Baramati Talika Sah. Dudh Utpadak Sangh ltd., Pune V. Dy.CIT, Spl. Range-3, Pune

ITA 397/PUN/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 72500 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 04-12-2013
• Assessment Year: 1996-1997
• Appeal Filed On: 29-02-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P L PATHADE
• Keywords: Principle of natural justice

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER, AND SHRI G.S.PANNU, ACCOUNTANT MEMBER ITA NOS.397 & 398/PN/2012 (A.YS.1996-97 & 1998-99) BARAMATI TALUKA SAHKARI DUDH UTPADAK SANGH LTD., TAL. BARAMATI, DIST. PUNE-413102 APPELLANT VS. JT. CIT, SPL. RANGE-3, PUNE RESPONDENT APPELLANT BY : SHRI PRAMOD SHINGTE RESPONDENT BY : SHRI P.L. PATHADE DATE OF HEARING : 04.12.2013 DATE OF ORDER : 31.12.2013 ORDER PER SHAILENDRA KUMAR YADAV, J.M: BOTH THESE APPEALS PERTAIN TO THE SAME ASSESSEE FO R DIFFERENT ASSESSMENT YEARS. SO THESE WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF C ONVENIENCE. 2. IN ITA NO.397/PN/2012, FOR A.Y. 1996-97 THE ASSE SSEE RAISED THE FOLLOWING GROUNDS: 1. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LOWER AUTHORITIES ERRED IN NOT ALLOWING DE DUCTION FOR 'VIKRIYA VIDHI COMMISSION'(REBATE) OF RS.21,42,664/ - WHICH WAS DEBITED TO PROFIT & LOSS ACCOUNT FOR THE F.Y. 1 994-1995 RELEVANT TO THE A.Y. 1995-1996 AND WHICH EXPENDITUR E WAS RATIFIED BY THE ANNUAL GENERAL MEETING OF THE SOCIE TY AND IN RESPECT OF THIS CLAIM THE HON'BLE INCOME TAX APPELL ATE TRIBUNAL, PUNE IN THEIR ORDER FOR A.Y. 1993-1994 DA TED 03/12/2005 IN OUR OWN CASE DISALLOWED DEDUCTION FOR A.Y. 2 1993-1994 HOLDING INTER ALIA THAT THE LIABILITY FOR THIS EXPENDITURE WAS ASCERTAINED IN SUBSEQUENT YEAR. THE REFORE, APPELLANT IS ENTITLED FOR THIS CLAIM IN THIS SUBSEQ UENT YEAR. 2. THE APPELLANT CRAVES FOR TO LEAVE, ADD, ALTER, MODI FY, DELETE, ALTER ABOVE GROUND OF APPEAL BEFORE OR AT THE TIME HEARING, IN THE INTEREST OF NATURAL JUSTICE. 3. THE ASSESSING OFFICER HAS MADE ADDITION OF RS.21 ,42,664/- ON ACCOUNT OF VIKRAYA VRIDHI COMMISSION (DISCOUNT/REBA TE) ON SALE OF CATTLE FEED BY THE ASSESSEE TREATING THE SAME AS BO NUS AND APPLICATION OF MONEY. CIT(A) DISMISSED THIS GROUND BEING NON- ARISING VIDE ORDER DATED 22.02.1999. THE APPEAL HAS WAS RESTORED TO THIS CIT(A) BY ORDER OF THIS TRIBUNAL FOR A.Y. 1994 -98 AND 1995-96. SUBSEQUENTLY, APPEAL WAS RESTORED TO THIS TRIBUNAL FOR A.Y. 1994-95 AND 1995-96, WHICH WAS OBSERVED FROM THE ORDER OF T HIS TRIBUNAL, THE ASSESSEE HAD RAISED ADDITIONAL GROUND IN FIRST ROUND BEFORE CIT(A). IT WAS APPARENT FROM THE ORDER OF THIS TRI BUNAL, WHEREIN THE GROUNDS RAISED BEFORE IT WERE DISCUSSED. AS PER TH IS, SEVEN GROUND WERE RAISED BEFORE THIS TRIBUNAL. GROUNDS 1 TO 6 W ERE