HUF India Pvt.Ltd, Pune V. Assistant Commissioner of Income-tax, Circle - 9, Pune

ITA 224/PUN/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2904 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 21-06-2021
• Assessment Year: 2012-2013
• Appeal Filed On: 24-01-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Rule of consistency; Tax effect
• Section: 143(3); 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, PUNE (THROUGH VIRTUAL COURT) BEFORE SHRI INTURI RAMA RAO , ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, J UDICIAL M EMBER . / I TA NO. 224 /PUN/20 18 / ASSESSMENT YEAR : 2012 - 13 HUF INDIA PVT. LTD. GAT NO.304, NANEKARWADI, CHAKAN, TAL - KHED, PUNE - 410 501 PAN : AABCH9173K ....... / APPELLANT / V/S. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE - 9, PUNE. / RESPONDENT A SSESSEE BY : SHRI AADITYA DASTANE REVENUE BY : SHRI DEEPAK GARG / DATE OF HEARING : 21 . 0 6 .202 1 / DATE OF PRONOUNCEMENT : 21 . 06 .2021 / ORDER PER BENCH : THIS APPEAL PREFERRED BY THE ASSESSEE EMANATES FROM THE ORDER OF THE LD. CIT(APPEALS) - 8, PUNE DATED 28.11.2017 FOR THE ASSESSMENT YEAR 2012 - 13 AS PER THE FOLLOWING GROUNDS OF APPEAL ON RECORD : 1. THE LEARNED CIT(A) ERRED IN LAW AND ON FACTS IN CONFIRMING ADDITION OF RS.9,00,000/ - DISALLOWING CLAIM U/S.35D OF THE ACT BY DISREGARDING THAT THE SAME IS APPLICABLE TO ALL PRE - OPERATIVE EXPEN DITURE. 2 ITA NO. 224 /PUN/20 18 A.Y. 2012 - 13 2. THE APPELLANT CRAVES TO ADD, ALTER, MODIFY OR SUBSTITUTE ANY GROUNDS OF APPEAL AT THE TIME OF HEARING. 2. THE ONLY GRIEVANCE OF THE ASSESSEE IS WITH REGARD TO CONFIRMATION OF ADDITION OF RS.9,00,000/ - BY THE LD. CIT(APPEALS) DISALLOWING CLAIM U/S.35D OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) AS MADE BY THE ASSESSING OFFICER. 3. THE BRIEF FACTS IN THIS CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF AUTOMOBILES & AUTO PARTS. THE ASSESSEE HAS FILED ITS RETURN OF INCOME 30.11.2012 DECLARING TOTAL INCOME AT RS. NIL. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY UNDER CASS AND STATUTORY NOTICES WERE ISSUED ACCORDINGLY. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER OB SERVED THAT THE ASSESSEE HAD DEPOSITED THE EMPLOYEES CONTRIBUTION TO PROVIDENT FUND OF RS.5,82,110/ - BEYOND THE DATES SPECIFIED IN THE ACT. ACCORDINGLY, THE ASSESSING OFFICER DISALLOWED THE SAME U/S.36(1)(VA) R.W.S.2(24)(X) OF THE ACT. THE ASSESSING OFFIC ER FURTHER OBSERVED THAT THE ASSESSEE HAD CLAIMED A SUM OF RS.9,00,000/ - ON ACCOUNT OF PRELIMINARY EXPENSES U/S.35D OF THE ACT. ON VERIFICATION, THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAD CLAIMED TOTAL EXPENDITURE OF RS.98,11,558/ - AS PRE - OPERATIVE EXPENSES DURING THE YEAR UNDER CONSIDERATION, OUT OF WHICH, IT CONSIDERED RS.45,00,000/ - AS THE QUALIFYING AMOUNT U/S.35D AND THE SAME WAS AMORTIZED AND CLAIMED AS 1/5 TH EXPENSES OVER A PERIOD OF 5 YEARS STARTING WITH A.Y.2009 - 10. ACCORDINGLY, THE ASSESSEE CLAIMED RS.9,00,000/ - IN THE YEAR UNDER CONSIDERATION. HOWEVER, ON VERIFICATION OF THE NATURE OF EXPENSES CLAIMED, THE ASSESSING OFFICER FOUND THAT THEY DID NOT FALL IN THE CATEGORY OF THE EXPENSES ALLOWABLE U/S.35D(2) OF THE ACT AND ACCORDINGLY, THE ASSE SSING OFFICER DISALLOWED THE SAME. 3 ITA NO. 224 /PUN/20 18 A.Y. 2012 - 13 4. