DCIT, Cochin V. M/s.Combined Foods P.Ltd, Ernakulam

ITA 23/COCH/2013

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 2610 (ITAT-COCHIN)
• Duration Of Justice: 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-04-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 18-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S VIJAYAPRABHA
• Assessee Lawyers: A S NARAYANAMURTHY

Judgement Text

1 ITA NO.22-24/COCH/2013 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) I.T.A NO. 22 & 23/COCH/2013 (ASSESSMENT YEARS 2005-06 & 2006-07) DY.CIT, CENT.CIR.1 VS M/S COMBINED FOODS (P) LT D ERNAKULAM KADAVANTHARA, KOCHI PAN : AAACC9366 (APPELLANT) (RESPONDENT) I.T.A NO. 24/COCH/2013 (ASSESSMENT YEARS 2005-06) DY.CIT, CENT.CIR.1 VS M/S CREAM PACK (P) LTD ERNAKULAM KADAVANTHARA, KOCHI PAN : AAACC9368C (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. S VIJAYAPRABHA RESPONDENTS BY : SHRI A.S. NARAYANAMURTHY DATE OF HEARING : 10-04-2013 DATE OF PRONOUNCEMENT : 12-04-2013 2 ITA NO.22-24/COCH/2013 O R D E R PER N.R.S. GANESAN (JM) ALL THE THREE APPEALS RELATE TO TWO INDEPENDENT AS SESSEES. SINCE COMMON ISSUE ARISES FOR CONSIDERATION IN ALL THE TH REE APPEALS, WE HEARD THEM TOGETHER AND DISPOSED OF THE SAME BY THIS COMM ON ORDER. 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS ADDIT ION OF FREEZER DEPOSIT RECEIVED BY THE ASSESSEES. 3. SMT. VIJAYAPRABHA, THE LD.DR SUBMITTED THAT THE ASSESSEES RECEIVED THE COST OF THE FREEZERS WHICH WERE GIVEN TO THE DE ALERS. ACCORDING TO THE LD.DR, THE COST RECEIVED FROM THE DEALERS WHILE GIV ING FREEZERS TO THEM HAS TO BE TREATED AS INCOME. HOWEVER, THE ASSESSEES AR E SHOWING IT AS LIABILITY. THE LD.DR SUBMITTED THAT THE TRIBUNAL FOR EARLIER A SSESSMENT YEAR IN ASSESSEES OWN CASE HAS DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE. HOWEVER, APPEAL IS PENDING BEFORE THE HIGH COURT. ACCORDING TO THE LD.DR, NO INCIDENCE OF REFUND OF THE AMOUNT HAS BEEN BROUG HT TO THE NOTICE OF THE DEPARTMENT AT ANY POINT OF TIME. IN THOSE CIRCUMST ANCES, ACCORDING TO THE LD.DR, THIS TRIBUNAL HAS TO RECONSIDER ITS EARLIER DECISION. ON A QUERY FROM 3 ITA NO.22-24/COCH/2013 THE BENCH WHETHER THE TERMS AND CONDITIONS OF THE A GREEMENT OF THE EARLIER YEAR WHICH WAS SUBJECT MATTER OF THE DECISI ON OF THIS TRIBUNAL REMAINS THE SAME OR IS THERE ANY VARIATION, THE LD. DR VERY FAIRLY SUBMITTED THAT THE TERMS AND CONDITIONS FOR GIVING FREEZERS T O THE DEALERS REMAINS THE SAME AS IN THE CASE OF EARLIER YEAR WHICH WAS SUBJE CT MATTER OF APPEAL BEFORE THIS TRIBUNAL. 4. WE HEARD SHRI A.S. NARAYANAMURTHY, THE LD.REPRES ENTATIVE FOR THE ASSESSES ALSO. 5. ADMITTEDLY, THIS TRIBUNAL EXAMINED THE ISSUE IN ONE OF THE CASES UNDER CONSIDERATION IN RESPECT OF SIMILAR DEPOSIT R ECEIVED WHILE GIVING FREEZERS TO THE DEALERS. THE ASSESSEE IS SHOWING T HE SAME AS LIABILITY. IN OTHER WORDS, IT HAS TO BE REFUNDED AS PER THE TERMS AND CONDITIONS OF THE AGREEMENT. UNDER SECTION 5 OF THE INCOME-TAX ACT T HE MONEY RECEIVED WITH A RIGHT TO RETAIN AND USE THE SAME AS INCOME C OULD ALONE BE TREATED AS INCOME OF THE ASSESSEE. WHEN THE AMOUNT WAS RECEIV ED WITH A LIABILITY TO REFUND IT CANNOT BE TREATED AS INCOME AT ALL. MORE OVER, THE CO-ORDINATE BENCH DECISION OF THIS TRIBUNAL IN THE ASSESSEES O WN CASE FOR EARLIER 4 ITA NO.22-24/COCH/2013 ASSESSMENT YEAR ON IDENTICAL SET OF FACTS IS BINDIN G ON THIS TRIBUNAL. THE CIT(A) HAS FOLLOWED THE ORDER OF THIS TRIBUNAL IN T HE ASSESSEES OWN CASE FOR THE EARLIER ASSESSMENT YEAR. THEREFORE, THIS TRIBU NAL DO NOT FIND ANY INFIRMITY IN THE ORDERS OF THE CIT(A). ACCORDINGLY , THE SAME IS CONFIRMED. 5. IN THE RESULT, ALL THE THREE APPEALS OF THE REVE NUE STAND DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 12 TH APRIL, 2013. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 12 TH APRIL, 2013 PK/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH