M/s. Banaskanth Dist. Co.-Op. Milk Producers Union Ltd., Banaskantha V. The Asstt. Commissioner of Income Tax, B.K. Circle, Palanpur

ITA 2001/AHD/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 5834 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 01-08-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Depreciation; Unabsorbed depreciation; Revenue expenditure; Capital expenditure
• Section: 143(3); 32; 148; 37; 154; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH BEFORE: SHR I RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER THE ACIT, B.K. CIRCLE, PALANPUR (APPELLANT) VS M/S. BANASKANTHA DIST. OIL SEEDS GROWERS UNION LTD. POST BOX NO. 30, GUNJ ROAD, PALANPURA - 385001 PAN: AAAAS1902L (RESPONDENT) M/S. BANASKANTHA DIST CO - OP. PRODUCERS UNION LTD . BANAS DAIRY, PALANPUR PAN: AAAAB0575E (APPELLANT) VS THE ACIT, B.K. CIRCLE, PALANPUR (RESPONDENT) REVENUE BY : S H RI PRASOON KABRA , SR. D . R. ASSESSEE BY: S H RI SUNIL TALATI , A.R. DATE OF HEARING : 07 - 03 - 2 018 DATE OF PRONOUNCEMENT : 20 - 03 - 2 018 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THESE FOUR APPEALS, TWO BY REVENUE AND TWO BY TWO DIFFERENT ASSESSEES FOR A.Y. 2009 - 10 AND 2012 - 13 , AR ISE FROM ORDER OF THE CIT(A) - 4 , AHM EDABAD I T A NO S . 1993 TO 1994 / A HD/20 16 A SSESSMENT YEAR 200 9 - 10 & 2012 - 13 ITA NOS. 2000 TO 2001/AHD/2016 ASSESSMENT YEAR 2009 - 10 & 2012 - 13 I.T.A NOS.1993 - 1994 & 2000 - 2001/AHD/2016 A.Y. 2009 - 10 & 2012 - 13 PAGE NO ACIT VS. M/S BANASKANTHA DIST. OIL SEEDS GROWERS UNION LTD & M/S BANASKANTHA DIST. CO - OPERATIVE MILK PRODUCERS UNION LTD. VS. ACIT 2 DATED 25 - 05 - 2016 , IN PROCEEDINGS UNDER SECTION 14 3(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL : - ITA NO. 1993/AHD/2016 1) WHETHER ON THE FACTS OF THE CASE AND IN LAW CIT(A) ERRED IN ALLOWING THE UNABSORBED DEPRECIATION CLA IMED OF RS. 38,01,74,402/ - PERTAINING TO AY 2001 - 02 BEYOND EIGHT YEAR S AS PER PROVISIONS OF SECTION 32(2) OF THE ACT.' 3 AS I DENTICAL ISSUES ON SIMILAR FACTS ARE INVOLVED IN ITA NO. 1993 AND 1994/AHD/2016 , THEREFORE, FOR THE SAKE OF CONVENIENCE , WE ADJU DICATE THE ITA NO. 1993/AHD/2016 AND ITS FINDINGS WILL BE APPLICABLE TO BOTH THE APPEALS. 4 . THE BRIEF FACT OF THE CASE IS THAT THE ASSESSEE HAS FILED RETURN OF INCOME DECLARING LOSS OF RS. 87 , 95 , 310/ - ON 29 TH SEP, 2009. THE ASSESSMENT WAS COMPLETED U/S. 143(3) OF THE ACT ON 30 TH NOV, 2011 ACCEPTING THE LOSS AS PER THE RETURN FILED. THEREAFTER T HE ASSESSING OFFICER ISSUED NOTICE U/S. 148 OF THE ACT ON 26 TH FEB, 2014 ON THE REASONING THAT ASSESSEE HAS CARRIED FORWARD THE DEPRECIATION LOSS OF RS. 38, 0 1 , 74 , 402/ - BEYOND EIGHT YEARS. THE ASSESSING OFFICER OBSERVED THAT AS PER PROVISION OF SECTION 32( 2 ), THE DEPRECIATIO N LOSS CANNOT BE CARRIED FORWAR D