D.C.I.T.-4(1), Agra V. M/s Rastogi Ice & Cold Storage, Agra

ITA 100/AGR/2011

• Counselvise Citation: 10020314 RSA 2011
• Duration Of Justice: 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-03-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 14-03-2012
• Assessment Year: 2007-2008
• Appeal Filed On: 13-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Assessee Lawyers: SHRI
• Section: 260A; 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER & SHRI A. L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 100/AGRA/2011 ASST. YEAR : 2007-08 D.C.I.T., 4(1), AGRA. VS. M/S. RASTOGI ICE & COLD STORAGE, VILL-PELEPOKHAR, HATHRAS ROAD, AGRA. (PAN : AAHFR 7367 J) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.K. SHARMA, JR. D.R. RESPONDENT BY : SHRI PANKAJ GARGH, ADVOCATE DATE OF HEARING : 14.03.2012 DATE OF PRONOUNCEMENT : 16.03.2012 ORDER PER BHAVNESH SAINI, J.M. : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-II, AGRA DATED 27.01.2011 FOR THE ASSESSMENT YEAR 2007-08 ON THE FOLLOWING GROUNDS : 1. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED IN LAW AND ON FACT IN DECIDING THE APPEAL IN FAVOUR OF THE ASSESSEE ON THE BASIS OF DECISION OF THE HONBLE ITAT IN ITA NO. 34 2/AG/02 AND ITA NO.298/AG/06 DATED 25.04.2008 GIVEN IN THE CASES OF M/S. AMBIKA SHEET GRAH (P) LTD. VS. ITO 4(1), AGRA, M/S. GOYAL BANDHU SHEET GRAH (P) LTD. VS. ACIT-4(1), AGRA AND M/S. BANKEY BIHARI INDUSTRI ES (P) LTD. VS. ACIT- 4(1), AGRA IGNORING THE FACT THAT THE DEPARTMENT HA S CHALLENGED THE SAID ORDERS IN APPEAL U/S. 260A OF IT ACT BEFORE THE HON BLE HIGH COURT AND THE CONTROVERSY INVOLVED IS SUBJUDICE. 2. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED IN LAW AND ON FACT IN DECIDING THE APPEAL IN FAVOUR OF THE ASSESSEE IGNORING THE FACT THAT THE ASSESSEE COULD NOT PROVE THAT IT IS DERIVI NG PROFIT FROM THE BUSINESS OF SETTING UP AND OPERATING COLD CHAIN FACILITIES FO R AGRICULTURAL PRODUCE. ITA NO. 100/AGRA/2011 2 3. THAT THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) HAS ERRED IN LAW AND ON FACT IN DECIDING THE APPEAL IN FAVOUR OF THE ASSESSEE IGNORING THE FACT THAT THE ASSESSEE COULD NOT DISCHARGE ITS ONUS OF PROVING THE GENUINENESS OF THE CLAIM MADE UNDER SECTION 80IB OF THE I.T. ACT DURING THE COURSE OF ASSESSMENT PROCEEDINGS IN SPITE OF PR OVIDING SUFFICIENT OPPORTUNITY. 4. THAT THE ORDER OF LD. COMMISSIONER OF INCOME TA X (APPEALS), AGRA BEING ERRONEOUS IN LAW AND ON FACTS DESERVES T O BE QUASHED AND THAT OF THE ASSESSING OFFICER DESERVES TO BE RESTOR ED. 2. THE AO DISALLOWED DEDUCTION U/S. 80IB(11) TO THE ASSESSEE. THE ASSESSEE IS IN THE BUSINESS OF RUNNING COLD STORAGE. IT WAS SUBMIT TED BEFORE THE LD. CIT(A) THAT ITAT, AGRA BENCH IN SIMILAR CASES OF M/S. AMBIKA SH EET GRAH (P) LTD. VS. ITO 4(1), AGRA, M/S. GOYAL BANDHU SHEET GRAH (P) LTD. VS. ACI T-4(1), AGRA AND M/S. BANKEY BIHARI INDUSTRIES (P) LTD. VS. ACIT-4(1), AGRA, HAS HELD THAT THESE ASSESSEES WERE IN THE BUSINESS OF RUNNING COLD STORAGES AND WERE ELIG IBLE FOR DEDUCTION U/S. 80IB(11) OF THE IT ACT. CONSIDERING THE FACTS TO BE IDENTICAL O F THOSE CASES WITH THE CASE OF THE ASSESSEE, THE LD. CIT(A) ALLOWED DEDUCTION U/S. 80I B(11) OF THE ACT IN FAVOUR OF THE ASSESSEE. 3. THE LD. DR SUBMITTED THAT THE ORDERS OF THE TRIB UNAL HAVE NOT BEEN ACCEPTED BY THE DEPARTMENT AS IS RELIED UPON BY THE LD. CIT(A) IN THE IMPUGNED ORDER AND THE APPEALS ARE PENDING BEFORE THE HONBLE HIGH COURT. 4. ON CONSIDERATION OF THE ABOVE FACTS AND SUBMISSI ONS OF THE LD. DR, WE DO NOT FIND ANY MERIT IN THE APPEAL OF THE REVENUE. NOTHIN G IS POINTED OUT IF THE FACTS ARE ITA NO. 100/AGRA/2011 3 DIFFERENT IN THE CASE OF THE ASSESSEE AS COMPARED W ITH THE CASES RELIED UPON BY THE LD. CIT(A) IN THE APPELLATE ORDER. HONBLE M.P. HIGH CO URT IN THE CASE OF CIT VS. DARSHAN TALKIES, 217 ITR 744 (MP) HAS HELD AS UNDER : THE DECISION OF THE HIGH COURT IS BINDING AND THE P ENDENCY OF A PETITION FOR SPECIAL LEAVE TO APPEAL TO THE SUPREME COURT FROM SUCH A DECISION CANNOT OBLITERATE ITS IMPACT. IT IS BINDIN G UNTIL IT IS REVERSED OR OVERRULED. 4.1 MERELY BECAUSE THE APPEAL IS PENDING BEFORE THE HONBLE HIGH COURT IS NO GROUND TO TAKE CONTRARY DECISION UNLESS THE DECISIO N RELIED UPON BY THE LD. CIT(A) HAS BEEN REVERSED BY THE HIGH COURT. IN VIEW OF THIS MA TTER, THE DEPARTMENTAL APPEAL HAS NO MERIT AND IS ACCORDINGLY DISMISSED. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY