M/s. Industrial Security Services, Surat V. The ACIT.,Circle-9, Surat

ITA 2290/AHD/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6111 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 10-02-2017
• Assessment Year: 2003-2004
• Appeal Filed On: 12-09-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: K MADHUSUDHAN
• Assessee Lawyers: J P SHAH
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH AHMEDABAD BEFORE SHRI N. K. BILLAIYA, ACCOUNTANT MEMBER , AND SHRI S. S. GODARA, JUDICIAL MEMBER. ITA NO.2290/AHD/2013 (ASSESSMENT YEAR:2003-04) M/S. INDUSTRIAL SECURITY SERVICES 1 ST FLOOR, UPAL TOWER, OPP. UMIYA MATA TEMPLE, VARACHHA ROAD, SURAT - 395006 APPELLANT VS. ASST. COMMISSIONER OF INCOME TAX, CIRCLE 9, SURAT RE SPONDENT PAN: AAKFM1044N /BY ASSESSEE : MR. J. P. SHAH, A.R. /BY REVENUE : MR. K. MADHUSUDHAN, D.R. /DATE OF HEARING : 10.02.2017 /DATE OF PRONOUNCEMENT : 25.04.2017 ORDER PER S. S. GODARA, JUDICIAL MEMBER THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2003-04 ARISES AGAINST THE CIT(A)-V, SURATS ORDER DATED 29.10.2012, PASSED IN APPEAL NO. ITA NO. 2290/AHD/2013 (M/S. INDUSTRIAL SECURITY SER VICES VS. ASST.CIT) A.Y. 2003-04 - 2 - CAS/V/319/2010-11, IN PROCEEDINGS U/S.143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. 2. WE NOTICE AT THE OUTSET THAT THE INSTANT ASSESSE ES APPEAL SUFFERS FROM DELAY OF 255 DAYS IN FILING. THE ASSESSEES AUTHOR IZED PERSON/ ITS PROPRIETOR AND PARTNER HAS FILED HIS CONDONATION AFFIDAVIT DAT ED 12.09.2013 SOLEMNLY AVERRING THEREIN THAT HE FELL SERIOUSLY ILL IN THE INTERVENING PERIOD OF DELAY. HE ALSO FILED NECESSARY MEDICAL CERTIFICATE (S) DAT ED 30.08.2013 CERTIFYING HIM TO HAVE UNDERGONE RADICULOPATHY / REMAINED ADMI TTED FROM 25.12.2012 TO 29.08.2013. THE ASSESSEES CASE IS FURTHER CERTIFI ED TO BE THAT REQUIRING COMPLETE BED REST WITH ONLY STICK SUPPORT WALK. LE ARNED DEPARTMENTAL REPRESENTATIVE FAILS TO DISPUTE ALL THESE SOLEMN AV ERMENTS. WE THEREFORE OBSERVE THAT THE ASSESSEES DELAY IN FILING APPEAL OF 255 DAYS IS NEITHER INTENTIONAL NOR DELIBERATE. THE SAME STANDS CONDON ED. THE MAIN APPEAL ITSELF IS NOW TAKEN UP FOR ADJUDICATION. 3. THE ASSESSEE RAISES THREE SUBSTANTIVE GROUNDS IN THE INSTANT APPEAL INTER ALIA CHALLENGING BOTH THE LOWER AUTHORITIES ACTION IN DISALLOWING / ADDING LEAVE SALARY OF RS.25,65,489/- U/S.43B(F), INTEREST EXPENSES OF RS.90,000/- ON THE GROUND OF NON CHARGING OF INTEREST ON LOANS GIV EN TO PARTNER AND THE LAST HEAD OF DISALLOWANCE OF RS.79,85,372/- PERTAINING T O CONTRIBUTION MADE TOWARDS PROVIDENT FUNDS PAID BEFORE THE DUE DATE OF FILING OF THE RETURN; RESPECTIVELY. 