BEYOND 8 YEARS. CONSEQUENTLY, IN THE RE - ASSESSMENT ORDER U/S 143(3) R.W.S. 147 OF THE ACT DATED 14 TH AUGU ST, 2014 ,T HE ASSESSING OFFICER HAS DISALLOWED THE CLAIM OF UNABSORBED DEPRECIATION OF ASSESSMENT YEAR 2002 - 2003 OF RS. 38,01,74,402/ - 5 . AGGRIEVED ASSESSEEE FILED APPEAL BEFORE THE LD. CIT(A). T HE LD. CIT(A) HAS ALLOWED THE APPEAL OF THE ASSESSEE . THE RE LEVANT PART OF THE DECISION OF THE CIT(A) IS REPRODUCED AS UNDER: - 6.2 ALONGWITH THE CONTENTION AND OTHER CASE LAWS THE APPELLANT CITED THE JUDGEMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT OF GUJARAT, AHMEDABAD IN THE CASE OF GENERAL MOTORS INDIA (P.) L TD. VS. DCIT [ 354 ITR 244 ] [ 2012 ] 'THE SAID CBDT CIRCULAR CLARIFIES THE INTENT OF THE AMENDMENT THAT IT IS FOR ENABLING THE INDUSTRY TO CONSERVE SUFFICIENT FUNDS TO REPLACE PLANT AND MACHINERY AND, ACCORDINGLY, THE AMENDMENT DISPENSES WITH THE RESTRICT ION OF 8 YEARS FOR CARRY FORWARD AND SET OFF OF I.T.A NOS.1993 - 1994 & 2000 - 2001/AHD/2016 A.Y. 2009 - 10 & 2012 - 13 PAGE NO ACIT VS. M/S BANASKANTHA DIST. OIL SEEDS GROWERS UNION LTD & M/S BANASKANTHA DIST. CO - OPERATIVE MILK PRODUCERS UNION LTD. VS. ACIT 3 ABSORBED DEPRECIATION. THIS AMENDMENT HAS BECOME APPLICABLE FROM ASSESSMENT YEAR . 2002 - 03 AND SUBSEQUENT YEARS MEANING THAT ANY UNABSORBED DEPRECIATION AVAILABLE TO AN - ASSESSEE ON 1ST DAY OF APRIL, 2002 (A SSESSMENT YEAR 2002 - 03) WILL BE DEALT WITHIN ACCORDANCE WITH THE PROVISIONS OF SECTION 32(2) AS AMENDED BY FINANCE ACT, 2001 AND NOT BY THE PROVISIONS OF SECTION 32(2) AS IT STOOD BEFORE THE SAID AMENDMENT. IT THE INTENTION OF THE LEGISLATURE HAS BEEN TO A LLOW THE UNABSORBED DEPRECIATION ALLOWANCE WORKED OUT IN ASSESSMENT YEAR 1997 - 98 ONLY FOR EIGHT SUBSEQUENT ASSESSMENT YEARS EVEN AFTER THE AMENDMENT OF SECTION 32(2) BY FINANCE ACT, 2001, IT WOULD HAVE INCORPORATED A PROVISION TO THAT EFFECT. HOWEVER, IT D OES NOT CONTAIN ANY SUCH PROVISION. HENCE, A PURPOSIVE AND HARMONIOUS INTERPRETATION HAS TO BE TAKEN KEEPING IN VIEW THE PURPOSE OF AMENDMENT OF SECTION 32(2). WHILE CONSTRUING TAXING STATUTES, RULE OF STRICT INTERPRETATION HAS TO BE APPLIED, GIVING FAIR A ND REASONABLE CONSTRUCTION TO THE LANGUAGE OF THE SECTION WITHOUT LEANING TO THE SIDE OF ASSESSEE OR THE REVENUE. BUT IF THE LEGISLATURE FAILS TO EXPRESS CLEARLY AND THE ASSESSEE BECOMES ENTITLED FOR A BENEFIT WITHIN THE AMBIT OF SECTION BY THE CLEAR WORDS USED IN SECTION, THE BENEFIT ACCRUING TO THE ASSESSEE CANNOT BE DENI ED. HOWEVER, CIRCULAR NO. 14 OF 2001 HAD CLARIFIED THAT UNDER SECTION 32(2), IN COMPUTING THE PROFITS AND GAINS OF BUSINESS OR PROFESSION FOR ANY PREVIOUS YEAR, DEDUCTION OF DEPRECIATION UNDER SECTION 32 SHALL BE MANDATORY. THEREFORE, THE PROVISIONS OF SECTION 32(2) AS AMENDED BY FINANCE ACT, 2001 WOULD ALLOW THE UNABSORBED