The ACIT, Circle-6, Surat V. Ukai Pradesh Sahakari Khand Udhyog Mandli Ltd., Surat

ITA 3391/AHD/2009

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6476 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 1995-1996
• Appeal Filed On: 23-12-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SAMIR TEKRIWA LA
• Assessee Lawyers: MEHUL K PATEL
• Keywords: Opportunity of being heard; Capital receipt

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI T. K. SHARMA, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER I.T.A. NO. 3388, 3389, 3390 & 3391 / AHD/2009 (ASSESSMENT YEARS 1992-93 TO 1995-96) ACIT, CIRCLE - 6, SURAT VS. UKAI PRADESH SAHAKARI KHAND UDHYOG MANDLI LTD., KHUSHALIPURA, TAL. VYARA, SURAT PAN/GIR NO. : AAAAS5807J (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI SAMIR TEKRIWALA, SR. DR RESPONDENT BY: SHRI MEHUL K PATEL, AR O R D E R PER SHRI A. K. GARODIA, AM :- ALL THESE FOURS APPEALS ARE FILED BY THE REVENUE A GAINST FOUR SEPARATE ORDERS OF LD. CIT(A) IV, SURAT ALL DATED 12.08.200 9 FOR THE ASSESSMENT YEARS 1992-93 TO 1995-96. SINCE THE ISSUE INVOLVED IS COMMON AND THE ORDER OF LD. CIT(A) IS IDENTICAL IN ALL THE FOUR YE ARS, THESE FOUR APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. I.T.A.NO. 3388-3391 /AHD/2009 2 2. THE GROUNDS RAISED BY THE REVENUE ARE IDENTICAL IN ALL THE FOUR YEARS EXCEPT DIFFERENCE IN AMOUNT AND HENCE, WE REPRODUCE THE GROUNDS FROM I.T.A.NO. 3388/AHD/2009 FOR THE ASSESSMENT YEAR 199 2-93: 1) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) IV, SURAT HAS ERRED IN DELETING THE ADDI TIONS MADE BY THE A.O. OF RS.10,19,784/- RELYING UPON THE ORDER OF HI S PREDECESSOR IN THE CASE OF SHREE SAYAN VIBHAG SAHAKARI KHAND UDYOG MANDLI LTD. FOR ASSESSMENT YEAR 2001-02 AND 2002-03 DATED 10.08 .2005. 2) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LD. CIT(A) IV, SURAT OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. 2. THE LD. D.R. SUPPORTED THE ASSESSMENT ORDERS IN ALL THE FOUR YEARS AND SUBMITTED THAT THE A.O. HAS DECIDED THE ISSUE AGAIN ST THE ASSESSEE BY FOLLOWING TWO JUDGEMENTS OF HONBLE APEX COURT REND ERED IN THE CASE OF SIDDHESWAR SAHKARI KARKHANA LTD. VS CIT & ORS. 270 ITR 01 (S.C.) AND IN THE CASE OF CHAURANGEE SALES CORPORATION VS SHRI KA BRAWALA. IT IS SUBMITTED BY HIM THAT THE ORDER OF LD. CIT(A) SHOUL D BE REVERSED AND THAT OF THE A.O. SHOULD BE RESTORED IN ALL THE FOUR YEARS. 3. AS AGAINST THIS, IT IS SUBMITTED BY THE LD. A.R. THAT IN THESE CASES, THIS IS A 2 ND ROUND BEFORE THE TRIBUNAL AND IN THE 1 ST ROUND, THE MATTER WAS RESTORED BACK BY THE TRIBUNAL TO THE A.O. FOR A FRESH DECISI ON AS PER DECISION DATED 21.10.2004 AND THE MATTER WAS REMANDED TO THE FILE OF THE A.O. FOR FRESH DECISION IN VIEW OF THE DECISION OF HONBLE APEX CO URT RENDERED IN THE CASE OF SIDDHESWAR SAHKARI KARKHANA LTD. (SUPRA). IT IS SUBMITTED THAT THE A.O. SHOULD HAVE DECIDED THE ISSUE AFRESH AFTER EXAMININ G THE NATURE OF EACH TYPE OF FUNDS COLLECTED BY THE ASSESSEE I.E. RASTA SUDHA RNA FUND, JAMIN SUDHARNA FUND, KALYAN FUND AND KHEDUT UTKARSH FUND. IT IS S UBMITTED BY HIM THAT THE A.O. HAS SIMPLY FOLLOWED THE JUDGMENTS OF HONB LE APEX COURT AND DECIDED THE ISSUE AGAINST THE ASSESSEE WITHOUT EXAM INING THE NATURE OF THESE I.T.A.NO. 3388-3391 /AHD/2009 3 4 FUNDS COLLECTED BY THE ASSESSEE. IT IS ALSO SUBM ITTED BY HIM THAT THE ORDER OF LD. CIT(A) IS ALSO CRYPTIC AND HE HAD SIMPLY FOL LOWED ANOTHER ORDER OF HIS PREDECESSOR IN A DIFFERENT CASE I.E. IN THE CAS E OF SHREE SAHYOG VIBHAG SAHKARI KHAND UDYOG & OTHERS FOR THE ASSESSMENT YEA RS 2001-02 & 2002- 03 AND IT IS NOT KNOWN AS TO WHETHER ANY APPEAL HAS BEEN FILED BY THE REVENUE BEFORE THE TRIBUNAL IN THAT CASE AND IF FIL ED, WHAT IS ITS FATE. IT IS SUBMITTED BY HIM THAT THE MATTER IN ALL THE FOUR YE AS MAY BE RESTORED BACK TO THE FILE OF THE A.O. FOR A FRESH DECISION AFTER EX AMINING THE NATURE OF EACH FUND. