M/s Krishi Upaj Mandi Samiti, Samriharchand V. The ACIT 1(1), Bhopal

ITA 216/IND/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1470 (ITAT-INDORE)
• Duration Of Justice: 6 month(s) 6 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: misc
• Appeal Filed On: 05-05-2009
• 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.216/IND/2009 AY : 2005-06 M/S. KRISHI UPAJ MANDI SAMITI, SAMARIHARCHAND (MP) (PAN AAALK 0476 C) .....APPELLANT V/S. ACIT-1(1), 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 1.5 .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 10.9.2009 AS IS EVIDE NT FROM RECORD. THE NOTICE WAS DULY RECEIVED BY THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE HAS SENT A TELEGRAM FOR ADJOURNMENT. ON IDENTICAL ISSUE, THE CASES FROM VARIOUS KRISHI UPAJ MANDIS ARE FIXED FOR TODAY WHEREIN MAJORITY OF THE ISSUES ARE COVERED, THEREFORE, THE ADJOURNMENT IS DENIED, CONSEQUENTLY, WE ARE PROCEEDING EXPARTE QUA-ASSESSEE AND TEND TO DISPOSE OF THE PRE SENT APPEAL ON THE BASIS 2 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, MATERIAIIY 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 WITHOUT INVOKING THE PROVISIONS OF SECTION 145(3) OF THE IT ACT 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 3 DISALLOWANCE OF THE PENSION FUND (ARAKSHIT NIDHI) AT RS.1,89,967/- THE DISALLOWANCES IS TOTALLY UNCALLED FOR AND THE SAME MAY PLEASE BE DELETED. 6. THAT THE LD. CIT(A)-1 HAS ERRED IN LAW AND WAS NOT JUSTIFIED IN MAKING THE ENHANCEMENT OF DEPRECIATION OF RS.5,85,051/-. THE ENHANCEMENT MADE BY THE LD. CIT(A) IS TOTALLY WRONG. 7. THE LD. CIT(A)-1 HAS ERRED IN LAW AND WAS NOT JUSTIFIED IN MAKING THE ENHANCEMENT OF PERMANENT FUND (STHAI NIDHI). THE DIRECTION MADE BY THE LD. CIT-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.' WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF LD. RE PRESENTATIVES OF BOTH SIDES AND PERUSED THE MATERIAL AVAILABLE ON THE FIL E. WITHOUT GOING INTO THE MERITS OF THE CASE, THIS BENCH OF THE TRIBUNAL VIDE ORDER OF EVEN DATE IN THE CASE OF KRISHI UPAJ MANDI, ITARSI (ITA NO.202/IND/2 009) HAS REMANDED THE APPEAL TO THE FILE OF THE LD. CIT(A) FOR FRESH ADJU DICATION IN ACCORDANCE WITH LAW. THE RELEVANT PORTION OF THE ORDER IS REPRODUCE D HEREUNDER: 4 2. IN GROUND NO.2 ABOVE, IT HAS BEEN MENTIONED THAT NO PROPER OPPORTUNITY WAS PROVIDED TO THE ASSESSEE. WE HAVE FOUND THAT THOUGH THE LD. REPRESENTATIVE OF THE ASSESSEE WAS PRESENT BEFORE THE LD. FIRST APPELLATE AUTHORITY ON 10.11.2008 AND THERE IS A MENTION (PARA 4, PAGE 2) IN THE IMPUGNED ORDER THAT THE ASSESSING OFFICER HAS OVERLOOKED THE CLAIM OF DEPRECIATION MADE BY THE ASSESSEE AND MERELY ALLOWED THE SAME AS CLAIMED BY IT. ON THE ISSUE OF DISALLOWING STHAI NIDIH AMOUNTING 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 DISALLOWANCE OF PENSION FUND RESERVE CONTRITION OF RS.17,47,472/- HAS ALSO BEEN REJECTED . EVEN OTHERWISE, IT IS NOT THE CASE THAT THE APPEAL WAS ADJOURNED ON VARIOUS DATES. HOWEVER, IN VIEW OF THE DECISION IN KRISHI UPAJ MANDI SAMITI, BURHANPUR VS. ITO (2009) (12 ITJ 12) (ITAT, INDORE), WHEREIN VARIOUS JUDICIAL PRONOUNCEMENTS HAVE BEEN CONSIDERED BY THE BENCH AND ALSO TO MAINTAIN CONSISTENCY 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 LAW. NEEDLESS TO MENTION HERE THAT DUE OPPORTUNITY OF BEING HEARD BE PROVIDED 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 ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. SR. DR ON 11.11.2009. SINCE THE FACTS ARE IDENTICAL, CONSEQUENTLY, THIS APPEAL OF THE ASSESSEE IS REMANDED BACK TO THE FILE OF THE LD. FIRST APPEL LATE AUTHORITY FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW. NEEDLESS TO ME NTION HERE THAT DUE OPPORTUNITY OF BEING HEARD BE PROVIDED TO THE ASSES SEE. THE ASSESSEE IS ALSO AT LIBERTY TO FURNISH EVIDENCE, IF ANY, TO SUBSTANT IATE ITS CLAIM. 5 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