Madhukar Sahakari SK.Ltd., Faizpur V. Deputy Commissioner of Income tax, Jalgaon

ITA 1177/PUN/2017

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 2729 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 11 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2022
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 1994-1995
• Appeal Filed On: 10-05-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Depreciation; Unabsorbed depreciation
• Section: 154; 143(3)

Judgement Text

आयकर अपीलीय अधिकरण “बी” न्यायपीठ पुणे में । IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, PUNE BEFORE SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER आयकर अपील सं. / ITA No.1177/PUN/2017 धििाारण वर्ा / Assessment Year : 1994-95 Madhukar Sahakari Sakhar Karkhana Ltd., Jivram Nagar, Nhavi Marg, Faizpur, Jalgaon – 425524 PAN : AAAAM1574A .......अपीलार्थी / Appellant बिाम / V/s. DCIT, Circle – 1, Jalgaon ......प्रत्यर्थी / Respondent Assessee by : N O N E Revenue by : Shri M. Jasnani सुिवाई की तारीख / Date of Hearing : 21-03-2022 घोर्णा की तारीख / Date of Pronouncement : 09-05-2022 आदेश / ORDER PER S.S. VISWANETHRA RAVI, JM : This appeal by the assessee against the order dated 31-03-2017 passed by the Commissioner of Income Tax (Appeals)-2, Nashik [‘CIT(A)’] for assessment year 1994-95. 2. We find no representation on behalf of the assessee nor any application filed seeking adjournment. Thus, the assessee called absent and set ex-parte. Therefore, we proceed to dispose of the appeal by hearing the ld. DR and perusing the material available on record. 2 ITA No.1177/PUN/2017, A.Y. 1994-95 3. The assessee filed six grounds of appeal amongst which the only issue is to be considered is as to whether the CIT(A) is justified in confirming the order of AO in determining the total income at Rs.74,44,945/- in the facts and circumstances of the case. 4. Heard ld. DR, Shri M. Jasnani and perused the material available on record. We note that the assessee is a Co-operative Society and is engaged in manufacturing sugar. For the year under consideration, the AO has passed an order giving effect to the order of the CIT(A) on 30-11-2011, determining the income of the assessee at Rs.1,57,35,265/ -. Against the said order the assessee made an application u/s. 154 of the Act on 09-04- 2012, requesting the AO to give effect to the brought forward losses determined by the AO vide his order dated 03-02-2005. In response to the assessee’s rectification application, the AO rectified his order giving effect to the order CIT(A) on 27/06/2012, determining the revised total income of the assessee at Rs.1,25,22,238/- as against Rs.1,57,35,265/- originally determined at the time of giving effect to the order of the CIT(A). Therefore, it is clear the AO gave set off of brought forward losses to the tune of Rs.32,13,207/-. Being dissatisfied with this rectification order, the assessee again filed rectification application on 17-09-2012 before the AO requesting to give setoff of the brought forward losses to the tune of Rs.1,39,14,187/-, as per his predecessor AO's order dated 03-02-2005 which was rejected by the AO vide his letter No.JAL/ACJT/Cir-l /Recovery/ MSSK/20 12-13/34 dated 24-09-2012. The CIT(A) confirmed the order of AO. Being aggrieved with such rejection, the assessee is in appeal on various grounds before us challenging the action of CIT(A). 3 ITA No.1177/PUN/2017, A.Y. 1994-95 5. On perusal of the above we note the CIT(A) after considering the facts of this case and rectification orders passed u/s. 154 of the Act has determined the assessee total income at Rs.74,44,945/- after verification of case record. Sr. No. Particulars Amount in Rs. 1 Total Income determined as per order dated 24-11-2004. 56,23,867 2 Addition as per the direction of the CIT(A)-V, Pune vide order dated 28-09-2011 on account of Statutory Minimum Price + 5A. 2,88,99,052 3 ITAT, Pune has confirmed the above addition vide order dated 12-05-2006. 