The ITO, Ward-5(4), Morbi V. Morbi Rashtriya Seva Mandal, Morbi

ITA 198/RJT/2012

• Counselvise Citation: 19824914 RSA 2012
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-04-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 01-03-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 19-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: DM RINDANI
• Keywords: Depreciation
• Section: 11

Judgement Text

E S : S : IN THE INCOME TAX APPELLATE TRIBU N AL : RAJKOT BENCH : RAJKOT S .. R S .. S BEFORE SHRI T K SHARM A , JM AND SHRI D K SRIVASTAVA , AM ITA NO S . 198 & 19 9 /RJ T/201 2 A / ASSESSMENT YEAR S 200 4 - 05 & 2005 - 06 IT O , V. MORBI RASHTRIYA SEVA MANDAL, WARD - 5 ( 4 ) , MORBI VISIPARA, NR. FOUR GODOWN, MORBI PAN: AAATM 2818H C.O. NO S. 1 9 & 20 /RJT/2012 A / ASSESSMENT YEAR S 200 4 - 05 & 2005 - 06 MO RBI RASHTRIYA SEVA MANDAL V. ITO , WARD - 5(4), MORBI DATE OF H EARING: 22 . 0 3 .2013 DATE OF P RONOUNCEMENT: 12 .0 4 .2013 FOR THE REVENUE : SHRI M K SINGH, DR FOR THE ASSESSEE: SHRI D M RINDANI, CA / ORDER .. S / D. K. SRIVASTAV A : WHILE BOTH THE APPEALS HAVE BEEN FILED BY THE REVENUE, BOTH THE MEMORANDA OF CROSS - OBJECTIONS HAVE BEEN FILED BY THE ASSESSEE. THEY RELATE TO ASSESSMENT YEAR 2004 - 05 AND 2005 - 06. F ACTS AND ISSUES IN ALL OF THEM ARE COMMON. THEY ARE THEREFORE BEING DISP OSE OF BY A CONSOLIDATED ORDER. 2. IN ITA NO.198/RJT/2012, FIRST TWO GROUNDS TAKEN BY THE REVENUE READ AS UNDER: - 1. THE LD. CIT (A), RAJKOT HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE BY THE AO OF RS.11,02,475/ - BEING INTEREST EARNED B Y THE ASSESSEE FROM THE INVESTMENT WITH BANK AND SSNL BOND, WITHOUT APPRECIATING THE FACTS BROUGHT ON RECORDS BY THE AO. 2. THE LD. CIT (A), RAJKOT HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION OF RS.75,000/ - MADE BY THE AO ON ACCOUNT OF DISALLOW ANCE OF GRATUITY FUND, WITHOUT APPRECIATING THE FACTS BROUGHT ON RECORDS BY THE AO. 3. IN ITA NO.199/ RJT/2012, FIRST TWO GROUNDS TAKEN BY THE REVENUE READ AS UNDER: - 2 ITA 198 & 199 OF 2012 & CO 1 9 & 20 OF 2012 1. THE LD. CIT (A), RAJKOT HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MAD E BY THE AO OF RS.11,40,938/ - BEING INTEREST EARNED BY THE ASSESSEE FROM THE INVESTMENT WITH BANK AND SSNL BOND, WITHOUT APPRECIATING THE FACTS BROUGHT ON RECORDS BY THE AO. 2. THE LD. CIT (A), RAJKOT HAS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE BY THE AO OF RS1,00,000/ - ON ACCOUNT OF DISALLOWANCE OF GRATUITY FUND, WITHOUT APPRECIATING THE FACTS BROUGHT ON RECORDS BY THE AO. 4. WE HAVE HEARD BOTH THE PARTIES. AT THE TIME OF HEARING, IT WAS SUBMITTED THAT IDENTICAL ISSUES HAVE BEEN CONSIDER ED AND DECIDED BY THIS TRIBUNAL IN FAVOUR OF THE ASSESSEE IN THE