The DCIT, Alappuzha V. M/s. Kreem Drinks P. Ltd, Ernakulam

ITA 228/COCH/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7619 (ITAT-COCHIN)
• Duration Of Justice: 6 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 15-11-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 12-05-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A DHANARAJ
• Assessee Lawyers: P M VEERAMANI
• Section: 143(3); 2

Judgement Text

ITA NO S.199,219, 228 & 229/C/2016 1 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH KOCHI BEFORE S/SHRI B P JAIN, AM & GEORGE GEORGE K, JM ITA NO 199/COCH/2016 (ASST YEAR 2011 - 12 ) THE ASST COMMR OF INCOME TAX CORPORATE CIRCLE1(2) KOCHI VS HIGH RANGE FOODS P LTD 28/3030 CHERUPARAMBATH RO AD ELAMKULAM KADAVANTHRA COCHIN 682 020 PAN: AACH6076L ( APPELLANT) (RESPONDENT) ITA NO 219 /COCH/2016 (ASST YEAR 2011 - 12 ) THE DY COMMR OF INCOME TAX CIRCLE1 ALLEPPY VS M/S CREAMPACKS P LTD 28/3030 CHERUPAMBATH ROAD ERNAKULAM KOCHI 20 PAN: AAACC9368C ( APPELLANT) (RESPONDENT) ITA NO 228 /COCH/2016 (ASST YEAR 2011 - 12 ) THE DY COMMR OF INCOME TAX CIRCLE1 ALLEPPY VS M/S KREEM DRINKS PVT LTD 28/3030 CHERUPARAMBATH ROAD ELAMKULAM KADAVANTHRA COCHIN 682 020 PAN: AAACKB128N ( APPELLANT) (RESPONDENT) ITA NO 229 /COCH/2016 (ASST YEAR 2011 - 12 ) THE ASST COMMR OF INCOME TAX CORPORATE CIRCLE1( 1 ) KOCHI VS M/S KREEM FOODS PVT LTD 28/3030 CHERUPARAMBATH ROAD ELAMKULAM KADAVANTHRA COCHIN 682 020 PAN: A AACK8728L ( APPELLANT) (RESPONDENT) ITA NO S.199,219, 228 & 229/C/2016 2 ASSESSEE BY SH P M VE ERAMANI REVENUE BY SH A DHANARAJ, SR DR DATE OF HEARING 15 TH NOV 2016 DATE OF PRONOUNCEMENT 16 TH NOV 2016 ORDER PER BENCH : THESE FOUR APPEALS, AT THE INSTANCE OF THE REVENUE, ARE DIRECTED AGAINST SEPARATE ORDERS OF THE CIT(A) PERTAIN ING TO DIFFE RENT ASSESSEE S . THE RELEVANT ASSESSMENT YEAR IS 2011 - 12. 2 THE REVENUE HAS TAKEN DIFFERENT GROUNDS FOR ALL THESE APPEALS ; HOWEVER, THE SOLITARY ISSUE THAT ARISES FOR OUR CONSIDERATION , RELATES TO THE ISSUE OF TAXABILITY OF FREEZER DEPOSITS RECEIVED BY THE ASSESSEE FROM ITS VENDORS. SINCE IDENTICAL ISSUE IS RAISED IN THESE APPEALS, THESE WERE HEARD TOGETHER AND DISPOSED OF BY THIS CONSOLIDATED ORDER. 