M/s Krishi Upaj Mandi Samiti, Itarsi V. The A C I T, Bhopal

ITA 202/IND/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1474 (ITAT-INDORE)
• Duration Of Justice: 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-11-2009
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 11-11-2009
• Assessment Year: 2005-2006
• Appeal Filed On: 16-04-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V K KARAN
• Keywords: Depreciation; Opportunity of being heard

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, JM AND SHRI V.K. GUPTA, AM ITA NO.202/IND/2009 AY : 2005-06 M/S. KRISHI UPAJ MANDI SAMITI, ITARSI (MP) (PAN AAALK 0572 B) .....APPELLANT V/S. ACIT-1(2), BHOPAL .....RESPONDENT DEPARTMENT BY : SHRI V.K. KARAN, SR. DR ASSESSEE BY : NONE ORDER PER JOGINDER SINGH, JM THIS APPEAL IS BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(A)-I, BHOPAL, DATED 30.1.2009. THIS APPEAL WAS FILED BY ASSESSEE ON 24. 4.2009 AS IS EVIDENT FROM ORDER SHEET ENTRY OF EVEN DATE. THE APPEAL WAS FIXE D ON VARIOUS DATES BUT WAS ADJOURNED TO THIS OR THAT REASON. ULTIMATELY, N OTICE OF HEARING WAS SENT TO THE ASSESSEE VIDE REGD. AD ON 11.9.2009 AS IS EVIDE NT FROM RECORD. THE NOTICE WAS DULY RECEIVED BY THE ASSESSEE AS IS EVIDENT FRO M POSTAL ACKNOWLEDGMENT AVAILABLE ON THE FILE. THE LD. COUNSEL FOR THE ASSE SSEE HAS SENT A TELEGRAM FOR ADJOURNMENT. ON IDENTICAL ISSUE, THE CASES FROM VAR IOUS KRISHI UPAJ MANDIS ARE FIXED FOR TODAY WHEREIN VARIOUS ISSUES ARE COVE RED, THEREFORE, THE ADJOURNMENT IS DENIED, CONSEQUENTLY, WE ARE PROCEED ING EXPARTE QUA- 2 ASSESSEE AND TO DISPOSE OF THE PRESENT APPEAL ON TH E BASIS OF MATERIAL AVAILABLE ON THE FILE. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE IMPUGNED ORDER PASSED BY THE LD. CIT(A)-1 IS CONTRARY TO LAW, MATERIALLY INCORRECT AND UNSUSTAINABLE IN LAW AS WELL AS ON FACTS. ALL THE FINDINGS AND CONCLUSION OF THE LD. CIT(A) ARE ALSO CONTRARY TO THE MATERIAL, OPPOSED TO THE FACTS, EQUITY AND LAW. THEREFORE, THE IMPUGNED ORDER IS BAD IN LAW. THE SAME BE KINDLY QUASHED. 2. THAT THE LD. CIT(A)-I HAS ERRED IN LAW AND WAS NOT JUSTIFIED IN ALLOWING PROPER, MEANINGFUL AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE APPELLANT. THEREFORE THE ORDER IS BAD IN LAW AND DESERVE TO BE QUASHED. 3. THAT THE LD. LOWER AUTHORITIES WERE NOT JUSTIFIED IN REJECTING THE BOOKS OF ACCOUNT AND MAKING VARIOUS ADDITIONS AND DISALLOWANCES. THE SO-CALLED ADDITIONS AND DISALLOWANCES ARE GROSSLY WRONG AND HENCE THE SAME MAY PLEASED BE DELETED. 4. THAT THE LD. CIT(A)-1 HAS ERRED AND WAS NOT JUSTIFIED IN MAKING THE ENHANCEMENT WITHOUT CONSIDERING THE FACTUAL POSITION AND THE SUBMISSIONS MADE BEFORE HIM. THEREFORE, THE NOTICE ISSUED FOR ENHANCEMENT AND THEREBY MAKING THE ADDITIONS ARE TOTALLY UNLAWFUL AND BAD IN LAW. THE SAID SO CALLED ADDITIONS MAY PLEASE BE HELD AS WRONG. 