DEPARTMENTS APPEAL IN THE ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2006 - 07. COPY OF ORDER DATED 19.03.2010 PASSED BY THIS BENCH IN ITO V . MORBI RASHTRIYA SEVA MANDAL, MORBI IN ITA NO.171/RJT/ 2009 HAS BEEN FILED BY THE ASSESSEE BEFORE US. IT WAS SUBMITTED THAT THE DEPARTMENT HAS ALREADY FILED APPEAL AGAINST THE AFORESAID ORDER BEFORE THE HONBLE HIGH COURT WHICH HAS SINCE BEEN ADMITTED. AT THE TIME OF HEARING, THE LD. AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS FILED A DECLARATION IN FORM NO.8 U/S 158A(1) OF THE INCOME - TAX ACT READ WITH RULE 16 OF THE INCOME - TAX RULES. 5. THE ISSUE IN BOTH THE GROUNDS OF APPEAL STANDS COVERED BY THE AFORESAID ORDER OF THIS TRIBUNAL AGAINST THE REVENUE AND I N FAVOUR OF THE ASSESSEE. FOLLOWING THE SAME, BOTH THE GROUNDS IN BOTH THE ASSESSMENT YEARS ARE DISMISSED. AS REGARDS THE DECLARATIONS FILED BY THE ASSESSEE U/S 158A, IT MAY BE MENTIONED THAT S ECTION 158A CONT AINS SPECIAL PROVISIONS FOR AVOIDING REPETITIVE APPEALS. THE ASSESSEE HAS AGREED THAT FINAL DECISION OF THE HONBLE JURISDICTIONAL H IGH C OURT MAY BE APPLIED TO ITS CASE BY THE REVENUE AS AND WHEN IT BECOMES AVAILABLE. IN THIS VIEW OF THE MATTER, THE DECLARATIONS FILED BY THE ASSESSEE FOR BOTH THE ASSES SMENT YEARS ARE TAKEN ON RECORD WITH THE DIRECTION TO T HE REVENUE TO CARRY OUT AMENDMENT , IF NECESSARY, LATER IN TERMS OF SUB - SECTION ( 5 ) OF S ECTION 158A. GROUND NOS.1 AND 2 TAKEN BY THE DEPARTMENT IN BOTH THE ASSESSMENT YEARS ARE DISMISSED WITH THE AFORES AID OBSERVATIONS. 3 ITA 198 & 199 OF 2012 & CO 1 9 & 20 OF 2012 6 . GROUND NO.3 TAK EN BY THE R EVENUE IS IDENTICALLY WORDED EXCEPT FOR THE DIFFERENCE IN AMOUNT. IN ASSESSMENT YEAR 2004 - 05 (BEING ITA NO.198/RJT/2012 ) , THE DEPARTMENT HAS TAKEN THE FOLLOWING GROUND OF APPEAL: - THE LD. CIT (A), RAJKOT H AS ERRED IN LAW AND ON FACTS IN DELETING THE ADDITION MADE BY THE AO OF RS.5,10,000/ - ON ACCOUNT OF DEPRECIATION, WITHOUT APPRECIATING THE FACTS BROUGHT ON RECORDS BY THE AO. 7 . AT THE TIME OF HEARING, IT WAS FAIRLY CONCEDED BY THE PARTIES THAT THE ISSUE UNDER APPEAL WAS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE AFORESAID ORDER OF TH IS TRIBUNAL. RESPECTFULLY FOLLOWING THE ORDERS OF TH IS TRIBUNAL IN THE ASSESSEES OWN CASE FOR A Y 2006 - 07, THE ISSUE UNDER APPEAL IS DECIDED AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE. G ROUND NO.3 IN BOTH THE APPEALS IS DISMISSED. CO NO.19 & 20 /RJT/2012 : BY THE ASSESSEE 8 . AS STATED EARLIER, THE ASSESSEE HAS FILED MEMORAND UM OF CROSS - OBJECTIONS IN BOTH THE AFORESAID ASSESSMENT YEARS WHICH ARE IDENTICALLY W ORDED AND READ AS UNDER: - 1. THAT THE LEARNED CIT (A) IV, RAJKOT HAS GRIEVOUSLY ERRED IN NOT ADJUDICATING ON THE GROUND