3 FIRST WE SHALL TAKE UP FOR ADJUDICATION THE APPEAL IN ITA NO.199/COCH/2016 . ITA NO 199/COCH/2016 3.1 B RIEF FACTS OF THE CASE ARE AS FOLLOWS: THE ASSESSEE IS IN THE BUSINESS OF MANUFACTURING AND MARKETING OF ICE CREAMS AND OTHER FROZEN FOODS. FOR THE ASSESSMENT YEAR 2011 - 12 , THE RETURN OF INCOME WAS FILED ON 1 5.10.2011 DECLARING THE TOTAL INCOME AT NIL AS THE ASSESSEE INCURRED LOSS OF RS. 9,37,786/ - . THE ASSESSMENT U/S 143(3) OF THE ACT WAS COMPLETED VIDE ORDER DATED ITA NO S.199,219, 228 & 229/C/2016 3 6.3.2014. IN THE ASSESSMENT COMPLETED THE ASSESSING OFFICER HAD BROUGHT TO TAX THE DEPOSITS RECEIVED FROM ITS DISTRIBUTORS FOR SUPPLY OF FREEZER BY STATING AS FOLLOWS: 1 INCOME ON ACCOUNT OF LAPSED LIABILITY IN RESPECT OF FREEZER DEPOSITS: THE ASSESSEE IS A MANUFACTURER AND SELLER OF ICE CREAMS. THE ASSESSEE, AS PART OF A TRADE PROMOTION STRATEGY, ISSUES FREEZERS TO ITS DISTRIBUTORS SO T HAT THE PRODUCTS OF THE COMPANY CAN BE PROMINENTLY DISPLAYED AND SAFELY STORED. THE ASSESSEE COLLECTS THE COST OF THE FREEZERS FROM THE DISTRIBUTORS, THE VALUE OF THE FREEZER FALLS BY 25% EVERY YEAR (PART OF A YEAR IS TREATED AS A FULL YEAR). THAT IS TO SA Y, IF THE DISTRIBUTOR TERMINATES HIS AGREEMENT WITH THE ASSESSEE COMPANY AT THE END OF THE 1ST YEAR, THEN HE (I.E. DISTRIBUTOR) CAN HOPE TO RECOVER ONLY 3/4TH OF THE PAYMENT (DEPOSIT) THAT HE MADE TO THE ASSESSEE TOWARDS THE FREEZER. AT THE END OF THE 4TH YEAR, THE AMOUNT DEPOSITED FOR THE FREEZER BECOMES WHOLLY NON - REFUNDABLE, EVEN IF THE AGREEMENT IS TERMINATED. 1.1 THE ASSESSEE TREATS THE DEPOSIT RECEIVED FROM THE DISTRIBUTORS FOR THE FREEZERS AS A LIABILITY AND CALLS IT 'DEPOSITS 8: ADVANCE FROM CUSTOM ERS' AND APPEARS IN THE BALANCE SHEET. IN THE PREVIOUS YEAR THE LIABILITY SHOWN IS RS.3,33,49,200/ - WHICH WAS AN INCREASE OF RS.38,14,977/ - AS COMPARED TO THE BALANCE OF RS.2,95,34,223/ - AS AT THE END OF THE PRECEDING ASSESSMENT YEAR. 1.2 THE RELEVANT CAU SE IN THE AGREEMENT BETWEEN THE ASSESSEE AND THE DISTRIBUTOR IS REPRODUCED BELOW: 'ON TERMINATION OF THIS AGREEMENT, THE DISTRIBUTOR HAS TO DELIVER BACK THE FREEZER TOGETHER WITH ACCESSORIES TO THE PRINCIPAL AT THE PRINCIPAL'S PREMISE AND COLLECT THEREAFT ER FROM THE PRINCIPAL THE SECURITY DEPOSIT AMOUNT AFTER DEDUCTING AN AMOUNT CALCULATED AT THE RATE OF 25% ON THE VALUE OF THE FREEZER FOR EACH YEAR OF USE TOWARDS COMPENSATION FOR WEAR AND TEAR. FOR THIS PURPOSE FRACTION OF A YEAR SHALL BE COUNTED AS A COM PLETE YEAR. ON NON RETURN OF THE FREEZER, THE DIFFERENCE BETWEEN THE VALUE OF THE FREEZER AND THE DEPOSIT AMOUNT SHALL BE MADE GOOD TO THE PRINCIPAL.' 