M/s Durga Films And Trades Pvt. Ltd, Cuttack V. ACIT, Cuttack

ITA 391/CTK/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65172 (ITAT-CUTTACK)
• Duration Of Justice: 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2012
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 21-11-2012
• Assessment Year: 1993-1994
• Appeal Filed On: 15-06-2012
• Court: TRIBUNAL
• Department Lawyers: AYS; WERE HEARD TOGETH
• Keywords: Principle of natural justice
• Section: 234B

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK ( ) BEFORE . . , , HONBLE SHRI K.K.GUPTA, ACCOUNTANT MEMBER. /AND . . . , H ONBLE SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER / I.T.A.NO. 391 & 392/CTK/2012, ITA NOS.90 AND 91/CTK/2007 AND ITA NO.01/CTK/2009 / ASSESSMENT YEAR S 1993 - 94, 1995 - 96 AND 1996 - 97 M/S.DURGA FILMS & TRADES PVT. LTD., TOWN HALL R OAD, CUTTACK 753 009 PAN: AAACDE 140 R - - - VERSUS - ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 2(1), CUTTACK. ( /APPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI B.V.RANGANATH SWAMY, AR / FO R THE RESPONDENT: / SHRI N.K.NEB, DR / DATE OF HEARING: 21.11.2012 / DATE OF PRONOUNCEMENT: 14.12.2012 / ORDER . . . , SHRI K.S.S.PRASAD RAO, JUDICIAL MEMBER . ALL THESE APPEALS PREFERRED BY THE ASSESSEE HAVING BEEN AGGRIEVED BY THE RESPECTIVE ORDERS PASSED BY THE LEARNED CIT(A) FOR THE AYS 1993 - 94, 1995 - 96 AND 1996 - 97 WERE HEARD TOGETHER SINCE THE ISSUES ARE INTER - RELATED WITH EACH OTHER AND ARE NOW BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. ITA NOS.90 & 91/CTK/2007 AND ITA NO.01/CTK/2009 : 2. IN ITA NOS.90/CTK/2007 FOR THE ASSESSMENT YEAR 1993 - 94, 91/CTK/2007 FOR THE ASSESSMENT YEAR 1995 - 96 AND ITA NO.01/CTK/2009 FOR THE ASSESSMENT YEAR 1996 - 97, THE GROUNDS RAISED BY THE ASSESSEE READ AS UNDER : ITA NO.90/CTK/2007 ( ASSESSMENT YEAR 1993 - 94 ) : 1. THAT THE LEARNED COMMISSIONER (APPEALS) IS NOT JUSTIFIED IN SUSTAINING THE ALLOWANCE AT 50% OF THE ADDITIONS TO GROSS I.T.A.NO.391 & 392/CTK/2012, ITA NOS.90 AND 91/CTK/2007 AND ITA NO.01/CTK/2009 2 COLLECTIONS IN THE UNITS M/S. DURGA TALKIES AND M/S. DEVI TALKIES AS EXPENDITURE DIRECTLY RELATED TO SUCH ADDITION. 2. THAT THE LEARNED COMMISSIONER (APPEALS) OUGHT TO HAVE ALLOWED THE NOTIONAL EXPENSES DIRECTLY RELATED TO EARNING THE ESTIMATED ADDITIONS OF GROSS COLLECTIONS IN THE UNITS - M/S. DURGA T ALKIES AND M/S. DEVI TALKIES IN TERMS OF THE ORDERS OF HONBLE TRIBUNAL. 3. THAT THE LEARNED COMMISSIONER (APPEALS) IS NOT JUSTIFIED IN SUSTAINING ADDITION OF THE APPELLANT - COMPANYS CLAIM FOR EXPENDITURE ON ACCOUNT OF INTEREST IN ITS UNIT - M/ S. DE VI TA LKIES. 4. THAT CHARGE OF INTEREST UNDER SEC. 234B OF THE IT ACT IS ERRONEOUS AND UNJUSTIFIED. ITA NO.91/CTK/2007 (ASSESSMENT YEAR 1995 - 9 6) : 1. THAT THE LEARNED COMMISSIONER (APPEALS) IS NOT JUSTIFIED IN SUSTAINING THE ALLOWANCE AT 50% OF THE ADDITION S TO GROSS COLLECTIONS IN THE UNITS M/ S. DURGA TALKIES AND M/S. DEVI TALKIES AS EXPENDITURE DIRECTLY RELATED TO SUCH ADDITION. 