DEPRECIATION ALLOWANCE AVAILABLE IN THE ASSESSMENT YEARS 1997 - 98, 1999 - 2000, 2000 - 01 AND 2001 - 02 TO BE CARRIED FORWAR D TO THE SUCCEEDING YEARS, AND IF ANY UNABSORBED DEPRECIATION OR PART THEREOF COULD NOT BE SET OFF TILLTHE ASSESSMENT YEAR 2002 - 03 THEN IT WOULD BE CARRIED FORWARD TILL THE TIME IT IS SET OFF AGAINST THE PROFITS AND GAINS OF SUBSEQUENT YEARS.' IT FURTHER S TATED THAT ' IT IS HELD THAT ANY UNABSORBED DEPRECIATION AVAILABLE TO AN ASSESSEE ON 1ST DAY OF APRIL, 2002 (A. Y. 2002 - 03) WILL BE DEALT WITH IN ACCORDANCE WITH THE PROVISIONS OF SECTION 32(2) AS AMENDED BY FINANCE ACT, 2001. AND ONCE THE CIRCULAR NO. 14 OF 2001 CLARIFIED THAT THE RESTRICTION OF 8 YEARS FOR CARRY FORWARD AND SET OFF OF UNABSORBED DEPRECIATION HAD BEEN DISPENSED WITH, THE UNABSORBED DEPRECIATION FROM ASSESSMENT YEAR 1997 - 98 UP TO THE ASSESSMENT YEAR 2001 - 02 GOT CARRIED FORWARD TO THE ASSES SMENT YEAR 2002 - 03 AND BECAME PART THEREOF, IT CAME TO BE GOVERNED BY THE PROVISIONS OF SECTION 32(2) AS AMENDED BY FINANCE ACT, 2001 AND WERE AVAILABLE FOR CARRY FORWARD AND SET OFF AGAINST THE PROFITS AND GAINS OF SUBSEQUENT YEARS, WITHOUT ANY LIMIT WHAT SOEVER.' 6.3 AFTER GOING THROUGH THE FACTS OF THE CASE AND THE JUDGEMENT OF HON'BLE HIGH COURT OF GUJARAT, AHMEDABAD IN THE ABOVE MENTIONED CASE WHICH CONTAINS IDENTICAL FACTS, THE DISALLOWANCE MADE BY THE AO DESERVES TO BE DELETED, THEREFORE, IT IS DELET ED. THIS GROUND OF APPEAL IS ALLOWED. 6 . WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON MATERIAL CA REFULLY. WE HAVE NOTICED THAT T HE CO - ORDINATE BENCH OF ITAT AHMED ABAD VIDE ITA NO. 2393/AHD/2013 DATED 03 - 05 - 2017 IN T H E CASE OF GUJARAT LE ASE FINANCE LTD HAS DECIDED THE IDENTICAL ISSUE IN FAVOUR OF ASSESSE E. THE PART OF THE JUDICIAL FINDINGS AND THE PRINCIPLES LAID DOWN BY THE HON BLE JURISDICTIONAL HIGH COURT IN THE CASE OF GENERAL MOTORS INDIA(P) LTD ARE REPRODUCED HERE AS UNDER : - I.T.A NOS.1993 - 1994 & 2000 - 2001/AHD/2016 A.Y. 2009 - 10 & 2012 - 13 PAGE NO ACIT VS. M/S BANASKANTHA DIST. OIL SEEDS GROWERS UNION LTD & M/S BANASKANTHA DIST. CO - OPERATIVE MILK PRODUCERS UNION LTD. VS. ACIT 4 W E ARE OF THE CONSIDERED OPINION THAT ANY UNABSORBED DEPRECIATION AVAILABLE TO AN ASSESSEE ON 1ST DAY OF APRIL 2002 (A.Y. 2002 - 03) WILL BE DEALT WITH IN ACCORDANCE WITH THE PROVISIONS OF SECTION 32(2) AS AMENDED BY FINANCE ACT, 2001. AND ONCE THE CIRCULAR N O. 14 OF 2001 CLARIFIED THAT THE RESTRICTION OF 8 YEARS FOR CARRY FORWARD AND SET OFF OF UNABSORBED DEPRECIATION HAD BEEN DISPENSED WITH, THE UNABSORBED DEPRECIATION FROM A.Y. 1997 - 98 UPTO THE A.Y. 2001 - 02 GOT CARRIED FORWARD TO THE ASSESSMENT YEAR 2002 - 03 AND BECAME PART THEREOF, IT CAME TO BE GOVERNED BY THE PROVISIONS OF SECTION 32(2) AS AMENDED BY FINANCE ACT, 2001 AND WERE AVAILABLE