M/s. Sanjay Oil Cake Industries Pvt. Ltd., JAMNAGAR V. The Assistant Commissioner of Income Tax, Circle-3, JAMNAGAR

CO 39/RJT/2012

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 8164 (ITAT-RAJKOT)
• Duration Of Justice: 1 month(s) 5 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 10-12-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 09-11-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: RD LALCHANDANI

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. . . , . . , BEFORE SHRI T. K. SHARMA, JM AND SHRI B. R. JAIN AM IT A. N O. 545 /RJT/201 2 / ASSESSMENT YEAR 200 4 - 05 A SSISTANT COMMISSIONER OF INCOME - TAX, CIR CLE - 3 , JAMNAGAR. ( / APPELLANT) SANJAY OIL CAKE INDUSTRIES P VT. LTD., BEDESHWAR, DIST: JAMNAGAR. PAN NO. AA G C S3419N / RE SPONDENT C.O. NO. 39/RJT/2012 / ASSESSMENT YEAR 2004 - 05 SANJAY OIL CAKE INDUSTRIES PVT. LTD., BEDESHWAR, DIST: JAMNAGAR. PAN NO. AAGCS3419N ( / APPELLANT) ASSISTANT COMMISSIONER OF INCOME - TAX, CIRCLE - 3, JAMNAGAR . / RESPONDENT / REVENUE BY SHRI AVINASH KUMAR, D. R. / ASSESSEE BY SHRI R. D. LALCHANDANI, ADVOCATE. / DATE OF HEARING 1 0 - 12 - 20 12 / DATE OF PRONOUNCEMENT 14 - 1 2 - 2012 / ORDER . . , / T. K. SHARMA, J. M. : THIS APPEAL OF THE REVENUE AND CROSS OBJECTIONS OF THE ASSESSEE ARE A GAINST THE ORDER DATED 16 - 0 7 - 201 2 OF CIT (A) , JAMNAGAR FOR THE ASSESSMENT YEAR 200 4 - 05. 2. THE FACTS IN BRIEF, ARE THAT THE AS SESSEE IS A COMPANY. FOR THE ASSESSMENT YEAR UNDER APPEAL, IT FILED RETURN OF INCOME ON 27 - 10 - 2004 DECLARING ITA 545 & CO 39/RJT/2012 2 TOTAL INCOME OF RS.25,53,350/ - . TH IS R ETURN OF INCOME WAS PROCESSED U/S.143(1) OF THE I.T. ACT ON 09 - 12 - 2004 ACCEPTING THE RETURNED INCOME. SUBSE QUENTLY, THIS ASSE SS MENT WAS REOPENED U/S.147 OF THE I.T. ACT, 1961 . IN THE ASSESSMENT ORDER U/S.143(3) OF THE I.T. ACT, THE AO DISALLOWED UNPAID LIABILITY AMOUNTING TO RS.10,59,092/ - . 3. ON APPEAL, IN THE IMPUGNED ORDER, THE LD. CIT(A) UPHELD THE REOP ENING OF ASSESSMENT U/S.143(1) FOLLOWING THE JUDGMENT OF HON BLE SUPREME COURT IN THE CASE OF RAJESH ZAVERI STOCK BROKERS PVT. LTD. 291 ITR 500. ON MERIT, THE LD. CIT(A) DELETED THE DISALLOWANCE U/S.43B OF THE I.T. ACT, 1961 FOR THE DETAILED REASON GIVEN I N PARA - 7 WHICH READS AS UNDER: - '7. IN SO FAR AS SECOND GROUND OF APPEAL AGAINST DISALLOWANCE U/S.48B OF THE ACT IS CONCERNED, I HAVE DULY CONSIDERED THE SUBMISSION OF THE APPELLANT AND THE DISCUSSION MADE BY THE AO IN THE ASSESSMENT ORDER. APPELLANT SUBM ITTED THAT THE PROVISION OF