M/s Punjab State Coop Milk Producers Federation Ltd., Chandigarh V. DCIT, Chandigarh

ITA 38/CHANDI/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0538 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 10 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 05-01-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: M R SHARMA
• Keywords: Question of law
• Section: 10; 14A

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BE NCH B,CHANDIGARH , ! ' . . . . # , $% ! BEFORE: SMT. DIVA SINGH, JM & DR. B.R.R.KUMAR, AM ./ ITA NO. 38/CHD/2017 / A.Y : 2012-13 M/S PUNJAB STATE COOP. MILK PRODUCERS FEDERATION LTD., SCO NO. 153-155, SECTOR 34-A, CHANDIGARH. VS THE DCIT, CIRCLE 4(1), CHANDIGARH. ./PAN NO: AAAAP1208Q /APPELLANT /RESPONDENT /ASSESSEE BY : SHRI M.R.SHARMA / REVENUE BY : SHRI RAM MOHAN SINGH, CIT-DR ! ' # /DATE OF HEARING : 11.10.2018 $%&' # /DATE OF PRONOUNCEMENT : 30.11.2018 $&/ ORDER PER DIVA SINGH THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A SSAILING THE CORRECTNESS OF THE ORDER DATED 24.10.2016 OF CIT(A)-2 CHANDIGARH PERTA INING TO 2012-13 ASSESSMENT YEAR ON THE FOLLOWING GROUNDS : 1. THAT THE ORDER OF THE ASSESSING OFFICER AS UPHELD B Y THE COMMISSIONER OF INCOME TAX (APPEALS)-2, CHANDIGARH IS BAD IN LAW AND IS BE YOND ALL THE CANNONS OF LAW AND JUSTICE. 2. THAT THE ORDER OF THE. ASSESSING OFFICER AS UPHEL D BY THE COMMISSIONER OF INCOME TAX (APPEALS)-2, CHANDIGARH ATTRIBUTING EXPENSES TO THE INCOME WHICH IS ENTITLE TO DEDUCTION U/S 80P(2)(D) AMOUNTING TO RS. 6,44,74,79 7/- AGAINST THE GROSS INTEREST INCOME OF RS. 7,82,30,519/- BY APPLYING THE PROVISI ONS OF SECTION 14-A IS BAD IN LAW AND IS AGAINST THE JUDICIAL DECISIONS IN THIS BEHAL F. 3. THAT THE ORDER OF THE ASSESSING OFFICER AS UPHELD B Y THE COMMISSIONER OF INCOME TAX (APPEALS)-2, CHANDIGARH NOT ALLOWING DEDUCTION U/S 80P(2)(C) AMOUNTING TO RS. 50,000/- IS BAD IN LAW AND NEEDS TO BE ALLOWED. 4. THAT THE ORDER OF THE ASSESSING OFFICER AS UPHELD B Y THE COMMISSIONER OF INCOME TAX (APPEALS)-2, CHANDIGARH MAKING AN ADDITION OF R S 573655A BEING THE AMOUNT OF DIFFERENCE IN THE AMOUNT OF TRADE MARK CH ARGES AS PER BOOKS AND AS PER FORM 26AS IS BAD IN LAW AND NEEDS TO BE SET ASIDE. 5. THAT THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR DE LETE ANY OF THE GROUNDS OF APPEAL BEFORE THE SAME IS FINALLY HEARD. 