FOR CARRY FORWARD AND SET OFF AGAINST THE PROFITS AND GAINS OF SUBSEQUENT YEARS, WITHOUT ANY LIMIT WHATSOEVER. THE RELE VANT PART OF T H E DECISION OF THE CO - ORDINATE BENCH OF THE ITAT DECIDED IN THE CASE OF GUJARAT LEASE FINANCE LTD. VIDE ITA NO. 2393/AHD/2013 DATED 03/05/2017 IS REPRODUCED AS HERE UNDER: - 6. WE HAVE HEARD THE RIVAL CONTENTIONS. WE HAVE ALSO PERUSED THE J UDICIAL PRONOUNCEMENT DELIVERED BY THE HON BLE HIGH COURT OF GUJARAT IN THE CASE OF GENERAL MOTORS INDIA (P.) LTD VS. DCIT (2012) 25 TAXMANN.COM WHICH WAS ELABORATED IN DETAIL BY THE LD. CIT(A) IN HIS ORDER AS SUPRA IN THIS ORDER. WE HAVE ALSO PERUSED THE JUDICIAL PRONOUNCEMENT OF HON BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. GUJARAT THEMIS BIOSYN LTD. [2014] 44 TAXMANN. COM 204 (GUJARAT) IN WHICH AFTER CONSIDERING THE JUDGMENT GIVEN IN GENERAL MOTORS INDIA (P) LTD, IT WAS HELD THAT CARRY FORWARD OF UN ABSORBED DEPRECIATION CONCERNING IMPUGNED ASSESSMENT YEARS COULD BE SET OFF IN SUBSEQUENT YEARS WITHOUT ANY SET TIME LIMIT. IN VIEW OF THE ABOVE JUDICIAL PRONOUNCEMENT ON THE ISSUE AND THE ELABORATE FINDINGS OF THE LD. CIT(A), WE DO NOT FIND ANY REASON TO INTERFERE IN THE DECISION OF THE LD. CIT(A). RESPECTFULLY FOLLOWING THE DECISION OF THE CO - ORDINATE BENCH AS SUPRA, WE DO NOT FIND ANY ERROR IN THE FINDING OF LD. CIT(A) , THEREFORE , THE APPEAL OF THE REVENUE IS DISMISSED. IN THE RESULT, BOTH THE APPEAL S OF THE REVENUE ARE DISMISSED. ITA NO. 2000/AHD/2016 7 . THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - YOUR APPELLANT BEING AGGRIEVED BY THE ORDER PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX, (APPEALS) - 4, AHMEDABAD PRESENTS THIS APPEAL AGA INST THE SAME ON THE FOLLOWING AMONGST OTHER GROUNDS. 1. THE LD. CIT(A) HAS ERRED IN HOLDING THAT ASSESSMENT U/S 147 OF THE ACT WAS VALID AND NOT ACCEPTING THE CONTENTION OF THE APPELLANT THAT ALL THE FACTS AND RELEVANT DETAILS HAVE ALREADY BEEN SCRUTINIZ ED AT THE TIME OF ORIGINAL ASSESSMENT : PROCEEDINGS U/S 143(3) AND HENCE THE REOPENING OF ASSESSMENT U/S 147 IS TOTALLY BAD IN LAW, VOID - AB - INITIO AND WITHOUT JURISDICTION. IT IS SUBMITTED THAT THE ORDER PASSED BY A.O. U/S 143(3) R.W.S. 147 DESERVES TO BE QUASHED AND BE SET ASIDE. I.T.A NOS.1993 - 1994 & 2000 - 2001/AHD/2016 A.Y. 2009 - 10 & 2012 - 13 PAGE NO ACIT VS. M/S BANASKANTHA DIST. OIL SEEDS GROWERS UNION LTD & M/S BANASKANTHA DIST. CO - OPERATIVE MILK PRODUCERS UNION LTD. VS. ACIT 5 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF ASSESSING OFFICER TREATING THE TOTAL AGMARK CHARGES OF RS. 27,70,753/ - AS INTANGIBLE ASSET WIT HIN THE MEANING OF SECTION 32(1 )(II) AND THUS THEREBY MAK ING THE NET DISALLOWANCE OF RS. 20,78,065 AFTER ALLOWING THE DEPRECIATION OF RS. 6,92,688/ - .IT IS SUBMITTED THAT THE PAYMENT MADE TOWARDS AGRNARK