1.3 AS PER SECTION 41 (1) OF THE INCOME TAX ACT, TRADING LIABILITY, WHICH HAS CEASED, CAN BE REGARDED AS INCOME OF THE ASSESSEE. IN THIS CASE, THE LIABILITY THAT HAS CEASED IS NOT A TRADING LIABILITY AND THEREFORE SECTION 41 (1) MAY NOT APPLY. HOWEVER, BY VIRTUE OF THE SUPREME COURT'S DECISION IN CIT VS. T.V. SUNDERAM IYENGAR AND SONS (1996) 222 ITR 344(SC), THE AMOUNT BECOMES TAXABLE. THE RELEVANT PORTION OF THE JUDGMENT OF THE APEX COURT IS REPRODUCED HERE. . 'IF AN AMOUNT IS RECEIVED IN THE COURSE OF A TRADING TRANSACTION, EVEN THOUGH IT IS NOT TAXABLE IN THE YEAR OF RECEIPT AS BEING OF REVENUE CHARACTER, THE AMOUNT CHANGES ITS CHARACTER WHEN THE AMOUNT BECOMES ASSESSEE'S OWN MONEY BECAUSE OF LIMITATION OR BY ITA NO S.199,219, 228 & 229/C/2016 4 ANY STATUTORY OR CONTRACTUAL RIGHT. WHEN SUCH A THING HAPPENS COMMON SENSE DEMANDS THAT THE AMOUNT SHOULD BE TREATED AS THE INCOME OF THE ASSESSEE. ' THE SAME PRINCIPLE WAS REITERATED BY THE HON'BLE HIGH COURT OF BOMBAY IN SLID CONTAINERS LTD VS. CIT (2009) 308 ITR 417(BOM). THE RATIO OF THESE DECISIONS APPLIES PERFECTLY TO THE INSTANT CASE. 1.4 IN THIS CONNECTION IT HAS TO BE MENTIONED THAT 'INCOME' HAS BEEN GIVEN AN INCLUSIVE DEFINITION IN SECTION 2(24). THE SUPREME COURT IN CIT VS. KARTHIKEYAN (1993) 201 ITR 866 (SC) HAS HELD THAT THE PURPOSE OF THE INCLUSIVE DEFINITION IS NOT TO LIMIT THE MEANING BUT TO WIDEN ITS NET AND SEVERAL CLAUSES THEREIN AR E NOT EXHAUSTIVE OF THE MEANING OF INCOME; EVEN IF A RECEIPT DID NOT FALL WITHIN THE AMBIT OF ANY OF THE CLAUSES, IT MIGHT STILL BE INCOME IF IT PARTAKES THE CHARACTER OF INCOME. THE ISSUE AT HAND HAS TO BE SEEN IN THE LIGHT OF THE NUMEROUS APEX COURT DECI SIONS HOLDING THAT THE WORD 'INCOME' HAS TO BE INTERPRETED WITH THE WIDEST AMPLITUDE. 1.5 THE ARGUMENTS OF THE ASSESSEE IN BRIEF ARE AS UNDER: * THE ASSESSEE ARGUED THAT IT RECOGNIZES INCOME ON ACCOUNT OF FREEZERS WHEN THE AGENCY IS TERMINATED, THAT IT IS WRONG TO TAX THE INCOME BEFORE THE TERMINATION OF THE AGREEMENT. * THE DECISION OF THE SUPREME COURT IN (IT VS. T.V. SUNDERAM IYENGAR AND SONS IS DISTINGUISHABLE. ACCORDING TO THE ASSESSE THE CASE LAW PERTAINS TO A SITUATION WHERE THE ASSESSEE HAS UNIL ATERALLY CREDITED INCOME IN THE P&L ACCOUNT ON ACCOUNT OF DEPOSITS RECEIVED FROM CUSTOMERS BUT DID NOT OFFER THE SAME FOR TAX. THE SYSTEM OF ACCOUNTING REGULARLY EMPLOYED BY THE ASSESSEE SHOULD NOT BE UPSET AND THAT THE DEPARTMENT DID NOT REJECT BOOKS. 