RELATING TO DISMISSAL OF APPEAL BY THE CIT(A) AND GROUND NO.7 W AS WITHOUT PREJUDICE TO GROUNDS 1 TO 6 WHEREIN APPEAL WAS FILE D ON MERIT. GROUND NO.7 RAISED BEFORE THIS TRIBUNAL ON MERIT WA S AS UNDER: 'WITHOUT PREJUDICE TO GR. NOS.1 TO 6 ABOVE, IF IT I S TO BE CONSIDERED THAT THE ID. CIT(A) HAS CONFIRMED THE AD DITIONS MADE BY THE AO AND HAS DISALLOWED OR REJECTED THE A DDITIONAL GROUNDS RAISED, THEN THE CIT(A) ERRED IN CONFIRMING THE ADDITION OF THE AMOUNT OF RS.42,70,503/- ON ACCOUNT OF THE M ILK RATE DIFFERENCE AND IN CONFIRMING THE ADDITION OF RS. 16 ,86,220/- ON ACCOUNT OF VIKRI VRIDHAY COMMISSION AND IN REJECTIN G THE ASSESSEE'S ADDITIONAL GROUNDS IN RESPECT OF THE CLA IM FOR DEDUCTION IN RESPECT OF THE MILK ACTIVITY U/S 80P(2 )(A)(III) AND THE CLAIM FOR DEDUCTION U/S 80P(2)(A)(IV) IN RESPEC T OF THE CATTLE FEED ACTIVITY AND THE CLAIM FOR NON TAXABILITY OF T HE RESERVE FUND OF RS.2,05,752/-.' 4. FROM THE ABOVE, CIT(A) OBSERVED THAT ASSESSEE HA S RAISED THE ADDITIONAL GROUND IN RESPECT OF CLAIM FOR DEDUCTION U/S. 80P(2)(A)(III) FOR PROFIT ON MILK SALE, DEDUCTION U/S. 80P(2)(A)(I V) IN RESPECT OF 3 INCOME FROM CATTLE FEED ACTIVITY AND NON-TAXABILITY OF RESERVE FUND OF RS.2,05,752/-. THOUGH FROM THE DOCUMENTS OF ORIGIN AL APPEAL BROUGHT ON RECORD, IT COULD NOT BE OBSERVED THAT TH E ADDITIONAL GROUNDS WERE RAISED BEFORE THE CIT(A) AT THE TIME O F THE ORIGINAL APPELLATE PROCEEDINGS BUT FROM THE GROUND NO. 7 OF APPEAL FILED BEFORE THIS TRIBUNAL BY ASSESSEE, IT WAS FOUND THAT THE ABOVE REFERRED ISSUES WERE APPARENTLY RAISED AS ADDITIONAL GROUNDS DURING THE ORIGINAL APPELLATE PROCEEDINGS. IN SET-ASIDE PROCE EDINGS, IT WAS OBSERVED THAT ASSESSEE MADE THE FRESH ADDITIONAL GR OUNDS VIDE THEIR LETTER DATED 02.05.2009 AND IT WAS SUBMITTED IN THE SAID LETTER THAT THE ASSESSEE HAD EARLIER MADE TWO GROUNDS OF APPEAL AND IN ADDITION TO SAME THEY MADE PRAYER FOR ADMISSION OF A FRESH A DDITIONAL GROUND OF APPEAL AND THE SAME IS REPRODUCED: 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, AND WITHOUT PREJUDICE TO THE GROUNDS ORIGINALLY TAKEN, THE ASSE SSEE BE ALLOWED DEDUCTION FOR VIKRAYA VRIDHI COMMISSION OF RS.24,72,087/- WHICH WAS DEBITED IN THE P&L ACCOUNT FOR F.Y. 1992-93 RELEVANT TO THE A.Y. 1993-94 AND WHICH EXPE NDITURE WAS RATIFIED BY THE ANNUAL GENERAL MEETING OF THE S OCIETY HELD ON 22.9.1993 AND IN RESPECT OF WHICH THE ITAT, PUNE IN THEIR ORDER FOR A.Y. 1993-94 DATED 3.12.2005 IN OUR OWN C ASE DISALLOWED DEDUCTION THEREFORE, FOR A.Y. 1993-94, H OLDING INTER ALIA THAT THIS EXPENDITURE WAS ASCERTAINED IN THE P REVIOUS YEAR RELEVANT TO A. Y. 1994-95.' 