NO.9 RAISED BY THE RESPONDENT THAT ALTERNATIVELY AND WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED A.O. HAS GRIEVOUSLY ERRED IN NOT COM PUTING THE INCOME IN ACCORDANCE WITH THE PROVISIONS OF SEC. 11 OF THE ACT. 9 . THE AFORESAID ISSUE HAS BEEN DISPOSED OF BY THE LD. CIT (A) IN BOTH THE ASSESSMENT YEARS WITH THE FOLLOWING OBSERVATIONS: - I HAVE GONE THROUGH THE ASSESSMENT ORDER AND SUBMI SSIONS OF APPELLANT. THIS ISSUE HAS ALREADY BEEN DECIDED BY HONBLE ITAT - RAJKOT IN APPEAL NO.ITA 171/RJT/2009 ON 19.03.2010 IN APPELLANTS OWN CASE FOR ASSESSMENT YEAR 2006 - 07. ASSESSING OFFICER HAS ADDED BACK THE CLAIM OF DEPRECIATION PROVISION OF PAST AN D PRESENT OF RS.510000 APPEARING IN THE BALANCE SHEET AS ON 31.03.2004 TO THE TOTAL INCOME, WHEN THE ACTUAL CLAIM OF DEPRECIATION WAS ONLY RS.65,000/ - DURING THE YEAR. THE CLAIM OF DEPRECIATION OF RS.65,000/ - IS ALSO CORRECTLY CLAIMED BY APPELLANT ON COMME RCIAL PRINCIPLE. THEREFORE, RESPECTFULLY 4 ITA 198 & 199 OF 2012 & CO 1 9 & 20 OF 2012 FOLLOWING THE DECISION OF HONBLE ITAT - RAJKOT IN APPEAL NO.ITA 171/RJT/2009 ON 19.03.2010 IN APPELLANTS OWN CASE FOR ASSESSMENT YEAR 2006 - 07, I DIRECT THE ASSESSING OFFICER TO DELETE THE ADDITION OF RS.510000/ - AND REDUCE THE TOTAL INCOME ACCORDINGLY. 10 . WE HAVE HEARD BOTH THE PARTIES. THE LD. CIT(A) HAS NOT ADJUDICATED UPON THE ISSUE UNDER APPEAL ON THE GROUND THAT HE HAS DECIDED THE MAIN GROUND IN FAVOUR OF THE ASSESSEE. WE ARE UNABLE TO AGREE WITH THE SAME. UN LESS THE ISSUE U/S 10(23B) RAISED BY THE ASSESSEE ATTAINS FINALITY, THE ISSUE RAISED BY THE ASSESSEE IN THE AFORESAID GROUND OF APPEAL SURVIVES. IN THIS VIEW OF THE MATTER, THE ISSUE RAISED BY THE ASSESSEE IN THE AFORESAID GROUND OF APPEAL IS RESTORED TO T HE FILE OF THE CIT(A) FOR A DECISION ON MERITS AND IN CONFORMITY WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. MEMORANDA OF CROSS - OBJECTIONS FILED BY THE ASSESSEE FOR BOTH THE ASSESSMENT YEARS UNDER APPEAL ARE TREATED AS ALLO WED FOR STATISTICAL PURPOSES. 11 . IN VIEW OF THE FOREGOING, BOTH THE APPEALS FILED BY THE REVENUE STAND DISMISSED WHILE BOTH THE MEMORANDA OF CROSS - OBJECTIONS FILED BY THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. I 12 . 0 4 .201 3 I ORDER PRONOUNCED ON 12 .0 4 . 2013 SD/ - SD/ - ( E.. / T. K. SHARMA) ( .. R / D. K. SRIVASTAVA) SA R / JUDICIAL MEMBER 2013 / ACCOUNTANT MEMBER /RAJKOT : 12 .0 4 . 2013 BJ J RO' O / COPY OF ORDER FORWARDED TO: - 1.D /APPELLANT - THE INCOME - TAX OFFICER, WARD - 5 ( 4 ), MORBI 2 VOD /RESPONDENT - M/S. MORBI RASHTRIYA SEVA MANDAL, MORBI 3. S T / CONCERNED CIT - 4. T - / CIT(A) - I V , RAJKOT 5. VAAS, E S, / DR, ITAT, RAJKOT 6. / GUARD FILE / BY ORDER TRUE COPY PRIVATE SECRETARY, ITAT, RAJKOT