DCIT, Circle - 4, Kolkata, Kolkata V. M/s. Mazbat Tea Estate Ltd., Kolkata

ITA 2135/KOL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 9197 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2011
• Appeal Filed By: Department
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 26-11-2010
• Court: TRIBUNAL
• Department Lawyers: S I BERASR
• Assessee Lawyers: PINTU DAS

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH C, KOLKATA () BEFORE . .. . . .. . , , , , , SHRI D.K.TYAGI, JUDICIAL MEMBER. !' !' !' !' /AND . .. . . .. .! !! ! , # SHRI C.D.RAO, ACCOUNTANT MEMBER '$ '$ '$ '$ / ITA NO . 2135/KOL/2010 %&' !()/ ASSESSMENT YEAR : 2005-06 (+, / APPELLANT ) D.C.I.T., CIRCLE-4, KOLKATA - !& - - VERSUS - . (.+,/ RESPONDENT ) M/S. MAZBAT TEA ESTATE LTD., KOLKATA (PAN: AABCM 7770 P) +, / 0 / FOR THE APPELLANT: SHRI S.I.BERA,SR.DR .+, / 0 / FOR THE RESPONDENT: SHRI PINTU DAS 1 / ORDER ( (( ( . .. . . .. .! !! !) )) ), , , , # PER SHRI C.D.RAO, AM THIS APPEAL IS FILED BY THE REVENUE AGAINST THE OR DER DATED 16.02.2010 OF THE CIT(A)-IV, KOLKATA PERTAINING TO A.YR. 2005-06 2. THERE IS A DELAY OF 41 DAYS IN FILING OF THE APPEAL BY THE REVENUE FOR WHICH THE REVENUE HAS FILED A CONDONATION PETITION EXPLAINING THE REASONS FOR SUCH DELAY. AFTER CONSIDERING THE SUBMISSIONS BY THE REVENUE THE DELA Y IS CONDONED. 3. IN THIS APPEAL THE REVENUE HAS RAISED THE F OLLOWING GROUNDS OF APPEAL :- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , LD.CIT(A), KOLKATA HAS ERRED IN LAW IN DELETING THE ADDITION OF RS.10,69,4 45/- ON ACCOUNT OF CESS ON GREEN LEAF WITHOUT CONSIDERING THE FACT THAT EXPENS ES ON ACCOUNT OF CESS ON GREEN LEAF IS RELATED TO 100% AGRICULTURAL OPERATIO N AND SLP IS PENDING BEFORE THE HONBLE SUPREME COURT AGAINST THE DECISION OF C ALCUTTA HIGH COURT IN THE 2 CASE OF AFT INDUSTRIES LTD. VS CIT (270 ITR 167) IN THE LIGHT OF WHICH LD. CIT(A) DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE LD. CIT(A), KOLKATA HAS ERRED IN LAW IN DELETING THE DISALLOWANCE OF RS.2,5 9,072/- ON ACCOUNT OF ASSAM SPECIAL LAND TAX WITHOUT CONSIDERING THE FACT THAT NATURE OF EXPENSE IS 100% AGRICULTURAL OPERATION AND SLP IS PENDING BEFORE TH E HONBLE SUPREME COURT AGAINST THE DECISION OF CALCUTTA HIGH COURT IN THE CASE OF AFT INDUSTRIES LTD. VS CIT (270 ITR 167) IN THE LIGHT OF WHICH LD. CIT( A) DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. 4. THE BRIEF FACTS OF THE ISSUE ARE THAT THE AO WH ILE DOING THE SCRUTINY ASSESSMENT DISALLOWED AN AMOUNT OF RS.10,69,445/- ON ACCOUNT O F CESS ON GREEN LEAF AND RS.2,59,072/- ON ACCOUNT OF ASSAM SPECIAL LAND TAX. 4.1. ON APPEAL THE LD. CIT(A) DISALLOWED THE SAME B Y RESPECTFULLY FOLLOWING THE ORDER OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF AFT INDUSTRIES LTD. VS CIT (270 ITR 167). 5. THE LD. DR APPEARING ON BEHALF OF THE REVENUE RE LIED ON THE ORDER OF THE AO. ON THE OTHER HAND, THE LD.COUNSEL FOR THE ASSESSEE REL IED ON THE ORDERS OF THE LD. CIT(A). 6. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAREF UL PERUSAL OF THE MATERIALS AVAILABLE ON RECORD, KEEPING IN VIEW OF THE FACT TH AT THE ISSUE IS CONCLUDED BY THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CAS E OF CIT VS AFT INDUSTRIES LTD. 270 ITR 167 (CAL) WHERE THE AMOUNT PAID AS CESS WAS HEL D AS ELIGIBLE FOR DEDUCTION IN COMPUTING THE COMPOSITE INCOME UNDER RULE 8 OF I.T. RULES. THIS ISSUE IS, THEREFORE, DECIDED IN FAVOUR OF THE ASSESSEE AND AGAINST THE R EVENUE BY UPHOLDING THE ORDER OF THE C.I.T.(A) WHO HAS ALLOWED THE DEDUCTION OF PAYMENT OF CESS ON GREEN LEAVES IN COMPUTING THE COMPOSITE INCOME FROM TEA BUSINESS OF THE ASSESSEE UNDER RULE 8 OF THE I.T. RULES. WE MAY FURTHER MENTION THAT IDENTICAL ISSUE WAS THE SUBJECT MATTER OF APPEAL BEFORE THE TRIBUNAL IN THE CASE OF M/S.EMPIRE PLANT ATIONS (INDIA) LTD. AND THE TRIBUNAL VIDE ORDER DATED 28.2.2005 IN I.T.A.NO.1600 (KOL)/2 004 FOR A.Y. 2000-01 HAS ALLOWED THE CLAIM OF THE ASSESSEE. 3 6.1. THE FACT THAT THE SLP IS PENDING BEFORE THE HONBLE SUPREME COURT AGAINST THE DECISION OF THE HONBLE CALCUTTA HIGH COURT IN RESPECT OF AFT INDUSTRIES LTD. VS CIT (270 ITR 167) WILL NOT HAVE ANY EFFECT SINCE TH E HONBLE APEX COURT HAS NEITHER SET ASIDE THE ORDERS OF THE CALCUTTA HIGH COURT NOR GRANTED ANY STAY. 7. IN THE RESULT THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 29.03.2011. SD/- SD/- . .. . . .. . , , , , % % % % D.K.TYAGI, JUDICIAL MEMBER . .. . . .. .! !! !, ,, , # # # # , C.D.RAO, ACCOUNTANT MEMBER. ( (( (# # # #) )) ) DATE:29.03.2011. ORDER PRONOUNCED IN THE COURT ON 29.03.2011 SD/- SD/- AM JM (CDR) (MS) 1 / .%%2 32(4- COPY OF THE ORDER FORWARDED TO: 1. M/S. MAZBET TEA ESTATE LTD., R.N.MUKHERJEE ROAD, KO LKATA-700001. 2 THE DCIT, CIRCLE-4, KOLKATA 3. THE CIT, 4. THE CIT(A)-IV, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA 2 .%/ TRUE COPY, 1&9/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES R.G.(.P.S.)