5. THE ABOVE SAID CLAIM WAS NOT MADE BEFORE ASSESSI NG OFFICER AT RELEVANT POINT OF TIME, HOWEVER THE MATERIAL FACTS ALSO BEFORE HIM. AS PER THE ASSESSEE, THIS ADDITIONAL GROUND COULD BE T AKEN UP AT THE TIME OF FILING THE ORIGINAL APPEAL AS THE ITAT DECI SION FOR A.Y. 1993- 94 WAS NOT AVAILABLE AT THE RELEVANT POINT OF TIME. THEREFORE, IT WAS CLAIMED THAT THE ADDITIONAL GROUND RAISED TO MAKE A NEW CLAIM FOR DEDUCTION BE CONSIDERED ON MERIT AND ALLOWED. THIS ADDITIONAL GROUND THEREFORE, WAS CONSIDERED IN RESPECT OF ADDI TIONAL GROUND RAISED IN THE SET ASIDE PROCEEDINGS VIDE LETTER DAT ED 02.05.2009. IT WAS NOTED THAT THIS GROUND WAS NOT RAISED BY ASSESS EE AT ANY STAGE TILL THE MATTER WAS DECIDED BY THE ITAT TO SET ASID E THE ISSUE TO CIT(A) TO ADJUDICATE THE MATTER ON MERIT. THE FIR ST RELEVANT ISSUE TO 4 BE CONSIDERED WAS WHETHER IN SUCH PROCEEDINGS A FRE SH GROUND COULD BE RA-ISED OR NOT, CIT(A) OBSERVED THAT IT IS NOT P ERMITTED BECAUSE WHAT WAS RESTORED TO THE CIT(A) FOR ADJUDICATION ON MERIT ARE THE ISSUES WHICH WERE ALREADY BEFORE HIM BUT WERE NOT C ONSIDERED BECAUSE THE CIT(A) DISMISSED THE APPEAL FOR NON- COMPLIANCE. NOT ONLY THIS, EVEN THE ABOVE REFERRE D ADDITIONAL GROUND WAS NOT RAISED BEFORE THE ITAT WHEN THE APPE AL WAS FILED AGAINST THE ORDER OF THE CIT(A). THEREFORE ON THI S, ADDITIONAL GROUND WAS HELD TO BE NOT ENTERTAINABLE. IN ADDITION TO T HE ABOVE, IT WAS OBSERVED THAT THE ASSESSMENT AND THE APPEAL HAS TO BE BROUGHT TO A FINALITY WITHIN A REASONABLE PERIOD OF TIME AND ISS UES CANNOT BE RAISED AT SUCH BELATED STAGE AS IS THE CASE OF THE ASSESSEE. FURTHER, IT WAS AN ADMITTED FACT THAT THE GROUND HAS BEEN RAISE D BY THE ASSESSEE IN VIEW OF THE FINDING OF ITAT. EVEN IN C ASE OF ASSESSEE FOR A.Y. 1993-94 WHERE THIS EXPENDITURE WAS UPHELD TO B E DISALLOWED. IT WAS OBSERVED FROM ORDER OF ITAT IN A.Y. 1993-94 HAS NOT ISSUED DIRECTION TO ALLOW THIS CLAIM IN OTHER YEARS AS BEI NG AS CLAIMED BY ASSESSEE. THEREFORE, ON THESE CONSIDERATIONS, THIS ADDITIONAL GROUND WAS NOT ALLOWED BY CIT(A). THUS, IT WAS RIGHTLY DI SMISSED ON PRELIMINARY ISSUE. THESE REASONED FINDING FACTS NE ED NO INTERFERENCE FROM OUR SIDE. WE UPHOLD THE SAME. 6. SIMILAR ISSUE AROSE IN ITA NO.398/PN/2012 FOR A. Y. 1998-99. FACTS BEING SIMILAR, SO FOLLOWING THE SAME REASONIN G, WE ARE NOT INCLINED TO INTERFERENCE WITH THE FINDINGS OF CIT(A ). 7. IN THE RESULT, BOTH THE APPEALS OF ASSESSEE ARE DISMISSED FOR THE REASONS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT ON THE DAY OF 31 ST DECEMBER 2013. SD/- SD/- (G.S. PANNU) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER PUNE, DATED: 31 ST DECEMBER, 2013 5 GCVSR COPY TO:- 1. ASSESSEE 2. DEPARTMENT 3. THE CIT(A)-I, PUNE 4. THE CIT-I, PUNE 5. THE DR, A BENCH, I.T.A.T., PUNE. 6. GUARD FILE BY ORDER //TRUE COPY// SENIOR PRIVATE SECRETARY, I.T.A.T., PUNE