1.6 THESE ARGUMENTS ARE WITHOUT MERIT FOR THE FOLLOWING REASONS: * I T IS NOT CORRECT TO SAY THAT INCOME ACCRUES ONLY WHEN THE AGREEMENT IS TERMINATED. THE AGREEMENT ITSELF SAYS THAT AFTER 4 YEARS THERE IS NO LIABILITY ON THE PART OF THE ASSESSEE TOWARDS TH E FRANCHISEES/ RETAILERS BECAUSE OF THE FREEZER DEPOSITS. * THE ASSESSEE IS NEEDLESSLY PROLONGING THE RECOGNITION OF REVENUE BY RECOGNIZING IT ONLY AT THE TERMINATION OF AGENCY. * AGAIN, IF A DEALERSHIP IS NOT TERMINATED, NO INCOME IS RECOGNIZED FROM THE LAPSING OF LIABILITY BECAUSE OF FREEZER DEPOSITS. ITA NO S.199,219, 228 & 229/C/2016 5 * IN ADDITION, IT IS WRONG IN SAYING THAT THE SUPREME COURT DECISION IN TVS SUNDERAM IYENGAR & SONS DOES NOT APPLY. THE RATIO OF THE DECISION CLEARLY APPLIES EVEN IF THE FACTS ARE DIFFERENT. IN FACT, FACT S OF TWO CASES WILL NEVER COMPLETELY AGREE. 1.7 IN THE LIGHT OF THE FOREGOING DISCUSSION, IT IS EVIDENT THAT DEALER DEPOSITS BECOME TAXABLE WITH THE EFFLUX OF TIME. THE AMOUNT THAT IS TAXABLE WORKED OUT AS RS.31 ,59,354/ - . 3.2 AGGRIEVED BY THE ADDITION M ADE BY THE ASSESSING OFFICER, THE ASSESSEE PREFERRED APPEAL TO THE FIRST APPELLATE AUTHORITY. THE CIT(A), FOLLOWING THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE AY 2010 - 11, DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE (THE TRIBUNAL WAS CONSIDER ING A BATCH OF CASES IN ITA NOS.73 TO 79/COCH/ 2014 FOR AY 2008 - 09 AND 2010 - 11 IN WHICH THE ASSESSEE WAS ALSO A PARTY ) . 3.3 AGGRIEVED BY THE ORDER OF THE CIT(A), THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. THE LD DR RELIED ON THE GROUNDS RAISED IN THE APPEAL MEMO. ON THE OTHER HAND, THE LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE IN QUESTION IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE, CITED SUPRA. THE LD COUNSEL ALSO SUBMITTED THAT THE SA ID ISSUE IS PENDING FOR ADJUDICATION BEFORE THE HONBLE KERALA HIGH COURT AND NO DECISION HAS BEEN TAKEN BY THE HONBLE COURT. 3.4 WE HAVE HEARD THE RIVAL PARTIES AND PERUSED THE MATERIAL ON RECORD. IN ASSESSEES OWN CASE, THE DIVISION BENCH OF THE TR IBUNAL HAVE DECIDED THE MATTER IN FAVOUR OF THE ASSESSEE, BY FOLLOWING THE EARLIER ORDERS OF THE TRIBUNAL. THE RELEVANT FINDINGS OF THE TRIBUNAL IN ASSESSEES OWN CASE READ AS FOLLOWS: ITA NO S.199,219, 228 & 229/C/2016 6 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITHER SIDE AND RELE VANT MATERIAL ON RECORD. THE ISSUE ARISES IS WHETHER THE DEPOSITS IN RESPECT OF THE FREEZER HAS TO BE CONSIDERED AS INCOME OF THE ASSESSEE OR NOT. AS RIGHTLY SUBMITTED BY THE