2. THE LD. CIT-DR WAS REQUIRED TO ADDRESS THE DEPAR TMENTAL STAND QUA THE DIRECTIONS GIVEN BY THE CO-ORDINATE BENCH ON 05.06.2018 WHICH REQUIRED THE AOS COMMENTS ON THE APPLICATION MADE BY THE ASSESSEE U/S 158A OF THE AC T. THE LD. CIT-DR RELYING UPON THE ITA 38/CHD/2017 A.Y.2012-13 PAGE 2 OF 5 APPLICATION FILED STATED THAT THE AO PLEADS INABILI TY TO PLACE HIS COMMENTS IN THE ABSENCE OF THE GROUNDS RAISED BY THE ASSESSEE BEFORE THE APEX COURT IN THE SLP FILED IN 2010-11 AND 2011-12 ASSESSMENT YEAR. MR. M.R. SHARMA, ADVOCATE STRONGLY OBJECTING TO THE SAID COMMENTS OF THE AO, INVITED ATTENTION TO THE ORDER DATED 17.07.2018 IN ITA 1666/CHD/2017 PERTAINING TO 2013-14 ASSESSMENT YEAR WHEREIN THE AO HAS GIVEN HIS ACCEPTANCE TO A SIMILAR REQUEST IN SIMILAR SET OF F ACTS AND CIRCUMSTANCES WHEREIN SIMILAR ISSUES BY WAY OF ASSESSEE'S GROUNDS ARE PENDING BEF ORE THE APEX COURT. IN TERMS OF THE SAID ACCEPTANCE, THE AO IS EXPECTED TO ABIDE BY THE OUTCOME OF THE ASSESSEES SLP IN TERMS OF SUB-SECTION (5) OF SECTION 158A IN 2013-14 ASSES SMENT YEAR AND THUS IN 2012-13 ASSESSMENT YEAR, HE CANNOT BE ALLOWED TO PLEAD LACK OF AWARENESS OF THE GROUNDS RAISED. INVITING ATTENTION TO THE AFORESAID ORDER OF THE IT AT, IT WAS HIS SUBMISSION THAT IDENTICAL GROUNDS EXCEPT FOR GROUND NO. 4 IN THE PRESENT APPE AL HAD BEEN RAISED IN THE SAID APPEAL ALSO AND THE GROUND NOS. 1, 2, 3 AND 5 ARE IDENTICA L GROUNDS TO WHAT HAD BEEN RAISED BY THE ASSESSEE IN THE EARLIER YEARS. THESE ISSUES OVER TH E YEARS, IT WAS SUBMITTED, HAVE BEEN DECIDED AGAINST THE ASSESSEE RIGHT UPTO THE STAGE O F HON'BLE HIGH COURT AND THE ASSESSEE HAS RAISED VARIOUS QUESTIONS OF LAW AGAINST THE SAI D ORDER AND HAS MOVED THE PRESENT APPLICATION IN ORDER TO AVOID MULTIPLICITY OF APPEA LS. ACCORDINGLY, IT WAS HIS SUBMISSION, THE OCCASION FOR THE DEPARTMENT IN THE PECULIAR CIR CUMSTANCES TO OBJECT DOES NOT ARISE. 3. THE LD. CIT-DR CONSIDERING THE AFORESAID ORDER O F THE ITAT AGREED THAT THE AO ADMITTEDLY IN 2013-14 ASSESSMENT YEAR HAS ALREADY G IVEN HIS CONCURRENCE. IN THE SAID BACKGROUND, TAKING NOTE OF THE FACT THAT THE ISSUES ADDRESSED IN GROUND NO. 1, 2, 3 AND 5 FOLLOWING THE PRECEDENT, HAVE BEEN DECIDED AGAINST THE ASSESSEE, HE STATED THAT THE DEPARTMENT CAN HAVE NO OBJECTION IN THE CIRCUMSTANC ES TO ABIDE BY THE ORDER IN THE YEAR UNDER CONSIDERATION ALSO. THESE FACTS BORNE OUT FR OM PARAS 6 AND 7 OF THE IMPUGNED ORDER RELIED UPON BY THE CIT-DR ARE REPRODUCED HEREUNDER FOR READY REFERENCE : 6. GROUND OF APPEAL NO. 2 IS AGAINST ATTRIBUTING EXPENSES TO THE INCOME WHICH IS ENTITLED TO DEDUCTION U/S 80P(2)(D) AMOUNTING TO RS . 6,44,74,797/- BY APPLYING THE PROVISIONS OF SECTION 14A OF THE ACT. 6.1 APPELLANT MADE SUBMISSION THAT THIS ISSUE IS COVERED AGAINST THE ASSESSEE BY THE ORDER DATED 10.04.2015 OF ITAT CHANDIGARH BENCH 'A' IN THE CASE OF THE APPELLANT FOR A.Y. 211-12 IN ITA NO. 97/CHD/2015. APPELLANT FILED COPY OF THE SAID ORDER. IT WAS ALSO SUBMITTED THAT THE ASSESSEE HAS FILED SLP IN THE SUPREME COUR T OF INDIA AGAINST THE ORDER PASSED BY THE PUNJAB & HARYANA HIGH COURT FOR THE A.Y. 2010-11 FO R WHICH LEAVE HAS BEEN GRANTED. 