CHARGES IS RECURRING IN NATURE AND IT IS INCURRED PERIODICALLY/REGULARLY AS WELL AS IT IS A STATUTORY REQUIRE MENT UNDER PROVISIONS OF AGRICULTURAL PRODUCE (GRADING AND MARKETING) ACT OF 1937 (AMENDED IN 1986). THUS THE ADDITION MADE AFTER ALLOWING DEPRECIATION OF RS. 20,78,065/ - TREATING THE SAME AS CAPITAL EXPENDITURES IS ILLEGAL AND UNJUSTIFIABLE. THE SAME BE H ELD SO NOW AND THE ADDITION OF RS. 20,78,065/ - BE DELETED. 8 . THE ASSESSEE HAS FILED RETURN OF INCOME DECLARING INCOME OF RS. 4 , 8 7 , 41 ,0 40/ - AND ASSESSMENT U/S. 143(3) WAS COMPLETED ON 19 TH DECEMBER, 2011 DETERMINING TOTAL INCOME OF RS. 9 , 65 , 55 , 450/ - AND AGRICULTURAL INCOME OF RS. 3 , 62 , 467 / - . SUBSEQUENTLY, THE CASE OF THE ASSESSEE WAS REOPENED AND ASSESSMENT U/S 143(3) R.W.S.147 HAS BEEN MADE ON 20/03/2015 ASSESSING THE TOTAL INCOME AT RS.9,63,53,074/ - THEREAFTER THE HIGH COURT OF GUJARAT HAS SET A SIDE THE ASSESSMENT TO THE ASSESSING OFFICER. THE ASSESSING OFFICER HAS COMPLETED THE SET A SIDE ASSESSMENT ON 17/08/2015 BY MAKING AN ADDITION OF RS. 20 , 78 ,0 65/ - IN RESPECT AGMARK CHARGES CLAIMED BY THE ASSESSEE . THE ASSESSING OFFICER OBSERVED THAT AGMARK CHARGES IS OF THE NATURE OF CAPITAL EXPENDITURE HAVING BENEFIT TO THE ASSESSEE FOR SEVERAL YEARS THEREFORE THE SAME WAS NOT ADMISSIBLE AS REVENUE EXPENDITURE WITHIN THE MEANING OF SECTION 3 7 ( 1 ) OF THE ACT. HE HAS CLASSIFIED THESE AS A CAPITAL EXPENDITURE UNDER T HE PROVISIONS OF SECTION 32(I)(II) AS INTANGIBLE ASSETS CARRYING DEPRECIATION AT 25% OF THE COST/EXP ENSES. CONSEQUENTLY, T HE ASSESSING OFFICER HAS DISALLOWED THE EXPENSES TO THE EXTENT OF RS. 20 , 78 , 065/ - (27 , 70 , 189 - 6 , 92 , 124/ - ) AFTER ALLOWING THE ADMISSIB LE DEPRECIATION AT 25%. 9 . AGGRIEVED ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) SUSTAINED THE ADDITION MADE BY THE ASSESSING OFFICER BY OBSERVING AS UNDER: - 5.1 THE SECOND GROUND OF APPEAL IS AGAINST THE ADDITIONS OF RS.20,78,065/ - MAD E BY THE AO BY CONSIDERING AGRNARK CHARGES AS CAPITAL EXPENDITURE. THE TOTAL EXPENDITURE OF AGMARK CHARGES IS RS.27,70,753/ - . THE AO ALLOWED 25% DEPRECIATION ON THE SAME AND REMAINING 75% HAS BEEN DISALLOWED. THE APPELLANT CONTENTED THAT THE EXPENDITURE ON AGMARK CHARGES IS REVENUE EXPENDITURE. BUT THE CONTENTION OF THE APPELLANT IS NOT ACCEPTABLE FOR THE REASON THAT THE EXPENDITURE ON AGMARK CHARGES HAS BEEN CLASSIFIED AS I.T.A NOS.1993 - 1994 & 2000 - 2001/AHD/2016 A.Y. 2009 - 10 & 2012 - 13 PAGE NO ACIT VS. M/S BANASKANTHA DIST. OIL SEEDS GROWERS UNION LTD & M/S BANASKANTHA DIST. CO - OPERATIVE MILK PRODUCERS UNION LTD. VS. ACIT 6 'INTANGIBLE ASSETS' U/S 32(1 )(II) UPON WHICH THE DEPRECIATION @ 25% IS ALLOWED. IT IS CLEAR FROM THE FACTS OF THE CASE THAT CERTIFICATE FOR AGMARK WAS GIVEN FOR 5 YEARS WHICH PROVE THAT THE APPELLANT IS DERIVING BENEFIT OF ENDURING NATURE. LOOKING TO THESE FACTS AND THE PROVISIONS OF THE ACT, THE AO IS JUSTIFIED IN MAKING THESE ADDITIONS. THESE ADDITIONS ARE CONFIRMED. THIS GROUND IS DISMISSED. 10. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD CAREFULLY. THE LD. COUNSEL HAS PLACED RELIANCE ON THE DECISION OF ITAT MUMBAI IN THE CASE OF RED CHILLIES ENTERTAINME NT PVT.LTD.VS ACIT VIDE ITA NO.5271/MUM/2013.HOWEVER, WE FIND THE CITED CASE PERTAIN TO CERTIFICATION EXPENSES IN PRODUCTION OF FEATURE FILMS AND TELEVISION PROGRAMMS HAVING DIFFERENT FACTS FROM THE CASE OF THE ASSESSEE. THIS SUBMISSION OF THE COUNSEL IS NOT ACCEPTABLE AS THE FACTS OF THE CASE OF THE ASSESSEE ARE DISTINGUISHABLE FROM THE CITED CASE. WE OBSERVE THAT AGMARK IS A KIND OF BRAND WHICH CERTIFY THE QUALITY BENCHMARK FOR ALL AGRICULTURAL PRODUCTS PRODUCED IN INDIA. AGMARK CERTIFICATION PROCE SS HELPS TO MAKE CERTIFIED ALL THE AGRICULTURAL PRODUCTS TO BE AVAILABLE IN THE MARKET. INDIA EXPORTS ITS LARGE NUMBER OF AGRICULTURAL PRODUCTS AND COMMODITIES WHICH ARE REQUIRED TO BE CERTIFIED UNDER AGMARK ACT AS PER THE WORLD TRADE ORGANIZATION (WTO). IT IS PROVIDED TO THOSE AGRICULTURAL PRODUCTS THAT HAVE PASSED THROUGH QUALITY TESTS AS MARK OF RELIABLE PRODUCTS. THE GOVERNMENT OF INDIA PROVIDES THIS CERTIFICATION AND AGMARK AS A SYMBOL IS PRINTED ON THE PRODUCT. AN INTANGIBLE ASSET IS AN ASSET THAT IS NOT PHYSICAL IN NATURE. CORPORATE INTELLECTUAL PROPERTY, INCLUDING ITEMS SUCH AS PATENTS , TRADEMARKS, COPYRIGHTS AND BUSINESS METHODOLOGIES, ARE INTANGIBLE ASSETS, AS ARE GOODWILL AND BRAND RECOGNITION. IN VIEW OF THE ABOVE W E CONSIDER THAT AGM ARK IS ALSO A KIND OF BRAND RECOGNITION THEREFORE THE SAME IS OF THE NATURE OF INTANGIBLE ASSET ON WHICH THE DEPRECIATION IS TO BE ALLOWED . THEREFORE, THE APPEAL OF THE ASSESSEE IS DISMISSED ON THIS ISSUE. REOPENING OF ASSESSMENT U/S. 147 11 . T HE FIRST GROUND OF APPEAL OF THE ASSESSEE IS AGAINST THE REOPENING OF ASSESSMENT U/S. 147 OF THE ACT. IT IS STATED THAT THAT ALL FACTS AND RELEVANT DETAILS HAVE ALREADY BEEN SCRUTINIZED AT THE TIME OF ORIGINAL ASSESSMENT 143(3) THEREFORE , REOPENING OF ASSESSMEN T U/S. 147 OF THE ACT WAS TOTALLY BAD IN LAW. THE ASSESSEE HAS FILED APPEAL ON THIS ISSUE BEFORE THE LD. CIT(A). THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSSE BY OBSERVING AS UNDER: - I.T.A NOS.1993 - 1994 & 2000 - 2001/AHD/2016 A.Y. 2009 - 10 & 2012 - 13 PAGE NO ACIT VS. M/S BANASKANTHA DIST. OIL SEEDS GROWERS UNION LTD & M/S BANASKANTHA DIST. CO - OPERATIVE MILK PRODUCERS UNION LTD. VS. ACIT 7 DECISION: 5. I CAREFULLY CONSIDERED THE SUBMISSIONS OF THE APPELLANT AND THE ASSESSMENT ORDER. THE FIRST GROUND OF APPEAL IS AGAINST THE RE - OPENING OF ASSESSMENT U/S 147 OF THE ACT. ON GOING THROUGH THE SUBMISSION OF THE APPELLANT IN THIS