4. A PERUSAL OF THE INSTANT CASE FILE INDICATES THA T THIS IS SECOND ROUND OF LITIGATION RELATING TO ALL THESE THREE ISSUES BEFOR E THE TRIBUNAL. THE ASSESSEE HAD EARLIER FILED ITA NO.3925/AHD/2007 RAISING THE VERY THREE ISSUES. A CO- ORDINATE BENCH IN ITS ORDER DATED 22.01.2010 REMITT ED THE ABOVE APPEAL BACK ITA NO. 2290/AHD/2013 (M/S. INDUSTRIAL SECURITY SER VICES VS. ASST.CIT) A.Y. 2003-04 - 3 - TO THE ASSESSING OFFICER. LEARNED CO-ORDINATE BENC HS OBSERVATIONS QUA THE FIRST ISSUE OF SECTION 43B(F) DISALLOWANCE OF RS.25 ,65,489/- READ AS UNDER: 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND MA TERIAL AVAILABLE ON RECORD. THE ASSESSING OFFICER NOTED IN THE ASSESSMENT ORDER THAT ASSESSEE HAS NOT FILED PERMANENT ADDRESS OF THE EMPLOYEES. THE ASSESSING O FFICER ALSO NOTED THAT SINCE GROSS PROFIT WAS LOWER AS COMPARED TO THE EARLIER Y EAR AND THE HUGE OUTSTANDING LEAVE SALARY IS CLAIMED, THEREFORE, THERE WAS A DOU BT IN THE CONTENTION OF THE ASSESSEE. THE DETAILS OF THE PAYMENTS AND DETAILS O F THE NAME AND POSTAL ADDRESS OF EACH GUARD WAS CALLED FOR. THE ASSESSING OFFICER UL TIMATELY HELD THAT SINCE NO ACTUAL PAYMENT WAS MADE IN THE ASSESSMENT YEAR IN Q UESTION U/S.43B(F) OF THE I.T. ACT , 1961, THEREFORE, NO DEDUCTION COULD BE ALLOWED TO THE ASSESSEE. HOWEVER, CONSIDERING THE RECENT DECISION OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. ALOM EXTRUSIONS LTD .(SUPRA), IT IS CLEAR THAT THE OMISSION OF THE SECO ND PROVISO TO SECTION 43B OF THE INCOME-TAX ACT, 1961, WOULD EFFECT RETROSPE CTIVELY, WITH EFFECT FROM 01/04/1988, THEREFORE, IT IS CLEAR THAT NO DIS ALLOWANCE COULD BE MADE WITH THE HELP OF SECTION 43B(F) OF THE I.T. ACT, 1961 AS IT IS DONE BY THE ASSESSI NG OFFICER. THE ASSESSEE FILED DETAILS OF PAYMENT MADE ON ACCOU NT OF LEAVE SALARY EXPENSES AT PAGE NO.2 OF THE PAPER-BOOK WHICH SUPPORT THE CONTE NTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT THE AMOUNT IN QUESTION HAVE BEEN PAID ON OR BEFORE THE DUE DATE OF FILING OF THE RETURN. HOWEVER, SUCH DETAILS WERE NO T FILED BEFORE THE ASSESSING OFFICER FOR HIS EXAMINATION. IT IS ALSO CLEAR THAT THE COMPLETE ADDRESSES OF THE GUARDS WERE NOT FILED BEFORE THE ASSESSING OFFICER FOR CONSIDERATION AT THE LEVEL OF THE AUTHORITIES BELOW. THE LD. COUNSEL FOR THE ASSE SSEE, HOWEVER, SUBMITTED DURING THE COURSE OF ASSESSMENT PROCEEDINGS THAT THE GUARD S GENERALLY LEAVE THE PLACES FROM PLACE OF ADDRESSES. THEREFORE, IT WOULD NOT BE POSSIBLE TO FILE THE PRESENT ADDRESSES OF THE GUARDS. HOWEVER, THE ASSESSEE COUL D PRODUCE THE LEDGER ACCOUNTS OF THE GUARDS, PLACE OF THEIR WORKING, WORKING HOUR S, REGISTER OF THE GUARDS AND THEIR ADDRESSES GIVEN AT THE TIME OF EMPLOYMENT AND THE DETAILS OF THE INSTITUTIONS WHERE GUARDS HAVE ACTUALLY WORKED, PARTICULARS OF I NSTITUTION WHO HAVE EMPLOYED THE GUARDS THROUGH THE ASSESSEE. SINCE SOME OF THE DETAILS HAVE BEEN GIVEN AND DETAILS OF THE PAYMENT ARE FILED TO SHOW THAT PAYME NTS ARE MADE TO THE GUARDS ON OR BEFORE THE DUE DATE FOR FILING OF THEIR