2. THAT THE LEARNED COMMISSIONER (APPEALS) OUGHT TO HAVE ALLOWED THE NOTIONAL EXPENSES DIRECTLY RELATED TO EARNING THE ESTIMATE D ADDITIONS OF GROSS COLLECTIONS IN THE UNITS M/S. DURGA TALKIES AND M/ S. DEVI TALKIES IN TERMS OF THE ORDERS OF HONBLE TRIBUNAL. 3. THAT CHARGE OF INTEREST UNDER SEC. 234B OF THE IT ACT IS ERRONEOUS AND UNJUSTIFIED. ITA NO.01/CTK/2009 ( ASSESSMENT YE AR 1995 - 96 ) : 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LEARNED COMMISSIONER (APPEALS) ERRED AND IS NOT JUSTIFIED IN SUSTAINING THE ESTIMATION OF THE NUMBER OF SHOWS EXHIBITED IN THE ASSESSEES UNITS - M/S. DURGA TALKIES AND M/S DEVI TAL KIES AND CONSEQUENTLY SUSTAINING THE ADDITIONS TO THE GROSS COLLECTIONS THERE AT IN THE SUM OF RS. 21,52,111 AND RS. 15,98,766 RESPECTIVELY. 2. THAT THE IMPUGNED APPELLATE ORDER DATED 25.09.2008 IS CONTRARY TO THE FACTS ON RECORD, HAS BEEN PASSED AGAINST THE PRINCIPLES OF NATURAL JUSTICE AND IT IS OTHERWISE UNREASONABLE AND/OR PERVERSE. I.T.A.NO.391 & 392/CTK/2012, ITA NOS.90 AND 91/CTK/2007 AND ITA NO.01/CTK/2009 3 3. BOTH THE PARTIES AGREED THAT THE ISSUES INVOLVED ARE COMMON IN ALL THESE THREE ASSESSMENT YEARS UNDER CONSIDERATION. WE, FIRST TAKE UP ITA NO. 90/CTK/2007 FOR THE ASS ESSMENT YEAR 1993 - 94. 4. BOTH THE PARTIES WERE HEARD REGARDING THE ISSUES RAISED BY THE ASSESSEE AND THEIR LEGAL IMPLICATIONS. 5. ON CAREFUL CONSIDERATION OF THE MATERIAL MADE AVAILABLE TO THE TRIBUNAL IN THE LIGHT OF THE SUBMISSIONS OF BOTH THE PARTIES , T HE UNDISPU TED FACTS RELATING TO THE ISSUES ARE THAT ORIGINALLY THE ASSESSING OFFICER PASSED THE ORDER U/S.143(3) AND THAT WAS APPEALED BEFORE THE CIT(A) AND THEREAFTER TO THE TRIBUNAL AND THE TRIBUNAL HAS PASSED ITS ORDER DT.14.6.2004.AGGRIEVED BY THIS ORD ER, THE ASSESSEE PREFERRED APPEAL BEFORE THE HONBLE ORISSA HIGH COURT AND IT IS PENDING ADJUDICATION BY THE HONBLE COURT. BUT THE ASSESSING OFFICER HAS PASSED THE CONSEQUENTIAL ORDER U/S.143(3)/254 ON 31.3.2006 IN COMPLIANCE TO THE DIRECTION OF THE TRIBU NAL GIVEN ITS ORDER DT.14.6.2004. THESE FACTS CLEARLY INDICATE THAT THE ISSUES ARE PENDING ADJUDICATION BEFORE THE HONBLE HIGH COURT OF ORISSA IN THE APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THIS TRIBUNAL DT.14.6.2004. WHEN THE ISSUES ARE PENDING ADJUDICATION BEFORE HONBLE HIGH COURT , IT IS NOT PERMISSIBLE TO ADJUDICATE ON THE VERY SAME ISSUES AT THIS FORUM . UNDER THESE FACTS AND CIRCUMSTANCES WE FEEL IT APPROPRIATE TO RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO AW AIT FOR THE ORDERS OF THE HONBLE HIGH COURT ON THE APPEAL PREFERRED BY THE ASSESSEE AGAINST THE TRIBUNALS ORDER DT.14.6.2004 AND MAKE THE ASSESSMENT DE NOVO ON THE ISSUES AS STATED SUPRA IN ACCORDANCE WITH THE DECISION OF HONBLE HIGH COURT TO BE GIVEN I N THE