I.T.O. Ward -2(1), RAIPUR (CG) V. M/S UNIQUE STRUCTURE & TOWER LTD, RAIPUR

ITA 389/BIL/2014

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 8998 (ITAT-RAIPUR)
• Duration Of Justice: 3 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 19-12-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS SHABANA PARVEEN
• Keywords: Deemed to accrue or arise in india; Tax effect
• Section: 43B; 37(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAIPUR BENCH , RAIPUR BEFORE : SHRI N.S.SAINI, A M & SHRI PAV AN KUMAR GADALE, J M ITA NO. 38 9 / RPR /20 1 4 (ASSESSMENT YEAR : 20 11 - 20 12 ) DCIT - 2 (1), RAIPUR(CG) V S UNIQUE STRUCTURES & TOWERS LTD., PLOT NO.263/311 & 268/306, UR LA INDUSTRIAL AREA, URLA, RAIPUR(C.G.) P AN NO. : A AACU 4655 Q (APPELLANT ) .. TSEDNEPSER REVENUE BY : MRS. SHABANA PARVEEN , DR ASSESSEE BY : SHRI NIKHILESH BEGANI , AR DATE OF HEARING : 1 7 / 01 /201 8 DATE OF PRONOUNCEMENT 18 / 01 /201 8 / O R D E R PER SHRI N.S.SAINI , A M : TH IS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A ), RAIPUR , DATED 31.10 .2014 FOR THE ASSESSMENT YEAR 20 11 - 2012 . 2. THE REVENUE HAS TAKEN THE FOLLOWING GROUNDS OF APPEAL : - 1. 'WHETHER IN LAW A ND ON FACTS AND CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF RS. 2,66,671/ - MADE BY THE AO ON ACCOUNTS OF SALE PROMOTION EXPENSES WHICH WAS FOUND NOT ALLOWABLE U/S 37(1) OF THE IT ACT, 1961?' 2. 'WHETHER IN LAW AND ON FACTS & CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN D ELETING THE DISALLOWANCE OF RS. 1,35,000/ - MADE BY THE AO ON ACCOUNTS OF SALE PROMOTION EXPENSES WHICH WAS FOUND NOT ALLOWABLE U/S 37(1) OF THE IT ACT, 1961?' 3. 'WHETHER IN LAW AND ON FACTS & CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF RS. 45,000/ - MADE BY THE AO ON ACCOUNTS OF SALE PROMOTION EXPENSES WHICH WAS FOUND NOT ALLOWABLE U/S 37(1) OF THE IT ACT, 1961?' 4. 'WHETHER IN LAW AND ON FACTS & CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN DELETING THE DISALLOWANCE OF RS. 73,192/ - MADE BY THE AO ON ACCOUNT OF SALE PROMOTION EXPENSES WHICH WAS FOUND NOT ALLOWABLE U/S 37(1) OF THE IT ACT, 1961?' 5. 'WHETHER IN LAW AND ON FACTS & CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) HAS ERRED IN DELETING THE ADDITION OF DEEMED INCOME U/S 2(24)(X) READ WITH SECTION 36(1)(VA) OF RS. 6,31,533/ - MADE BY THE AO AS THE EMPLOYEES CONTRIBUTION TO EPF & ESIC WERE NOT DEPOSITED BEFORE THE DUE DATE?' ITA NO. 3 8 9 /RPR/201 4 2 6. ' WHETHER IN LAW AND ON FACTS & CIRCUMSTANCES OF THE CASE, THE LEARNED CIT (A) HAS ERRED IN DELETING THE ADDITION U/S 43B OF RS. 16,21,709/ - MADE BY THE AO AS THE SERVICE TAX REMAINED OUTSTANDING?' 7. 'THE ORDER OF THE LD. CIT(A) IS ERRONEOUS BOTH IN LAW AND ON FACTS?' 3. AT THE TIME OF HEARING THE AR OF THE ASSESSEE FILED A COMPUTATION SHOWING THAT THE TAX EFFECT IN THE PRESENT APPEAL FILED BY THE REVENUE IS BELOW RS.10 LAKHS. THE COMPUTATION IS AS UNDER : - CALCULATION OF TAX EFFECT S. NO. PARTICULARS AMOUNT (IN RS.) 1 ASSESSED TOTAL INCOME 3,29,62,366/ - TAX ON ABOVE 9 8 ,88,708/ - SURCHARGE@7.50% 7,41,653/ - EDUCATION CESS 3% 3,18,911/ - TOTAL TAX ON ASSESSED INCOME (A) 1,09,49,272 / - ADDITIONS MADE ON VARIOUS GROUNDS CONTESTED BEFO RE THE HON'BLE ITAT RAIPUR BENCH (DISPUTED ADDITIONS ) : A } DISALLOWANCE OUT OF SALES PROMOTION EXPENSES 2,66,671 27,73,1 05/ - B) DISALLOWANCE OUT OF BALES PROMOTION EXPENSES 1 ,35,000 C ) DISALLOWANCE OUT OF SALES PROMOTION EXPENSES 45,000 D ) DISALLOWANCE OUT OF SALES PROMOTION EXPENSES 73,192 E ) ADDITION FOR DELAYED DEPOSIT OF EMPLOYEES CONTRIBUTION TO EPF & ESSC 6,31,533 F) DISA LLOWANCE U/S.43B ON ACCOUNT OF SERVICE TAX 16,21,709 2 ASSESSED TOTAL INCOME REDUCED BY THE AMOUNT OF DISPUTED ADDITION {RS.3,29,62,366 ( - ) RS.27,73,105) 3,01,89,261/ - TAX ON ABOVE 90,56,778/ - SURCHARGE@7.50% 6,79,258/ - EDUCATION CESS @ 3% 2 ,92,081/ - TAX ON ASSESSED TOTAL INCOME REDUCED BY THE DISPUTED ADDITION (B) 1,00,28,117/ - TAX EFFECT ON ABOVE (A - B) 9, 21 , 155/ - ITA NO. 3 8 9 /RPR/201 4 3 HE SUBMITTED THAT IN VIEW OF THE CBDT CIRCULAR NO.21/2015, DATED 10 TH DECEMBER, 2015, APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE AND, HENCE, LIABLE TO BE DISMISSED. 4. ON THE OTHER HAND, LD.DR FOR THE REVENUE HAS NOT CONTROVERTED THE SUBMISSIONS OF LD.AR OF THE ASSESSEE THAT TAX EFFECT IN THE PRESENT APPEAL OF THE REVENUE WAS BEL OW RS.10 LAKHS. 5. WE FIND THAT THE CBDT IN CIRCULAR NO.21/2015, DATED 10 TH DECEMBER, 2015, HAS STATED THAT, AS A MEASURE FOR REDUCING LITIGATION, IT WAS INCREASING THE MONETARY LIMITS FOR FILING OF APPEALS BY THE DEPARTMENT BEFORE THE ITAT AND HIGH COURT S AND SLP BEFORE THE SUPREME COURT. THE SAID LIMIT FOR NOT FILING APPEAL TO THE TRIBUNAL WAS FIXED AT RS.10 LAKHS. THE CBDT HAS FURTHER STATED THAT THE SAID INSTRUCTION SHALL APPLY RETROSPECTIVELY TO PENDING APPEALS AND THAT ALL APPEALS BELOW THE SPECIFIED TAX LIMITS SHOULD BE WITHDRAWN/NOT PRESSED. HOWEVER, APPEALS BEFORE THE SUPREME COURT ARE TO BE GOVERNED BY THE LIMITS OPERATIVE AT THE TIME THAT THE APPEAL WAS FILED. THE SAID CIRCULAR OF THE CBDT IS BINDING ON THE OFFICERS OF INCOME TAX DEPARTMENT. IN V IEW OF THIS, WE HOLD THAT THE PRESENT APPEAL OF THE REVENUE BEFORE THE TRIBUNAL IS NOT MAINTAINABLE AND, HENCE, WE DISMISS THE SAME IN LIMINE . 6 . IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON THURSDAY , THE 18 TH DAY OF JANUARY, 2018 AT RAIPUR. SD/ - ( PAVAN KUMAR GADALE ) SD/ - (N. S. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER RAIPUR ; DATED 18 / 01/2018 . . / PKM , SENIOR PRIVATE SECRETARY ITA NO. 3 8 9 /RPR/201 4 4 / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( SENIOR PRIVATE SECRETARY ) INCOME TAX APPELLATE TRIBUNAL, RAIPUR 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. ( ) / THE CIT(A), 4. / CIT 5. , , RAIPUR / DR, ITAT, RAIPUR 6. / GUARD FILE. //TRUE COPY//