REGARD, THE CONTENTION OF THE APPELLANT ARE NOT FOUND ACCEPTABLE FOR THE REA SONS THAT THE APPELLANT HAS CHALLENGED THE ASSESSMENT ORDER PASSED BY THE AO U/S 143(3) R.W.S. 147 OF THE ACT DTD. 20 - 03 - 2015 BEFORE THE HON'BLE HIGH COURT OF GUJARAT, AHMEDABAD. THE HON'BLE HIGH COURT OF GUJARAT, AHMEDABAD SET ASIDE THE ASSESSMENT ORDER W ITH A DIRECTION TO THE AO THAT OBJECTIONS RAISED BY THE APPELLANT MAY BE DISPOSED OFF BY PASSING SPEAKING ORDER AND THEN FRAME THE FRESH ASSESSMENT ORDER. ACCORDINGLY, THE AO DISPOSED OFF THE OBJECTIONS RAISED BY THE APPELLANT BY PASSING THE SPEAKING ORDER , WHICH HAS NOT BEEN CHALLENGED BY THE APPELLANT BEFORE THE HON'BLE HIGH COURT. AS PER THE DIRECTIONS GIVEN BY THE HON'BLE HIGH COURT, THE AO MADE FRESH ASSESSMENT ORDER U/S 143(3) R.W.S. 147. FROM THE FACTS MENTIONED ABOVE, IT IS CLEAR THAT THE RE - OPENING PROCEEDINGS HAS BEEN CHALLENGED BY THE APPELLANT BEFORE THE HON'BLE HIGH COURT OF GUJARAT, AHMEDABAD J AND THE AO PASSED THE ORDER AS PER DIRECTIONS OF HON'BLE HIGH COURT AFTER DISPOSING OFF THE OBJECTION WHICH WERE NOT CHALLENGED BY THE APPELLANT. NO W R AISING THE GROUND AGAINST THE RE - OPENING OF ASSESSMENT PROCEEDINGS IS NOT AS PER THE PROVISIONS OF THE ACT AS WELL AS JUDICIAL PRONOUNCEMENTS ON THIS ISSUE BY THE HON'BLE HIGH COURT OF GUJARAT, AHMEDABAD. THEREFORE, THIS GROUND OF APPEAL IS DISMISSED. WE HAVE CONSIDERED THE RIVAL CONTENTIONS OF BOTH THE SIDES ON THIS ISSUE AND PERUSED THE MATERIAL ON RECORD. WE ARE INCLINED WITH THE FINDINGS OF THE LD.CIT(A) THAT THE ASSESSING OFFICER HAS CARRIED OUT THE FRESH ASSESSMENT AS PER THE DIRECTION OF HON BLE HIG H COURT , THEREFORE, WE DO NOT FIND ANY ERROR IN THE DECISION OF THE LD.CIT(A) ON THIS ISSUE. ACCORDINGLY , THIS GROUND OF APPEAL OF THE ASSESSEE IS DISMISSED. ITA NO. 2001 /AHD/2016 12 . THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - YOUR APPELLAN T BEING AGGRIEVED BY THE ORDER PASSED BY THE LEARNED COMMIS SIONER OF INCOME TAX, (APPEALS) - 4, AHMEDABAD PRESENTS THIS APPEAL AGAINST THE SAME ON THE FOLLOWING AMONGST OTHER GROUNDS. 1. THE CIT(A) HAS ERRED IN CONFIRMING THE ACTION, OF ASSESSING OFFI CER NOT REDUCING THE INCOME OF THE ASSESSEE TO THE EXTENT OF DONATION MADE OF RS. 11,00,000/ - BEING MISTAKE APPARENT FROM THE RECORD . IT IS SUBMITTED THAT THE DONATION MADE OF RS. 11,00,000/ - DURING THE YEAR CONSIDERATION , HAS BEEN WRONGLY ADDED BACK BY THE ASSESSEE TO THE INCOME OF THE YEAR WHILE FILING OF RETURN OF INCOME, AS IT IS NEITHER DEBITED TO P & L A/C NOR CLAIMED AS EXPENSES IN THE BOOKS OF ACCOUNTS. THE ASSESSEE HAS ALSO FILED ALL THE DETAILS AND EXPLANATIONS BEFORE THE A.O. TO RECTIFY THE MIS TAKE BEING APPARENT FROM THE RECORD VIDE ITS SUBMISSION FILED DATED 16/09/2014, WHICH IS NOT APPRECIATED AT ALL BY THE A.O. IT IS SUBMITTED THAT THE