Greenbay Food Products (P) Ltd., Erode V. ITO, Erode

CO 196/CHNY/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1553 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 10 month(s) 24 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 15-11-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 05-07-2017
• Assessment Year: 2012-2013
• Appeal Filed On: 21-12-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: B RAMAKRISHNAN
• Keywords: Depreciation; Tax effect; Unabsorbed depreciation
• Section: 271(1)(c)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , C B ENCH, CHENNAI . . . , . , BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NOS.2816 & 2817/CHNY/2016 ( / ASSESSMENT YEAR: 2012-13) THE INCOME TAX OFFICER, WARD 2(5), ERODE VS M/S. GREENBAY FOODS PRODUCTS(P) LIMITED, VAIKKAL THOTTAM, KALLIYAKADU, B N PALAYAM, GOBICHETTIPALAYAM, ERODE DISTRICT PAN: AADCG5182B ( /APPELLANT) ( /RESPONDENT) & C.O. NOS.196 & 197/CHNY/2016 ( IN ITA NOS. 2816 & 2817/CHNY/2016 ) M/S. GREENBAY FOODS PRODUCTS(P) LIMITED, VAIKKAL THOTTAM, KALLIYAKADU, B N PALAYAM, GOBICHETTIPALAYAM, ERODE DISTRICT VS THE INCOME TAX OFFICER, WARD 2(5), ERODE PAN: AADCG5182B ( /APPELLANT) ( /RESPONDENT) /REVENUE BY : SHRI CLEMENT RAMESH KUMAR, CIT ,- . / 0 /ASSESSEE BY : SHRI B. RAMAKRISHNAN, CA . -34 /DATE OF HEARING : 15.11.2018 . -34 /DATE OF PRONOUNCEMENT : 15.11.2018 / O R D E R PER A. MOHAN ALANKAMONY, AM:- THESE APPEALS BY THE REVENUE ARE DIRECTED AGAINST T HE ORDERS PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (A PPEALS)-3, 2 ITA NOS. 2816 & 2817/CHNY/2016 & CO NOS. 196 & 197/CHNY/2016 COIMBATORE BOTH DATED 29.06.2016 IN IT APPEAL NO.22 1/15-16 & 272/15-16 PASSED U/S.143(3) & 271(1)(C) OF THE ACT RESPECTIVELY FOR THE ASSESSMENT YEAR 2012-13. THE ASSESSEE HAS ALSO RAISED CROSS OBJECTIONS IN CO NO.196 AND CO.197 AGAINST THE ORDE R OF THE LD.CIT(A) IN ITA NO.221/15-16 FOR NOT GRANTING SET- OFF OF BROUGHT FORWARD UNABSORBED DEPRECIATION FOR THE ASSESSMENT YEAR 2009-10 AND IN SUPPORT OF THE ORDER OF THE LD.CIT(A) IN ITA NO.272/15-16 FOR DELETING THE PENALTY RESPECTIVELY. 2. THERE IS A DELAY OF 02 DAYS IN FILING THE APPEA LS BY THE REVENUE. THE LD.ITO HAS FURNISHED AN AFFIDAVIT BEF ORE US STATING THAT THE DELAY HAD OCCURRED DUE TO THE LAPSE OF TIM E DURING TRANSIT OF FILES AND DUE TO INTERVENING HOLIDAYS. IT WAS TH EREFORE PLEADED THAT THE SHORT DELAY IN FILING THE APPEALS MAY BE C ONDONED. THE LD.AR OBJECTED TO THE SUBMISSION OF THE LD.DR. HOWE VER, AFTER HEARING BOTH SIDES, THOUGH WE DO NOT APPRECIATE THE LETHARGIC ATTITUDE OF THE REVENUE, IN THE INTEREST OF JUSTICE WE ARE OF THE CONSIDERED VIEW THAT THE SHORT DELAY IN FILING THE APPEALS IS REQUIRED TO BE CONDONED. ACCORDINGLY WE HEREBY CONDONE THE D ELAY OF 02 DAYS IN FILING THE APPEALS BY THE REVENUE AND PROCE ED TO HEAR THE CASE ON MERITS. 