LD. AR OF THE ASSESSEE THAT THIS ISSUE WAS CONSIDERED BY THE TRIBUNAL IN ONE OF T HE ASSESSEES FOR THE EARLIER ASSESSMENT YEAR AND FOUND THAT SUCH DEPOSITS CANNOT BE CONSIDERED AS INCOME OF THE ASSESSEE. FOR THE SAKE OF CONVENIENCE, WE EXTRACT BELOW THE ORDER DATED 08.08.2012 PASSED BY THE TRIBUNAL IN THE CASE OF M/S. KREEM FOODS (P) LT D. IN ITA NO. 597/COCH/2010 RELATING TO ASSESSMENT YEAR 2007 - 08: - 3. AT THE TIME OF HEARING, THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED A COPY OF THE ORDER DATED 25 - 05 - 2012 PASSED BY THIS BENCH IN THE CASE OF JOJO FROZEN FOOD (P) LTD. AND CREAM PACKS (P ) LTD. IN I.T.A. NOS. 655 & 654/COCH/2010 WHEREIN THE TRIBUNAL HAS CONSIDERED AN IDENTICAL ISSUE AND DECIDED THE SAME IN FAVOUR OF THE ASSESSEE. FOR THE SAKE OF CONVENIENCE, WE EXTRACT BELOW THE OPERATIVE PORTION OF THE SAID ORDER IN RESPECT OF THE ABOVE S AID ISSUE. 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND CAREFULLY PERUSED THE RECORD. WE HAVE ALSO GONE THROUGH THE COPY OF THE ORDER PASSED BY THE CO - ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF HIGH RANGE FOODS (P) LTD, REFERRED SUPRA. IN RESPECT O F THE FIRST ISSUE, I.E., WHETHER THE DEPOSITS RECEIVED FROM THE DEALERS CAN BE CONSIDERED AS INCOME OF THE ASSESSEE, THE TRIBUNAL HAS OBSERVED AS UNDER. THE ASSESSEE RECEIVED DEPOSIT FOR THE SUPPLY OF FREEZER FROM THE CONCERNED VENDORS. THE FREEZERS ARE REQUIRED TO SAFE KEEP THE EDIBLE ICE - CREAMS. THEY ARE REQUIRED FOR THE PURPOSE OF BUSINESS. THE SMALL VENDORS MAY NOT BE INCLINED TO PURCHASE THE FREEZERS AS THEY ARE NOT AFFORDABLE TO THEM CONSIDERING THEIR STATUS. THIS MADE THE ASSESSEE COMPANY TO SUPPLY FREEZER ON THE RECEIPT OF FIXED DEPOSIT AND THE COMPENSATION OF THE SPREAD - OVER PERIOD. THEY ARE ATTACHED WITH A LIABILITY. THE ACCRUAL COMES ONLY ON TERMINATION OF AGREEMENT. THE BUSINESS NECESSITY REQUIRES CORDIAL RELATIONSHIP WITH VENDORS. THE ASSESSEE CANNOT TREAT THESE TWO AMOUNTS AS RECEIPTS IN THE NATURE OF INCOME UNLESS THE SO - CALLED AGREEMENT TERMINATED. IN OTHER WORDS IT IS NOT A DEBT OWNED BY THE ASSESSEE. HENCE, UNDER THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE, THIS ISSUE TO BE DECIDED IN ITA NO S.199,219, 228 & 229/C/2016 7 FA VOUR OF THE ASSESSEE BY SETTING ASIDE THE ORDERS OF THE AUTHORITIES. BESIDES THE ASSESSEE NEVER TREATED THIS AS INCOME IN THE BOOKS. THE ASSESSEE CONSISTENTLY HOLDING IT SO AS THE AMOUNT ATTACHED WITH A LIABILITY TO