The ITO, Ward-5(2), Ahmedabad V. Prerak Trading Pvt.Ltd., Ahmedabad

ITA 3865/AHD/2007

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 5805 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-07-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 07-07-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 15-10-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S SAANDHU
• Assessee Lawyers: P M MEHTA
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD AHMEDABAD D BENCH BEFORE SHRI G.D. AGARWAL, VICE-PRESIDENT (AZ) AND SHRI MAHAVIR SINGH, JUDICIAL MEMBER ITA NO.3865/AHD/2007 [ASSTT.YEAR: 2001-02] INCOME TAX OFFICER, WARD-5(2), -VS- PRERAK TRADING PVT. LTD. C.U. SHAH COLLEGE BLDG., 2 ND C-1, VINAYAK APARTMENT FLOOR, AHMEDABAD OPP. SWATI SOCIETY, NAVRANGPURA, AHMEDABAD PAN NO.AABCP2993B (APPELLANT) (RESPONDENT) REVENUE BY : SHRI B.S. SAANDHU, CIT-DR ASSESSEE BY: SHRI P.M. MEHTA, AR O R D E R PER MAHAVIR SINGH, JUDICIAL MEMBER:- THIS APPEAL BY REVENUE IS ARISING OUT OF THE ORDER OF COMMISSIONER OF INCOME-TAX (APPEALS)-XI, AHMEDABAD IN APPEAL NO. CI T(A)-XI.224/2006-07 DATED 02-08-2007. THE ASSESSMENT WAS FRAMED BY ITO, WARD- 5(2), AHMEDABAD U/S.144 R.WS. 263 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 27-11-2006 FOR ASSESSMENT YEAR 2001-02. 2. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE, SHRI P.M. MEHTA STATED THAT THIS APPEAL FILED BY THE REVENUE IS AGAINST THE REL IEF GRANTED BY CIT(A) IN THE ORDER PASSED BY THE ASSESSING OFFICER DATED 27-11-2006, G IVING EFFECT TO ORDER PASSED U/S.263 OF THE ACT, BY CIT-III DATED 27-03-2006. T HE ORDER PASSED BY CIT U/S.263 DATED 27-03-2006 WAS CHALLENGED BEFORE ITAT IN ITA NO.1303/AHD/2006 , AND THE TRIBUNAL VIDE ORDER DATED 03-04-2009 HAS QUASHED TH E PROCEEDINGS U/S.263 OF THE ACT. BY GIVING FOLLOWING FINDING IN PARA-4 :- ITA NO.3865/AHD/2007 A.Y. 2001-02 ITO WD-5(2), ABD V. PRERAK TRADING PVT. LTD . PAGE 2 4. WE ALSO NOTED THAT THE ASSESSEE HAS ALSO GONE I N APPEAL ON BOTH THE ISSUES REGARDING THE DEPRECIATION ON THE HARDWARE O F RS.41,35,800/- AS WELL AS THE ADDITION MADE IN THE TRADING ACCOUNT IN RESP ECT OF SALES SHOWN BY THE ASSESSEE AT RS.2,99,21,054/- BY DISTURBING THE SALE S FIGURE SHOWN BY THE ASSESSEE. BOTH THE ISSUES HAVE DULY BEEN CONSIDERED BY THE CIT(A) IN HIS ORDER DATED 27-10-2005 UNDER PARAGRAPHS 4.3 AND 10. 1 AND 10.2 OF THE ORDER. EXPLANATION(C) OF SECTION 263 DEBARS THE CIT TO INV OKE THE PROVISIONS OF SECTION 2643 IN RESPECT OF MATTES HAS HAVE BEEN CON SIDERED AND DECIDED IN APPEAL. IN VIEW OF THIS CLEAR PROVISION, IN OUR OPI NION, THE CIT DID NOT HAVE THE JURISDICTION TO INVOKE THE PROVISIONS OF SECTION 26 3 ON THE POINTS / MATTES AS HAVE BEEN CONSIDERED AND DECIDED IN THE APPEAL BY T HE CIT(A). IN VIEW OF THIS CLEAR PROVISION WE ARE OF THE VIEW THAT THE CIT HAS INVOKED THE PROVISIONS OF SECTION 263 MERELY IN A MECHANIC MANNER AND, THEREF ORE, THE ORDER OF THE CIT U/S.263 IS NOT SUSTAINABLE IN LAW IN VIEW OF THE SP ECIFIC PROVISIONS UNDER CLAUSE (C) TO SECTION 263. WE ACCORDINGLY ANNUL THE ORDER PASSED BY THE CIT U/S.263 OF THE ACT. 3. WE FIND FROM THE ABOVE THAT THE REVISION ORDER P ASSED BY THE CIT U/S.263 OF THE ACT IS ANNULLED, THE CONSEQUENTIAL ORDER GIVING EFFECT TO THE ORDER OF CIT WILL NOT SURVIVE. ACCORDINGLY, THIS APPEAL OF THE REVENUE I S DISMISSED. 4. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED ON THIS DAY OF 7 TH JULY,2010 SD/- SD/- ( G.D.AGARWAL ) ( MAHAVIR SINGH ) (VICE PRESIDENT) (JUDICIAL MEMBER) AHMEDABAD, DATED : 07/07/2010 *DKP COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)-XI, AHMEDABAD 4. THE CIT CONCERNS. 5. THE DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER, /TRUE COPY/ DEPUTY / ASSTT.REGISTRAR ITAT, AHMEDABAD