6.2 I HAVE PERUSED THE ORDER DATED 10.04.2015 OF HON'BLE (TAT, CHANDIGARH BENCH IN THE CASE OF THE APPELLANT FOR A.Y. 2011-12 IN IT A NO. 97/CHD/2015 WHEREIN THE ISSUE HAS BEEN DECIDED BY HON'BLE TRIBUNAL AGAINST THE ASSESS EE. RESPECTFULLY FOLLOWING THE DECISION OF HON'BLE ITAT, THE DISALLOWANCE MADE BY THE A.O O F RS. 6,44,74,797/-UNDER SECTION 14A AS PER RULE 8D IS CONFIRMED. GROUND OF APPEAL N O. 2 IS DISMISSED. 4. ACCORDINGLY, CONSIDERING THE FACTUAL BACKGROUND AND THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH, GROUND NOS. 1, 2, 3 AND 5 ARE DIS MISSED RELYING UPON THE PART HISTORY TAKING OF THE FACT THAT THE CORRECTNESS OF THE ORDE R IS UNDER CHALLENGE BEFORE THE APEX ITA 38/CHD/2017 A.Y.2012-13 PAGE 3 OF 5 COURT. RELEVANT DISCUSSION ON THESE ISSUES IN THE A FORESAID ORDER OF THE ITAT IS EXTRACTED HEREUNDER FOR READY REFERENCE : 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE ASSESSEE IS AN APEX COOPERATIVE SOCIETY DULY REGISTERED UNDE R THE PUNJAB COOP SOCIETIES ACT, 1961. THE MAIN ACTIVITY OF THE ASSESSEE SOCIETY AS NOTED IS TO ASSIST ITS MEMBER CO-OPERATIVE SOCIETIES IN PROMOTING PRODUCTION, PROCUREMENT, PRO CESSING AND MARKETING OF MILK AND MILK PRODUCTS. THE ASSESSEE IS ALSO STATED TO BE PROVIDI NG FOR THE ECONOMIC DEVELOPMENT OF DAIRY FARMERS WHO ARE THE MEMBERS OF THE SOCIETIES WHO AR E FURTHER MEMBERS OF THE ASSESSEE SOCIETY. THE ASSESSEE IS ALSO ASSISTING ITS MEMBERS IN ARRANGING CITY SUPPLY OF MILK, MILK PRODUCTS I.E. GHEE, PANEER, CURD, KHEER AND OTHER M ILK PRODUCTS. THE ASSESSEE IS ALSO ASSISTING THE FARMERS THROUGH THEIR MEMBERS SOCIETIES IN PROV IDING QUALITY CATTLE FEED THROUGH ITS TWO CATTLE FEED PLANTS IN THE STATE OF PUNJAB. CONSIDE RING THE VIEW TAKEN IN 2002-03 ASSESSMENT YEARS, ADDITIONS BY WAY OF DISALLOWANCES WERE MADE IN THE YEAR UNDER CONSIDERATION BY THE AO. 4.1. IN APPEAL BEFORE CIT(A), THE FOLLOWING SUBM ISSIONS WERE MADE ON BEHALF OF THE ASSESSEE ASSAILING THE ACTION OF THE AO : 6.1 DURING THE COURSE OF APPELLATE PROCEEDINGS THE APPELLANT MADE THE FOLLOWING SUBMISSIONS :- '4. THAT THE APPELLANT DURING THE YEAR UNDER CONSID ERATION WHILE FILING ITS RETURN OF INCOME COMPUTED THE INCOME AND PREPARED A COMPUTATI ON CHART. THE APPELLANT FILED COMPUTATION CHART ALONG WITH THE ANNUAL ACCOUNTS AN D THE AUDIT REPORTS IN RESPONSE TO NOTICE OF THE ASSESSING OFFICER. THE PERUSAL OF THE COMPUTATION CHART REVEALS THAT THE ASSESSES HAD