact that there are different views expressed by the different High Courts on the subject-matter of this appeal, we deem it fit to grant certificate of fitness to the assessee to carry the matter before the Apex Court. No order as to costs. 5. In that view of the matter, the present Tax Appeal deserves to be dismissed. The question is answered in favour of the Revenue and against the assessee. However, in view of the fact that there are different views expressed by the different High Courts on the subject-matter of this appeal, we deem it fit to grant certificate of fitness to the assessee to carry the matter before the Apex Court. No order as to costs. (K.S.JHAVERI, J.) mandora (K.J.THAKER, J)