Majalgaon Sahakari Sakhar Karkhana Ltd., Beed V. Assistant Commissioner of Income-tax,

ITA 1523/PUN/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 3200 (ITAT-PUNE)
• Duration Of Justice: 2 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 07-08-2018
• Assessment Year: 2009-2010
• Appeal Filed On: 11-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MODI
• Keywords: Depreciation; Rectification of order; Unabsorbed depreciation
• Section: 54; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUN E . , , , BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.1523/PUN/2016 / ASSESSMENT YEAR : 2009-10 MAJALGAON SAHAKARI SAKHAR KARKHANA LIMITED, A/P. SUNDARNAGAR, TAL. MAHALGON, DIST. BEED-431131 PAN : AAABM0171G ....... / APPELLANT / V/S. THE ASTT. COMMISSIONER OF INCOME TAX, CIRCLE-2, AURANGABAD / RESPONDENT ASSESSEE BY : SHRI PRAMOD SHINGTE REVENUE BY : SHRI A.K. MODI / DATE OF HEARING : 08-08-2018 / DATE OF PRONOUNCEMENT : 14-08-2018 / ORDER PER VIKAS AWASTHY, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORD ER OF COMMISSIONER OF INCOME TAX (APPEALS)-2, AURANGABAD DATED 12-04-2016 FOR THE ASSESSMENT YEAR 2009-10 PASSED UN DER SECTION 154 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT ). 2. SHRI PRAMOD SHINGTE APPEARING ON BEHALF OF THE ASSESSE E, AT THE OUTSET, SUBMITTED THAT IN THE SCRUTINY ASSESSMENT PROCE EDINGS, THE ASSESSING OFFICER VIDE ORDER DATED 09-12-2011 ASSESSED T HE TOTAL INCOME OF THE ASSESSEE AS NIL. THEREAFTER, THE ASSESSING OFFICER 2 ITA NO. 1523/PUN/2016, A.Y. 2009-10 PASSED RECTIFICATION ORDER ON 28-01-2013 UNDER SECTION 1 54 DISALLOWING ASSESSEES CLAIM OF SET OFF OF UNABSORBED DEPRECIA TION TO THE EXTENT OF RS.12,70,39,171/-. THE LD. AUTHORIZED REPRES ENTATIVE POINTED THAT, ON THE SAME DATE, THE ASSESSING OFFICER PASS ED ANOTHER RECTIFICATION ORDER UNDER SECTION 154 OF THE ACT WHEREIN S ET OFF OF BUSINESS LOSS TO THE EXTENT OF RS.49,38,445/- WAS REDUCE D BY THE ASSESSING OFFICER. THE LD. AUTHORIZED REPRESENTATIVE SUBMITT ED THAT THE ASSESSEE CARRIED THE MATTER BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) ASSAILING THE ORDER UNDER SECTION 154 WHERE IN THE ISSUE RELATING TO CARRY FORWARD OF UNABSORBED DEPRECIATION BEYO ND 8 YEARS WAS DEALT WITH. WHEREAS THE COMMISSIONER OF INCOME TAX (A PPEALS) HAD ANOTHER ORDER OF ASSESSING OFFICER PASSED UNDER SEC TION 154 OF THE ACT. THUS, THERE WAS CONFUSION WITH RESPECT TO THE ORDE R APPEALED BY THE ASSESSEE BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). THE LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE PRAYED THAT THE MATTER MAY BE REMANDED BACK TO THE CIT(A) SO THAT THE CONFUSION MA Y BE DISPELLED WITH RESPECT TO THE TWO ORDERS PASSED UNDER SECTION 154 OF THE ACT . 3. SHRI A.K. MODI REPRESENTING THE DEPARTMENT AGREED WITH THE CONTENTIONS OF THE LD. AUTHORISED REPRESENTATIVE OF THE AS SESSEE. THE LD. DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THERE APP EARS TO BE CONFUSION WITH REGARD TO THE RECTIFICATION ORDERS PASSED B Y ASSESSING OFFICER UNDER SECTION 154 OF THE ACT. 4. BOTH SIDES HEARD. ORDERS OF THE AUTHORITIES BELOW PER USED. THE LD. AUTHORISED REPRESENTATIVE OF THE ASSESSEE HAS PLACED BEFORE US TWO ORDERS OF ASSESSING OFFICER PASSED UNDER SECTION 154 OF TH E ACT. BOTH THE ORDERS ARE DATED 28-01-2013. IN ONE OF THE ORDER , THE ISSUE IS WITH 3 ITA NO. 1523/PUN/2016, A.Y. 2009-10 RESPECT TO CARRY FORWARD OF UNABSORBED DEPRECIATION BEY OND THE PERIOD OF 8 YEARS, WHEREAS IN THE OTHER ORDER PASSED BY THE A SSESSING OFFICER UNDER SECTION 154 OF THE ACT OF EVEN DATE THE RECTIFICATIO N HAS BEEN MADE WITH RESPECT TO EXCESS SET OFF OF BUSINESS LOSS RS.4 9,38,445/-. THE ASSESSEE IN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS) HAD ASSAILED THE ORDER PASSED UNDER SECTION 154 WHEREIN THE ISSUE OF UNABSORBED DEPRECIATION WAS INVOLVED AND PURPORT EDLY ATTACHED THE OTHER ORDER PASSED UNDER SECTION 154 ALO NG WITH FORM 35. WITHOUT COMMENTING ON THE MERITS OF ADDITION, WE DEEM IT APPROPRIATE TO REMIT THIS APPEAL BACK TO THE FILE OF COMMI SSIONER OF INCOME TAX (APPEALS) FOR RE-ADJUDICATING THE APPEAL AFTER TAKING INTO CONSIDERATION THE RELEVANT ORDER PASSED UNDER SECTION 154 OF THE ACT BY ASSESSING OFFICER AGAINST WHICH GROUNDS HAVE BEEN RAISE D IN THE APPEAL BY ASSESSEE. ACCORDINGLY, THE IMPUGNED ORDER IS SET-ASIDE AND THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STAT ISTICAL PURPOSES. ORDER PRONOUNCED ON TUESDAY, THE 14 TH DAY OF AUGUST, 2018. SD/- SD/- (D. KARUNAKARA RAO) (VIKAS AWASTHY) ACCOUNTANT MEMBER JU DICIAL MEMBER / PUNE; / DATED : 14 TH AUGUST, 2018 SATISH 4 ITA NO. 1523/PUN/2016, A.Y. 2009-10 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)-I, AURANGABAD 4. / THE PR.CIT, AURANGABAD 5. , , $ , / DR, ITAT, B BENCH, PUNE. 6. ' / GUARD FILE. // // / BY ORDER, // TRUE COPY // SENIOR PRIVATE SECRETARY, , / ITAT, PUNE