COMPUTED BUSINESS LOSS TO THE EXTENT O F RS 11,63, 94, 666/- AS COMPUTED IN THE COMPUTATION CHART. FURTHER THE ASSE SSEE HAD INTEREST INCOME FROM OTHER MEMBER COOPERATIVE SOCIETIES AMOUNTING TO RS 14,85, 23,410/-INCOME FROM THE SALE OF SEED AMOUNTING TO RS 2,65,89,053/-DIVIDEND INCOME R S 4,01,460/- INTEREST INCOME ON FDR RS 7,42,777/- AND INTEREST INCOME RS 3,86,682/- AS PER SCHEDULE-M BESIDES NET AGRICULTURAL INCOME AT RS 57,37,775/-. THE BALANCE INCOME WORKS OUT TO RS 5,96,48,727/- AS MENTIONED ABOVE. THE APPELLANT AS PER THE CHART OF COMPUTATIO N FILED ALONG WITH THE RETURN OF INCOME WAS ELIGIBLE FOR RS 77,57,62,468/- AS DEDUCTION U/S 80P OF THE INCOME TAX ACT. THE SAID CLAIM HAS BEEN DULY MADE IN THE RETURN OF INCOME AN D THE RETURNED INCOME HAS BEEN DECLARED BY THE ASSESSEE AT NIL, WHICH FACT IS EVID ENT FROM THE PERUSAL OF THE COMPUTATION CHART. 5. THAT DURING THE COURSE OF HEARING THE APPELLANT WAS ASKED TO FILE VARIOUS DETAILS BY THE ASSESSING OFFICERS, WHICH WERE DULY FILED AS IS EVIDENT FROM THE PERUSAL OF THE ORDER OF ASSESSMENT. THE ASSESSING OFFICER ALSO DES IRED TO EXAMINE THE BOOKS OF ACCOUNT WHICH WERE ALSO PRODUCED BEFORE THE ASSESSING OFFIC ER AS ADMITTED N THE ORDER OF ASSESSMENT PASSED IN THIS CASE. 6. THAT DURING THE COURSE OF THE ASSESSMENT PROCEED INGS THE APPELLANT ALSO BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER THAT WHILE ALLOWING DEDUCTION U/S 80P(2)(D) IT IS THE GROSS TOTAL INCOME WHICH AN ASS ESSEE /S ENTITLE TO DEDUCTION AND NOT THE NET INCOME. THIS VIEW HAS BEEN EXPRESSED BY THE PUN JAB AND HARYANA HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. DOABA COOPERATIVE SUGAR MILLS LTD. 230 ITR PAGE 774 IT WAS ALSO BROUGHT TO THE NOTICE OF THE ASSESS ING OFFICER THAT THE SLP FILED AGAINST THIS ORDER HAS ALSO BEEN DISMISSED BY THE HON'BLE S UPREME COURT OF INDIA AND AS SUCH THIS ORDER HAS ATTAINED FINALITY. THE ASSESSING OFF ICER HAS ALTHOUGH REFERRED TO THE SUBMISSIONS MADE BY THE APPELLANT BUT HAS NOT FOLLO WED THE SAME WITHOUT ASSIGNING ANY REASON OR CONTRARY DECISION IN THIS BEHALF. 7. THAT THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT HAS ADMITTED THAT AN AMOUNT OF RS 14,85,23,410/- HAS BEEN RECEIV ED BY THE APPELLANT AS INTEREST ON THE LOANS ADVANCED TO THE MEMBER COOPERATIVE SOCIETIES AS PER ITS BYE LAWS. THE ASSESSING OFFICER WHILE COMPLETING THE ASSESSMENT HAS ON THE BASIS OF RULE 8D WORKED OUT RS 77,63,94,666/- AS EXPENSES ATTRIBUTABLE TO THE EARN ING OF INCOME BY WAY OF INTEREST FROM THE MEMBER COOPERATIVE SOCIETIES AT RS 14,85,23,470/- B Y APPLYING THE RATIO OF THE DECISION IN THE CASE OF THE ASSESSEE WITH REGARD TO THE DISA LLOWANCE OF EXPENSES IN VIEW OF THE PROVISION AS CONTAINED U/S 14-A OF THE INCOME TAX A CT. THUS IT IS EVIDENT FROM THE PERUSAL OF THE ORDER OF ASSESSMENT THAT THE ASSESSI NG OFFICER HAS DETERMINED RS 77,63,94,666/- AS EXPENSES TO EARN THE INCOME BY WA Y OF INTEREST AMOUNTING TO RS 14,85,23,470/-. 