APPEAL PREFERRED BY THE ASSESSEE AGAINST THE TRIBUNALS ORDER AND PASS NECESSARY ORDERS AS PER LAW OF COURSE STRICTLY FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE . SINCE THE ISSUES ARE SAME IN OTHER TWO ASSESSMENT YEARS I.E.,1995 - 96 AND 1996 - 97 I.T.A.NO.391 & 392/CTK/2012, ITA NOS.90 AND 91/CTK/2007 AND ITA NO.01/CTK/2009 4 AS IN ASSESSMENT YEAR 1993 - 94 AS ADMITTED BY BOTH THE PARTIES, WITH SIMILAR DIRECTION WE RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER. ITA NOS.391 AND 392/CTK/2012 (AYS 1993 - 94 AND 1995 - 96) : 6. IN THESE TWO APPEALS, THE ASSESSEE HAS DISPUTED THE PENAL TY LEVIED U/S.271(1)(C) OF THE I.T.ACT,1961 FOR THE AYS 1993 - 94 AND 1995 - 96. 7. HAVING HEARD BOTH THE PARTIES AND PERUSING THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW, IT IS SEEN THAT BASING ON ADDITIONS MADE IN THE QUANTUM ASSESSMENT, THE PRESENT PENALT IES HAVE BEEN LEVIED . IN RESPECT OF QUANTUM ADDITIONS MADE IN THESE TWO YEARS I.E., 1993 - 94 AND 1995 - 96, FOR THE REASONS DISCUSSED IN PARAGRAPHS 2 TO 5 OF THIS ORDER , WE HAVE RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR MAKING DE NOVO ASSES SMENT IN ACCORDANCE WITH THE DECISION OF HONBLE ORISSA HIGH COURT TO BE GIVEN IN THE APPEAL FILED BY THE ASSESSEE BEFORE THE HONBLE HIGH COURT FOR THE ASSESSMENT YEAR 1993 - 94. IN THIS VIEW OF THE MATTER, WE SET ASIDE THE IMPUGNED ORDERS OF THE AUTHORITIE S BELOW AS REGARDS IMPOSITION OF PENALTY U/S.271(1)(C) AND RESTORE THE MATTER S TO THE ASSESSING OFFICER FOR RECONSIDERATION OF THE PENALTY ACCORDING TO THE RESULT OF QUANTUM ASSESSMENTS FOR THE IMPUGNED TWO AYS 1993 - 94 AND 1995 - 96, AND PASS NECESSARY ORDER S AS PER LAW OF COURSE STRICTLY FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE. 8. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSE. S D/ - S D/ - ( . . ) , , (K.K.GUPTA), ACCOUNTANT MEMBER. ( . . . ) , (K.S.S.PRASAD RAO), JUDICIAL MEMBER ( ) DATE: 14.12.2012 ( ), (H.K.PADHEE), SENIOR.PRIVATE SECRETARY. I.T.A.NO.391 & 392/CTK/2012, ITA NOS.90 AND 91/CTK/2007 AND ITA NO.01/CTK/2009 5 - COPY OF THE ORDER FORWARDED TO: 1 . / THE APPELLANT : M/S.DURGA FILMS & TRADES PVT. LTD., TOWN HALL ROAD, CUTTACK 753 009. 2 / THE RESPONDENT: ASST.COMMISSIONER OF INCOME - TAX, CIRCLE 2(1), CUT TACK. 3 . / THE CIT, 4 . ( )/ THE CIT(A), 5 . / DR, CUTTACK BENCH 6 . GUARD FILE . / TRUE COPY, / BY ORDER, APPENDIX XVII SEAL TO BE AFFIXED ON THE ORDER SHEET BY THE SR. P.S./P.S. AFTER DICTATION IS GIVEN 1. DATE OF DICTATION 05.12.2012 . 2. DATE ON WHICH THE TYPED DRAFT IS PL ACED BEFORE THE DICTATING MEMBER 06.12.2012 OTHER MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.... 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S . 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 14.12.2012 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER ................ 9. DATE OF DESPATCH OF THE ORDER ..