5. THAT AT ANY EVENT AND WITHOUT PREJUDICE TO THE ABOVE, THE LD. CIT(A)-1 HAS ERRED IN LAW AND WAS NOT JUSTIFIED IN SUSTAINING THE DISALLOWANCE OF THE PENSION FUND (ARAKSHIT NIDHI) AT RS.17,47,472/-. THE DISALLOWANCES IS TOTALLY UNCALLED FOR AND THE SAME MAY PLEASE BE DELETED. 3 6. THAT THE LD. CIT(A)-1 HAS ERRED IN LAW AND WAS NOT JUSTIFIED IN SUSTAINING THE DISALLOWANCE OF THE STHAI NIDHI FUND AT RS.43,69,930/-. THE DISALLOWANCES IS TOTALLY UNCALLED FOR AND THE SAME MAY PLEASE BE DELETED. 7. THE LD. CIT(A)-1 HAS ERRED IN LAW AND WAS NOT JUSTIFIED IN MAKING THE ENHANCEMENT OF DEPRECIATION. THE DIRECTION MADE BY THE LD. CIT(A)-1 TO THE LD. AO IS TOTALLY WRONG. 8. THE LD. CIT(A)-1 HAS ERRED IN LAW AND WAS NOT JUSTIFIED IN MAKING THE ENHANCEMENT ON ACCOUNT OF INTEREST ACCRUED ON ARAKSHIT AND STHAI NIDHI. THE SO CALLED ENHANCEMENT AND THE ADDITION IS CONTRARY TO THE FACTS. THE ADDITION MAY KINDLY BE DELETED. 9. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AND AMEND OR TO MODIFY ANY GROUND(S) ON OR BEFORE THE DATE OF HEARING. ' 2. IN GROUND NO.2 ABOVE, IT HAS BEEN MENTIONED THAT NO PROPER OPPORTUNITY WAS PROVIDED TO THE ASSESSEE. WE HAVE F OUND THAT THOUGH THE LD. REPRESENTATIVE OF THE ASSESSEE WAS PRESENT BEFORE T HE LD. FIRST APPELLATE AUTHORITY ON 10.11.2008 AND THERE IS A MENTION (PAR A 4, PAGE 2) IN THE IMPUGNED ORDER THAT THE ASSESSING OFFICER HAS OVERL OOKED THE CLAIM OF DEPRECIATION MADE BY THE ASSESSEE AND MERELY ALLOWE D THE SAME AS CLAIMED BY IT. ON THE ISSUE OF DISALLOWING STHAI NIDIH AMOU NTING TO RS.43,69,930/-, IT HAS BEEN CONFIRMED. THE CONTRIBUTION TO FIXED FUND RESERVE HAS ALSO BEEN DISALLOWED. THE CLAIM OF AARAKSHIT NIDHI AND THE DI SALLOWANCE OF PENSION FUND RESERVE CONTRITION OF RS.17,47,472/- HAS ALSO BEEN REJECTED. EVEN OTHERWISE, IT 4 IS NOT THE CASE THAT THE APPEAL WAS ADJOURNED ON VA RIOUS DATES. HOWEVER, IN VIEW OF THE DECISION IN KRISHI UPAJ MANDI SAMITI, B URHANPUR VS. ITO (2009) (12 ITJ 12) (ITAT, INDORE), WHEREIN VARIOUS JUDICIAL PR ONOUNCEMENTS HAVE BEEN CONSIDERED BY THE BENCH AND ALSO TO MAINTAIN CONSIS TENCY IN THE STAND, THIS APPEAL OF THE ASSESSEE DESERVES TO BE REMANDED BACK TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJUDICATION IN ACCORDANCE WITH LA W. NEEDLESS TO MENTION HERE THAT DUE OPPORTUNITY OF BEING HEARD BE PROVIDE D TO THE ASSESSEE. THE ASSESSEE IS ALSO AT LIBERTY TO FURNISH EVIDENCE, IF ANY TO SUBSTANTIATE ITS CLAIM. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. SR. DR ON 11.11.2009. SD/- SD/- (V.K. GUPTA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 11.11.2009 *RKD* COPY TO: APPELLANT/RESPONDENT/CIT/CIT(A)/DR