8. THAT THE HON'BLE P&H HIGH COURT IN THE CASE OF C IT VS. KINGS EXPORT 378 ITR PAGE 100 HAS HELD THAT THE PROVISION OF SECTION 14A RELATES TO THE EXEMPTION AND NOT DEDUCTION. SINCE IN THE PRESENT CASE THE DEDUCTION U/S HAS BEEN CLAIMED UNDER CHAPTER VI TO THE INCOME TAX ACT AS SUCH NO EXPENSES CAN BE AT TRIBUTED IN VIEW OF THE SAID JUDICIAL DECISION OF THE JURISDICTIONAL HIGH COURT. 9. THAT SUBSEQUENTLY THE HON'BLE DELHI COURT IN THE CASE OF CIT VS. KRIBHCO 349 ITR ITA 38/CHD/2017 A.Y.2012-13 PAGE 4 OF 5 PAGE 618 AS HELD AS UNDER: THAT THE TRIBUNAL WAS CORRECT IN LAW IN HOLDING THA T NO DISALLOWANCE COULD BE MADE AGAINST INCOME WHICH WAS NOT SPECIFICALLY EXEMPT UNDER THE ACT. THUS THE PROVISION OF SECTION 14-A ARE NOT APPLICABLE TO THE PRESENT CASE AS IT IS A C ASE OF SPECIAL DEDUCTION U/S 80P AND AS SUCH THE DISALLOWANCE MADE NEEDS TO BE DELETED. 10. THAT THE COMMISSIONER OF INCOME TAX FILED SLP AGAIN ST THE ORDER OF THE DELHI HIGH COURT REFERRED TO ABOVE BEFORE THE HON'BLE SUP REME COURT OF INDIA. THE SAID SLP HAS BEEN DISMISSED. ACCORDINGLY IN VIEW OF THESE FACTS AND CIRCUMSTANCES AND THE LEGAL POSITION IN THIS BEHALF THE DISALLOWANCE U/S 14A IS NOT CALLED FOR. THUS THE DISALLOWANCE MADE AMOUNTING TO RS 77,63,94,666/- BY THE ASSESSING OFF ICER IS BAD IN LAW AND NEEDS TO BE DELETED. 11. THAT THE HON'BLE DELHI HIGH COURT IN ITA NO 548/201 5 VIDE ORDER DATED 23.02.2017 UPHELD THE ORDER OF THE IT AT WITH REGAR D TO THE APPLICABILITY OF RULE 8- DEDUCTION OF THE INCOME TAX ACT. 12. THAT THE APPELLANT ASSESSEE HAS FILED SLP NO 9585 O F 2076 BEFORE THE HON'BLE SUPREME COURT ON INDIA WHERE THE LEAVE HAS BEEN GRANTED TO THE ABOVE NOTED ASSESSEE. A COPY OF THE SAME IS BEING ENCLOSED FOR YOUR PERUSAL AND RECORD.' 4.2 THE CIT(A) CONSIDERING THE SAME, CAME TO THE FO LLOWING CONCLUSION: '6.2 THE ASSESSMENT ORDER AND THE SUBMISSIONS MADE DURING THE COURSE OF APPELLATE PROCEEDINGS ARE PERUSED. IT IS SEEN THAT THIS ISSUE IS COVERED AGAINST THE ASSESSEE BY THE ORDER DATED 10.04.2015 OF ITAT CHANDIGARH BENCH 'A 1 IN THE CASE OF THE APPELLANT FOR A.Y. 211- 12 IN ITA NO. 97/CHD/2015. RESPECTFULLY FOLLOWING T HE DECISION OF HON'BLE ITAT, THE DISALLOWANCE MADE BY THE A.O OF RS. 11,63,94,666/- UNDER SECTION 14A AS PER RULE 8D IS CONFIRMED. GROUND OF APPEAL NO. 2 IS DISMISSED. 