3 ITA NOS. 2816 & 2817/CHNY/2016 & CO NOS. 196 & 197/CHNY/2016 REVENUES APPEAL IN ITA NO.2816 OF 2016 3. AT THE OUTSET, THE LD.AR SUBMITTED BEFORE US TH AT THE ABOVE MENTIONED APPEAL IS NOT MAINTAINABLE DUE TO T HE LATEST CIRCULAR NO.3/2018 DATED 11.07.2018 ISSUED BY THE CBDT WITH RESPECT TO MONETARY LIMIT. HENCE, IT WAS PLEADED T HAT THE APPEAL OF THE REVENUE MAY BE DISMISSED. THE LD. DR COULD NOT CONTROVERT TO THE SUBMISSION OF THE LD.AR. 4. AFTER HEARING BOTH SIDES WE FIND MERIT IN THE S UBMISSION OF THE LD.AR. THE CBDT HAS DIRECTED THE REVENUE NOT T O FILE APPEAL BEFORE THE TRIBUNAL WHERE THE TAX EFFECT DOES NOT E XCEED RS.20 LAKHS. IN THE ABOVE MENTIONED APPEAL OF THE ASSESSE E THE TAX EFFECT IS LESS THAN RS.20 LAKHS AND THE SAME IS NOT IN DISPUTE. THEREFORE, WE HEREBY DISMISS THE APPEAL FILED BY TH E REVENUE AS NOT MAINTAINABLE. 5. ASSESSEES CROSS OBJECTION IN CO NO.196 OF 2016: THE ASSESSEE HAS RAISED THE GROUND THAT THE LD.CI T(A) HAS ERRED IN CONFIRMING THE ORDER OF THE LD.AO WHO HAD NOT ALLOWED TO SET-OFF OF UNABSORBED DEPRECIATION OF RS.12,98,7 69/- OF ASSESSMENT YEAR 2009-10. 4 ITA NOS. 2816 & 2817/CHNY/2016 & CO NOS. 196 & 197/CHNY/2016 5.1 THE LD.AR DID NOT ARGUE THE GROUND RAISED BY TH E ASSESSEE IN ITS CROSS OBJECTION. THEREFORE WE ARE O F THE VIEW THAT THE LD.AR HAS NOT PRESSED THE GROUND RAISED IN THE CROSS OBJECTION. HENCE WE DO NOT FIND IT NECESSARY TO ENTERTAIN THE GROUND RAISED BY THE ASSESSEE IN ITS CROSS OBJECTION. 6. REVENUES APPEAL IN ITA NO.2817 OF 2016:- SINCE WE HAVE DISMISSED THE QUANTUM APPEAL FILED BY THE REVENUE HEREIN ABOVE, THE APPEAL RAISED BY THE REVE NUE WITH RESPECT TO LEVY OF PENALTY U/S.271(1)(C) OF THE ACT DOES NOT HAVE ANY LEGS TO STAND. THEREFORE THE APPEAL OF THE REV ENUE DOES NOT SURVIVE. 7. ASSESSEES CROSS OBJECTION IN CO NO. 197 OF 2016:- THE CROSS OBJECTION FILED BY THE ASSESSEE IS IN S UPPORT OF THE ORDER OF THE LD.CIT(A) IN IT APPEAL NO.272/15-1 6 FOR THE ASSESSMENT YEAR 2012-13 WHEREIN THE LD.CIT(A) HAS D ELETED THE PENALTY LEVIED BY THE LD.AO INVOKING THE PROVISIONS OF SECTION 271(1)(C) OF THE ACT. FURTHER WE HAVE HELD HEREIN A BOVE WITH RESPECT TO LEVY OF PENALTY THAT THE APPEAL DOES NOT SURVIVE AS IT 5 ITA NOS. 2816 & 2817/CHNY/2016 & CO NOS. 196 & 197/CHNY/2016 DOES NOT HAVE ANY LEGS TO STAND, THEREFORE THE CROS S OBJECTION FILED BY THE ASSESSEE HAS BECOME INFRUCTUOUS. 8. IN THE RESULT BOTH THE APPEALS FILED BY THE REV ENUE ARE DISMISSED AND THE CROSS OBJECTION FILED BY THE ASSE SSEE IN CO NO.196 OF 2016 IS DISMISSED AS NOT PRESSED AND CO NO.197 OF 2016 IS DISMISSED AS INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON THE 15 TH NOVEMBER, 2018 AT CHENNAI. SD/- SD/- ( . . . ) (N.R.S. GANESAN) /JUDICIAL MEMBER ( . ) (A. MOHAN ALANKAMONY) / ACCOUNTANT MEMBER 708 2 /CHENNAI, 9: /DATED 15 TH NOVEMBER, 2018 RSR :0 . -<= >0=- /COPY TO: 1. ,-/ ASSESSEE 2. ?@ /REVENUE 3. 1 A- ( )/CIT(A) 4. /CIT 5. /DR 6. /GF