REFUND. THE ASSESSEE NEVER ADMITTED TH IS AMOUNT AS INCOME IN THE BOOKS. ONLY ACCRUED INCOME AROSE TO THE ASSESSEE DURING THE RELEVANT PREVIOUS YEAR ALSO CAN BE BROUGHT TO TAX UNDER THE INCOME - TAX PROVISIONS WHICH IS A SETTLED LAW. IN OTHER WORDS, THERE MUST BE A DEBT OWNED TO THE ASSESSEE AND UNTIL THIS IS CREATED IN FAVOUR OF THE ASSESSEE AS A DEBT DUE TO THE ASSESSEE, IT CANNOT BE SAID AS INCOME ACCRUED. HENCE, THE DECISION RELIED BY THE JR. D.R. IN THE CASE OF CIT VS. T.V. SUNDARAM IYENGAR AND SONS CITED SUPRA, IS CLEARLY DISTINGUISHABLE ON FACTS. IN THAT CASE, ASSESSEE ITSELF ADMITTED THIS AS INCOME AS PER THE BOOK ENTRIES. HENCE, IT IS DISTINGUISHABLE. THE DECISION RELIED BY THE LD. COUNSEL FOR THE ASSESSEE IN THE CASE OF CIT VS. REALEST BUILDERS AND SERVICES LTD. 307 ITR 202 (SC) IN AD DITION TO THE FOLLOWING CASES (A) SIDDHESWAR SAHAKARI SAKHAR KARKHANA LTD. VS. CIT & OTHERS 270 ITR 1 (SC); (B) BHARAT PETROLEUM CORPORATION LTD. VS. CIT 202 ITR 492 (CAL). (C) SUGAULI SUGAR WORKS (IMPUGNED) LTD. 236 ITR 518 (SC); 5 I.T.A. NOS. 73 - 79/COCH/2014 (D) STAR INDIA P. LTD. VS. ADDL. CIT 311 ITR (ST) 235 (MUMBAI). (E) GOVIND PRASAD PRABHU NATH 171 ITR 417 (ALL.); (F) HINDUSTAN HOUSING AND LAND DEVELOPMENT TRUST LTD. 161 ITR 524 (SC); (G) ACE BUILDERS PVT. LTD. VS. CIT 225 ITR 746 (SC); (H) MANTRA TANTA YANTRA VIGYAN VS. CIT 300 ITR 140 (RAJ.); AND (I) GUARDIAN INDUSTRIES CORPN. VS. ASSISTANT DIRECTOR OF INCOME - TAX 7 DTR 594 (DEL.). ARE ALSO SUPPORTS THE PLEA OF THE ASSESSEE. THE ACCRUAL HAS BEEN DEALT WITH IN THE RELIE D JUDGMENTS. HENCE, UNDER THE GIVEN SET OF FACTS AND CIRCUMSTANCES, WE BY RELYING ON THE ABOVE DECISIONS SET ASIDE THE ORDERS OF THE AUTHORITIES AND ITA NO S.199,219, 228 & 229/C/2016 8 ALLOW THIS GROUND OF THE ASSESSEE AS IT CANNOT BE TREATED AS INCOME FOR THE YEAR RELEVANT UNDER APPEAL. 7. SINCE THE CO - ORDINATE BENCH HAS ALREADY TAKEN A VIEW ON IDENTICAL ISSUE, BY FOLLOWING THE SAID DECISION, WE HOLD THAT THE DEPOSITS COLLECTED FROM VENDORS CANNOT BE CONSIDERED AS THE INCOME OF THE ASSESSEE SO LONG AS THE AGENCY AGREEMENT CONTINUES. ACCOR DINGLY, WE SET ASIDE THE ORDER OF LD CIT(A) ON THIS ISSUE IN THE HANDS OF BOTH THE ASSESSEES AND DIRECT THE AO TO DELETE THE ADDITION MADE ON THIS ISSUE IN THE HANDS OF BOTH THE ASSESSEES HEREIN. 