2,88,99,052 Total Income Rs. 3,45,22,919 4 Less set off of unabsorbed depreciation for AY 1990-91. 1,31,63,787 5 Less set off of unabsorbed depreciation for AY 1991-92 1,39,14,187 6 Total Income determined after giving set off 74,44,945 6. We have carefully considered the submission of the assessee, rectification order of the AO and other relevant record. On perusal of the same it has been noticed that the AO had passed order dated 30-11-2022 giving effect to order of CIT(A) as under : Income as per order dated 30-11-2022 giving effect to CIT(A)-5 order 2,88,99,052 Less : Carried forward loss towards unabsorbed depreciation as claimed for A.Y. 1990-91. -1,31,63,787 Revised Total income 1,57,35,265 7. Thereafter, the order u/s. 154 dated 27-06-2012 was passed by the AO as under : 4 ITA No.1177/PUN/2017, A.Y. 1994-95 Order U/s. 154 dated 27-06-2012 Total income as per order dated 30-11-2011 giving effect to CIT(A)-5 order 1,57,35,265 Add : Set off of depreciation carry forward loss for A.Y. 1990-91 given vide order u/s. 154 dated 03-02-2005. 56,23,867 Total income before set off of unabsorbed depreciation for A.Y. 91-92. 2,13,59,132 Add : Set off of depreciation carry forward loss for A.Y. 1991-92 given vide order u/s. 154 dated 28-04-1997. 50,77,293 Less : Set off of unabsorbed depreciation carried forward loss for A.Y. 1991-92. -1,39,14,187 Revised Total Income 1,25,22,238 8. The assessee had preferred appeal against the above mentioned order u/s. 154, which has been decided by CIT(A) vide order dated 17-12- 2013. The AO had thereafter passed order dated 17-01-2014, giving effect to the order of CIT(A) as under : Total income as per order u/s. 154 dated 27-06-2012. 1,25,22,238 Less : Relief granted by CIT(A) in respect of Brought forward losses as per order dated 03-02-2005. -1,39,14,187 Revised Total Loss -13,14,187 9. On perusal of CIT(A)’s order it has been noticed that the CIT(A) in para 8.1 has stated that as per rectification order u/s. 154 dated 03-02- 2005, the unabsorbed depreciation of RS.1,39,14,187/- for A.Y. 1991-92 was allowed to be carried forward. The CIT(A) further stated that the original assessment order passed u/s. 143(3) is no more relevant and the set off of said unabsorbed depreciation for A.Y. 1991-92 at Rs.50,77,293/- needs to be ignored. It has been noticed that as per order u/s. 154 dated 27-06-2012, the total income before set off of unabsorbed depreciation for A.Y. 1991-92 was worked out at Rs.2,13,59,132/-. The CIT(A) has directed 5 ITA No.1177/PUN/2017, A.Y. 1994-95 to allow unabsorbed depreciation for A.Y. 1991-92 at Rs.1,39,14,187/-. Therefore, the revised income after giving appeal effect works out to Rs.74,44,945/- (Rs.2,13,59,132/- - Rs.1,39,14,187/-). The then AO while giving effect to CIT(A)’s order has passed order dated 17-01-2014 and considered the income before allowing unabsorbed depreciation of A.Y. 1991-92 at Rs.1,25,22,239/- incorrectly as the same before allowing unabsorbed depreciation for A.Y. 1991-92 was Rs.2,13,59,132/- as per order u/s. 154 dated 27-06-2012. Therefore, we find no infirmity in the order of CIT(A) and it is justified. Thus, the grounds raised by the assessee are dismissed. 10. In the result, the appeal of assessee is dismissed. Order pronounced in the open court on 09 th May, 2022. Sd/- Sd/- (Inturi Rama Rao) (S.S. Viswanethra Ravi) ACCOUNTANT MEMBER JUDICIAL MEMBER पुणे / Pune; ददिांक / Dated : 09 th May, 2022. रधव आदेश की प्रधतधलधप अग्रेधर्त / Copy of the Order forwarded to : 1. अपीलार्थी / The Appellant. 2. प्रत्यर्थी / The Respondent. 3. The CIT(A)-2, Nashik 4. The Pr. CIT-2, Nashik 5. धवभागीय प्रधतधिधि, आयकर अपीलीय अधिकरण, “बी” बेंच, पुणे / DR, ITAT, “B” Bench, Pune. 6. गार्ा फ़ाइल / Guard File. //सत्याधपत प्रधत// True Copy// आदेशािुसार / BY ORDER, वररष्ठ धिजी सधचव / Sr. Private Secretary आयकर अपीलीय अधिकरण ,पुणे / ITAT, Pune