RS.25,98,684 INCLUDES PROVISION FOR INCOME TAX AMOUNTING TO RS.17,50,000 WHICH HAS NOT BEEN CLAIMED AS DEDUCTION AND THE AMOUNT OF RS.15,39,592 SHOWN AS PAYMENT ALSO INCLUDES THE PAYMENT ON ACCOUNT OF SALES - TAX. HE FURTHER EXPL AINED THAT INCOME - TAX PROVISIONS OF RS.8,00,000 FOR THE YEAR 2002 - 03 AND RS.9,50,000 FOR THE YEAR 2003 - 04 ARE ALSO PART OF THE TOTAL PROVISIONS OF RS.25,98,684 AND ALL THE REMAINING PAYMENTS HAVE ALREADY BEEN MADE BEFORE FILING THE RETURN. THE BOOKS OF AC COUNTS CLEARLY SHOW THE PAYMENTS. FROM THE DETAILS FURNISHED BY THE APPELLANT I HAVE FOUND THAT AMOUNT OF RS.15,39,592 INCLUDES SALES - TAX AMOUNT OF RS.10,59,092. THEREFORE, THE AO WAS NOT JUSTIFIED IN MAKING DISALLOWANCE OF RS.10,59,092 U/S.43B OF THE AC T AND THE SAME IS ORDERED TO BE DELETED. AGGRIEVED WITH THE ORDER OF LD. CIT(A), THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING GROUND: - 1. THE CIT(A) HAS ERRED IN DELETING THE ADDITION OF RS.1059092/ - MADE BY THE AO U/S.43B OF THE ACT. 4 . AT THE TIME OF HEARING BEFORE US, THE LD. D.R. COULD NOT POINT OUT ANY INFIRMITY IN THE VIEW TAKEN BY THE LD. CIT(A) IN DELETING THE DISALLOWANCE MADE U/S.43B OF THE I.T. ACT. WE THEREFORE, IN CLINED TO UPHELD THE ORDER OF LD. CIT(A) ITA 545 & CO 39/RJT/2012 3 DELETING THE DIS ALLOWANCE OF RS.10,59,092/ - U/S.43B OF THE I. T. ACT. THE APPEAL OF THE REVENUE IS ACCORDINGLY REJECTED. 5 . THE ONLY GROUND TAKEN BY THE ASSESSEE IN ITS CROSS OBJECTION READS AS UNDER: - 1. THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN CONFIRMING TH E REOPENING OF THE ASSESSMENT U/S.148 OF THE ACT. THE REOPENING OF THE ASSESSMENT IS NOT JUSTIFIED. 6 . THE AFORESAID GROUND OF CROSS OBJECTION WAS NOT PRESSED BY LD. COUNSEL OF THE ASSESSEE AT THE TIME OF HEARING. THEREFORE, SAME IS DISMISSED BEING NOT PRESSED. 7 . IN THE RESULT, THE APPEAL OF THE REVENUE AS WELL AS CROSS - OBJECTION FILED BY THE ASSESSEE ARE DISMISSED. THIS ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD/ - SD/ - ( B. R. JAIN ) ( . . / T. K. SHARMA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / ORDER DATE 14 - 12 - 2012. /RAJKOT NVA/ - / COPY OF ORDER FORWARDED T O: - 1. / APPELLANT - A SSISTANT COMMISSIONER OF INCOME - TAX, CIR - 3, JAMNAGAR 2. / RESPONDENT - SANJAY OIL CAKE INDU STRIES PVT. LTD., BEDESHWAR, DI S T . JAMNAGAR 3. / CONCERNED CIT , JAMNAGAR 4. - / CIT (A) , J AMNAGAR. 5. , , / DR, ITAT, RAJKOT 6. / GUARD FILE. ITA 545 & CO 39/RJT/2012 4 / BY ORDER , TRUE COPY A S STT. REGISTRAR , INCOME TAX APPELLATE TRIBUNAL, RAJKOT.