Market Committee Panipat, Haryana V. ACIT, Panipat

ITA 1569/DEL/2011

• Counselvise Citation: 156920114 RSA 2011
• Duration Of Justice: 10 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-02-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Next Hearing Date: 16-02-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 31-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R S NEGI SENIOR
• Assessee Lawyers: SIDHARTH JAIN
• Keywords: Depreciation
• Section: 143(3); 144; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH E NEW DELHI) BEFORE SHRI RAJPAL YADAV AND SHRI K.G. BANSAL ITA NO. 1569/DEL/2011 ASSESSMENT YEAR: 2005-06 MARKET COMMITTEE, PANIPAT VS. ASSISTANT CIT, GT ROAD, GOHANA CHOWK, PANIPAT. PANIPAT (HARYANA) (PAN: AAAAM2630H) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI SIDHARTH J AIN, AR RESPONDENT BY: SHRI RS NEGI, SEN IOR DR DATE OF HEARING : 16.02.2012 DATE OF PRONOUNCEMENT : 16.02.2012 ORDER PER RAJPAL YADAV: JUDICIAL MEMBER THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE OR DER OF LEARNED CIT(APPEALS) DATED 03.01.2011 PASSED FOR ASSESSMENT YEAR 2005-06. THE ASSESSEE HAS TAKEN SEVEN GROUNDS OF APPEAL. THE LEA RNED COUNSEL FOR THE ASSESSEE AT THE VERY OUTSET SUBMITTED THAT LEARNED FIRST APPELLATE AUTHORITY HAS DISMISSED THE APPEAL OF ASSESSEE ON THE GROUND THAT APPEAL OF THE ASSESSEE IS NOT MAINTAINABLE. THE OTHER ISSUES ARE NOT ADJUDICATED ON MERIT. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS FILED ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2005-06 ON 29.10.2005 DE CLARING AN INCOME OF 2 RS,23,34,933. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT AND A NOTICE UNDER SEC. 143(2) OF THE ACT DATED 24. 5.2006 WAS DULY SERVED UPON THE ASSESSEE ON 30.05.2006. LEARNED ASSESSING OFFICER AFTER HEARING THE ASSESSEE PASSED THE ASSESSMENT ORDER UNDER SEC. 143(3) ON 29.8.2007. DISSATISFIED WITH THE ACTION OF THE ASSESSING OFFIC ER, ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LEARNED CIT(APPEALS). LEARNED CIT(APPEALS) HAS DECIDED THE APPEAL OF THE ASSESSEE VIDE ORDER D ATED 16.6.2008. 3. DISSATISFIED WITH THE ORDER OF THE LEARNED CIT(A PPEALS), ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE ITAT VIDE I TA NO.2774/DEL/08. THE APPEAL OF THE ASSESSEE HAS BEEN DECIDED BY THE ITAT VIDE ORDER DATED 29.5.2009. LEARNED ASSESSING OFFICER HAS GIVEN EFFE CT TO THE ORDER OF THE ITAT VIDE HIS ORDER DATED 4.11.2009. ACCORDING TO T HE ASSESSEE, ASSESSING OFFICER HAS NOT GIVEN EFFECT TO THE ITATS ORDER IN RIGHT PERSPECTIVE. LEARNED ASSESSING OFFICER HAS NOT CONSIDERED THE AMOUNT OF DEPRECIATION AS APPLICATION OF INCOME UNDER SEC. 11 TO 13 OF THE IN COME-TAX ACT, 1961. APART FROM THIS ONE ISSUE, ASSESSEE HAS TAKEN OTHER GROUNDS ALSO WHICH ACCORDING TO IT HAS NOT BEEN GIVEN EFFECT BY THE IT O IN ACCORDANCE WITH THE DECISION RENDERED BY THE ITAT. LEARNED CIT(APPEALS) HAS DISMISSED THE 3 APPEAL OF THE ASSESSEE ON THE GROUND THAT NO APPEAL IS MAINTAINABLE AGAINST THE ORDER OF THE ASSESSING OFFICER WHO HAS GIVEN EF FECT TO THE ITATS ORDER. 4. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ISSUE IN DISPUTE IS SQUARELY COVERED IN FAVOUR OF THE ASSESS EE BY THE DECISION OF THE HON'BLE BOMBAY HIGH COURT RENDERED IN THE CASE OF C ALTEX OIL REFINING (INDIA) LTD. VS. CIT REPORTED IN 202 ITR 375. THE F ACTS IN THAT CASE ARE THAT AN ASSESSMENT FOR ASSESSMENT YEAR 1970-71 WAS FRAME D BY THE ASSESSING OFFICER ON 11.2.1972. ASSESSING OFFICER WHILE DETER MINING THE TOTAL INCOME OF THE ASSESSEE HAS ALLOWED INTEREST UNDER SEC. 214 OF THE INCOME-TAX ACT, 1961 ON ADVANCE PAYMENT OF TAX IN EXCESS OF THE TAX DETERMINED ON REGULAR ASSESSMENT. THE DISPUTE WENT IN APPEAL UP TO THE IT AT. INCONSEQUENCE OF THE ORDER OF THE ITAT PASSED ON FEBRUARY 12, 1974, THE TOTAL INCOME OF THE ASSESSEE WAS REDUCED. ITO WHILE GIVING EFFECT TO TH E ORDER OF THE ITAT ON JUNE 15, 1974 OBSERVED THAT INTEREST PAYABLE TO THE ASSESSEE BY THE GOVERNMENT UNDER SEC. 214 WILL REMAIN UNCHANGED. SI MILARLY, IN ASSESSMENT YEAR 1972-73, AN ASSESSMENT WAS FRAMED UNDER SEC. 1 43(3) ON 28.3.1973. THE DISPUTE WENT IN APPEAL BEFORE THE APPELLATE ASS ISTANT COMMISSIONER. BY VIRTUE OF HIS ORDER, TOTAL INCOME DETERMINED BY THE ASSESSING OFFICER WAS REDUCED BUT AGAIN ASSESSING OFFICER DID NOT ALLOW I NTEREST UNDER SEC. 214 OF 4 THE ACT ON REFUND GRANTED BY HIM. AGAINST THESE ORD ERS OF THE ASSESSING OFFICER PASSED WHILE GIVING EFFECT TO THE APPELLATE ORDER IN BOTH THE ASSESSMENT YEARS, THE ASSESSEE WENT IN APPEAL BEFOR E THE LEARNED APPELLATE ASSISTANT COMMISSIONER. THE ONLY GRIEVANCE OF THE A SSESSEE IN ITS APPEAL WAS THAT ITO WAS IN ERROR IN NOT CALCULATING/ALLOWI NG INTEREST UNDER SEC. 214 OF THE ACT. LEARNED AAC HAS HELD THAT THE APPEALS A RE NOT MAINTAINABLE ON THE GROUND THAT NO APPEAL WAS PROVIDED FOR IN RESPE CT OF INTEREST UNDER SEC. 214 AND AS SUCH THE APPEALS COULD NOT BE ENTERTAINE D. THE ITAT HAS CONFIRMED THE VIEW OF THE AAC. THE DISPUTE ULTIMATE LY WENT TO THE HON'BLE BOMBAY HIGH COURT AND THE HON'BLE HIGH COURT HAS OB SERVED THAT THE POWERS OF THE ITO IS TO MAKE AN ASSESSMENT UNDER SE C. 143 OR SECTION 144 OF THE ACT. IT IS THAT ASSESSMENT WHICH IS SUBJECT MAT TER OF APPEAL. IT IS SEEN THAT EFFECT OF AN APPELLATE ORDER IS THAT THE ORDER EITH ER STANDS CONFIRMED, REDUCED OR ENHANCED OR IT STANDS ANNULLED OR SET ASIDE. THU S, IT IS CLEAR THAT WHAT REMAINED AS A FINAL ORDER AFTER GIVING EFFECT TO TH E ORDERS OF THE APPELLATE AUTHORITIES IS AN ORDER OF ASSESSMENT UNDER SEC. 14 3 OR SEC. 144 OF THE ACT. IT CANNOT BE ANYTHING ELSE AND AN APPEAL IS MAINTAINAB LE AGAINST SUCH AN ORDER. LEARNED DR WAS UNABLE TO CONTROVERT THE CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE AND WAS UNABLE TO REBUT THE JUDGME NT OF HON'BLE BOMBAY HIGH COURT. 5 5. ON DUE CONSIDERATION OF THE FACTS AND CIRCUMSTA NCES, WE ARE OF THE VIEW THAT THE ISSUE IN DISPUTE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF HON'BLE BOMBAY HIGH COURT. THE APPE AL OF THE ASSESSEE DESERVES TO BE DECIDED ON MERIT BY THE LEARNED FIRS T APPELLATE AUTHORITY. RESPECTFULLY FOLLOWING THE DECISION OF HON'BLE BOMB AY HIGH COURT, WE ALLOW THE APPEAL OF THE ASSESSEE AND SET ASIDE THE ORDER OF LEARNED CIT(APPEALS). WE REMIT ALL THESE ISSUES TO THE FILE OF THE LEARNED FIRST APPELLATE AUTHORITY FOR ADJUDICATION ON MERIT. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 16.02.2012 SD/- SD/- ( K.G. BANSAL ) ( RAJPAL YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 16/02/2012 MOHAN LAL COPY FORWARDED TO: 1) APPELLANT 2) RESPONDENT 3) CIT 4) CIT(APPEALS) 5) DR:ITAT ASSISTANT REGISTRAR