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE MATTER IS COVERED BY THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.2674/PUN/2017 FOR THE ASSESSMENT YEAR 20 11 - 12 DATED 15.11.2019 . 5. THE LD. DR FAIRLY CONCEDED TO THE SUBMISSIONS PUT FORTH BY THE LD. COUNSEL FOR THE ASSESSEE. 6. WE FIND, THE PUNE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NO.2674/PUN/2017 FOR THE ASSESSMENT YEAR 2011 - 12 HAS HELD A ND OBSERVED AS FOLLOWS: 4. I HAVE HEARD BOTH THE SIDES AND GONE THROUGH THE RELEVANT MATERIAL ON RECORD. IN THE COURSE OF AN EARLIER HEARING OF THIS APPEAL, THE LD. DR WAS REQUIRED TO SUBMIT A REPORT ON THE GRANTING OR OTHERWISE OF DEDUCTION OF SUCH EXPENSES OF RS.9.00 LAKH IN THE EA RLIER YEARS. A COPY OF THE REPORT FROM THE AO HAS BEEN PLACED ON RECORD BY THE LD. DR. AS PER THIS REPORT, A DEDUCTION OF RS.9.00 LAKH WAS CLAIMED FOR THE FIRST TIME IN THE RETURN FOR THE A.Y. 2009 - 10 WHICH WAS NOT GRANTED, BUT THE LD. CIT(A) ACCEPTED THE ASSESSEES CLAIM AND THE REVENUES APPEAL HAS BEEN DISMISSED, ALBEIT ON LOW TAX EFFECT. NO ASSESSMENT WAS TAKEN UP U/S. 143(3) OF THE ACT FOR THE A.Y. 2010 - 11, MEANING THEREBY THAT THE DEDUCTION GOT ALLOWED. FROM THE ABOVE REPORT OF THE AO, IT IS OSTENSIBLE THAT THE ASSESSEE HAS BEEN CONSISTENTLY ALLOWED DEDUCTION OF RS.9.00 LAKH IN THE ASSESSMENTS FOR THE A.YS 2009 - 10 AND 2010 - 11. THE ASSESSMENT YEAR 2011 - 12, UNDER CONSIDERA TION, IS A CONSECUTIVE 3 RD YEAR IN LINE. IN VIEW OF THE FACT THAT THE DEDUCTION FOR SIMILAR AMOUNTS HAS BEEN ALLOWED IN THE IMMEDIATELY TWO PRECEDING ASSESSMENT YEARS, FOLLOWING THE PRINCIPLE OF CONSISTENCY, I HOLD THE ASSESSEE TO BE ENTITLED TO DEDUCTION OF RS.9.00 LAKH IN THE YEAR UNDER CONSIDERATION AS WELL. THE IMPUGNED ORDER IS OVERT URNED ON THIS SCORE AND THE DEDUCTION OF RS.9.00 LAKH IS GRANTED. 5. IN THE RESULT, THE APPEAL IS ALLOWED. WE, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE (SUPRA.) WITH THE SAME PARITY OF REA SONING, ALLOW THE GROUND S RAISED BY THE ASSESSEE. 4 ITA NO. 224 /PUN/20 18 A.Y. 2012 - 13 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRO NOUNCED ON 21 ST DAY OF JUNE , 20 2 1 . S D/ - S D/ - INTURI RAMA RAO PARTHA SARATHI CHAUDHURY ACCOUNTANT MEMBER JUDICIAL MEMBER / PUNE; / DATED : 21 ST JUNE , 202 1 SB / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT(APPEALS) - 8, PUNE. 4. THE PR. CIT - 5, PUNE. 5. , , , / DR, ITAT, B BENCH, PUNE. 6 . / GUARD FILE. / BY ORDER, // T RUE C OPY // / PRIVATE SECRETARY , / ITAT, PUNE . 5 ITA NO. 224 /PUN/20 18 A.Y. 2012 - 13 DATE 1 DRAFT DICTATED ON 2 1.06 .202 1 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 21 .06 .202 1 SR.PS/PS 3 DRAFT PROPOSED AND PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/JM 5 APPROVED DRAFT COMES TO THE SR. PS/PS SR.PS/PS 6 KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7 DATE OF UPLOADING OF ORDER SR.PS/PS 8 FILE SENT TO BENCH CLERK SR.PS/PS 9 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 10 DATE ON WHICH FILE GOES TO THE A.R 11 DATE OF DISPATCH OF ORDER