M/s Krishi Upaj Mandi Samiti karond, Bhopal V. The ACIT, Bhopal

ITA 286/IND/2009

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1432 (ITAT-INDORE)
• Duration Of Justice: 6 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2009
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 24-11-2009
• Assessment Year: 2006-2007
• Appeal Filed On: 25-05-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: V K KARAN
• Assessee Lawyers: S N AGARWAL
• Keywords: Depreciation; Set aside
• Section: 12; 11

Judgement Text

PAGE 1 OF 4 - I.T.A.NO. 286/IND/2009 - KUMS, KAROND, BHOPAL IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH : INDORE BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI V.K. GUPTA, ACCOUNTANT MEMBER PAN NO. : AAALK0335J I.T.A.NO.286/IND/2009 A.Y. : 2006-07 KRISHI UPAJ MANDI SAMITI, ACIT, KAROND, VS 2(1), BHOPAL BHOPAL APPELLANT RESPONDENT APPELLANT BY : SHRI S.N.AGARWAL, C.A. RESPONDENT BY : SHRI V.K.KARAN, SR. DR DATE OF HEARING : 24/11/2009 O R D E R PER V.K. GUPTA, A.M. THIS APPEAL FILED BY THE ASSESSEE ARISES OUT OF ORD ER OF THE LD. CIT(A)-I DATED 12.3.2009 , FOR THE ASSESSMENT YEAR 2006-07. 2. WE HAVE HEARD BOTH THE PARTIES AND HAVE ALSO PERUSE D THE MATERIAL AVAILABLE ON RECORD. 3. GROUNDS NO. 1 READS AS UNDER :- THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE A.O. HAS ERRED IN NOT ALLOWING DEDUCTION IN RESPECT OF PAGE 2 OF 4 - I.T.A.NO. 286/IND/2009 - KUMS, KAROND, BHOPAL INCOME WHICH REQUIRES TO BE SET APART AS PER PROVIS IONS OF SECTION 11 & 12 OF THE INCOME-TAX ACT, 1961. 4. GROUND NO. 1 WAS NOT PRESSED, HENCE, THE SAME IS DI SMISSED AS NOT PRESSED. 5. GROUND NOS. 2 & 3 READ AS UNDER :- 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD. CIT(A) ERRED IN MAINTAINING DISALLOWANCE OF RS. 16,02,775/- 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE THE LD. CIT(A) ERRED IN MAINTAINING DISALLOWANCE OF RS. 7,00,000/- MADE BY THE ASSESSING OFFICER IN RESPECT OF CONTRIBUTION TOWARDS STHAI NIDHI. 6. THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT TH ESE ISSUES RAISED WERE REQUIRED TO BE SET ASIDE TO THE FILE OF A.O. IN VIEW OF THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2004- 05 IN I.T.A.NO. 72/IND/2008 ORDER DATED 30.6.2009 A ND DREW OUR ATTENTION TO PARA 4 AT PAGE 10 OF THE SAID ORDER OF THE TRIBUNAL. HE FURTHER CONTENDED THAT ISSUE WAS SET-ASIDE BY THE TRIBUNAL ON THE BASIS OF THE ORDER OF THE TRIBUNAL IN THE CASE OF KRISHI UPAJ MA NDI SAMITI, BURHANPUR, IN I.T.A.NO. 277 & 278/IND/2008 FOR ASSESSMENT YEAR S 2004-05 AND 2005- PAGE 3 OF 4 - I.T.A.NO. 286/IND/2009 - KUMS, KAROND, BHOPAL 06 AND ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2003-04. 7. THE LD. DEPARTMENTAL REPRESENTATIVE ALSO AGREED. A CCORDINGLY, WE RESTORE THE ISSUE RAISED IN THIS GROUND TO THE F ILE OF A.O. FOR DECISION THEREON ON SIMILAR LINES. THUS, GROUND NOS. 2 & 3 O F THE ASSESSEES APPEAL STAND ALLOWED FOR STATISTICAL PURPOSES. 8. AS REGARDS THE ISSUE RAISED IN GROUND NO. 4, THE LE ARNED COUNSEL SUBMITTED THAT THIS ISSUE WAS ALSO REQUIRED TO BE S ET-ASIDE TO THE FILE OF A.O. TO CALCULATE THE CORRECT W.D.V. IN VIEW OF TH E TRIBUNALS ORDER AND ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2004-05 IN I.T.A.NO. 72/IND/2008 ORDER DATED 30.6.2009 AND DREW OUR ATTE NTION TO PARA 7 AT PAGE 26 OF THE TRIBUNAL ORDER. HE FURTHER CONTENDED THAT THE TRIBUNAL RESTORED THIS ISSUE TO THE FILE OF A.O. AFTER CONSI DERING THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2003-04 AND IN THE CASE OF KRISHI UPAJ MANDI SAMITI, BURHANPUR, AS REP ORTED IN 12 ITJ 12. THE LEARNED COUNSEL FURTHER SUBMITTED THAT A VIEW H AD BEEN TAKEN BY THE CIT(A) THAT IN CASE OF TRUST, THE DEPRECIATION WAS NOT ALLOWABLE TO THE ASSESSEE ON THE BASIS OF THE DECISION OF THE HON'BL E SUPREME COURT IN THE CASE OF ESCORTS LIMITED AS REPORTED 199 ITR 43. HOW EVER, THIS ASPECT HAD ALSO BEEN CONSIDERED BY THE TRIBUNAL IN THE CA SE OF ACIT VS. PAGE 4 OF 4 - I.T.A.NO. 286/IND/2009 - KUMS, KAROND, BHOPAL M.P.MADHYAM & OTHERS, AS REPORTED IN 13 ITJ 103. HE NCE, THIS ASPECT HAD ALSO ATTAINED FINALITY AT THE MOMENT. 9. THE LD. DEPARTMENTAL REPRESENTATIVE ALSO AGREED. 10. ACCORDINGLY, WE RESTORE THIS ISSUE TO THE FILE OF A.O. TO COMPUTE THE W.D.V. WHERE ON THE DEPRECIATION CAN BE ALLOWED TO THE ASSESSEE IN THE YEAR UNDER CONSIDERATION . IT IS NE EDLESS TO MENTION THAT THE A.O. SHALL GRANT ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE, WHILE DOING SO. THUS, GROUND NO,. 4 OF THE ASSESSEES APP EAL IS ALSO ALLOWED FOR STATISTICAL PURPOSES. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE PAR TLY ALLOWED FOR STATISTICAL PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 27 TH NOVEMBER, 2009. SD/- SD/- (JOGINDER SINGH) (V. K. GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED :27 TH NOVEMBER, 2009. CPU* 2425D 26