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. WE FIND THAT IT IS NOTED BY THE A.O. IN PARA 3.3 OF THE ASSESSME NT ORDER THAT THE TRIBUNAL HAS RESTORED BACK THE ISSUE TO THE FILE OF THE A.O. WITH THE DIRECTION TO EXAMINE THE ISSUE IN THE LIGHT OF JUDGMENT OF HONB LE APEX COURT RENDERED IN THE CASE OF SIDDHESWAR SAHKARI KARKHANA LTD. (SU PRA). THE A.O. HAS SIMPLY NOTED DOWN THE DECISION OF HONBLE APEX COUR T AND HELD THAT IN VIEW OF THE DECISION OF HONBLE APEX COURT, THE ISS UE IS COVERED AGAINST THE ASSESSEE. BUT WHEN WE EXAMINE THIS JUDGMENT OF THE HONBLE APEX COURT IN THE CASE OF SIDDHESWAR SAHKARI KARKHANA LTD. (SUPRA ), WE FIND THAT IN THAT CASE, THE ISSUE INVOLVED WAS IN CONNECTION WITH VAR IOUS FUNDS COLLECTED BY THE ASSESSEE I.E. CANE DEVELOPMENT FUND, AREA DEVEL OPMENT FUND, CHIEF MINISTER RELIEF FUND, Y B CHAUWAN MEMORIAL FUND ETC . IT WAS HELD BY THE HONBLE APEX COURT THAT THE AMOUNT COLLECTED TOWARD S CANE DEVELOPMENT FUND SHOULD BE TREATED AS INCOME OF THE ASSESSEE AN D ANY CLAIM FOR DEDUCTION SHOULD BE ENTERTAINED AND SHOULD BE DECIDED BY THE TRIBUNAL. REGARDING AREA DEVELOPMENT FUND, THE MATTER WAS REMITTED TO T HE TRIBUNAL FOR FRESH DETERMINATION SUBJECT TO OBSERVATION MADE BY THE HO NBLE APEX COURT IN I.T.A.NO. 3388-3391 /AHD/2009 4 THAT JUDGMENT. WITH REGARD TO OTHER ITEMS, THE APP EAL OF THE ASSESSEE WAS DISMISSED. HENCE, IT IS NOTED THAT THE AMOUNT COLL ECTED FOR EACH FUND HAS TO BE EXAMINED AND THEN IT HAS TO BE DECIDED WITH REGA RD TO EACH FUND SEPARATELY AS TO WHETHER THE NATURE OF THE FUND IN QUESTION IS OF REVENUE RECEIPT OR CAPITAL RECEIPT. SINCE THIS WAS NOT DON E IN THE PRESENT CASE, WE SET ASIDE THE ORDER OF CIT(A) FOR ALL THE FOUR YEAS AND RESTORE THE MATTER BACK TO THE FILE OF THE A.O. FOR A FRESH DECISION AFTER EXA MINING THE NATURE OF EACH FUND COLLECTED BY THE ASSESSEE IN THE LIGHT OF THIS JUDGEMENT OF HONBLE APEX COURT RENDERED IN THE CASE OF SIDDHESWAR SAHKARI KA RKHANA LTD. (SUPRA). THE A.O. SHOULD PASS NECESSARY ORDERS AS PER LAW AS PER THE ABOVE DISCUSSION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE ALSO DIRECT THE A.O. TO PASS A SPEAK ING ORDER AFTER EXAMINING THE NATURE OF EACH FUND IN THE LIGHT OF THIS JUDGME NT OF HONBLE APEX COURT. 5. IN THE RESULT, ALL THE FOUR APPEALS OF THE REVEN UE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. ORDER PRONOUNCED IN THE OPEN COURT ON 09 TH JUNE 2011. SD./- SD./- (T. K. SHARMA) (A.K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED : 09 TH JUNE, 2011 SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD 6. THE GUARD FILE I.T.A.NO. 3388-3391 /AHD/2009 5 1. DATE OF DICTATION 7/6/11 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 8/6/11. OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 8/6/11 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 9/6/11 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S. 9/6/11 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 9/6/11 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. ..