Dy.C.I.T.-6, Jhansi V. M/s Bharat Explosive Ltd., Jhansi

ITA 330/AGR/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6937 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-07-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 21-07-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 12-07-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: HOMI RAJVANSH
• Assessee Lawyers: UMESH KUMAR FINANCE MANAGER
• Section: 260A; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, AGRA BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO.330/AGR/2010 ASSESSMENT YEAR: 2003-04 DY. COMMISSIONER OF INCOME TAX-6, VS. M/S BHARAT E XPLOSIVE LIMITED, JHANSI. 9 KM LALITPUR JHANSI ROAD, LALITPUR. (PAN : AAACB 8498 M). (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI HOMI RAJ VANSH, C.I.T. (D.R.) RESPONDENT BY : SHRI UMESH KUMAR, FINANCE MANAGER ORDER PER H.S. SIDHU, J.M. : THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST TH E ORDER DATED 08.04.2010 PASSED BY THE LD. CIT(A)-II, AGRA ON THE FOLLOWING GROUNDS OF APPEAL :- 1. THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APP EALS)-II, AGRA HAS ERRED IN LAW AND ON FACTS IN ALLOWING THE APPEAL OF THE ASSESSEE ON THE BASIS OF THE DECISION OF HONBLE TR IBUNAL RENDERED IN THE CASE OF THE ASSESSEE IN THE SAME ASSESSMENT YEA R I.E. 2003-2004. 2. THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APP EALS)-II, AGRA HAS ERRED IN LAW AND ON FACTS IGNORING THE FAC TS THAT THE REVENUE HAS PREFERRED AN APPEAL U/S 260A OF THE ACT BEFORE THE HONBLE HIGH COURT, ALLAHABAD AGAINST THE ORDER OF THE HONBLE T RIBUNAL DATED 16.10.2009 IN ITA NO.237/AGR/2008. 2 3. THAT THE ORDER OF THE LEARNED COMMISSIONER OF IN COME-TAX (APPEALS) DESERVES TO BE CANCELLED AND THAT OF THE A.O.S BE RESTORED. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD OR ALTER ANY OR MORE GROUND OR GROUNDS OF APPEAL AS MAY BE DEEMED FIT AT THE TIME OF HEARING OF APPEAL. 2. NOTICE OF HEARING WAS ISSUED FOR 18.07.2011 TO T HE ASSESSEE BY REGISTERED POST ACKNOWLEDGEMENT DUE. IN RESPONSE TO THE SAME, SHRI UMESH KUMAR, FINANCE MANAGER OF THE ASSESSEE COMPANY APPEARED AN D FILED POWER OF ATTORNEY OF SHRI R.M. MEHTA, ADVOCATE ON BEHALF OF THE ASSESSEE ALONGWITH AN APPLICATION DATED 16.07.2011, CONTENTS OF THE SAME ARE REPRODUC ED AS UNDER :- THE AFORESAID APPEAL OF THE DEPARTMENT IS FIXED FO R HEARING ON MONDAY, THE 18 TH JULY, 2011. I HAVE MATTERS BEFORE THE DELHI HIGH COURT ON THE SAID DATE AND WOULD NOT BE ABLE TO ATT END PERSONALLY IN THE AFORESAID APPEAL. IN AS MUCH AS THE ISSUE IS S MALL, I AM NOT REQUESTING FOR AN ADJOURNMENT BUT FORWARDING FOR TH E CONSIDERATION OF THE BENCH, THE FOLLOWING WRITTEN SUBMISSIONS. THE PROCEEDINGS IN THE ABOVE SAID APPEAL ARISE CONS EQUENT TO THE ORDER DATED 26.12.2008 PASSED BY THE ASSESSING OFFICER TO GIVE EFFECT TO THE ORDER PASSED U/S 263 OF THE LT. ACT B Y THE LEARNED CIT, AGRA ON 20.03.2008. AGAINST THE AFORESAID ORDER PA SSED U/S 263, THE ASSESSEE FILED AN APPEAL BEFORE THE TRIBUNAL AND WH ICH CAME TO BE DECIDED VIDE ORDER DATED 16.10.2009 IN ITA NO.237/A GR/2008. A COPY OF THE SAID ORDER CANCELLING THE 263 ORDER IS ENCLO SED. THE ASSESSING OFFICER PURSUANT TO THE ORDER PASSED BY THE CIT DATED 20.03.2008 REFRAMED THE ASSESSMENT VIDE ORDER DATED 26.12.2008. TAKING INTO ACCOUNT THE ORDER OF THE T RIBUNAL DATED 16.10.2009, THE LEANED CIT(A) BY MEANS OF AN ORDER DATED 08.04.2010 AND WHICH IS IMPUGNED IN THE PRESENT APPEAL CANCELL ED THE ORDER PASSED BY THE AO ON 26.12.2008. 3 THE DEPARTMENT HAS FILED AN APPEAL U/ S 260A BEFORE THE HONBLE ALLAHABAD HIGH COURT AGAINST THE ORDER OF T HE TRIBUNAL DATED 16.10.2009 AND WHICH IS PENDING. THE PRESENT APPEAL FILED BY THE DEPARTMENT IS PROBABLY WITH A VIEW TO KEEP THE MATTER ALIVE. IN VIEW OF THE AFORESAID FACTS, THE PRESENT APPEAL FILED BY THE DEPARTMENT IS LIABLE TO BE REJECTED AND AN ORDER TO THAT EFFECT IS PRAYED FOR. THANKING YOU, YOURS FAITHFULLY, SD/- 16.07.2011 (R.M. MEHTA) ADVOCATE 3. THE LD. DEPARTMENTAL REPRESENTATIVE REQUESTED FO R A SHORT ADJOURNMENT AND THE CASE WAS ADJOURNED FOR 21.07.2011. TODAY SHRI HOMI RAJ VANSH, LD. C.I.T. (D.R.) APPEARED AND STATED THAT THE LD. COUNSEL FOR THE ASSESSEE FILED A WRITTEN SUBMISSION DATED 16.7.2011 IN WHICH HE HAS RIGHTLY STATED THAT THE DEPARTMENT HAS FILED AN APPEAL BEFORE THE HONBLE ALLAHABAD HIGH C OURT AGAINST THE ORDER OF THE TRIBUNAL DATED 16.10.2009 WHICH IS STILL PENDING IN THE HONBLE HIGH COURT. 4. KEEPING IN VIEW OF THE CONTENTION RAISED BY THE LD. DEPARTMENTAL REPRESENTATIVE AS WELL AS THE LD. COUNSEL FOR THE A SSESSEE IN HIS APPLICATION DATED 16.07.2011 (REPRODUCED ABOVE), WE ARE OF THE CONSID ERED OPINION THAT NO USEFUL PURPOSE WOULD BE SERVED BY KEEPING THE MATTER PENDI NG BEFORE THIS TRIBUNAL. THEREFORE, IN THE INTEREST OF JUSTICE, WE ARE OF TH E OPINION THAT THE ISSUE IN DISPUTE 4 TO BE SET ASIDE TO THE ASSESSING OFFICER TO DECIDE THE SAME, KEEPING IN VIEW THE DECISION OF THE HONBLE ALLAHABAD HIGH COURT, AS ST ATED ABOVE. 5. IN THE RESULT, APPEAL FILED BY THE REVENUE IS AL LOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 28.07.2 011). SD/- SD/- (P.K. BANSAL) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: AGRA DATE: 28 TH JULY, 2011 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL, AGRA TRUE COPY