SAME MAY BE CONSIDERED NOW AND HON'BLE ITAT MAY PLEASE DIRECT THE A.O. TO REDUCE THE INCOME FOR THE YEAR TO THAT EXTENT ACCORDINGLY. IT BE SO HELD NOW. I.T.A NOS.1993 - 1994 & 2000 - 2001/AHD/2016 A.Y. 2009 - 10 & 2012 - 13 PAGE NO ACIT VS. M/S BANASKANTHA DIST. OIL SEEDS GROWERS UNION LTD & M/S BANASKANTHA DIST. CO - OPERATIVE MILK PRODUCERS UNION LTD. VS. ACIT 8 13 . ASSESSEE HAS GIVEN DONATION OF RS. 11 LACS DURING THE YEAR UNDER CONBSIDERATION WHICH WAS WRONGLY ADDED BACK GIVEN BY THE ASSESSEE TO THE INCOME OF THE YEAR UNDER CONSIDERATION. THE ASSESSEE HAS FILED APP LICATION FOR RECTIFICATION WHICH WAS REJECTED BY T HE ASSESSING OFFICER STATING THAT THERE WAS NO APPARENT MISTAKE FROM RECORD. 14 . AGGRIEVED ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A) . T HE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSESSEE BY OBSERVING AS UNDER: - 7. THE FOURTH GROUND OF APPEAL IS AGAINST NOT RECTIFYING THE MISTAKE APPARENT FROM THE RECORD BY THE A.O. WITH REGARD TO DONATION OF RS.11 LAKHS GIVEN BY THE APPELLANT. ON GOING THROUGH THE ENCLOSURES WITH FORM NO. 35 AND SUBMISSION OF THE AP PELLANT, THERE IS NO ORDER U/S 154 OF THE ACT PASSED BY THE A.O. ON RECORD. EVEN IF SUCH ORDER IS PASSED BY THE A.O. REJECTING THE APPELLANT'S CLAIM, ANOTHER /APPEAL AGAINST SUCH ORDER SHOULD HAVE BEEN FILED BY THE APPELLANT. LOOKING TO THESE FACTS, THIS G ROUND OF APPEAL IS NOT MAINTAINABLE, THEREFORE IT IS DISMISSED. 15 . WE HAVE HEARD RIVAL CONTENTION AND PERUSED THE MATERIAL ON RECORD CAREFULLY. THE ASSESSEE HAS FILED THE NECESSARY DETAILS AND EXPLANATION BEFORE THE ASSESSING OFFICER TO RECTIFY THE MI STAKE BEING APPARENT FROM RECORD VIDE ITS LETTER DATED 16 TH SEP, 2014 WHICH WAS NOT DECIDED ON MERIT. AFTER PERUSAL OF ALL THESE DETAILS AND FACTS, WE CONSIDERED THAT IT WILL BE APPROPRIATE TO RESTORE THIS CASE TO THE FILE OF ASSESSING OFFICER WITH A DIRE CTION TO DECIDE THIS ISSUE AFRESH AFTER VERIFICATION OF THE DETAILS AND AFFORDING NECESSARY OPPORTUNITIES TO THE ASSESSEE. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . IN T HE RESULT , THE APPEAL OF TH E ASSESS EE IS ALLOWED F OR STATISTICAL PURPOSES. 16 . IN THE COMBINED RESULT, ITA NOS. 1993 TO 1994/AHD/2016 FILED BY REVENUE ARE DISMISSED AND ITA NO. 2000/ AHD/2016 FILED BY ASSESSEE IS DISMISSED AND ITA NO. 2001/AHD/2016 FILED BY ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PR ONOUNCED IN THE OPEN C OURT ON 20 - 03 - 201 8 SD/ - SD/ - ( RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER I.T.A NOS.1993 - 1994 & 2000 - 2001/AHD/2016 A.Y. 2009 - 10 & 2012 - 13 PAGE NO ACIT VS. M/S BANASKANTHA DIST. OIL SEEDS GROWERS UNION LTD & M/S BANASKANTHA DIST. CO - OPERATIVE MILK PRODUCERS UNION LTD. VS. ACIT 9 AHMEDABAD : DATED 20 /03 /2018 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,