Harbhajan Singh Prop. M/s. Harbhajan, UDAIPUR V. ITO, UDAIPUR

CO 6/JODH/2011

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 8109 (ITAT-JODHPUR)
• Duration Of Justice: 1 year(s) 8 month(s) 10 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 03-12-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 03-12-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 24-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G R KOKANI
• Keywords: Unexplained cash credit; Period of limitation
• Section: 10B; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER C.O. NO.06/JU/2011 (IN ITA NO. 502/JODH/2010 ASSESSMENT YEAR : 2007-08 SHRI HARBHAJAN SINGH, VS THE ITO, WARD-2(1), PROP M/S HARBHAJAN MARBLE, UDAIPUR UDAIPUR. (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI G.R. KOKANI DATE OF HEARING : 03.12.2012 DATE OF PRONOUNCEMENT : 03.12.2012 ORDER PER N.K.SAINI, A.M. THIS CROSS OBJECTION FILED BY THE ASSESSEE ARISIN G OUT OF ITA NO.502/JODH/2010 OF THE DEPARTMENT IS DIRECTED AGAI NST THE ORDER DATED 6.7.2010 OF THE CIT(APPEALS), UDAIPUR. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. IN CASE OF HARBHAJAN SINGH, ASSESSMENT YEAR 2007 -08 IN SUPPORT OF ORDER DATED 6.7.2010 U/S 143(3)/250 OF THE INCOM E TAX ACT, 1961 BY THE CIT(A), UDAIPUR AND AGAINST THE APPEAL NO.502/JODH-2010 FILED BY LD ITO WARD 2(1) UDAIPUR DATED 22.9,2010. 1. THE LD CIT(A) WAS CORRECT IN ALLOWING CLAIM OF DEDUCTION U/S 10B OF THE INCOME TAX ACT AMOUNTING T O RS. 1,39,16,657/- AND THE EXPORT PROCEEDS WERE REALIZED WITH TIME ALLOWED BY RBI-MASTER CIRCULAR NO.09/2009-10 DATED 1 JULY, 2009, WHICH IS ACCORDIN G 2 TO LAW AND DEDUCTION SO ALLOWED BY LD CIT(A) DESERV ED TO BE CONFIRMED. 2. THE LD CIT(A) WAS CORRECT IN DELETING ADDITION O F RS. 2.20 CRORES MADE U/S 68 OF THE INCOME TAX ACT BY TH E ASSESSING OFFICER AND ADDITIONAL DETAILS FIELD BEFO RE CIT(A) WERE REFERRED TWICE TO ASSESSING OFFICER BY LD CIT UNDER RULE 46A. 3. THE LD CIT(A) WAS CORRECT IN DELETING THE ADDITI ON OF RS. 46.68 LACS MADE BY THE ASSESSING OFFICER ON ACCOUNT OF UNEXPLAINED CREDITS IN THE CAPITAL ACCOU NT OF THE ASSESSEE. THE ACTION OF LD CIT(A) DESERVES TO B E CONFIRMED. 3. FROM THE ABOVE GROUNDS, IT IS NOTICED THAT TH E ASSESSEE HAS SUPPORTED THE ORDER OF THE LD. CIT(A) AND NO RELIEF HAS BEEN SOUGHT. IN VIEW OF THE ABOVE, WE ARE OF THE OPINION THAT THE C ROSS OBJECTION BECOMES INFRUCTUOUS SINCE NO SPECIFIC RELIEF HAD BE EN SOUGHT FOR. 4. FOR THE AFORESAID VIEW, WE ARE FORTIFIED BY THE JUD GMENT OF HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. SU NDARAM CLAYTON LTD. (1982) 136 ITR 315 WHEREIN THEIR LORDSHIPS AT PAGE 322 HAD OBSERVED AS UNDER:- A CROSS-OBJECTION IS ONLY IN THE NATURE OF AN APPE AL. A PERSON WHO HAS SUBSTANTIALLY SUCCEEDED IN A FORUM MAY NOT THINK IT NECESSARY TO FILE AN APPEAL; BUT WHEN AN APPEAL IS ACTUALLY FILED, HE MAY TAKE ADVANTAGE OF THE FILING OF THE A PPEAL BY THE OTHER SIDE SO AS TO FILE CROSS-OBJECTIONS TO GET RI D OF THE ORDER IN SO FAR AS IT IS ADVERSE TO HIM, AS THE PERIOD OF LIMITATION FOR THE FILING OF THE CROSS-OBJECTIONS IS CALCULATED FR OM THE DATE OF THE SERVICE OF THE APPELLATE GROUNDS. IN EFFECT, IN SUCH A CASE, A PARTY WHO DID NOT FILE AN APPEAL, GETS AN EXTENDED PERIOD OF LIMITATION FOR FILING WHAT IS IN EFFECT AN APPEAL. WHEN THE ASSESSEE HAS SUCCEEDED WHOLLY BEFORE THE AAC AND TH E TRIBUNAL, THERE WAS NO SCOPE FOR FILING AN APPEAL O R CROSS OBJECTIONS. THE TRIBUNAL SHOULD HAVE DISMISSED THE CROSS- OBJECTIONS IN LIMINE AS NOT BEING ENTERTAINABLE. TH E PROCEDURE 3 OF FILING CROSS-OBJECTIONS IS NOT TO BE GONE THROUG H MERELY FOR THE PURPOSE OF PUTTING FORWARD ARGUMENTS IN SUPPORT OF AN ORDER WHICH IS IN FAVOUR OF THE CROSS-OBJECTOR. 5. IN VIEW OF THE RATIO LAID DOWN BY THE HON'BLE MADRA S HIGH COURT, THE CROSS OBJECTION FILED BY THE ASSESSEE IS LIABLE TO BE DISMISSED AS INFRUCTUOUS. WE ORDER ACCORDINGLY. 6. IN THE RESULT, THE CROSS OBJECTION FILED BY THE ASS ESSEE IS DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON THIS 03.12.2 012) SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMER DATED : 3 RD DECEMBER, 2012 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR BY ORDER ASSISTANT REGISTRAR ITAT, JODHPUR