4.3 THE ABOVE CONCLUSION ON FACTS AS PER POSIT ION OF LAW APPLICABLE TO THE ASSESSEE ON FACTS, WE NOTICE HAS CONSISTENTLY BEEN FOLLOWED WHICH TILL DATE HAS NOT BEEN UPSET BY ANY HIGHER FORUM. IT IS FURTHER SEEN THAT THE FOLLOWIN G QUESTIONS OF LAW HAVE BEEN RAISED BY THE ASSESSEE BEFORE THE APEX COURT : A. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE THE HON'BLE HIGH COURT WAS CORRECT IN LAW IN UPHOLDING THE ORDERS OF THE ITAT TO THE EFFECT THAT DISALLOWANCE U/S 14A CAN BE MADE AGAINST THE INCOME WHICH IS NOT SPECIFICALLY EXEMPT U/S 10 OF THE INCOME TAX ACT, 1 961? B. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE THE HON'BLE HIGH COURT WAS CORRECT IN LAW IN UPHOLDING THE DECISION OF THE ITA T WITH REGARD TO THE APPLICABILITY OF PROVISION OF SECTION 14A OF THE IN COME TAX ACT EVEN IN RESPECT OF INCOME WHICH HAS BEEN CLAIMED AS A D EDUCTION UNDER CHAPTER VI-A AND MORE SPECIFICALLY U/S 80P(2)(D) OF THE INCOME TAX A CT, 1961? C. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE THE HON'BLE HIGH COURT WAS CORRECT IN LAW IN UPHOLDING THE DECISION OF THE ITA T WITH REGARD TO THE APPLICABILITY OF SECTION 14A TO THE DEDUCTION WHICH FORMED PART OF TOTAL INCOME AS DEFINED IN SECTION 2(45) OF THE INCOME TAX ACT 1 961 PRIOR TO THE DEDUCTIONS CLAIMED U/S 80P(2)(D) ARE LEGALLY SUSTAINABLE IN LA W MORE SO WHEN THERE IS A DECISION OF THE HON'BLE DELHI HIGH COURT IN TH E CASE OF COMMISSIONER OF INCOME TAX VS. KRIBHCO IN ITA NO. 444 OF 2011 IN FA VOUR OF THE APPELLANT AGAINST WHICH THE SLP FILED HAS ALSO BEEN DISMISSED BY THIS HON'BLE COURT? D. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE THE HON'BLE HIGH COURT WAS CORRECT IN LAW IN NOT PLACING RELIANCE ON THE J UDGMENT OF DELHI HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. KRIBH CO IN ITA NO.444 OF 2011, MORE SO WHEN SLP FILED BY THE REVENUE IN THIS HON'B LE COURT WAS ALSO DISMISSED IN LIMINE? E. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE THE HON'BLE HIGH COURT WAS CORRECT IN LAW IN FOLLOWING ITS OWN DECISION EN UNCIATED IN ITA NO. 530 OF 2006 DATED 28.03.2011 AGAINST THE PETITIONER SINCE THE JUDGMENT OF THE HON'BLE HIGH COURT OF DELHI IN THE CAS E OF COMMISSIONER OF INCOME TAX VS. KRIBHCO IN ITA NO. 444 OF 2011 DATED 18.07.2012 WAS PASSED LATER IN TIME AND WAS NOT AVAILABLE THEN? F. WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CA SE THE JUDGMENT AND FINAL ORDER OF THE HON'BLE DELHI IN THE CASE OF COMMISSIO NER OF INCOME TAX VS. KRIBHCO IN ITA NO. 444 OF 2011 WHEREIN THE APPEAL F ILED BY THE RESPONDENT DEPARTMENT HAS BEEN DISMISSED BY REFERRI NG TO VARIOUS JUDGMENTS OF THIS HON'BLE COURT, IS EXHAUSTIVE AND