The ITO, Ward- 1, RAJKOT-GUJARAT V. M/s. Udhyog Bharti, RAJKOT-GUJARAT

ITA 350/RJT/2011

• Counselvise Citation: 35024914 RSA 2011
• Duration Of Justice: 7 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-04-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 25-04-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 13-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Assessee Lawyers: DM RINDANI

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT . .. . . . . . , , , , . .. . . . . . , , , , $ $ $ $ BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K . SRIVASTAVA, AM. ITA NO. 350/RJT/2011, / ASSESSMENT YEAR 2008-09 I.T. O., WARD-1(2), RAJKOT UDHYOG BHARTI NR. CHORDI DARWAJA, GONDAL PAN: AAATU0391A C.O. NO. 58/RJT/2011, / ASSESSMENT YEAR 2008-09 UDHYOG BHARTI, GONDAL I.T. O. WARD-1(2), RAJKOT ) / REVENUE BY SHRI M. K. SINGH, D.R. +) / ASSESSEE BY SHRI D M RINDANI, FCA ) / DATE OF HEARING 25-04-2012. ) /DATE OF PRONOUNCEMENT 27-04-2012. / / / / ORDER . .. . . . . . / D. K. SRIVASTAVA: THE APPEAL FILED BY THE DEPARTMENT AND THE MEMORANDUM OF CROSS-OBJECTIONS FILED BY THE ASS ESSEE ARE DIRECTED AGAINST THE ORDER PASSED BY THE CIT(A) ON 29-06-2011. BEING CR OSS APPEALS, THEY ARE BEING DISPOSED OFF BY A CONSOLIDATED ORDER. 2. IN ITA NO.350/RJT/2011, THE DEPARTMENT HAS TAKEN THE FOLLOWING GROUNDS: 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS H AS DELETED THE ADDITION OF RS. 30,01,732/- MADE ON ACCOUNT OF INTEREST RECE IVED INVESTMENT OF SURPLUS FUND IN BANK FIXED DEPOSIT AND BOND. 2. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS HAS ALSO DELETED THE ADDITION OF RS. 8,57,208/- MADE BY ON ACCOUNT OF DE PRECIATION. 3. ON FACTS OF THE CASE, THE LD. CIT(A), RAJKOT OUG HT TO HAVE UPHELD THE ORDER OF THE ASSESSING OFFICER. 4. IT IS THEREFORE, PRAYED THAT THE ORDER OF LD. CI T(A)-I, RAJKOT MAY BE SET- A-SIDE AND THAT OF THE ASSESSING OFFICER BE RESTORE D. ITA 131/2011 & C.O.39-2011 2 3. AT THE TIME OF HEARING, IT WAS SUBMITTED THAT I DENTICAL ISSUES HAVE BEEN CONSIDERED AND DECIDED BY THIS TRIBUNAL IN FAVOUR O F THE ASSESSEE IN THE DEPARTMENTS APPEAL IN THE ASSESSEES OWN CASE FOR A.Y.2004-05 AND A.Y. 2006- 07. COPY OF ORDER DATED 19-03-201 PASSED BY THIS BE NCH IN ITO V. M/S. UDYOG BHARTI, GONDAL, ITA NO.100/RJT/2008 & C.O.04/RJT/20 09 FOR A.Y. 2004-05 HAS BEEN FILED. IT WAS SUBMITTED THAT THE DEPARTMENT HAS ALR EADY FILED APPEAL AGAINST THE AFORESAID ORDER BEFORE THE HONBLE HIGH COURT WHICH HAS BEEN ADMITTED. 