RETURN, THEREFORE, WE ARE OF THE VIEW THAT THE MATTER MAY BE REMANDED TO THE ASSESSING OFFICER FOR CONSIDERATION IN THE LIGHT OF THE DECISION OF HON'BLE SUPREME COURT REFERRED T O THIS ORDER. WE ACCORDINGLY SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND R ESTORE THIS ISSUE TO THE FILE OF ASSESSING OFFICER WITH A DIRECTION TO HIM TO RE-DEC IDE THIS ISSUE BY GIVING REASONABLE SUFFICIENT OPPORTUNITIES OF BEING HEARD TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO FURNISH THE ABOVE DETAILS AS NOTED ABOVE IN THIS ORDER IN ORDER TO SATISFY THE ASSESSING OFFICER ABOUT GENUINENESS CLA IM OF UNPAID SALARY/WAGES TO THE GUARDS. ASSESSEE SHALL ALSO FURNISH THE DETAILS OF PAYMENT BEFORE ASSESSING OFFICER TO SHOW THAT PAYMENTS ARE MADE TO THE GUARD S ON OR BEFORE DUE DATE OF FILING OF THE RETURN. WITH THE ABOVE DIRECTIONS, TH IS GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 5. IT APPEARS THAT THE ASSESSEE FAILED TO FILE THE NECESSARY EVIDENCE IN COURSE OF THE IMPUGNED CONSEQUENTIAL PROCEEDINGS. IT DID NOT PROVIDE / FILE ITA NO. 2290/AHD/2013 (M/S. INDUSTRIAL SECURITY SER VICES VS. ASST.CIT) A.Y. 2003-04 - 4 - PERMANENT ADDRESSES OF THE CONCERNED EMPLOYEES SO A S TO PROVE GENUINENESS OF THE LEAVE SALARY EXPENSES IN QUESTION. BOTH THE LOWER AUTHORITIES THEREFORE REPEAT THE IMPUGNED DISALLOWANCE. LEARNED SENIOR C OUNSEL/AUTHORIZED REPRESENTATIVE IS VERY FAIR IN INFORMING THE BENCH THAT THE VERY FACTUAL POSITION CONTINUES HEREIN AS WELL. WE THUS FIND NO REASON TO INTERFERE IN THE IMPUGNED DISALLOWANCE. THIS FIRST SUBSTANTIVE GROU ND FAILS ACCORDINGLY. 6. WE NOW COME TO THE SECOND ISSUE OF INTEREST DISA LLOWANCE OF RS.90,000/-. LEARNED CO-ORDINATE BENCH IN FIRST RO UND DISCUSSED THE ISSUE AS UNDER: 22. ISSUE NO.5:- ON GROUND NO.5, THE ASSESSEE CHAL LENGED THE ADDITION OF RS.90,000/- BEING INTEREST. ACCORDING TO THE ASSESS ING OFFICER, THE ASSESSEE HAS DEBITED A SUM OF RS.13,72,607/- TOWARDS FINANCIAL I NTEREST AND CHARGES. HE HAS ALSO OBSERVED THAT THE ASSESSEE HAS INTRODUCED UNSE CURED LOANS OF RS.20 LACS AND PAYING INTEREST @ 18%. THE INTEREST ON SUCH LOANS A ND ACCOUNTS OF THE PARTIES COME TO BE RS.2,30,968/-. THE ASSESSEE EXTENDED LOA NS AND ADVANCE TO SHRI R.P.SINGH OF RS.5 LACS WITHOUT CHARGING ANY INTERES T. THE ASSESSEE IN COMPLIANCE TO THE SHOW- CAUSE NOTICE STATED THAT LOAN IS ADVAN CED TO ONE OF THE MAJOR PARTNERS WHO IS PIONEER OF THE BUSINESS AND THEY THOUGHT IT IS NOT RATIONAL, MORAL AND ETHICAL TO CHARGE INTEREST FROM HIM. THE ASSESSING OFFICER, HOWEVER, DID NOT ACCEPT THE CONTENTION OF THE ASSESSEE AND CALCULATED THE INTER EST @ 18% AND MADE THE ADDITION OF RS.90,000/-. IT WAS SUBMITTED BEFORE TH E LEARNED CIT(APPEALS) THAT THERE IS OPENING DEBIT BALANCE OF RS.5 LACS ON THE FIRST DAY OF THE PREVIOUS YEAR. NO OTHER SUBMISSION WAS MADE. THE LEARNED CIT(APPEALS) , THEREFORE, NOTED THAT THERE IS A DIVERSION OF INTEREST-BEARING FUNDS FOR NON-BU SINESS PURPOSES AND, ACCORDINGLY, UPHELD THE ADDITION. 23. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS AS WERE MADE BEFORE THE AUTHORITIES BELOW AND REFERRED TO PAPER- BOOK AT PAGE NO.19 WHICH IS ACCOUNT OF SHRI R.P.SINGH TO SHOW THAT ON 01/04/200 2, THERE IS AN OPENING BALANCE OF RS.5 LACS. HE HAS, THEREFORE, SUBMITTED THAT SIN CE THIS AMOUNT IS COMING UP FROM THE EARLIER YEAR AND IS OPENING BALANCE ONLY IN THE ASSESSMENT YEAR UNDER APPEAL, THEREFORE, ASSESSING OFFICER WAS NOT JUSTIFIED IN M AKING THE ADDITION ON ACCOUNT OF NON- CHARGING OF THE INTEREST. HE HAS SUBMITTED THA T IN THE EARLIER YEAR, NO INTEREST IS CHARGED, THEREFORE, ADDITION IS LIABLE TO BE DEL ETED. HE HAS RELIED UPON THE DECISION OF HON'BLE KARNATAKA HIGH COURT IN THE CAS E OF CIT VS. SRIDEV ENTERPRISES 192 ITR 165 (KAR.) IN SUPPORT OF THE SA ME. 24. ON THE OTHER HAND, LEARNED DEPARTMENTAL REPRESE NTATIVE RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT DECISION IN THE CASE OF SRIDEV ENTERPRISES(SUPRA), IS NOT APPLICABLE BECAUSE IN TH AT CASE THE ISSUE WAS RELATING TO ITA NO. 2290/AHD/2013 (M/S. INDUSTRIAL SECURITY SER VICES VS. ASST.CIT) A.Y. 2003-04 - 5 - SEVEN YEARS BACK AND IN THAT CONTEXT THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE. 25. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL AVAILABLE ON RECORD AND FIND THAT RS.5 LACS IS THE OPENING BALANCE ON 01/04/2002 IN THE CASE OF SHRI R.P.SINGH ON ACCOUNT OF LOAN AC COUNT. THEREFORE, IT IS CLEAR THAT THE AFORESAID LOAN WAS NOT GIVEN IN THE ASSESSMENT YEAR UNDER APPEAL. THE FINDINGS OF THE AUTHORITIES BELOW ARE, THEREFORE, FACTUALLY INCORRECT. SIMILARLY, THE ASSESSING OFFICER NOTED THAT SINCE ASSESSEE WAS PAYING INTERE ST ON LOANS AND ADVANCES, THEREFORE, ASSESSEE SHOULD HAVE CHARGED INTEREST FR OM THOSE PARTNERS. THE ASSESSING OFFICER HAS NOT MADE OUT ANY CASE OF DIVE RSION OF ANY INTEREST- BEARING BORROWED FUNDS TO SHRI R.P.SINGH. THE LEARNED CIT(A PPEALS), HOWEVER, NOTED THE SAME IN THE IMPUGNED ORDER. IF NO LOAN OR ADVANCE I S GIVEN TO SHRI R.P.SINGH IN THE ASSESSMENT YEAR IN QUESTION, THERE IS NO QUESTION O F ANY DIVERSION OF BORROWED FUNDS TO SHRI R.P.SINGH. HOWEVER, IT HAS TO BE VERI FIED FROM THE RECORD IF ANY INTEREST CHARGED ON ACCOUNT OF SHRI R.P.SINGH IN TH E EARLIER YEAR. IN CASE, NO INTEREST IS CHARGED ON THE LOAN ACCOUNT OF SHRI R.P .SINGH IN THE EARLIER YEAR, THEN IN VIEW OF THE DECISION OF HON'BLE KARNATAKA HIGH C OURT IN THE CASE OF SRIDEV ENTERPRISES(SUPRA), THE ASSESSING OFFICER WOULD NOT BE JUSTIFIED TO CHARGE THE INTEREST ON THE LOAN ACCOUNT OF SHRI R.P.SINGH. IN THIS VIEW OF THE MATTER, WE SET ASIDE THE ORDER OF THE AUTHORITIES BELOW AND RESTOR E THIS ISSUE TO THE FILE OF ASSESSING OFFICER WITH A DIRECTION TO VERIFY, IF AN Y INTEREST IS CHARGED, IN THE EARLIER ASSESSMENT YEAR OR NOT AND DECIDE THIS ISSUE ACCORD INGLY AS PER OBSERVATION GIVEN IN THIS ORDER BY GIVING REASONABLE SUFFICIENT OPPOR TUNITY OF BEING HEARD TO THE ASSESSEE. AS A RESULT, GROUND NO.5 OF THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 7. WE SOUGHT TO KNOW FROM SHRI SHAH AS TO WHETHER T HE ASSESSEE HAS FILED ANY SUPPORTIVE EVIDENCE IN FURTHERANCE TO THE ABOVE EXTRACTED DIRECTIONS OR NOT. HIS REPLY IS IN NEGATIVE. WE THEREFORE AFFIR M THE SECOND DISALLOWANCE AS WELL BY FOLLOWING THE ABOVE EXTRACTED DETAILED DISC USSION. THIS SECOND SUBSTANTIVE GROUND IS ALSO DECLINED. 8. THIS LEAVES US WITH ASSESSEES LAST SUBSTANTIVE GROUND CHALLENGING CORRECTNESS OF EMPLOYEES PROVIDENT FUND DISALLOWANC E OF RS.79,85,372/- ON THE GROUND THAT THE SAME WAS NOT PAID WITHIN THE TI ME LIMITS SPECIFIED UNDER THE RELEVANT LAW. WE DEEM IT APPROPRIATE TO REPROD UCE LEARNED CO-ORDINATE BENCHS REMAND DIRECTIONS ON THIS ISSUE AS FOLLOWS: 30. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. THE HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. P.M. ELECTRONICS(SUPRA), CONSIDERED THE ISSUE OF PAYMENT S MADE ON BOTH THE ACCOUNTS OF ITA NO. 2290/AHD/2013 (M/S. INDUSTRIAL SECURITY SER VICES VS. ASST.CIT) A.Y. 2003-04 - 6 - EMPLOYER'S AND EMPLOYEES' SHARES WERE LATE, IN THE LIGHT OF PROVISIONS OF SECTION 36(1)(VA) OF THE I.T. ACT, 1961 READ WITH SECTION 2 (24)(X) AND SECTION 43B OF THE I.T. ACT, 1961 AND BY FOLLOWING THE DECISION OF HON 'BLE SUPREME COURT IN THE CASE OF VINAY CEMENT LTD.(SUPRA), DISMISSED THE DEPARTME NTAL APPEAL. THE ABOVE DECISIONS HAVE BEEN FOLLOWED BY ITAT AHMEDABAD BENC H 'D' IN THE CASE OF SHREEOMSINGH B.RAWAT(SUPRA) IN WHICH THE TRIBUNAL F OLLOWING THE DECISION IN THE CASE OF P.M.ELECTRONICS(SUPRA) AND OF VINAY CEMENT LTD.(SUPRA), ALLOWED THE CLAIM OF THE ASSESSEE BECAUSE PAYMENTS ARE MADE ON ACCOUNT OF EMPLOYEES' CONTRIBUTION BEFORE THE DUE DATE OF FILING OF THE R ETURN U/S.139(1) OF THE I.T. ACT, 1961. A SIMILAR VIEW HAS BEEN TAKEN BY THE HON'BLE MADRAS HIGH COURT. THE ISSUE IS FINALLY SETTLED BY THE DECISION OF HON'BLE SUPRE ME COURT WHICH IS FOLLOWED BY HON'BLE DELHI HIGH COURT AND IS CONSISTENTLY FOLLOW ED BY THE ITAT AHMEDABAD BENCH, THEREFORE, WE DO NOT FIND ANY JUSTIFICATION TO SUSTAIN EVEN PART ADDITION ON ACCOUNT OF EMPLOYEES' CONTRIBUTION TOWARDS PF IF TH E SAME IS PAID BEFORE DUE DATE OF FILING OF THE RETURN U/S.139(1) OF THE I.T. ACT, 1961. SINCE THE VIEW IS ALREADY TAKEN IN FAVOUR OF THE ASSESSEE, THEREFORE, THE DEC ISION CITED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE WOULD NOT APPLY TO THE MATTER IN ISSUE. SINCE THE LEARNED CIT(APPEALS) HAS ALREADY RESTORED THE MATTE R TO THE FILE OF ASSESSING OFFICER, THEREFORE, WE DIRECT THE ASSESSING OFFICER TO VERIFY THE PAYMENT ON ACCOUNT OF EMPLOYEES' CONTRIBUTION AND EMPLOYER'S CONTRIBUT ION AND, IN CASE, THE SAME ARE PAID ON OR BEFORE THE DUE DATE OF FILING OF THE RET URN U/S.139(1) OF THE I.T. ACT, 1961, THE ENTIRE ADDITION SHALL BE DELETED. 