5. THE ONLY OBJECTION OF THE LD. DR IS THAT THE APPEAL WA S FILED AGAINST THE ORDER OF THE TRIBUNAL AND THE SAME IS PENDING BEFORE THE HIGH COURT. BUT ON A QUERY FROM THE BENCH, THE LD. DR SUBMITTED THAT HE DOES NOT HAVE KNOWLEDGE OF ANY STAY GRANTED BY THE HONBLE HIGH COURT ON THE OPERATION OF THE EARLIER ORDER OF THE TRIBUNAL. SINCE THE LD. CIT(A) HAS FOLLOWED THE ORDER OF THE TRIBUNAL, WE 6 I.T.A. NOS. 73 - 79/COCH/2014 ARE OF THE CONSIDERED OPINION THAT MERE PENDING OF THE APPEAL BEFORE THE HIGH COURT AGAINST THE ORDER OF THE TRIBUNAL CANNOT BE A REASON TO TAKE A DIFFERENT VIEW. THEREFORE, BY FOLLOWING THE ORDER OF THE TRIBUNAL FOR THE EARLIER ASSESSMENT YEAR, THIS TRIBUNAL IS OF THE CONSIDERED OPINION THAT THE DEPOSITS COLLECTED BY THE ASSESSEE FOR FREEZER CANNOT BE CONSIDERED AS INCOME OF THE ASSESSEE. 6. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE AND IN VIEW OF THE ORDER OF THE TRIBUNAL, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) AND ACCORDINGLY, THE SAME IS CONFIRMED. 7. IN THE RESULT, ALL THE APPEALS FILED BY THE REVENUE ST AND DISMISSED. 3.5 ADMITTEDLY, THE ISSUE IN QUESTION IS COVERED IN FAVOUR OF THE ASSESSEE BY THE ORDER OF THE DIVISION BENCH OF THE TRIBUNAL, CITED SUPRA. BOTH THE PARTIES HAVE SUBMITTED THAT THE ISSUE IS PENDING FOR ADJUDICATION BEFORE THE HONBLE JURIS DICTIONAL HIGH COURT. NO CONTRARY HIGH COURT JUDGMENT HAS BEEN CITED. HENCE, RESPECTFULLY FOLLOWING THE ORDER OF THE DIVISION BENCH OF THE TRIBUNAL, IN ASSESSEES OWN CASE ( SUPRA), WE UPHOLD THE ORDER OF THE FIRST APPELLATE AUTHORITY AS CORRECT AND IN ACC ORDANCE WITH LAW AND NO INTERFERENCE IS CALLED FOR. IT IS ORDERED ACCORDINGLY. ITA NO S.199,219, 228 & 229/C/2016 9 4 IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ITA NO. 219/COCH/2016 ITA NO. 228/COCH/2016 & ITA NO.229/COCH/2016 5 SINCE THE ISSUE RAISED IN THESE APPEALS ARE THE SAME AS IN THE CASE IN ITA NO.199/COCH/2016, OUR FINDING IN PARA 3.4, 3 . 5 & 4 WILL HOLD - GOOD IN THESE CASES ALSO. IN LIGHT OF OUR FINDINGS IN PARA 3.4, 3.5 & 4, WE UPHOLD THE ORDERS OF THE CIT (A) IN ITA NOS .219/C/2016, 228/C/2016 & 229/C/2016 AND DISMI SS THE GROUNDS RAISED BY THE REVENUE THEREIN. IT IS ORDERED ACCORDINGLY. 6 IN THE RESULT, THE APPEAL S FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH DAY OF NOV 2016. SD/ - SD/ - ( B P JAIN ) ( GEORGE GEORGE K ) ACCOUNTANT MEMBE R JUDICIAL MEMBER COCHIN: DATED 16 TH N OV 2016 RAJ* ITA NO S.199,219, 228 & 229/C/2016 10 COPY TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT(A) 4 . CIT, 5 . DR 6 . GUARD FILE BY ORDER ASSISTANT REGISTRAR ITAT, COCHIN