4. AT THE TIME OF HEARING, THE LD. AUTHORIZED REPRE SENTATIVE FOR THE ASSESSEE HAS FILED DECLARATION IN FORM NO.8 U/S 158A(1) OF THE I NCOME-TAX ACT, READ WITH RULE 16 OF THE INCOME-TAX RULES. A COPY OF THE AFORESAID DE CLARATION FILED BY THE ASSESSEE WAS GIVEN TO THE LD. DEPARTMENTAL REPRESENTATIVE FO R COMMENTS. WHEN THE MATTER CAME UP FOR HEARING ON THE NEXT DATE, THE LD. DEPAR TMENTAL REPRESENTATIVE DID NOT OPPOSE THE AFORESAID DECLARATION. 5. IN VIEW OF THE FOREGOING, THE DECLARATION SUBMIT TED BY THE ASSESSEE U/S.158A(1) IS TAKEN ON RECORD. THE ISSUES RAISED B Y THE DEPARTMENT ARE DECIDED AGAINST IT FOLLOWING THE EARLIER ORDER OF THIS TRIB UNAL. AN AMENDMENT SHALL BE CARRIED OUT, IF NECESSARY, LATER IN TERMS OF SUB-SEC. (5) O F SEC. 158A(1). THE APPEAL FILED BY THE DEPARTMENT IS DISMISSED WITH THE AFORESAID OBSE RVATIONS. C.O.NO.58/RJT/2011 6. THE ASSESSEE HAS TAKEN THE FOLLOWING GROUND OF C ROSS OBJECTIONS:- 1. THAT THE LEARNED CIT (A)-1, RAJKOT HAS GRIEVOUS LY ERRED IN NOT ADJUDICATING ON THE GROUND NO.4 RAISED BY THE RESPO NDENT THAT ALTERNATIVELY AND WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED A.O . HAS GRIEVOUSLY ERRED IN NOT COMPUTING THE INCOME IN ACCORDANCE WITH THE PRO VISIONS OF SEC.11 OF THE ACT. 7. THE ISSUE UNDER APPEAL WAS TAKEN BEFORE THE LD. CIT(A) ALSO. HE HAS HOWEVER, NOT DISPOSED OFF THE SAME, WITH THE FOLLOW ING OBSERVATIONS:- 7.2. I HAVE DULY CONSIDERED THE CONTENTIONS OF THE LD.AR OF THE APPELLANT. SINCE THE MAIN GROUND OF THE APPELLANT RELATING TO THE BENEFIT OF SECTION 10(23B) W.R.T. THE INTEREST INCOME HAS ALREADY BEEN ALLOWED IN ITS FAVOUR THIS ALTERNATIVE GROUND OF APPEAL BECOMES INFRUCTUOUS. THIS GROUND OF APPEAL IS ACCORDINGLY DISMISSED. 8. WE HAVE HEARD THE PARTIES. THE LD. C.I.T.(A) HAS NOT ADJUDICATED UPON THE ISSUE UNDER APPEAL ON THE GROUND THAT HE HAS DECIDE D THE MAIM GROUND IN FAVOUR OF THE ASSESSEE. WE ARE UNABLE TO AGREE WITH THE SAME. UNLESS THE ISSUE U/S 10(23B) RAISED BY THE ASSESSEE ATTAINS FINALITY, THE ISSUE RAISED BY THE ASSESSEE IN THE ITA 131/2011 & C.O.39-2011 3 AFORESAID GROUND OF APPEAL SURVIVES. IN THIS VIEW OF THE MATTER, THE ISSUE RAISED BY THE ASSESSEE IN THE AFORESAID GROUND OF APPEAL IS R ESTORED TO THE FILE OF THE CIT(A) FOR A DECISION ON MERITS AND IN CONFORMITY WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. MEMORAN DUM OF CROSS-OBJECTIONS FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ) 0 27-04-2012 ) THIS ORDER PRONOUNCED ON 27 -04-2012. SD/- SD/- ( .. / T. K. SHARMA) ( .. / D. K. SRIVASTAVA) /JUDICIAL MEMBER / ACCOUNTANT MEMBER 0/ ORDER DATE 27- 04-2012. ) )) ) 34 34 34 34 54 54 54 54 / COPY OF ORDER FORWARDED TO:- 1. 8 / APPELLANT-ITO, WARD-1(2), RAJKOT. 2. 3:8 / RESPONDENT-M/S.UDHYOG BHARTI, GONDAL. 3. = / CONCERNED CIT-I, RAJKOT. 4. =- / CIT (A)-I, RAJKOT. 5. 4 3, , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , ASTT. REGISTRAR , INCOME TAX APPELLATE TRIBUNAL, RAJKOT.