9. THERE IS NO DISPUTE THAT THE ASSESSEE DID NOT FI LE THE REQUISITE DETAILS IN LIGHT OF THE ABOVE EXTRACTED DIRECTIONS THAT THE SA ME HAD BEEN PAID BEFORE THE DUE DATE. THE ASSESSEES CASE BEFORE US IS THAT AL THOUGH HONBLE JURISDICTIONAL HIGH COURTS DECISION IN CIT VS. GUJARAT STATE ROAD TRANSPORT CORPORATION (2014) 366 ITR 170 (GUJARAT) HAS DECIDED THE VERY I SSUE IN REVENUES FAVOUR, THE SAME WOULD NOT APPLY IN FACTS OF THE IN STANT CASE AS IT AMOUNTS TO REVISITING OF THE ISSUE GOING MUCH BEYOND THE CO-OR DINATE BENCHS DIRECTION IN THE FIRST ROUND. IT PLEADS THAT THE FIRST ROUND DIRECTIONS HAVE ATTAINED FINALITY. THE ISSUE THEREFORE IS SOUGHT TO BE ADJU DICATED WITHOUT FOLLOWING SUBSEQUENT DECISION OF HONBLE JURISDICTIONAL HIGH COURTS DECISION HEREINABOVE. THE ASSESSEE THEN QUOTES HONBLE APEX COURTS DECISION IN (2016) 9 SCC 44 (SC) ANITA INTERNATIONAL VS. TUNGAB ADRA SUGAR WORKS MAZDOOR SANGH THAT EVEN IF AN ORDER IS VOID, IT CO NTINUES TO HAVE OPERATION UNTIL SET ASIDE BY A COURT OF COMPETENT JURISDICTIO N. WE ARE UNABLE TO ACCEPT THIS PLEA. THE FACT REMAINS THAT THE LAW ON THIS I SSUE IS VERY MUCH AGAINST THE ASSESSEE AS OF NOW. WE FIND THAT A SIMILAR ISSUE A ROSE BEFORE THIS TRIBUNAL IN A ITA NO. 2290/AHD/2013 (M/S. INDUSTRIAL SECURITY SER VICES VS. ASST.CIT) A.Y. 2003-04 - 7 - THIRD MEMBER CASE IN B. T. PATIL & SONS VS. ACIT ( 2013) 59 SOT 61 (PUNE) (URO) WHEREIN A CO-ORDINATE BENCH OF THIS TRIBUNAL WAS TO GIVE EFFECT TO A THIRD MEMBER DECISION U/S. 255(4) OF THE ACT. IN THE INTERVENING PERIOD, THE SAID BENCH TOOK NOTICE OF ITS JURISDICTIONAL HIGH C OURTS DECISION TO DECIDE THE ISSUE AS PER ITS LATEST DECISION. THE SAID CO-ORDI NATE BENCH THEREFORE TOOK COGNIZANCE OF ITS JURISDICTIONAL HIGH COURTS DECIS ION AND DECIDED THE CASE ACCORDINGLY WITHOUT FOLLOWING THIRD MEMBER OPINIO N. WE OBSERVE IN THIS BACKDROP THAT WE ARE ABIDE BY HONBLE JURISDICTIONA L HIGH COURTS DECISION HEREINABOVE EVEN IN THE INSTANT SECOND ROUND DECIDI NG THE ISSUE IN REVENUES FAVOUR. WE THEREFORE FIND NO REASON TO I NTERFERE WITH THE IMPUGNED DISALLOWANCE. THE ASSESSEE FAILS IN ITS T HIRD SUBSTANTIVE GROUND AS WELL. 10. THIS ASSESSEES APPEAL IS DISMISSED. [PRONOUNCED IN THE OPEN COURT ON THIS THE 25 TH DAY OF APRIL, 2017.] SD/- SD/- (N. K. BILLAIYA) (S. S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD: DATED 25/04/2017 TRUE COPY S.K.SINHA / COPY OF ORDER FORWARDED TO:- / REVENUE 2 / ASSESSEE ! / CONCERNED CIT 4 !- / CIT (A) ( )*+ ,--. . /0 / DR, ITAT, AHMEDABAD 1 +23 45 / GUARD FILE. BY ORDER / . // . /0