SETTLES THE LAW CORRECTLY ON THE ISSUE EXACTLY THE SAME AS RAISED IN THE PRESENT PETITION. THE JUDGMENT OF THE ITA 38/CHD/2017 A.Y.2012-13 PAGE 5 OF 5 PUNJAB & HARYANA HIGH COURT ON WHICH RELIANCE IS PL ACED DOES NOT LAY THE CORRECT LAW ON THE ISSUE IN HAND? 5. ACCORDINGLY, CONSIDERING THE DECLARATION MADE BY THE ASSESSEE U/S 158A(1) OF THE ACT IN RESPONSE TO WHICH THE REPORT OF THE AO UNDER SUB-SE CTION (2) OF SECTION 158A IS AVAILABLE, WE CONFIRM THE ORDER OF THE CIT(A) RELYING ON PAST PRECEDENT SUBJECT TO THE OUTCOME OF THE DECISION OF THE APEX COURT. THE AO, ACCORDINGLY IS DIRECTED TO PASS AN APPROPRIATE ORDER IN TERMS OF SUB-SECTION (5) OF SECTION 158A WHEN TH E DECISION ON THE QUESTION OF LAW BECOMES FINAL. WITH THE ABOVE OBSERVATIONS, THE AP PEAL OF THE ASSESSEE IS DISMISSED. 5. ADDRESSING THE SOLE ISSUE WHICH THEREAFTER REMAI NS TO BE DECIDED IN THE PRESENT APPEAL IS ADDRESSED IN GROUND NO. 4. 6. THE LD. AR INVITING ATTENTION TO PAGE 22 OF THE APPEAL SET SUBMITTED THAT THE AO NOTICED THAT THERE WAS DISCREPANCY QUA THE INFORMAT ION IN FORM NO. 26AS AND THE BOOKS OF THE ASSESSEE. IN FORM NO. 26AS, IT WAS SUBMITTED T HAT THE AMOUNT REFLECTED WAS RS. 1,64,30,000/- AND AS PER BOOKS OF ACCOUNT, IT WAS A CTUALLY RS. 1,58,50,503/-. INVITING ATTENTION TO COPY OF FORM NO. 26AS, IT WAS SUBMITTE D THAT IT HAS BEEN CORRECTED BY THE DEDUCTOR, IT WAS SUBMITTED THAT INFACT IT WOULD BE EVIDENT THAT THERE IS NO DISCREPANCY IN THE CIRCUMSTANCES. ACCORDINGLY, IT WAS HIS LIMITED PRA YER THAT THE ISSUE MAY BE REMANDED TO THE AO TO VERIFY THE CORRECTNESS OF ASSESSEE'S CLAI M AND ALLOW RELIEF IN ACCORDANCE WITH LAW. 7. THE LD. CIT-DR HAD NO OBJECTION TO THE SAID PRAY ER. 8. ACCORDINGLY, IN THE LIGHT OF THE SUBMISSIONS OF THE PARTIES BEFORE THE BENCH, THE ISSUE AGITATED IN GROUND NO. 4 IS RESTORED TO THE F ILE OF THE AO TO PASS ORDER IN ACCORDANCE WITH LAW AFTER CARRYING OUT THE NECESSARY VERIFICAT ION. 9. GROUND NOS. 1, 2, 3 AND 5 OF THE ASSESSEE RELYIN G UPON PAST PRECEDENT ARE DISMISSED TAKING NOTE OF THE FACT THAT THE PARTIES ON THE BAS IS OF THE APPLICATION MOVED BY THE ASSESSEE U/S 158A HAVE ACCEPTED TO ABIDE BY THE DECISION OF THE APEX COURT IN THE SLP FILED BY THE ASSESSEE WHICH HAS BEEN ADMITTED. 10. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 30.11. 2018. SD/- SD/- ( . .. . # ) ( ) (DR. B.R.R. KUMAR) (DIVA SINGH) $% !/ ACCOUNTANT MEMBER !/ JUDICIAL MEMBER * + %( *+ ,+/ COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. ! ./ CIT 4. ! . ()/ THE CIT(A) 5. +12 3 , # 3 , 56728/ DR, ITAT, CHANDIGARH 6. 27 9'/ GUARD FILE %( ! / BY ORDER, : / ASSISTANT REGISTRAR ITAT,CHANDIGARH.