M/s. Malwa Cold Storage & ICE Factory, Rampura Phul V. The Income-tax Officer, Bathinda

CO 24/ASR/2014

• Counselvise Citation: [2015] 123 COUNSELVISE.COM (IT) 1371 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 4 month(s) 18 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 18-11-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 05-10-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 30-06-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P N ARORA
• Keywords: Fair market value; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH; AMRITSAR (SMC) BEFORE SH. A.D. JAIN, JUDICIAL MEMBER ITA NO.450(ASR)/2013 ASSESSMENT YEAR:2005-06 PAN: AAFFM4715R INCOME TAX OFFICER, VS. M/S. MALWA COLD STORAGE & I CE FACTORY, WARD 1(3), BATHINDA. RAMPURAPHUL, DISTT. BATHINDA. (APPELLANT) (RESPONDENT) C.O.NO.24(ASR)/2014 (ARISING OUT OF ITA NO.450(ASR)/2013) ASSESSMENT YEAR:2005-06 PAN: AAFFM4715R M/S. MALWA COLD STORAGE & ICE FACTORY, VS. INC OME TAX OFFICER, RAMPURAPHUL, DISTT. BATHINDA. WARD 1(3), BA THINDA. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.TARSEM LAL, DR RESPONDENT BY:SH.P.N.ARORA, ADVOCATE DATE OF HEARING: 05/10/2015 DATE OF PRONOUNCEMENT: 18/11/2015 ORDER THIS IS THE DEPARTMENTS APPEAL FOR THE ASSESSMENT YEAR 2005-06, AGAINST THE ORDER OF THE CIT(A), BATHINDA DATED 19 .03.2013. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE, THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.12, 87,034/-, MADE BY THE AO ON ACCOUNT OF SHOWING LESSER CAPITAL GAINS, IGNORING THE FACT THAT THE SALE CONSIDERATION OF TH E TRANSFERRED ASSET SHOWN IN THE RETURN OF INCOME WAS LESSER THAN THAT VALUED BY THE DEPARTMENTAL VALUATION OFFI CER ON A REFERENCE MADE BY THE AO IN THIS RESPECT. ITA NO.450/ASR/2013 C.O. NO.24/ASR/2014 2 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E, THE LD. CIT(A) HAS ERRED IN HOLDING THAT NOTHING WAS BROUG HT ON RECORDS BY THE AO TO ESTABLISH THAT HIGHER SALES CONSIDERATION WAS RECEIVED; AS THE ADDITION HAS BEE N MADE BY THE AO ON THE BASIS OF THE FMV ASCERTAINED BY TH E DEPARTMENTAL VALUER, WHO VALUED THE FMV IN A SCIENT IFIC AND METICULOUS METHOD. 2. AT THE TIME OF HEARING THE LD. COUNSEL FOR THE A SSESSEE RAISED A PRELIMINARY OBJECTION THAT THE TAX EFFECT INVOLVED IN THE REVENUES APPEAL IS LESS THAN RS.3 LACS. THEREFORE, THE PRESENT APPE AL FILED BY THE DEPARTMENT MAY BE DISMISSED, AS THE SAME IS NOT MAI NTAINABLE BEING CONTRARY TO CBDTS INSTRUCTION NO.3 OF 2011 DATED 0 9.02.2011. 3. ON THE OTHER HAND, THE LD. DR RELIED UPON THE OR DER OF THE ASSESSING OFFICER. 4. AFTER HEARING BOTH THE PARTIES, IT IS SEEN THAT THE TAX EFFECT INVOLVED IN THE PRESENT APPEAL IS LESS THAN RS.3,00,000/-. H ENCE, AS PER CBDT INSTRUCTION NO. 3 OF 2011, DATED 9 TH FEB., 2011, WHICH IS BINDING ON THE DEPARTMENT, THE DEPARTMENT IS PRECLUDED FROM FILING THE PRESENT APPEAL. I ALSO FIND THAT THE REVENUE HAS FILED THE PRESENT A PPEAL ON 19.06.2013 MUCH AFTER THE ISSUANCE OF THE SAID CBDT INSTRUCTIO N NO. 3 OF 2011, WHICH IS EFFECTIVE FROM 9 TH FEBRUARY, 2011. THEREFORE, IN MY CONSIDERED OPINION, THE SAID INSTRUCTION OF THE CBDT IS BINDIN G ON THE DEPARTMENT AND THE PRESENT APPEAL HAS BEEN FILED CONTRARY TO A ND IN VIOLATION OF THE SAID INSTRUCTION ISSUED BY THE CBDT. ACCORDINGLY, THE APPEAL FILED BY THE REVENUE IS DISMISSED, AS NOT MAINTAINABLE. ITA NO.450/ASR/2013 C.O. NO.24/ASR/2014 3 5. AS REGARDS C.O. NO.24/ASR/2014 OF THE ASSESSEE, THE SAME HAS BECOME INFRUCTUOUS, SINCE THE APPEAL OF THE REVENUE HAS BEEN DISMISSED. ACCORDINGLY, THE C.O. OF THE ASSESSEE IS DISMISSED AS INFRUCTUOUS. 6. IN THE RESULT, BOTH THE APPEAL OF THE REVENUE A S WELL AS C.O. OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18TH NOVE MBER, 2015. SD/- (A.D. JAIN) JUDICIAL MEMBER DATED: 18/11/2015 /SKR/ COPY OF ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. MALWA COLD STORAGE & ICE FACTO RY, RAMPURAPHUL, BATHINDA. 2. THE ITO, WARD 1(3), BATHINDA. 3. THE CIT(A), BATHINDA 4. THE CIT, BATHINDA 5. THE SR. DR, ITAT, ASR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH : AMRITSAR.